Archives: Maplewood Divorce Attorneys

Early in case where children are involved, we discuss the different types of custody.  There is residential custody – i.e. who the children live with and the resulting parenting time for the other parent. Then there is legal custody which is decision making regarding issues of the health, education, religion and general welfare of the kids.  in 99% of the cases, the parties will share joint legal custody – it is usually a no brainer.  in fact, In the New Jersey Supreme Court’s seminal decision of Beck v. Beck, 86 N.J. 480, 497-501 (1981), the Court stated as follows with regard to whether joint custody should be awarded:

At a minimum both parents must be ‘fit’ that is, physically and psychologically capable of fulfilling the role of parent.

That said, the minimum requirement of joint legal custody is the ability to communicate and cooperate on some basic level as it relates to the best interests of the children.  The Court in Beck further noted:

The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. . . [W]hen the actions of [an uncooperative] parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

Again, in Beck, the Supreme Court of New Jersey has written:

The most troublesome aspect of a joint custody decree is the additional requirement that the parents exhibit the potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to exclude their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Beck v. Beck, 480, 498 (1981).

Continue Reading HOW CAN THERE BE JOINT LEGAL CUSTODY IF THE PARTIES CANNOT COOPERATE AND REFUSE TO COMMUNICATE?

We have all seen and heard those familiar words in the title of this entry in moves or on TV.  This is part of the "Miranda" warning administered by a police officer when they are arresting someone.  Do these words also have a place in divorce court?  Not in the same way, but in reality they do.

Other than settlement communications, attorney/client and other privileged communications, everything else is just about fair game.  That is why Facebook, emails and texts have become such a treasure trove in divorce cases as people freely put things in writing that they might not otherwise say, and perhaps even broadcast it to the world.

But what about what you say in another court in another case?  Can that be used against you?  Sure can.  The concept is called judicial estoppel, and it was on display again yesterday in the unreported (non-precedential) decision from the Appellate Division in Romano v. Romano.

Without getting in to all of the details of this case, the relevant details relating to judicial estoppel are as follows,  On the wife’s name was on the deed of the marital home, a finding made by a judge during a domestic violence trial, despite the husband claiming he was on the deed.  Thereafter, the husband filed for bankruptcy relief.  In that filing, he answered "none" on the part of petition asking if he had a legal or equitable interest in any real property.  In the later divorce case, he listed the aforementioned home as a marital home subject to equitable distribution. 

The trial judge awarded the home to the wife based on the husband’s representation to the bankruptcy court that he had no interest in the property.

Continue Reading Everything You Say Can and Will Be Used Against You in a Court of Law – Especially if you said something different in another court

Right before the Thanksgiving holiday the NJ Appellate Court came out with an unpublished decision yet again reminding trial courts when permanent alimony should be permanent and not something else.  While there is no bright line, black and white rule written about the magic number of years that would entitle a spouse to permanent alimony, there are certainly some general facts that assist attorneys and judges alike in determining when a case is appropriate for permanent alimony.  This decision reminds us of those.

In the matter of Happold v. Happold, A-2792-10T1, decided November 21, 2011, the Appellate Court reversed and remanded (to a new judge in the trial court) a decision, which awarded the Wife 10 years of limited duration alimony instead of permanent alimony.  The relevant facts are as follows:

1. The parties were married for 21 years at the time the Complaint for Divorce was filed.

2. The parties were ages 42 and 43 at the time of the Complaint.

3. Three children were born of the marriage, one was emancipated before the trial.

4. The Wife became pregnant with the parties’ first child at the age of 16, when she was in the 10th grade.  Husband was in 11th grade at the time.  Wife dropped out of high school only completing a 9th grade level of education.  Husband continued in school and graduated.

5. One year after their first child’s birth, Wife moved into Husband’s parents’ home with Husband.  Wife never worked outside the home during this time.  Husband completed high school and began working.

6. The parties’ two other children were born in 1993 and 1995.  While Husband worked outside the home and his career continually advanced, Wife remained at home as the sole caretaker for the children and the home.

7. During the marriage, Husband controlled the parties’ finances except for a jointly held savings account intended to give Wife immediate access to money if Husband died.

8. At the time of the trial and during the last year of the marriage, Husband’s income was $238,500 and $215,000 respectively.

Continue Reading In a Long Term Marriage, Length of Marriage May Trump Age in the Alimony Calculus

Yesterday, I blogged about the constitutional protections given to parents when in a custody dispute with a grandparent, including whether a psychological parent receives the same protections that a biological parent receives in such disputes (the answer is no – but you knew that because you read yesterday’s post.)

A related topic is what is the standard to apply when a biological parent is in a custody dispute with a third party.  On the same day that the Appellate Division decided the case I blogged about yesterday, they also decided the case of Schwear v. Prigge and Schwear though that case is unreported (non-precedential). This case involved a custody dispute between a natural mother and her child’s paternal uncle.  I will spare you the tortured history of the case and focus on what the law is. 

Custody disputes between a natural parent and a third party are governed by Watkins v. Nelson, 163 N.J. 235 (2000).  As the Court in Schwear noted:

In such a dispute, there is a presumption in favor of the natural parent which arises from a parent’s "fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and is "rooted in the right to privacy." … The parent’s right to custody is not absolute, however.The presumption in favor of the parent will be overcome by "a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances’ affecting the welfare of the child[.]" 

When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of "unfitness" or "exceptional circumstances."
If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. (Citations omitted).

The rights of a parent have constitutional implications.  As such, whenever they might be abridged, there is a heightened scrutiny that much be applied.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

In cases where a party owns a business, as justification for a disproportionate split of the business in equitable distribution, we often hear that the titled spouse has to be rewarded for their effort, ingenuity, ideas, etc. related to the business.  While arguably those things could be part of the analysis of the statutory factors, there really is not any law suggesting that this must be so.  In fact, the real justification that I can really get my arms around as to why a business would be disproportionately distributed is the fact that it is often pregnant with capital gains.  While the law is pretty clear that we cannot reduce the value because of hypothetical tax consequences, we can certainly look to same in the percentage distribution.  This makes sense because the failure to do so may actually give the non-titled spouse a greater percentage if taxes are ignored.

That said, I have heard this "sweat equity" argument over the years but have rarely seen a case where it was articulated.  That is until today when the Appellate Division released the unreported (non-precedential) opinion in Falkowski v. Falkowski.

In this case, the husband renovated two homes., purportedly without the assistance of the wife. The first was a premarital home which he renovated during the marriage.  The second, renovated after the parties’ child was born and she left the workforce, was purportedly done on his days off (he worked full time as well.)  For the first house, the husband’s "sweat equity" garnered him an additional 5% of the equity in the asset.  For the second home, the husband received 65% and the wife 35%.  In so ruling, the judge said:

[Husband] worked for five years to build that house into what it is, I gather, today. The testimony was pretty clear. Aside from the fact that [wife] had no say in it, and [husband] did all this with his friends, over five years he gutted everything to the frame. And he replaced everything. And he was fairly passionate when he testified about it too, all the work he did.

. . . . [I]t was a monumental amount of work. I was impressed with the fact that he
basically took the house down to its bare frame and bare rafters and built the entire
thing over. For those reasons I am not splitting this asset equally either. I
believe it’s fairer to recognize that sweat equity and give him 65% of the net value and give [wife] 35% of the net value.

Continue Reading Husband's Sweat Equity Awards Him Greater Share of Marital Real Estate – Is a Slippery Slope Afoot?

Previously, Sandra Fava, a contributor to this blog, did a piece on preparing for the initial divorce consultation with a lawyer.  The process, however, starts even before that.  On our web site, we have an advice piece entitled Preparing for the Divorce Process

Since it is linked to this post, I will not repeat everything contained in the piece.  However, the topics contained in that piece are as follows:

  1. Speak to an attorney now, not later
  2. Selecting the right attorney (including how to get referrals for an attorney)
  3. Gathering documentation
  4. Preparing for the initial meeting
  5. Telling the truth
  6. Keeping a diary; and
  7. Trusting your attorney for legal advice (as opposed to friends, family members, co-workers, etc.)

Do I stay or do I go? This is not an easy question to answer. However, if you are even
contemplating a divorce, divorce planning (and not in the nefarious way that often goes with this phrase) is essential, especially in difficult economic times.  Divorce can be a long, highly charged, expensive process – emotionally and economically. Being prepared and keeping
perspective, at least as much as humanly possible, can help you save time and legal fees
while protecting your and your children’s interests.

Last year I wrote the indented piece below about the "New Year’s Resolution Divorce."  We got a lot of response to that post, including it being cited elsewhere, so I thought I would re-run it.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year.  Out of curiosity, I typed "New Years Resolution Divorce" into Google and got 540,000 results in .29 seconds.  While not all of the search results were on point, many were extremely interesting.  It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays.  Another article linked above attributed it to "new year, new life".  Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships.  Family, financial woes, etc. associated with the holidays add to the stress.  Turning over a new leaf to start over and improve ones life was another reason given.  This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children.  There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year.  These people tend to be in the "improving ones life" camp. 

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin. 

In 2010, the phenomena started early for us and many other attorneys.  We were contacted by more people in December than in any year in recent memory.  Moreover, we have heard of more people telling their spouse it "is over" before the holidays this year.  I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause.  In other cases, the person just didn’t want to wait until the new year to advise their spouse.  Whatever the reason, we await those who see 2011 as a chance for happiness or a fresh start.  Happy New Year?!?!

I suspect that anyone that read my last blog might think that I am against shared custody or that I believe it to be impossible.  That is not the case.  Rather, my point in that post was to address possibly bad faith requests for joint custody by those people who have historically neither spent a lot of time with the children nor did much of the actual parenting.

But shared parenting time is not an impossibility.  Supposedly, it requires parents who have the ability to communicate and cooperate.  That said, I have seen parents who cannot have a civil word with each other effectively co-parent. 

Shared parenting, by New Jersey standards, is anything between 28% (104 overnights) and 50% of the overnights with the children.  Curiously, these definitions actually stem from the child support guidelines.  When the newest iteration of the Guidelines came into being in 1997 or 1998, they had two different worksheets – a sole parenting worksheet and a shared parenting worksheet (104 overnights and over).  While non-custodial parents now got child support reductions with each overnight, the credit was greater using a shared parenting worksheet. As a result of the new guidelines, negotiations over additional overnights began, in many cases for obvious reasons.

Continue Reading Shared Custody – It is a Possibility

On June 15, 2010, the New York Times reported on several proposed new laws affecting family law practice in New York.  One was to adopt no-fault divorce, which has long been proposed and long been opposed. At present, one still must prove fault grounds for divorce in order to get a divorce.  This has lead to protracted litigation that some have called cruel and unnecessary.  As the no-fault bill has finally passed the Senate, there is an expectation that it will also pass the assembly.

New Jersey has had no fault divorce for many years, though in actuality, it has really been prevalent for the last 4 years or so when "irreconcilable differences" were added as a cause of action.  Prior to that, the only no-fault ground was 18 month separation.  As most people did not want to wait 18 months, the majority of divorce complaint alleged "extreme cruelty" that made it unreasonable and improper to require the parties to remain married.  In many ways this was somewhat bogus because there was rarely any real testimony about the allegations other than to re-affirm that what was in the complaint was true and correct and if asked to testify about it at length, the testimony would be substantially the same. 

That said, despite telling parties not to worry about it and not to get upset about it, they almost always did (not to mention that there was no a public record of very private gripes).  As such, the other party would then file a counterclaim alleging their own version of "cruelty."  Thankfully, irreconcilable differences has in most cases done away with the need to go through the financial and emotional expense of this type of Complaint (though there are times when it is still necessary for other reasons). 

The only thing that I miss as a divorce lawyer in not reviewing the cruelty complaint and counterclaim is that it may take a little longer to really understand the dynamic between the parties that often would come out loud and clear in their initial pleadings.  That said, no-fault is still better in most cases.

In an unreported (non-precedential) decision in the case of Brown v. Brown  released on May 25, 2010, the Appellate Division determined that veterans disability benefits and social security benefits are income for purposes of determining alimony.  In this appeal of an Order that granted some alimony reduction but not as much as the former husband sought, the facts are not particularly interesting.  That said, what was interesting was that the reduction was not as much sought (and in actuality, the ex-husband sought an elimination of alimony, because the court considered the veteran’s disability pension and Social Security over his objection.  In fact, he tried to argue that the spendthrift provisions (provisions that prevent creditors from attacking certain assets/benefits) in the relevant federal laws prevent such consideration but the Court noted that a spouse seeking support was not a creditor within the meaning of the law.

The matter was, however, remanded because the trial court did not analyze the statutory factors when reducing the support.  As noted in my blog last week about the Walsh case, when dealing with a motion to modify alimony, once the Court determines ta ht there is a change of circumstances, they have to look at the needs of both parties.  In fact, if the Court makes an initial finding of a change of circumstances, the court must analyze how much the alimony should be in a modification application the same way it would in an initial alimony application.