Mercer County Divorce Attorneys

In the case of M.C. v. P.C. (unreported, non-precedential), Judge Jones explores the issues surrounding mid-week overnight parenting time during the school year and its effect on the best interests of the children. In many cases, both parents live close by and are routinely exercising parenting time on weekdays in addition to weekends. While frequent and continuing contact with both parents is almost always positive for the child, it does not come without issue in the post-divorce context. We frequently see cases where one parent refuses to complete homework or take the child to soccer practice during their weekday parenting time.

The facts of this case are simple. The parents have two children, ages 8 and 10. As part of their divorce agreement, one parent was the primary residential custodial parent with the other parent having reasonable and liberal parenting time, to include every Thursday evening overnight into Friday mornings.

The primary parent, who works in the children’s school (but is not their teacher) filed an application to modify midweek overnight parenting time asserting that the children often come to school unprepared on Friday mornings and without their homework completed. It was alleged that the primary parent then has to rush around on Friday mornings assisting the children with completing their assignments before school formally begins. The noncustodial parent obviously denies same, however the Court noted that neither party produced any corroborating evidence so the Court was forced to rely upon the parties own testimonial positions.

In its analysis, the Court took “judicial notice” (meaning something is so well known it cannot be reasonably doubted) that education is one of the most important aspects of a young child’s life. The Court noted that children “need to learn from both parents, as early as possible, that tending to homework, test preparation and general scholastic readiness must take an appropriately high priority in a child’s schedule”.

That said, even in the cases where the parents are entirely cooperative, when the children go back and forth between households, this creates another layer of difficulty in trying to implement these fundamental educational values and maintain consistency. The Court opined while it is conceivable that back and forth parenting time could cause a child to incur a significant distribution and a loss of appropriate focus on meeting scholastic responsibilities, it is not per se harmful or contrary to a child’s best interests. As with many issues that arise in a family law matter, it is fact-sensitive and case specific given that each family and child is unique.

The Court goes on to remind that:
“Shared parenting” means more than simply counting the hours and minutes a child stays under a parent’s roof but also involves each parent meeting his or her responsibilities during such a time rather than unilaterally passing it off onto the other parent. Put another way, a parent cannot insist on simply taking the children for parenting time while siphoning out the parenting obligations which naturally continue to exist during such times. If a parent wants midweek overnight parenting time during a school year, that comes with all of the scholastic responsibility and other midweek obligations, in one integrated package.

The Court noted that although the primary parent’s testimony was persuasive there were evidentiary obstacles insofar as how prevalent the deficiencies that were complained of really were. Was this a situation where the child only missed 1 out of 10 assignments or a situation where the child’s backpack was not even opened with nothing done at all? The Court noted that evidence could have been presented by school records, testimony from teachers, lower test scores or any other evidence of the children’s lack of readiness on Fridays, as compared with other days when the children are in the care of the primary parent.

In sum, the Court found that there was insufficient evidence to make a specific finding that the homework issue was so prevalent as to require an immediate elimination of midweek overnight parenting time but established a helpful protocol for the parties moving forward as to how to deal with the issue of homework.

What can be taken away from this is case is how important it is to be fully prepared when presenting your application to the Court. Had the primary parent produced more corroborating evidence as to the magnitude of the missed assignments (assuming it was substantial), the outcome may have been different. It is always important to seek the advice of experienced counsel when presenting any application (especially an application to modify an existing arrangement/order) to the Court.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

As avid readers of this blog know, New Jersey’s recently amended alimony statute has been the inspiration for many blogs posts as cases interpreting same are coming down the pike. Under the amended statute, a party may seek to terminate or modify his or her spousal support obligation based upon an actual or “prospective” retirement. While this was seemingly good news for those seeking to retire, the question many practitioners had was what does “prospective” actually mean?

In the case of Mueller v. Mueller, Judge Lawrence Jones provides some insight as to this very question. The facts in Mueller are simple. The parties were married for twenty (20) years, divorcing in 2006. Under the parties’ Marital Settlement Agreement, the obligor was to pay $300.00 per week in permanent alimony and their agreement did not expressly address retirement or its relationship to the alimony obligation.

The obligor filed a post-judgment motion, under New Jersey’s amended alimony law, seeking a determination that his alimony would end in five (5) years. At the time of the hearing, the obligor was 57 years old. In five years, he would be 62 and entitled to receive his full employment-related pension benefit. The obligor asserted that if his alimony does not end at that time, that he will be unable to retirement at that age.

Judge Jones provides a thorough analysis of the obligor’s claim, specifically discussing the distinction of a pre-September 2014 agreement modification/termination analysis (where the burden is on the obligor to demonstrate why alimony should terminate) vs. a post-September agreement modification/termination analysis (where there is a rebuttable presumption of termination with the burden on the recipient).

He also notes that the amended statute covers the situation where an obligor wishes to retire earlier than “full retirement age” as defined by the receipt of full social security benefits”, which in this particular case would be 66 years and 8 months for the obligor. The rationale behind this provision is to avoid the proverbial “Catch-22” financial situation.

Specifically, if an obligor is considering the possibility of retirement in the near future, he or she logically benefits from knowing in advance, before making the decision to actually leave the workforce, whether the existing alimony obligation will or will not change following retirement. Otherwise, if the obligor first retires and unilaterally terminates his or her primary significant stream of income before knowing whether the alimony obligation will end or change, then the obligor may find him/herself in a precarious financial position following such voluntary departure from employment if the court does not terminate or significantly reduce the existing alimony obligation.

When applying the new law to the facts of the Mueller case, Judge Jones held:
• The spirit of the statute inherently contemplates that the prospective retirement will take effect within reasonable proximity to the application itself, rather than several years in advance.
o Thus, in this specific case, the request for an order prospectively terminating alimony five (5) years in advance does not lend itself to the Court being able to reasonably analyze and consider all relevant information. The Court warns about how an application too far in advance of prospective retirement could in essence be nothing more than an attempt to summarily change the terms of an alimony settlement agreement.

• An order for prospective termination or modification of alimony based upon reaching a certain retirement age inherently contemplates that the obligor not only reaches retirement age, but actually retires at that point. If the obligor reaches the age, but does not actually retire, the “retirement age” provisions do not trigger until such time as the obligor actually retires or submits an application regarding a prospective retirement in the future.

o Here, the obligor did not provide a specific plan but merely stated a desire to potentially retire in five (5) years, without anything more. While this case does not create a bright-line for when such applications should be brought, Judge Jones notes that a prospective retirement application brought, 12-18 months before prospective retirement, may be more appropriate.

The takeaway from this case is that while the amended alimony statute permits a degree of reasonable prospective adjudication by the court for a prospective rather than actual retirement, an attempt to engage in the necessary statutory analysis several years in advance of such retirement would likely be replete with long-term guesswork. Any such effort would essentially ignore the practical reality that the parties’ economic situations, health and other relevant factors may radically change over such a lengthy period of time, before an actual retirement ever takes place. If you are paying alimony and are within 12-18 months of retirement, you should think about consulting with an experienced professional to discuss your options regarding the termination or modification of your alimony obligation.

Signed into law on January 19, 2016, New Jersey’s emancipation law is set to take effect on February 1, 2017 and will apply to all child support orders issued prior to or after its effective date.

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One of the highlights of the new law is that it will dramatically impact when and how child support orders will terminate. Specifically, it provides that unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.

Child support will also terminate automatically when a child reaches 19 years of age unless (a) another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age; (b) a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or (c) the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

Just ahead of the effective date of the statute, Judge Jones issued an opinion on the effect of one child’s emancipation in Harrington v. Harrington. In Harrington, the parties divorced in 2012. The parties have three children, all of whom were unemancipated at the time of the divorce. As such, the parties’ settlement agreement provided that the father would pay the mother the sum of $240 per week in child support for all three children. In what would become a decisive fact in the case for Judge Jones, he noted that the child support was unallocated, rather than broken down or allocated into specific dollar amounts for each child – either on a one-third per child basis or otherwise.

Following the divorce, the father paid child support as agreed without requesting an modifications, even when their oldest child began college. In September, 2014 the parties mutually agreed to emancipate their two oldest children. Two orders were entered confirming the emancipation, but the amount of child support that the father paid remained the same. Further, neither party submitted or exchanged updated financial information or filed any motion.
In June, 2015, the last remaining unemancipated child graduated high school and decided not to proceed to college. The father continued to pay $240 per week in child support nonetheless, without any objection by either party.

In February, 2016, a year-and-a-half after the first two children were emancipated, the father filed a motion for the retroactive allocation of child support to $80 per child, and downward modification of one-third per emancipated child, effective September, 2104. He also sought to emancipate the youngest child and terminate his obligation. The mother consented to the emancipation of the youngest child, but opposed the retroactive modification that the father sought.
With regard to the issue of retroactive emancipation, the Court initially grappled with which law to apply in this situation: should it apply the anti-retroactivity statute which prohibits the retroactive modification of unallocated child support, or does the case law with regard to retroactive emancipation apply?

In reaching its decision, the Court devised a set of equitable factors that should be examined:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non- custodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?

In applying the above factors to the present case, the Court considered the following factors: nearly a year and a half passed between the effective date of the emancipation for the older two children and the filing of the father’s motion; there was no reason provided to explain the delay in filing; during that period, the father continued to pay the same level of child support to the mother; there was no evidence submitted that the mother or the children engaged in any type of fraud; the mother and children communicated facts that would have led to a modification of support; and, a retroactive modification of support to 2014 may be unduly complicated given the fact that no financial information was submitted for the period of time in question – 2014-2016.

The Court noted that a hearing should to be scheduled to examine these factors and weigh the comparative equities to determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon a prior emancipation of one or more children. However, the Court was somber in its knowledge that this would not be an easy task – i.e. to recreate what child support *might* have looked like over a two year period of time.
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Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

With summer just beginning, many people have visions of swimming pools, beaches and family vacations. Others in New Jersey have visions of Sallie Mae, tuition bills and book fees.

After four years of what has become obligatory college contribution pursuant to the mandates of Newburgh v. Arrigo, many parents in the state are then faced with the daunting possibility of an additional 3-4 (maybe more?) years of opening their wallets and contribute toward the cost of graduate school; sometimes for their 24, 25, 26 or 27 year old children who are not yet considered emancipated pursuant to our current laws. Many times, child support also continues during that period.

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Indeed, New Jersey courts have recognized that completion of undergraduate education is not the determinative factor for either declaring emancipation or terminating child support. Many times, the determination as to whether child support would continue, and along with it the parents’ obligation to contribute toward the cost of the child’s education, focused largely on the whether the child, is “beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own”.

New Jersey is in fact one of the few states in the country that still requires divorced parents to pay for their children’s college educations. Even fewer require contribution toward graduate school. However, New Jersey remained an outlier in that regard.

For example, in the 1979 case of Ross v. Ross, the Chancery Division declared that the parties’ daughter could not be considered emancipated as she was attending law school after obtaining her undergraduate degree.

As recently as 2010 in Mulcahey v. Melici, the Appellate Division upheld a trial court’s determination that a 23 year old child was not emancipation and was entitled to contribution toward her education costs as well as continued child support. Eric Solotoff previously blogged about this case in his post entitled: I Don’t Have to Pay for My Kid’s Graduate School, Do I?

The New Jersey Emancipation Statute, signed into law on January 19, 2016, is set to take effect on February 1, 2017, and may change the way courts view graduate school contribution.

Whereas previously emancipation was a fact specific inquiry focusing on the level of independence of the child, now, child support “shall not extend beyond the date the child reaches 23 years of age.”

Does this mean that the possible obligation to contribute toward a child’s graduate school education is a thing of the past? If emancipation must occur by the age of 23, and the obligation to contribute hinges on the question of whether the child is emancipated, how could a parent be required to contribute to graduate school?

Another interesting question will be whether an agreement to pay for graduate school at the time of the divorce, pre-statute will be enforced.
Recall also the New Jersey Rutgers University professor who was ordered to pay more than $112,000 for his daughter to attend Cornell Law School in 2014 because he had agreed to contribute in his divorce settlement agreement, but failed to place any cap on tuition.

The enforcement of agreements to contribute toward college is extensively addressed in Robert Epstein’s – Appellate Division Addresses Enforceability of Settlement Agreement as to College in New Published Decision – but it will be interesting to see if the same principles are applied when it comes to graduate school.

We will keep you posted as the case law is decided.
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Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or

The recent Appellate Division case of Sirigotis v. Sirigotis, although unpublished (non- precedential), provides a great reminder of how important it is to know the “rules of engagement”.

In Sirigotis, the parties were able to resolve a majority of their issues by consent but agreed to submit the remaining unresolved issues to “final and binding” arbitration to be conduct by a retired judge. The parties provided the arbitrator a list of open issues that were to be decided.

The parties agreed to the appropriate amount of base alimony but a remaining open issue was that wife had an additional claim for alimony should husband’s income rise over a certain level as well as the inclusion of specific language in the award regarding plaintiff not being able to maintain the standard of living Crews v. Crews. Husband had objected to both of these requests.   During one of many arbitration sessions, the arbitrator had initially indicated that “all Crews [language] is out” because the issue of the determination of the marital lifestyle was not “before him”. Notwithstanding, in a later submission from wife, she again raised the issue of additional alimony on the grounds that the base alimony would not neither meet her needs or the marital lifestyle.  Husband’s submission argued that no additional alimony should be paid as the base alimony would “without question” meet wife’s needs and exceeds the marital lifestyle. Moreover, Husband requested that language be inserted that specifically indicated that both parties would be able to maintain a lifestyle reasonably comparable to that enjoyed during the marriage.

The reasons the parties were at odds over this language is because the standard of living and the likelihood that each party can maintain a reasonably comparable standard of living is a factor that must be considered when awarding alimony. This factor is of import because it serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when ‘changed circumstances’ are asserted.

Ultimately, the arbitrator denied wife’s request to predicate more alimony based on a “future event” (increased income) and left wife to make an application to the Court in the future if necessary. The arbitrator also agreed with the husband that wife could maintain the standard of living.

Once the final arbitration award was issued, the wife moved to vacate the arbitration award in the trial court asserting that the arbitrator exceeded his authority by addressing the standard of living issue. Although the trial court found that the arbitrator had the authority to address the issue, the court ultimately vacated the arbitrator’s Crews finding and remanded for further proceedings, finding that plaintiff did not have the opportunity to give all her proofs on the issue.  Both parties appealed.

The Appellate Division found the trial court erred in vacating the Crews finding and reversed and remanded to the trial court to confirm the arbitrator’s award. In doing so, it reminded us that arbitration awards are given considerable deference therefore the party seeking to vacate it bears a heavy burden, with the scope of review being narrow.

While arbitration is ‘creature of contract’ and an arbitrator exceeds his or her authority if they decide something outside the scope, the Appellate Division found that be virtue of the issues raised by the wife herself, the Crews issue had to be decided. Moreover, the Appellate Division found that the wife had ample time and ability to present evidence on this issue and indeed did so by virtue of oral testimony, written submissions and voluminous exhibits.

The take away from this case is regardless of whether you decide to mediate, arbitrate or litigate, some or all of your divorce, it is important to know the “rules of engagement”. It is imperative to engage an experienced professional to help guide you through the ins-and-outs. You do not want to find yourself at a disadvantage simply because you were not aware of the rules.

When we all think of insurance, we often think of medical insurance, car insurance and homeowner’s insurance as these seem to be the necessary and everyday types of insurance. Life insurance, which for some can be synonymous with high premiums, is one of the first costs to go when seeking to reduce your budget. I often find that the issue of life insurance is something that typically does not cross a person’s mind when they are getting divorced, whether they are the supporting spouse or the supported spouse, especially if the parties did not maintain life insurance during the marriage.

life

Often times however, when a supporting party has an ongoing alimony and/or child support obligation, a court may order (or the parties will agree) that a life insurance policy will continue (or be implemented) as a method of financially protecting a dependent party and/or child in the event of the supporting party’s premature death.

In other words, the same reasons an intact family would procure life insurance, remain after the divorce. All too often however, an obligation to maintain life insurance is the forgotten provision of a divorce settlement agreement in that either 1) it is noticeably absent from the agreement, or 2) it is not being maintained. Obviously, either of these scenarios is troublesome for the supported spouse and could ultimately cause substantial financial ruin should a situation that life insurance seeks to protect against come to fruition.

In the recent case of Ashmont v. Ashmont, Judge Lawrence Jones recently released an unpublished (non-precedential) yet persuasive opinion on how to deal with the issue of life insurance between divorced parties. In Ashmont, the parties’ Marital Settlement Agreement required that the wife would receive permanent alimony and child support for the parties’ children. In order to secure same, the parties agreed that the husband would carry life insurance as a means to protect against the loss of financial support in the event of an untimely death.

Several years after the parties were divorced, wife brought an enforcement action against the husband for a breach of their agreement for his failure to provide proof that he was maintaining life insurance as well as for sanctions for his past and alleged ongoing violations of his life insurance obligations. At the time of the hearing, husband admitted that he had been in violation of this obligation, but had recently brought himself into compliance by securing a new policy, consistent with the terms of the parties’ agreement.

Although wife acknowledged that husband was now compliant, she still sought sanctions against the husband for his prior failure to maintain the policy and for allowing his dependents to go uninsured for such a long period of time. It was clear that husband only complied with the obligation after wife was forced to bring litigation and wife feared that husband would simply fail to pay the next scheduled premium.

In his opinion, Judge Jones lays out four tips regarding life insurance and divorce:

• The court may direct that the supported spouse or other parent be named as the owner of the policy, if permitted by the insurance company. This option is particularly relevant when the supporting spouse has a history of failing to adhere to his or her court-ordered life insurance obligations. Being the “owner” of the policy, rather than the “beneficiary” or the “insured”, allows for the party to receive any and all notices and communications from the insurance company regarding the status of the policy, including invoices, notices of proposed cancellation, change in policy terms and renewal dates;

• When a party willfully breaches a court-ordered obligation to carry life insurance, the court may issue multiple forms of relief, including but not limited to ongoing financial sanctions, until such time as the defaulting party complies with the obligation;

• When a party violates a court order, but ultimately complies prior to the conclusion of enforcement litigation, such compliance does not completely erase or negate the violation. Nonetheless, remedial and corrective conduct is equitably relevant on the issue of mitigating sanctions and penalties which might otherwise be imposed under the circumstances. In this case, the wife had asked for a sanction of $7,440.00, the amount of money that husband had saved over the years by failing to comply with his obligation. Finding it a mitigating factor that husband ultimately did cure the defect and that wife was not financially harmed, husband was sanctioned $2,500.00 and was ordered to reimburse wife her $50.00 filing fee for the enforcement motion; and

• As life insurance is an ongoing financial obligation intrinsically related to spousal and/or child support, an insurance provision in a judgment of divorce or settlement agreement is potentially subject to post-judgment modification upon a showing of a substantial change of circumstances, pursuant to Lepis v. Lepis 83 N.J. 139, 145-46 (1980). This situation may occur when a term policy naturally expires and the insurance is either much older or less healthy than at the time of divorce, meaning the cost of the policy could be substantially increased and thus revisited by the Court.

While no one wants to think about the consequences associated with an untimely death, the takeaway from this case is that as the supported spouse/parent, it is imperative that you are “in the know” regarding the insurance policies that could very well dictate your financial security (and your children’s) for the rest of your life. If your ex-spouse has an obligation to secure their support payments with life insurance and you have not seen recently seen a copy of the policy, it might be time to reach out and connect with them to ensure the policy is current.

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LLauren Koster Beaver, Associate, Fox Rothschild LLP
Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Although most people are familiar with the concept of “due process” in the criminal context, we sometimes forget that due process also extends to civil litigation. “Due process” is basically the opportunity to be heard at a “meaningful time and in a meaningful manner”.

Typically, whenever a litigant is seeking relief from the Court, a motion must be filed, stating the time and place when it will be presented to the Court, the grounds upon which it is made and the relief sought. Although litigants may also seek emergent relief, notice must still be provided to the other party. While the notice requirement is not wholly inflexible, it may only be waived in circumstances where it can be shown that immediate and irreparable damage will likely result to the moving party before notice can be served/informally given and a hearing had thereon.

A common example of this in the matrimonial context is when a litigant is seeking to ask the Court to freeze assets because of a fear that the other side may liquidate or abscond with marital assets. Obviously, if the other side were first notified of this request, they would have the opportunity to do just that: liquidate or abscond with the assets. Thus, in very limited circumstances, the notice requirement will be waived, however, only a temporary order would issue and the other side would then be given the ability to immediately be heard by the Court as to why the relief sought should be ultimately granted moving forward.

In the recent published (precedential) case In the Matter of the Adoption of a Child by M.E.B. and K.N., the Appellate Division gave us a primer on the bounds of due process in a civil context. A short summary of the facts are as follows: The paternal grandparents of a child filed a Verified Complaint for Adoption after what they describe as a “verbal and implied consent of the child’s birth parents, who refused to contribute to or provide for the needs of the child”, essentially abandoning the child to their care.

Once the Complaint was filed, a preliminary order was issued for a hearing and the child was temporarily placed in the paternal grandparents care. Upon receiving this order, the child’s mother, filed an ex parte (i.e., without notice to the grandparents) Order to Show Cause refuting the allegations of abandonment asserting that she never relinquished her parental obligations. The child’s father also supported the return of the child to the mother’s care and for his parents to be restrained from further contact of the mother and the child.

The Court held the hearing on the mother’s application ex parte, again, without the paternal grandparents having notice of the hearing or a chance to be heard. The Court ultimately found that the paternal grandparents lacked standing and dismissed their Complaint for adoption with prejudice. The plaintiffs’ appealed the dismissal of their Complaint given the lack of opportunity to be heard prior to their Complaint being dismissed.

In recognition of a litigant’s right to due process, the Appellate Division reversed and remanded this matter for further proceedings finding,

It is one thing to schedule ex parte review of an application initiated by an order to show cause that also seeks temporary restraints; it is quite another to terminate the litigation on an ex parte basis. If a party demonstrates the need for ex parte relief, the judge considers the matter on the record and, upon a specific finding that immediate and irreparable harm would result were notice given, could issue an order to show cause. The adverse party must then be given an opportunity to be heard, including the chance to show injunctive relief was inappropriate or improvidently granted.

The Appellate Division found that the grandparents were not served with the mother’s pleadings and were not informed that a hearing would be held. Although, as noted above, there are situations in which it can be found that immediate and irreparable harm would occur if notice was given prior to the hearing, no such finding was made and could not be inferred from the record on appeal.

When an injunction is requested, the proceeding to consider the order to show cause with restraints must be on the record, requisite findings supporting relief must be made, and the adverse party must be given an opportunity to be heard on the scheduled return date. Even when restraints are not entered, the adverse party must be given the opportunity to respond to the entry of an order to show cause.

The takeaway from this case is that if you find that an Order has been entered in your case without notice to you and the opportunity to be heard, you should immediately consult with experienced counsel to determine the validity of that order and whether it can be ultimately challenged.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Yesterday, Eric Solotoff blogged about the phenomenon of the New Years Resolution Divorce.  It happens.  I encourage you to read that post prior to the one below because it provides some useful background on the issue:

It’s the New Year. A time filled with resolutions, promises to change, and commitments to begin anew.  Your marriage is no exception.  You’re fed up – the affairs, the reckless spending or the mistreatment. You’ve determined that this is your year to finally take the road to singles-ville, to start a new life free of this weight you’ve been carrying around for years.

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But…what happens your resolution to break free of your spouse coincides with your spouse’s resolution to recommit to the relationship? He promises things will be different; she will take steps to treat you better; he’ll pitch in more with the children; the “extracurricular activities” will stop. Your spouse promises he/she will magically morph into a different person. All of a sudden, your jaded, tired, fed up self is looking at your future model spouse. And now you’re in a quandary.

So the question becomes, which one of you wins the war of the resolutions? Science says, if you’re looking for a complete personality overhaul, think again.

Brian Little, a professor of psychology at Cambridge University and author of Me, Myself, And Us: The Science of Personality and the Art of Well-Being stated in a 2014 interview that in adulthood, your personality becomes pretty much set in stone.

You can thank your parents for that; many of our personality traits have a very strong genetic component, which remains constant throughout much of our lives. However, in your teens and twenties, your personality matrix evolves rapidly while you mature.  As people enter their thirties and beyond, those traits solidify; change slows to a crawl and requires far more effort, according to Paul T. Costa Jr., scientist emeritus at the laboratory of behavioral science at the National Institutes of Health.

The situation becomes even more complex when dealing with a personality disorder, such as Narcissistic Personality Disorder (NPD). This is because NPD had a serious environmental component – it emerges from an environment in which vulnerability feels dangerous to the person.  In turn, insecure attachment styles emerge, where fears of depending on anyone result in attempts to control the relationship or avoid intimacy altogether. For people with NPD, change would mean unlearning a whole host of feelings that are ingrained in them and they subconsciously believe keep them safe.

Essentially, asking or expecting a person to change would be asking them to act “out of character” – an unremitting show where he or she plays a part for your benefit. Little, says, however, that this act has a serious effect on the automatic nervous system, somewhat akin to anxiety.  You heart rate quickens, your muscles tense – as if you’re experiencing a stress reaction.  Eventually, you revert back to yourself because the whole process of morphing into another person can be both physically and mentally taxing.

The amount of time a person can play another character has yet to be studied. But the question is, do you want your marriage to be the test case?

Now, that is not to say that people have not successfully improved marriages that once were on the precipice of the abyss. However, odds are, if you think your spouse is going to assume a completely different personality to save your marriage, you may just lose the war of the resolutions.

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head_BaerEliana Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

As a lover of all things Coldplay, I was sad to hear that lead singer Chris Martin and his wife of more than 10 years, Gwyneth Paltrow, were divorcing. Gwyneth Paltrow announced the separation on her website Goop.com and used the term “conscious uncoupling” to describe their approach to divorce.  Although the term had been originally coined by marriage and family therapist, Katherine Woodward Thomas, as with anything else endorsed by celebrities, the phrase went viral after her post.  It was of particular interest to me personally given my chosen profession as a divorce lawyer.

As professionals, especially ones whose practice is client-centric, we are always striving for better ways to do our jobs.  In my case, that means getting clients their desired result in the most effective and streamlined way possible. After practicing for several years, experience has shown me time and time again, that people going through divorce are most satisfied with the process when they feel they have control over it (i.e., are “conscious[ly] uncoupling”) and can proceed with a form of alternative dispute resolution (such as mediation) rather than traditional, costly, protracted litigation.

Even as American culture has become more progressive and accepting, divorce is still considered taboo and is almost always surrounded by extreme negativity and hostility.  Even if the couple themselves wants to proceed amicably, they are unfortunately often allowing others in their life (parents, siblings, friends, new boyfriend or girlfriend) to control the dialogue and encourage them to dig in their heels.

Once people “dig in”, it is often impossible to “dig out”.  Protracted litigation only intensifies negativity and hostility. The idea that divorce has to be a negative experience then becomes a self-fulfilling prophecy, in which divorcing parties behavior, is influenced by their expectation that divorce must be awful.  I believe if you change the conversation surrounding divorce and allow yourself to “consciously uncouple” you will have much more satisfying experience surrounding your divorce.

I recently completed a 40-hour divorce mediation training program. This program has only solidified my beliefs that in many cases, a mediated divorce, is a better divorce. That is not to say that litigation is never necessary. There are some circumstances that cannot be mediated and some people that simply cannot effectively participate in mediation. That said though, divorce is multi-dimensional: it is legal, it is financial, and it is emotional. The great thing about mediation is that it can effectively address each of those dimensions.

(1) LEGALLY

Whether you litigate or mediate, you achieve the same end result: a legal divorce.  A mediated divorce however is often faster, less adversarial and provides more flexible and creative resolutions, narrowly tailored to your specific family dynamic.  It also allows for a more confidential process than airing out your dirty laundry in a series of public court filings and appearances.

(2) FINANCIALLY

I will never say “always” or “never” because I’ve come to learn that nothing is absolute.  A mediated divorce however, can certainly be more cost effective. Spending less to uncouple leaves more to be divided between the parties and therefore places both parties in a better position to maintain financial independence and stability post-divorce.

(3) EMOTIONALLY

Although emotions can run high during mediation, there is a much more focused approach on compromise and collaboration rather than “winning” as is seen in litigation. When people feel their spouse is negotiating in good faith and trying to be part of the solution, rather than part of the problem (i.e., zealously litigating over the smallest of disputes), they walk away feeling better about uncoupling, which leads to healthier relationships with themselves, their ex-spouse, and future romantic partners.

The takeaway from all of this is that choosing to uncouple, does not always have to be adversarial, financially draining and emotionally damaging. Take control of your divorce and find avenues in which to minimize the long-term effects.  Before deciding to wage war against your spouse, consult with an experienced and trained family law mediator to see how mediation can work for you.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time.  Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

As a matter of public policy, New Jersey Courts favor the enforcement of agreements reached between parties. Since Marital Settlement Agreements (“MSA”) are entered into consensually and voluntarily, they are often approached with a predisposition in favor of their validity and enforceability.  That notwithstanding, these agreements are enforceable only if they are fair and equitable. A bedrock principle of New Jersey divorce jurisprudence is that parties may be able to modify support provisions within their divorce agreements if they are able to show a continuing change of circumstances.

Although the ability to modify agreements based on a change of circumstances is essentially the default so to speak, parties are free to contract around same. Often times in exchange for additional financial considerations, such as unequal asset division or a “discount” on alimony, parties will agree that the amount of years alimony is paid and/or the actual amount of alimony paid each year is non-modifiable regardless of a change of circumstances, foreseeable or otherwise.

Unfortunately all too often parties are entering into agreements that are “non-modifiable” without really thinking through the consequences of same in an effort to “get the deal done” only to have it come back to haunt them.  This is exactly what happened to Mr. Fiorenza in the recent unpublished (non-precedential) case of Fiorenza v. Fiorenza.

In Fiorenza, the parties were married for 24 years and had three children. At the time of their divorce, they were able to come to a resolution regarding the Husband’s alimony and child support payments and agreed that Husband would pay $100,000 per year in alimony ($8,333/per month) and $833.00 per month in child support. Shortly after the divorce however, Husband stopped paying support and Wife filed an application to enforce the support provisions of the parties’ divorce agreement.

The parties were able to resolve their differences and entered into a Consent Order, which lowered Husband’s total support obligation to $5,000 per month ($833.00 of which would be considered child support), included an escalation clause that support would go up if his income did and vacated $10,000 in support arrears.  The parties also agreed however that the new support amount would be non-modifiable and included that if there was a default on this new payment structure, that the total support amount would revert back the original amount under the parties initial MSA. Specifically, the parties agreed:

No matter defendant’s annual gross income, at no time shall monthly support be lower than $5,000, except after the emancipation of [the parties’ youngest child] when the child support component may be reduced”.

After the entry of the Consent Order, Husband made the new support payments for a period of one year but then again stop paying altogether.  Wife immediately filed an application to enforce the terms of the Consent Order and asked that the initial amount of support be reinstated.  In response, Husband cross-moved for a reduction in alimony.

Both the trial Court and Appellate Court upheld the parties’ agreement and increased the support payment back to the original amount in the parties’ MSA (due to Husband’s default on the new support payments) noting that each party got the “expected benefit and burden of the contract”. Because of Husband’s current inability to pay the full support amount however, the Court set a reduced alimony and child support figure of $2,500 per month and allowed the difference between the MSA support award of $8,333 and the $2,500 to accrue as arrears.

The take away from this case is that you should think long and hard before you include any non-modifiable provision in your divorce agreements and consult with an experienced attorney to discuss the ramifications of same. Although you might feel you are getting a tangible benefit in the present by agreeing to a non-modifiable provision, it is important to think through all the circumstances that may occur in the future that would complicate your ability to comply with same (such as loss of income/employment) as you cannot expect a Court to simply invalidate the terms of your settlement agreement because you now view them as unfair with the benefit of hindsight.

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Lauren Koster Beaver is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Lauren practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, premarital agreements and Appellate Practice. You can reach Lauren at (609) 844-3027, or lbeaver@foxrothschild.com.