Mendham Divorce Attorneys

Ah, that unforgettable line uttered by Veruca Salt in Willy Wonka and the Chocolate Factory.  As a matrimonial attorney, this is what it feels like we deal with quite often.  But I am not referring to people just being demanding, I am talking about people making unreasonable demands, with no apparent justification in law or in fact.  In fact, I have had enough of “my client just wants”, “that’s not enough” and “I know that a court would never do that but my client insists” over the last several months to last me a career.

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Some examples have been, in no particular order, demands for child support that exceed what the Guidelines would require by 7 to 10 times; demands for combined alimony and child support representing 60% or more of pre-tax income; demands for a buy out on the house for higher than the agreed upon value less the agreed upon mortgage; demands to share in exempt inheritances, trusts or family gifts that were never commingled; demands that one party get most of the marital assets because they were held in her name, though not exempt; demands for more than half of the assets, or 100% of the house free and clear of the substantial mortgage debt “because you caused the divorce.”

It is bad enough when an a litigant, who is uneducated about the law makes these demands.  That is to be expected because of ignorance of the law or raw emotions clouding judgment or both.  It is quite another thing when the client’s lawyer makes the demand, knowing that there is no rational or legal basis for the request.  As a younger lawyer, I remember incredulously asking an adversary, “Is your client really seeking 80% of the assets and 90% of my client’s net income?” to which the answer was yes.  Inevitably, when they are called on it, they sell their client out, saying how unreasonable they are, but they are just doing what they have been instructed to do.  Is that response good enough?  First, you wonder if they ever actually educated their client on the law (or whether they know it themselves).  If they have educated the client, is it proper to make a demand that is unreasonable, if not bad faith?

On the other side of the equation there may be the litigant that is willing to negotiate a reasonable resolution within the expected settlement parameters based upon the facts of the case (though often, water finds is level and where there is one unreasonable party, their spouse may be their mirror image in that regard.)  But what is the reasonable litigant to do?  They are often left with having to make the  “Hobson’s choice” of capitulating to the unreasonable party, or incurring the cost of litigation.  Worse yet, I have seen mediators, early settlement panelists, and even judges, try to pressure the reasonable party to settle because the other party wont budge, or split differences between the reasonable proposal and the unreasonable demand resulting in a slightly less unreasonable proposed resolution.  That said, I have seen these same judges, mediators or panelists use the threat that the unreasonable party may be required to pay the other party’s counsel fees as an effective deterrent.  Unfortunately, usually by that time, a lot of money has already been spent for something that should probably have been nipped in the bud from day one.

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Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Whether it is because of busy dockets or the fact that the issues could be hard to decide, especially without a plenary hearing, the use of parent coordinators (PC) began becoming more frequent about 10 years ago.  Sometimes it was by consent but other times, it was foisted upon warring parties whether they wanted it or not.  A new reality of “let the parenting coordinator referee the disputes” became a new reality for many.  In fact, in 2007, the Supreme Court implemented a pilot program for the use of parent coordinators in several counties which had both guidelines and a model order.  The goals were laudatory:

A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.

The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

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What was clear was the “The Parenting Coordinator may not make any modification to any order, judgment or decree, unless all parties agree and enter into a consent order” though this was often honored in the breach and PCs were vested with far more authority than the law allowed.

The issue that then came up was whether a Parent Coordinator appointed in a non-pilot program county had to follow the Supreme Court Guidelines.  We and others had cases where we objected to what we believed was the PC overstepping their roles and heard both PCs and court’s say that they were not bound to the pilot program guidelines.  The Appellate Division disagreed in Milne v. Goldenberg, a reported decision that we previously blogged on.

In 2012, the pilot program ended, however, the use of parent coordinators was not abolished.  Rather, court’s could still appoint PCs and parties could agree to use them.  Does that mean that a court could simply defer decision making to the PC?  Once again, the answer was a resounding no in the case of Parish v. Kluger, an unreported (non-precedential) decision of the Appellate Division decided on March 17, 2016, which was the latest chapter in the long standing litigation between these parties.  In fact, I was involved in the original reported decision in this matter dealing with similar issues, as we blogged on in 2010.  In that decision, the Appellate Division held that judge’s must decide enforcement motions, noting:

We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.

The Court also made clear that parent coordinators could not address enforcement issues nor could they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.

One would think that with this history in this case, that it couldn’t happen again, but it did.  In the 2016 decision, the Appellate Division wrote:

If, as plaintiff claimed, defendant was preventing him from exercising parenting time as per the MSA, then he was entitled to a remedy. If, as defendant claimed, plaintiff failed to exercise his parenting time out of disinterest, then the court’s decision to not alter parenting time was appropriate. The court should have resolved that dispute. When the court’s decision is considered in its entirety, it could be interpreted – as plaintiff has interpreted it – to vest in the parenting coordinator the resolution of the parties’ conflicting positions as to why the MSA parenting plan was not working. The court has no authority to delegate its decision making to a parenting coordinator. Further, a trial court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”

That last sentence is important, “…court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”  Too often, PC orders would expressly or impliedly give the PC the final say, with the trial court as a rubber stamp and/or requiring the losing party to file a motion so that the PC’s recommendation would not become a de facto Order.

The takeaway from this case is clear.  PC’s don’t make decisions.  Court’s make decisions.  Court’s cannot tell parties to follow a recommendation of a PC in advance, and moreover, even after it is issued, without fully assessing the issues and making independent fact findings.  Given that this is the case, in the real high conflict cases where one of the parties is inevitably going to oppose a PC recommendation and take the issue to court, what is the point of having a PC in the first place?

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Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

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I see it all the time.  The fight rages on for the fight’s sake.  Each party sure that they are right.  Each party insistent that they must win.  The lawyers pile on, adding fuel to the fire.  Worse yet, some times this happens when the major issues are resolved and the battle continues because of minor issues or non-issues.

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In these cases, sometimes the parties don’t even know that they are as close to settlement as they are. Often, they don’t quantify the remaining amount in dispute to figure out that right or wrong, they will never in a lifetime recoup the legal fees it will cost to be right.  Clearly, they don’t consider the emotional cost being right is exacting and/or the value of putting the issue behind you.

Now some people will continue to fight because the fight is all they have left of the marriage or they are otherwise emotionally unable to let go and move on.  In those cases, you may have to wait them out, as we have blogged about in the past.

Some times, it is better to avoid the fight altogether and compromise the number.  As I have said before, sometimes it is better to look at the big picture and negotiate numbers as opposed to how you got to the number because you may ultimately agree to compromise on the number but will never agree how you got there.

However, most people are sane and rational when removed from the stress of the divorce.  Sometimes, you need to take a step back and figure out which issues there is agreement on and which issues remain open.  For the issues that remain open, it is then wise to quantify them to see how much is really at stake.  Figure out what you would get if you won and if you lost and also look at the midpoint.  Then think about how much it is going to cost to get a decision and decide (1) does the cost exceed the amount at issue and (2) is it worth losing the resolution on the major issues?

Most importantly, figure out if it is really worth it to be right or whether it is better to be done.


Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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It is not uncommon to get in an expert report from the other side that makes you scratch your head.  Maybe it is well written  Maybe it is very interesting.  Hopefully the math is right.  Maybe it is even very persuasive.  The reason why you are scratching your head, however, is that the factual basis of the report seems to have bare no relation to the actual, provable facts of the case.  Rather, the report relies on supposition, innuendo, theory, hypothetical facts, etc.  What it doesn’t rely on, however, is the actual facts of your case.

24082729_sSo what do we do?  We complain to the judge and maybe even file a motion to strike the report.  As lawyers, how often have we heard judges fudge the application of the rules of evidence and dismissively say, “I’ll let it in – your objection goes to the weight”?  That said, if it is true “net opinion” -meaning an expert opinion that cannot be relied upon, the objection is about whether the report and testimony in the first place, and not what weight the judge, as the trier of fact gives to it.

Yesterday, the Supreme Court reminded us what the proper standard is, and more importantly, that an expert report must be based upon the evidence in the case, in the case of Townsend v. Pierre.  Though this was a personal injury case, the same principles apply to family law cases. The facts in that case are not relevant for this discussion except for the fact that the ultimate facts were not in dispute.

As to expert opinions and net opinions, the Supreme Court reminded us that:

N.J.R.E. 703 addresses the foundation for expert testimony. It mandates that expert opinion be grounded in “‘facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.’” Polzo, supra, 196 N.J. at 583 (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). The net opinion rule is a “corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” Ibid. The rule requires that an expert “‘give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.’” Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372); see also Buckelew, supra, 87 N.J. at 524 (explaining that “an expert’s bare conclusion[], unsupported by factual evidence, is inadmissible”).  …

The Court went on to note that:

The net opinion rule, however, mandates that experts “be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.” Landrigan, supra, 127 N.J. at 417. An expert’s conclusion “‘is excluded if it is “‘based merely on unfounded speculation and unquantified possibilities.’” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (quoting Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 154 N.J. 607 (1998). As the Appellate Division noted, when an expert speculates, “he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror.” Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996), overruled on other grounds, Jerista v. Murray, 185 N.J. 175 (2005). By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified specialist’s reliable analysis of an issue “beyond the ken of the average juror.” Polzo, supra, 196 N.J. at 582 (citations omitted); see N.J.R.E. 702. Given the weight that a jury may accord to expert testimony, a trial court must ensure that an expert is not permitted to express speculative opinions or personal views that are unfounded in the record.

We next turn to the issue on about the use of hypothetical questions in expert testimony.  Under the Rules of Evidence, while lay witnesses are not permitted to be asked hypothetical questions, experts can.  However, the court made clear that the hypotheticals must relate to the evidence, as follows:

The use of hypothetical questions in the presentation of expert testimony is permitted by N.J.R.E. 705, “provided that the questions include facts admitted or supported by the evidence.” Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 705 (2014) (citing Wilsey v. Reisinger, 76 N.J. Super. 20, 25 (App. Div.), certif. denied, 38 N.J. 610 (1962)). As this Court noted in Stanley Co. of America v. Hercules Powder Co., “[t]he opinions of experts must be based either upon facts within their own knowledge which they detail to the jury or upon hypothetical questions embracing facts supported by the evidence upon which the expert opinion is sought.” 16 N.J. 295, 305 (1954) (citing Beam v. Kent, 3 N.J. 210, 215 (1949)); see also Savoia v. F. W. Woolworth Co., 88 N.J. Super. 153, 162 (App. Div. 1965). “Expert opinion is valueless unless it is rested upon the facts which are admitted or are proved.” Stanley, supra, 16 N.J. at 305 (citing Bayonne v. Standard Oil Co., 81 N.J.L. 717, 722 (E. & A. 1910)); see also State v. Sowell, 213 N.J. 89, 100 (2013) (holding that hypothetical question in criminal case must be limited to facts presented at trial); accord State v. Nesbitt, 185 N.J. 504, 519 (2006); State v. Odom, 116 N.J. 65, 78-79 (1989). Consequently, “a hypothetical question cannot be invoked to supply the substantial facts necessary to support the conclusion.” Stanley, supra, 16 N.J. at 305 (citations omitted); Wilsey, supra, 76 N.J. Super. at 25.

The last sentence of this quote bares repeating, a hypothetical questions cannot be used to supply facts necessary to support the expert’s conclusion where those facts don’t actually exist in the case.

The takeaway here is that attorneys should consider making motions to strike expert reports that are not based upon the provable facts that can be adduced at trial or at least be prepared to address this point at trial.

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Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.
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Earlier today, Robert Epstein posted an interesting piece entitled The Psychology of Mediation.  Whether people like it or not, alternative dispute resolution (ADR) is here to stay as the new norm.  Court backlogs are long and trial dates are scarce, even when you want them.  Moreover, the system is set up to have numerous settlement events, from mandatory custody and parenting time mediation, to mandatory Early Settlement Panels (ESP), to mandatory economic mediation (post ESP), to Intensive Settlement Conferences (ISCs), to Intensive Settlement Panels (ISPs), to Blue Ribbon Panels, etc.

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 There are times when clients or other lawyers say that they don’t want to go to mediation because they feel it will be a waste of time because the case has no chance of settling.  In my experience, mediation very rarely is a waste of time.  Here are a few reasons why:

  • This may be the first time you get a settlement proposal from the other side, even if it is off the wall.
  • This may be the first time that you get a real settlement proposal such that even if you cannot settle at that point, you can start the process of moving the case toward settlement
  • You may find out what are real issues and what are fake issues.  In short, you may be able to narrow the issues is dispute.
  • You may find out what is really important to the other side
  • You may find out why things are important to the other side – the psychology of mediation so to speak
  • You may find out the proposed legal basis for the other party’s position for the first time.  If you don’t settle, you can use this as the opportunity to start building your defense.
  • You may find out the alleged factual basis for the other party’s position for the first time and similarly use this to figure out what proofs you need to defeat that position.
  • You can use the mediation to shut down bad positions – either because the other side finally sees that they are going nowhere, and/or the mediator tells them so.  Of course, this can lead to the creation of new theories of the case and new arguments that you will have to rebut.
  • This may be the first time that the other party (or your client too) is hearing a learned, non-biased view of their case.  There are times where I think that they other side is off of the wall and that it is the lawyer, not the client that is the problem.  In those cases, I may want to start mediation sooner rather than later so that the other party hears that there may be problems with the positions that they are taking.  Maybe this leads to that party getting new counsel or maybe it leads to them doing some more research to confirm what they learned from the mediator. 
  • Mediation can demystify the process and put people in a atmosphere where there is productive dialogue, about anything, for the first time in months. 
  • You may learn useful information that was previously undisclosed.
  • You may be able to resolve and get rid of the small issues, even if the major issues remain unresolved.

What is the take away?  Don’t be so quick to dismiss the possible of benefits of mediation, even if you don’t settle. the entire case. 

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Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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In my opinion, most people (typically women) decide whether or not to change their name to a maiden name at the actual time of the divorce proceeding, if not sooner.  The decision is a largely personal one and in my years of practice I’ve heard the gamut of reasons why to or not to change from the married name.  N.J.S.A. 2A:34-21 is the statute that governs legal name changes in our state.

Rarely do we see the courts chime in on this issue, because generally its quite mundane.  However, a recent published trial court opinion stemming out of Passaic county gives guidance on when is the appropriate time to make a request for a name change and how timing may be everything when it comes to this issue.

In the matter of Leggio v. Leggio, Mrs. Leggio filed an application with the family court seeking to change her name.  She provided the court with a copy of her dual judgment of divorce from bed and board entered in 2004.  Ten years later, she sought to change her name.

A critical point in this matter that cannot be overlooked is the distinction between a divorce from bed and board and a divorce.  New Jersey does not recognize legal separation for married people.  However, a divorce from bed and board has been considered by many to be the closest available option to a legal separation.  However, those who enter into a divorce from bed and board are not legally divorced and their marital bond is not dissolved. As an example, they can still remain on their spouse’s health and/or car insurance.  In order to become ‘divorced’, in the true sense of the word, from a divorce from bed and board, one party must file an application with the court seeking to convert their judgment into a final judgment of divorce.

The Leggio’s never did that.  So, when Mrs. Leggio came to the court seeking to change her name, the court looked to the statute which explicitly states, “The court, upon or after granting a divorce from the bonds of matrimony to either spouse…may allow either spouse…to resume any name used by the spouse…before the marriage…,or to assume any surname.”  This very language gives our courts authority to grant a name change incident to or after a “divorce from the bonds of matrimony”.  Because a divorce from bed and board does not dissolve the bonds of matrimony, the court held that a name change could not be granted unless and until a final judgment of divorce is entered.  The mere passage of time is insufficient.

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Sandra C. FavaSandra C. Fava is a partner in the firm’s Family Law Practice, resident in the Morristown and Roseland, NJ offices. You can reach Sandra at 973.994.7564 or sfava@foxrothschild.com.

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We see it all of the time.  Your spouse cheated and more than that, spent a lot of money on that #%!@@@ (add your own derogatory word here.)  Your say that your spouse is a terrible parent, a drunk, an addict, beats you and the kids, etc.  You say that your spouse is alienating you from your kids.  Your spouse cheats on his taxes and you can prove it.  Some or all of these things, if true, may have some relevance in a court  to properly address issues in your divorce case.

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On the other hand, should you be blabbing these things all about town?  Sure it may make you feel good if people think you are good and your spouse is bad, that it is his/her fault, that you are perceived as the victim.  Notwithstanding, should you do it?  Now this does not mean that you can’t speak to family members, your therapist of closest confidantes.  But does it make sense to hurt your spouse’s and the parent of your children’s reputation in the community.  What if she/he has a business?  Does it make sense to do something that may impact the business?  What if he has a professional license?  Does it make sense to file a dubious report trying to get your spouse to lose their license – the very license that they will rely upon to pay the support you are seeking?  Worse yet, does it make sense to have your spouse arrested or file abuse claims that have to be investigated by authorities, that are not grounded in fact and/or are meritorious?

If you read today’s New York Daily News (or Post for that matter), the answer to these questions was a resounding NO in the case of Schacter v. Schacter.   In this case, the wife got a lesser share of the value of the husband’s interest in his law firm and less maintenance (aka alimony), because of her conduct that impacted the husband’s reputation and thus, as the court found, both the value of his interest in the law firm and his income.

In this case, much of the above hypothetical conduct was alleged to have occured.  Moreover, the wife went to the press with things which wound up in the paper and other web sites.  New York Judge Laura Drager’s rationale was interesting:

… But for her actions, notwithstanding the recession, his partnership value would not have declined.  In light of that position, the court concludes that the appropriate value of the partnership is as of the date of commencement of the action. The effect, if any, of the Wife’s actions during the pendency of this litigation is more appropriately addressed in determining what percentage of the value of this asset should be distributed to each party …

Thus, the judge determined that because of her actions, the was going to receive a smaller share of the of the law practice.  The judge went on, including addressing the wife’s claim that she did not intend to harm her husband’s career:

From the evidence presented, the court concludes that the Wife contributed to the decline in value of the Husband’s law practice. The court has considered the multitude of newspaper articles and website postings arising from this divorce litigation. The article and a significant number of the postings presented the Husband in a negative light. Although the Wife was not necessarily the source of each of these postings, she was the initial source of the articles, and, throughout these proceedings, regularly posted negative information about the Husband to various web sites. The Wife claims she never intended to harm the Husband’s career and that she, herself, never mentioned his law firm by name. The court finds her claim completely lacking in credibility. The Wife is intelligent and very savvy with respect to public relations. She would surely have understood that the reason why her stories had legs was precisely because her Husband was a partner at a major law firm. Even if by some stretch of the imagination she thought otherwise, the very first article printed in the Daily News, in which the Husband’s law firm was mentioned by name, should have disabused her of the belief that the Husband’s career might not be affected.

In the initial Daily News article, she accused the Husband of assaulting her, immediately after the charges had been dismissed on the merits by the District Attorney’s office. Later, she was the source of an article in the New York Post complaining that although the Husband had not paid $12,000 for new hearing aids for the daughter, he had purchased an engagement ring for his fiancee costing $215,000. This article appeared in the papers in late October 2011  In fact, the daughter received the hearing aids in July 2011. By the time the article appeared, the only point in issue was who bore the responsibility for the cost of the hearing aids in light of certain events that were in dispute. That issue was pending before the court. The Post article was picked up and circulated by numerous other web sites around the world. Some of those articles included the name of the Husband’s law firm. The court finds that the purpose of the original article was to embarrass the Husband and negatively affect his reputation. The Wife admitted in testimony that she spoke to reporters so often she could not recall how many conversations she had with them.

The Husband, in articles that mention his law firm by name, became an involuntary contestant for the negative award of Lawyer of the Month conducted by the Above the Law web site because of his alleged failure to pay for the daughter’s hearing aids. Although he “lost” the contest, several articles on that site and other web sites contained negative references to him resulting from thiscontest.  The Husband was then included in Above the Law’s contest for the negative award of Lawyer of the Year.  (Exhibit references in original omitted)

If that wasn’t enough, there is more:

The Wife argues that the drop in the Husband’s business was caused by his own failure to work as hard as he had in the past. She claims that in her comments to the media, “(s)he never disparaged (the Husband’s) legal abilities”, and therefore cannot be blamed for the loss in his income. However, as the Wife, herself a lawyer, would know, an attorney’s reputation is based not only on legal ability but on his reputation for integrity. Accusing a person in the media of an act of domestic violence (although the action was dismissed) and negatively raising an issue regarding payment of the daughter’s hearing aids when the issue was sub judice, could only have been intended to harm the Husband’s reputation. The Wife was well within her rights to publicly raise her concerns about domestic violence. However, the Wife’s incessant postings and discussions about the Husband went beyond any reasonable discussion of this very serious issue.

Perhaps most disturbing, the Wife may have filed grievances against the Husband with the New York State Supreme Court Appellate Division First Department Departmental Disciplinary Committee, potentially directly affecting his license to practice law. In the midst of the trial, the Wife acknowledged that she “tried” to file a grievance against the Husband. When pressed on this issue,the Wife “couldn’t recall” if she had filed a grievance against the Husband.

At trial the husband presented lay and expert testimony about how this conduct impacted his business.

As a result of the above and more, the Judge concluded:

The Wife’s conduct during this litigation has negatively affected his earning capabilities. It is appropriate for the court to consider the effect of her conduct in distributing the assets of the marriage. It has been held that actions taken by a spouse that damage the other spouse’s career can be considered in setting a later valuation date of that spouse’s enhanced earning capacity. For the same reasons, such behavior may also be considered under the statutory factors used to determine the distribution of marital assets. (legal citations omitted)

As a result of the conduct as well as the loss in value and income caused by the ecomony, the wife only received a 17% of the value of the husband’s interest in the law practice.  In addition, because the conduct decreased the husband’s earnings, the alimony was less too.  As to the rationale for this, the court noted:

In addition to the effects of the economy, the Husband had to endure the Wife’s attacks on his reputation in the media and on the internet. The impact of these stories on the Husband’s ability to generate income has already been addressed. In essence, the Wife chose to bite the hand that fed her. Although the court recognizes that the Wife feels she was badly treated by the Husband, her repeated attacks against him have played a part in diminishing his income. It may be that the Husband will be able to restore his career, but the Wife presented insufficient evidence to support a finding that he has already done so.

The take away from this is though you may have a hundred good (in your mind) reasons to do so and may feel totally justified in doing so, attempting to kill the goose that laid the golden egg – or as Judge Drager said,  choosing to bite that hand that feeds you, should be done with the knowledge that it could impact your overall entitlements.


Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Judges want all issues resolved but especially custody and parenting issues.  No issues are more difficult and heart wrenching to decide – especially when facing a true, bona fide custody dispute (and I am not sure that there are really many of those – but occasionally they occur.)

Conflict Resolution Buttons Show War Or Reconciliation Stock PhotoPhote courtesy of freedigitalphotos.net

The New Jersey Court system is set up to try to resolve custody and parenting time issues first.  There is a mandatory parent education program in each county that the parties have to attend (separately) not long after filing.  There is no mandatory alimony, child support or property distribution workshop.  Shortly thereafter, there is mandatory custody and parenting time mediation at the court house – again at the very beginning of the case.  The point is to ferret out those cases where custody really is not in dispute.

Why?  Because the process gets painful and expensive when custody is in dispute.  If custody is not agreed upon, the parties may agree or the court may appoint a custody expert.  Sometimes the parties each get their own expert.  Sometimes, the court adds a third, court appointed expert to the mix.  If things are really bad, sometimes Guardian Ad Litems and/or attorneys for the children are appointed.  Everyone undergoes psychological testing, perhaps more than once (the appropriateness and repetitive testing is a discussion for another day.)  The children are interviewed one or more times by each expert.  They are interviewed and observed with each parent and perhaps their siblings.  Collateral sources are contacted.  Sometimes there are custody interrogatories to be answered and depositions focused on custody issues.  Again, when there is a real custody issue, all of this is fair gain and much, if not all may be necesssary.

But what if it really isn’t necessary because custody and parenting time is or can be resolved except that one parent refuses to settle the issue unless they get what they want financiallyThere should be a special place in you know where for these people.  In light of what I described in the prior paragraph, think about what they are putting their kids through, not because of a good faith custody dispute, but because of money.  Think about what it costs that could be better spent on the kids.  Think about the added stress on everyone, over money.  Think about the ethics of this.  Is this extortion on some level?

Yet it happens all of the time.  We have more than one case in the office now where the other side wont actually settle the custody issues or even address them until the finances are resolved.  In one, they refuse to go to the custody expert either – thereby delaying resolution of the entire case if our client won’t capitulate to unreasonable financial demands.

Unfortunately, this happens way to often at an expense not merely measured by dollars.

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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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

A plague (commonly quoted as a “pox”) on both your houses.   One web site noted that the “… phrase is commonly applied to criticize warring factions whose rivalry brings ruin to others.”   Who would have thought that Shakespeare (in Romeo and Juliet) would have coined a phrase that is as apropos to the goings on in family court, as it is anywhere else?

How often do we see fighting, for fighting sake?  How often do we have to explain to clients, just as we may explain to our children, that two wrongs don’t make a right?  How often do we suggest to our client, that is when we get a chance to stop the retaliation as opposed to being presented with the fait accompli, that it is better to be the bigger person, to have the court perceive you as pure as the driven snow, to be seen as the one trying to de-escalate the situation?  How often do we see the use of a bazooka in response to a small afront?  The answer is all too much.

Resolution Conflict Buttons Show Fighting Or Arbitration Stock PhotoPhoto courtesy of freedigitalphotos.net.

Recently, I heard of a parent cutting off her children’s cell phones because that parent didn’t like what the kids told the custody evaluator?  Was that a good idea to fix the already strained relationship?  Probably not.  I have recently heard someone say, in the same sentence, that we had to win the case for her, but also, get the case settled immediately – two entirely mutually exclusive results.  We have all heard of parents wanting to cut off parenting time because the other parent isn’t paying support.  Or a party that has the upper hand by virtue of an improvidently granted Order sticking it to the other parent for as long as possible, without regard for the affect on the children or the cost.

Granted, divorce and custody are emotional matters.  Granted, there are often real and bona fide disputes during the process.  I am not talking about that.  What I am talking about is the petty, and perhaps not so petty warfare that has little to do with the ultimate merits of the case.  What is worse is that the parties often lose sight of the big picture, and more importantly, lose sight of the fact that they are at least, if not just a little, at fault for the costly war that has ensued.  After all, they feel morally justified in their position.  The will say that they are only protecting their kids, they are only doing what was right, that she/he started.

Here’s the problem, aside from the cost and the merits of the case getting off track, judges quickly get a sense of what is really going on in a case.  Sometimes, where appropriate, that see that it is really one party who is the “bad guy” and then manage the case accordingly.  That is when you want to be the party who has taken the “high road” and is pure as the driven snow.  When you act that way, you are largely free from he criticism that can ensue.  This may be a particularly useful position to be in when the issue of counsel fees arises, either during a motion or at the end of the case.

On the other hand, when both parties act badly, the judge gets that quickly too. At the beginning, you might get the pep talk about knocking it off for the benefit of the kids, to save money, etc.  Thereafter, if the bad behavior continues, the result is often ” a pox on both of your houses.”  Courtesies from the court regarding scheduling may go away.  There may be more active case management which costs more money.  Discovery masters, parent coordinators, mediators, etc. may be appointed by the court so that the court doesn’t have to deal with the skirmishes as much, all at greater expense to the parties – both economically and emotionally.

So better to try to avoid being considered the plague and start taking the higher road.  Unfortunately, many who will read this probably wont think that they are the part of the problem (too) and that is the problem.

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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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

 

Did the title to this post get your attention?  Did you think it was a joke?  Maybe a Friday Funny?  It wasn’t.  The Appellate Division today held that paying alimony and child support was not akin to slavery. Wait, I am really not kidding.

Business People Fighting Over Some Money  Stock Photo  *Image courtesy of FreeDigitalPhotos.net

In the case of Tobasco v. Tobasco, an unreported (non-precedential) opinion released today, the ex-husband asserted that, “… the order in question deprives him of liberty, property and the pursuit of happiness, and renders him an “involuntary slave[]” to his former spouse.”  Now normally, especially where the Court found that his arguments  “… are without sufficient merit to warrant discussion in a written opinion ….”, you would not expect the Appellate Division to take such “creative” arguments on. In this case, however, they did and stated:

We need only briefly observe that continuing alimony and child support obligations do not violate the constitutional prohibitions on slavery, as plaintiff asserts.  That a dissolution of a marriage often carries consequences for the parties into the future – and, at times, for
the duration of the obligor’s life – does not render unconstitutional a court’s enforcement of those obligations.

If you have been on the edge of your seats waiting for an important proclamation such as this, well there you have it.

On a more serious note, what often plagues divorce cases is one or both parties unwillingness to accept their obligations under the law.  Don’t get me wrong, there are many legitimate, bona fide, good faith disputes that need to be resolved, through negotiation, mediation, arbitration or litigation or some combination of all of the above.  On the other hand, it is very costly and time consuming, both financially and emotionally, to fight just to fight, where there is likely only one way the issue gets resolved.

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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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.