Millburn Divorce Attorneys

As we have previously noted on this blog, some of the biggest changes in the 2014 alimony reform amendments came in connection with the issue of retirement.  In fact, the amendment to the alimony statute now has three different standards, one for early retirement, one for retirement at the attainment of full retirement age (i.e. age upon which you can receive full Social Security benefits – 67 for most people) for new matters and a third for retirement at full retirement age for matters that pre-dated the amendments to the statute.


Perhaps due to either inartful drafting and/or creative lawyering, or both, there were arguments made that the language in the statute “…There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, …”  applied to all matters, no matter when the divorce occurred.

The Appellate Division decided this question in the negative in the reported (precedential) case of Landers v. Landers released on February 22, 2016.  In that case, which involved a pre-statute divorce where the ex-husband had been paying alimony for 24 years, the husband sought to terminate his divorce based upon retirement.  The trial judge misapplied the law, per the Appellate Division, and determined that the ex-wife had not overcome the presumption that alimony should terminate.

In reversing, Judge Lihotz held:

Notably, the rebuttable presumption included in subsection (j)(1), which places the burden on the obligee to demonstrate continuation of the alimony award once an obligor attains full retirement age, N.J.S.A. 2A:34-23(j)(1), is not repeated, but replaced by a different standard in subsection (j)(3). The latter provision follows the prior principles outlined in Lepis and its progeny, by mandating “the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate . . . .” N.J.S.A. 2A:34-23(j)(3) (emphasis added).

Just as the Crews case elevated marital lifestyle ostensibly to a “super factor” in the alimony calculus prior to the 2014 amendments, it appears that this decision could have the same effect on the “ability to save for retirement” aspect of the new statute.  Specifically, the decision holds:

Importantly, subsection (j)(3) elevates the ability of the obligee to have saved adequately for retirement, listed only as a factor under N.J.S.A. 2A:34-23(j)(1)(j), setting it apart from other considerations and requiring its explicit analysis. N.J.S.A. 2A:34-23(j)(3). Also, factors identified in the two subsections are not identical, making the court’s focus different. For example, most apt to plaintiff’s arguments are subsections (j)(3)(f) and (g), mandating an examination of the obligor’s ability to maintain payments upon retirement, and “[t]he obligee’s level of financial independence.”

The problem with making the ability to save to be a “super factor” presumes that permanent alimony, the predecessor to open durational alimony was actually permanent and could never be modified based upon retirement.  That simply was not the case for the last several decades and there was ample decisional law addressing retirement.  Moreover, if alimony had a “savings component” allowing a recipient to save for a time when alimony may end, does that too not suggest that even permanent alimony can end other than death (and upon death, alimony is secured by life insurance in most instances.)

So, put another way, if permanent alimony was never really permanent, or at the very least, if retirement of the payor was a foreseeable event, can someone argue that they knew or should have known of this possibility and the failure to save should not be held against the payor?  Remember, just because retirement was not specifically included in a divorce agreement, does not mean that it was not foreseeable since the law allowed for it – and by the way, it was very difficult, pre-amendment to ever get anyone to agree that alimony should terminate on retirement so the issue was often silent and left to the law to address at the appropriate time.

Either way, as the nuances of the new alimony law work their way through the court, it will be interesting to see if the results lead to the call for even more reform.

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

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We have an adversary who loves to say, when responding to motions that we have filed, that the best defense is a good offense.  He has even taking to giving official attribution to the person that came up with that line.   The gist of the statement is that our client is going on the attack to divert from his/her own wrong doing.  But really what it is is a tactic to create a smoke screen.  If permitted at argument, I was prepared with a few quotes of my own (“the lady doth protest too much, methinks”; and “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck” both came to mind.)


That said, here’s how it works.  Parent #1 makes an allegation that the parent #2 interfered with parenting time.  Parent #2’s response goes something like this, “In response to the allegation that I interfered with Parent #1’s parenting time, ADD ATTACK AGAINST PARENTING #1 HERE THAT IN NO WAY ACTUALLY RESPONDS TO THE ALLEGATION.  Put another way, instead of specifically addressing the conduct that was alleged to have been perpetrated, just say what the other party did wrong – or worse, that the other party does it too – so it is justified or some in some way okay.  What you have here is what seems to be a denial, but it is really a non-denial or a some type of two wrongs make a right justification.

That is, until you point out, if you even have to, that the specific conduct was never denied.  Don’t assume that the judge is going to pick up on it – be prepared to point it out.  Be prepared to actually quote the specific response.  Judges expect parties to spin facts.  They don’t like to be lied to and don’t like it when parties or lawyers sidestep issues.  This happened just recently in a case and the judge made a point of saying that, when you read the papers carefully, this is the unusual case where the allegations really weren’t denied – just before she came down hard on the parties.

The bottom line is that quotes and other fancy tricks are great, except when the court actually cuts through the morass and realizes that you didn’t actually deny what was said.  Have fun then.


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 Connect with Eric: Twitter_64 Linkedin

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For the last few years, at the end of the year, I have reprised a very popular post that I did in the early days of this blog about the New Year’s Resolution Divorce.  We sometimes joke that the early part of the year is “the busy season.”  In fact, earlier this year, Robert Epstein blogged that March was found to be the peak time for divorce filings.


In our experience, the end of the summer/early fall is the second busy season (I’m sure that the nearness in time to the Jewish New Year is purely coincidental.)  These are some of the reasons that we think or have heard this occurs:

  • We got through the summer which should be a happy time for the kids, and if we file now, there is a chance to be done by next summer.  As such, if kids have to move or change schools, it is not during the school year.
  • The long awaited summer vacation was miserable -not because of the location or accomodations – but because of the company.  As such, tensions are exacerbated instead of relieved.
  • Like New Year’s Resolutions, the end of the summer represents the beginning of the school year, the new football season, the new TV season (at least in the old days), back to school sales, etc.  I am reasonably sure that the same reason that people seek the fresh start at New Years is also true here.
  • If the marriage is shaky, spending so much time together could make it worse, as the reasons that it is shaky hit you in the face over and over during this time.
  • One spouse wont help out with the children on family vacations.  This reminds the other spouse that he/she doesn’t help out during the rest of the year either.  If he doesn’t even want to be with the kids on vacation, why are we staying together?

I am sure that there are may more reasons for this phenomena.  Whatever the reason, we await those who see the fall as a chance for happiness or a fresh start – or at the very least, for a chance to make next summer happy.


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

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In recent years, we have been repeatedly cautioned by government leaders and renowned economists that the wealth gap and income inequality in America is only getting worse.  As part of the widening gap, some experts describe a slow disappearance of the middle class, with individuals/families who formerly fulfilled that category now moving either up or down on the wealth scale.

Ultimately, experts conclude that the “rich getting richer” is not the sole source of such inequality, but also, among other factors, that many of the blue collar jobs once relied upon by middle class families to put food on the table have disappeared.  At the same time, many households now have two fully employed parents, and, an overall demand for more affordable products by that same middle class category leads to outsourcing jobs overseas – essentially, one cause perpetuating another.

piggy bank

These issues, among others, are discussed in “Marriage Markets,” (with a link to the NY Times review) a new book by two family law professors, June Carbone and Naomi Cahn that examines why the number of marriages are on the decline, while non-married families and single parents are on the rise.  The book argues that income inequality has led to a decline in marriages, as middle class and lower income American families can no longer invest as they once did in growing a household and in futures of their children.  By correlation, it should come as no surprise that families with greater wealth more often have more stable marriages than those families with lesser wealth, can better invest in themselves and their children, and, should the marriage go south, can better finance a potential marriage dissolution.

While parties seem more willing to move on from a marriage, especially now that every State has some form of “no fault” divorce option, and while the economy has seen improvement since 2008, people still come to me on occasion contemplating whether it is more cost effective for them to remain married – even if they have to live separate and apart.  This sort of decision is troubling in that it handcuffs a couple’s ability to divorce and move on.  From a legal perspective, there is also a strong argument to be made, based on case law in New Jersey, that assets and income continue to accrue and are subject to distribution even after the separation date – especially since New Jersey really has no true legal form of separation.

Similarly, a lack of financial resources may also hinder parties from properly addressing all issues in a divorce, especially as to children.  The cost of attorneys, experts, and the like can be overwhelming for some and, as a result, litigants will, for example, forego the use of an expert when the need for a forensic custodial or accounting analysis may be imperative to fully and completely address a given issue.


While this blog post is less about specific law and practical tips, the primary arguments and underlying thesis of “Marriage Markets” are both interesting and relevant for the future prospects of marriage and divorce in our country.  The wealth gap continues to widen despite governmental measures taken to fend off its occurrence and has touched upon our world of family law in a way that has and will continue to impact how we practice and advocate for our clients.


Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or

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You’re wealthy and entitled to a big settlement but does that mean that it will be easy to get your share of equitable distribution?  When all of the assets are valued, you are worth $2,000,000, $10,000,000, $25,000,000, $9 billion.  In many cases. the issue is less about the amount of the award of equitable distribution but how to pay it out.  That issue is in the spotlight today with the story reported in today’s New York Daily News that Russian billionaire Dmitry Rybolovlev allegedly reneged on a deal to settle his divorce case for a relatively modest $1 billion, and then was hit with a record $4.8 billion divorce judgment.  It is reported that despite a net worth approaching $9 billion, he claimed that he was unable to come up with the cash to satisfy the settlement (though both accuse the other of reneging).

Treasure Chest With Coins Stock Photo Photo courtesy of

In many cases, it matters less about how much you have, but how liquid your are or are able to become.  In the last few years, I had a case that settled reasonably quickly and easily because most of the nearly $60 million net worth was in liquid assets (cash and securities.)  In that case, it was easy to transfer some homes, cash and securities and call it a day.

Most high net worth cases are not that easy, especially where there are business interests and/or commercial real estate.  The business may be profitable and it may be worth a lot of money, but it is not likely to be sold any time soon.  Sometimes the business owns the real estate (in the marital pot and most often valued separately) where it is located making the claim for the share of the business and the property even harder to pay out without disrupting the business.

The business throws off an income stream, but the non-titled spouse is often seeking alimony from that income stream.  If the business or property has to be sold to satisfy the equitable distribution, is it still fair to award alimony.  Not to mention, this could have very real tax ramifications perhaps not contemplated which could make the deal unfair.  Borrowing to pay the settlement out up front is often easier said than done, and moreover, you don’t want the borrowing to impair the business’ ability to continue to operate.

For better or for worse, in these types of cases, the equitable distribution may have to be paid out over time.  What a reasonable amount of time is depends on the facts of the case.  The next fights are (1) should there be interests and if so, how much, and (2) how to provide security for the obligation.  This can get very complicated, often requiring consultation with corporate, tax, real estate and/or trust and estates counsel.

What happens when you can’t resolve it and try the case?  Hopefully the judge will consider all of these things.  That said, I can point to at least two cases that I handled some appellate work on where that was not the case.

In one case, after a more than 20 day trial, most of which was expert testimony, where the values were widely divergent, the trial judge held that it was too complicated to decide and ordered that everything should be sold.  However, given certain unique tax issues related to the assets, the result could have been catastrophic because assets valued between $20 and $40 million would have been rendered valueless or worse, when the tax bill came.  Neither party wanted that and the case was ultimately settled.

In another high profile case, with a valuable business, and valuable real estate used by the business for its operations, the trial judge issued an award of more than $30 million and simply reduced it to judgment.  The trial judge did not order or even suggest how it be paid, even though everyone seemed to want direction, and simply left the parties to their own devices.  That was untenable too and the case was ultimately settled.

The take away is that just because there is great wealth, and just because you agree how much the non-titled spouse is entitled to receive, the hard part may be figuring out how to make that happen.


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

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Emancipation of a college student – when does it happen?  When should it happen?  In the wake of the Rachel Canning matter, emancipation is a hot button topic in New Jersey.  Generally, the law provides that a child is emancipated when he or she is no longer within the parental “sphere of influence and responsibility.”  It is been deemed the “conclusion of the fundamental dependent relationship between parent and child.”  Well, what does that even mean?  In Rybak-Petrolle v. Rybak, a newly unpublished Appellate Division matter, the Court reversed a trial court decision emancipating the parties’ then 21-year old son.

college (courtesy of google free images)

Here are the facts that you need to know:

The parties’ entered into a settlement agreement that provided for mom to be the primary residential custodial parent for the children, and for dad to pay child support until emancipation, which was defined in the agreement as follows:

An Emancipation Event shall occur or be deemed to have occurred upon the earliest happening of any of the following:

a. The completion of five academic years of college education;

b. Marriage . . . ;

c. Permanent residence away from the residence of [plaintiff] . . . ;

d. Death;

e. Entry into the armed forces . . . ;

f. Engaging in full-time employment, during school vacations and summer periods shall not be deemed an Emancipation Event.

g. Notwithstanding anything contained in sub-paragraph (a) above, an Emancipation Event shall be deemed deferred beyond a child’s [twenty third] birthday only if and so long as he pursues college education with reasonable diligence and on a normally continuous basis.

More than 10 years after the settlement, the Passaic County Probation Division inquired as to whether the child at issue was emancipated for purposes of child support enforcement.  In response, mom submitted documents showing that child was a full-time student at Berkeley College.  Probation, however, was not satisfied with such proofs, and requested a court Order relieving it of its duties to monitor and collect child support.  At a subsequent hearing, the trial judge, after finding that child was a full-time college student, denied Probation’s emancipation request.

After further procedural activity involving Probation’s enforcement duties, another hearing occurred several months later where Probation again argued – despite the trial court’s prior Order – that it was not satisfied with mom’s proof that the son was a full-time college student.  Mom responded that child was in his sophomore year of college, and that he was originally enrolled in Seton Hall University, but did not do well.  She added that he took one semester off before transferring full-time to Berkeley College for online classes where he was maintaining a 4.0 grade point average.

When asked why child was taking online classes, mom responded that it worked better for his schedule, because he was also working 2 jobs to pay for his car insurance bill.  When asked if child was working full-time, mom responded that he was, at which point the judge declared the child emancipated, concluding that “the son was not pursuing a college education with reasonable dilligence on a normally continuous basis as required by the PSA.”

On appeal, the Appellate Division determined that a plenary hearing should have occurred to determine if the child was emancipated, since it is a fact-sensitive inquiry – specifically, “a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.”   The trial court based its ruling solely on “limited questioning” as to the son’s full-time employment while taking online classes and, as a result, a conclusion that he was not pursuing full-time education with reasonable diligence.  The trial judge made no findings as to:

  • The child’s needs and abilities;
  • How many course credits he was taking;
  • His total expenses for school;
  • How many hours he was working;
  • How much he earns;
  • Whether those earnings are sufficient to cover the costs of school and living expenses;
  • Whether there were scholarships or financial aid packages applied for and received; and
  • Other relevant factors.

The parties’ agreement also provided, as quoted above, that one defined emancipation event was the completion of 5 years of college, and that, if the child reached his 23rd birthday, emancipation would be deferred “only if and so long as he pursued college education with reasonable diligence and on a normally continuous basis.”  Based on such enforceable language, the Appellate Division noted that the trial court failed to explain why he used the agreement’s standard for continuing college after 23 when the child was only 21 at the time of the hearing, and held that a child working “while attending school cannot be the sole determinative factor in the decision to emancipate,” nor can be the fact that he took a semester off before transferring to his present school.

The lesson to be learned here is that whether a child – especially one who is simultaneously in college and working – is emancipated is a very fact specific inquiry requiring detailed analysis and consideration.  The answer is not simply in a settlement agreement, nor can it typically be isolated to one specific detail.


Robert A. EpsteinRobert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or

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During the current football free agent season, you hear the pundits frequently say that if you get a free agent that you want to sign in your building, don’t let him leave without a deal.  Why?  You don’t want them to get wooed by some other team or have second thoughts.   How does this apply to divorce, you may ask?

The case has been going on a long time.  One or both of the litigants or opposing counsel is difficult.  You are finally all together at a settlement conference, mediation, Intensive Settlement Conference at court.  Much to your surprise, real progress toward settlement is being made.  Finally, after a long, torturous day, you have a deal.

Arrows Choice Shows Options Alternatives Or Deciding Stock Photo  Photo courtesy of

Now what do you do?  Do you do something to bind the parties to the essential terms of the deal?  If in court, do you put the terms on the record?  If at mediation, do you prepare some type of memorandum as the Willinboro Mall case that we have blogged on requires?  Or do you adjourn to prepare a formal Marital Settlement Agreement or Consent Order, knowing that someone could have second thoughts and blow the deal?  What if your client is desperate for the case to be done, but they are agreeing to a borderline bad or really bad deal?  Do you suggest that you adjourn to allow cooler heads to prevail with the hope that your client may re-think their acquiescence (maybe it was out of guilt, shame, fatigue, duress, emotional abuse going on behind the scenes, maybe they didn’t really understand, maybe they didn’t take their medicine. may they took a substance, etc.)?

That said, why do we not seal the deal, all of the time, even without a formal agreement listing all of the terms?  Because the devil is often in the details.  There are logisitical issues, issues about security, specific tax issues, issues regarding the specifics about how you will divide a retirement asset, etc. as well as a lot of other boilerplate – some meaningfull – some less so – that you would include in a formal agreement.  Sometimes you think you have a deal but then when you start discussing the details, you realize that there is more work to do, or in some cases, that there really wasn’t a meeting of the minds, at all.

Ok – so it sounds like you should never have a settlement without a formal agreement.  That’s not always true either, even though it is probably advisable.  In a recent matter, one party repeatedly reneged on a deal, even after my client agreed to “just one more thing” over and over and over.  At a court settlement conference, both that litigant’s attorney and the mediator were of the firm opinion that if the deal wasn’t put on the record, they feared that the other party would renege yet again.  So even though this was complicated, we put the basic terms on the record because it was important to bind them for other reasons.  There are other times when it may make sense to bind people to their agreement, as well.  It really is a case by case decision.

These are scenarios that divorce lawyers and litigants face every day.  This is tough stuff.  There is sense of relief, if not euphoria, when a matter is settled. That said – you have to choose wisely before you walk out of the door without the settlement being completely buttoned down.

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

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The Canning case has dominated the news in New Jersey and points beyond over the last two weeks.  You know, the so-called “spoiled teen” that moved out of her parents house, and among other thing, sued to have them pay for college.  Robert Epstein has blogged on it several times on this blog. While it was reported today that the matter may have been amicably resolved, the trial judge and legal pundits far and wide spoke of her uphill battle to succeed in the case.


Graduation Concept Stock PhotoPhotos courtesy of

But why?  The pundits again point to the constitution.  The constitution, they say, prevents government from intruding in the care and parenting decisions of fit parents.

Page one of the original copy of the Constitution

But we know that government can act to prevent harm.  There are laws governing car seats, education and a whole host of other things that infringe on a parents rights as to their children.  Fit parents cannot provide alcohol to their children before they are of legal age. In fact, we know from the grandparent visitation cases, that the constitutionally protected decisions of fit parents to deny grandparental access can be overcome by a showing of harm to the children.  Some of the pundits have suggested that children of divorced parents will be harmed if their parents are not compelled to pay for college – that’s not quite right – but query why children of in tact families can be harmed if their parents refuse to pay for college – and that is ok – but children of divorce need some special protection from the exact same “harm”?

So where does the obligation for college come from?  The Supreme Court case of Newburgh v. Arrigo is most often cited as the basis for this.  Though I have read the case dozens of times over the years, I read it again when the Cannings invaded our consciousness. Here is what Newburgh actually says:

Generally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated “necessary education” as a flexible concept that can vary in different circumstances. …

In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school. (Emphasis added)(internal citations omitted).

So does Newburgh speak to harm?  No, it says that college education is a necessary.  Does the case limit the obligation to provide this necessary to a divorce?  I don’t know – as noted above, the case simply notes that the issue frequently arises in the context of divorce.  You could certainly argue that Newburgh doesn’t limit the issue to divorce cases.  But then Newburgh speaks to the concept that the obligation attaches to those who are “financially capable” (often honored in the breach because many judges have treated the obligation for college absolute even without financial capability but that is an issue for another day.)  That said, if the standard is financial capability, one could argue that in tact families are likely more capable that divorced families where the same income that once supported one household now has to support two homes.  If college is a necessary, does the denial of payment for college rise to the level of harm?

This leads me back to the question raised in the title – why do parents who are divorced have to pay but parents in in tact families do not?  I know, I know, the Constitution.  Maybe just maybe, the harm standard can be raised to overcome a fit parents decision to deny a child of this necessary.

Finally, the constitutional attack is rarely raised in this way, but from time to time, is raised by divorced parents who are forced to pay for college.  The court usually avoids deciding this issue.  That said, in many other states (and NJ is in the minority of states that require parents to pay for college), the obligation to pay for college was struck down on constitutional grounds – i.e. there is no basis to compel the obligation for divorced parents but not married parents.

While the Cannings may now be in our rear view mirror, hopefully for them and for the rest of us, I expect that this debate may rage on.


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

As Supreme Court Justice Potter Stewart said when discussing his threshhold for determining obscenity/pornography, “I know it when I see it, ” that is how I feel about emails regarding routine or what should be routine parenting issues that have been drafted not by one party, but by their lawyer.  The pretextual  blathering or legalese that says nothing screams off of the screen.  It is enough to drive you mad – not because you are anxious to gather evidence in the form of an ill mannered email – but because it shows evidence of a party’s basic inability to do the slightest thing to make their own life and the lives of their children easier (or it could show a lawyer’s need to control every aspect of their client’s divorcing life, often to both parties’ detriment – perhaps the topic of another blog post.)

Peace War Keys Stock Photo  Photo courtesy of

Now there have been times that I have asked/told a client to let me review an email before they send it to assure that the tone and/or content is right.  However, this is not the norm.

That said, I have several cases now where it is obvious that the other party cannot answer the most simple email without it having been vetted and/or re-written by her lawyer.  We are not talking about monumental decisions here.  We are talking about selection of doctors, communication with teachers, changing parenting time due to weather, vacation arrangements, etc.  Why is this being done in these cases?  Because it is clear that the other party has no desire and/or ability to communicate, cooperate or co-parent with the other party.  As such, her lawyer edits or prepares her emails to make them appear passable.

That is not co-parenting nor does it evidence any true ability to co-parent.  Moroever, the divorce will end and that party wont have their lawyer their forever to co-parent.  Further, it delays a response and the abililty to co-parent in real time.  In many cases, the children suffer by the delay and/or it creates more unnecessary animus.

Almost every case resolves by way of settlement or trial with parties having joint legal custody – i.e. shared decision making.  The touchstone for joint legal custody is supposed to be the parties ability to communicate and cooperate.   One Appellate Division Decision, Nufrio v. Nufrio, put it succinctly:

…the allocation of the amount of time each parent spends with the child is not the sole basis  or determining whether the parties should share “joint legal custody” of their child.  Moreover, we conclude that the prime criteria for establishing a joint legal custodial relationship between divorced or separated parents centers on the ability of those parents to agree, communicate and cooperate in matters relating to health, safety and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other.  The ability of parents to put aside their personal differences and work together for the best interests of their child is the true measure of a healthy parent-child relationship.  A judicial custody determination must foster, not hamper, such a healthy relationship.  Therefore, a parent’s amenability or inability to cooperate with the other parent pare factors to be considered in awarding joint legal custody.

Sometimes, I think that lawyers and judges forget this, as they default to joint legal custody despite a clear inability on the part of one or both parents to communicate or cooperate.  Now, don’t get me wrong.  There are times when a parent refuses to cooperate with the other parent.  That parent, even if they are the parent of primary residence, should be be permitted to create a self-fulfulling prophecy in order to get sole custody.

That said, if you cannot even respond to the most basic of emails or communications without your lawyer writing it for you, should you really have joint custody?  Like it or not, parents need to put the nonsense behind them, if even for a few minutes, to co-parent their children.  They were able to do it when they were married (in most cases) – a divorce should not prevent them from putting their children’s needs first, no matter how much they despise their former (or soon to be former) spouse.


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


Sometimes litigants don’t want to settle but they don’t want to appear at a deposition or appear for trial.  Sometimes lawyers aren’t prepared, are afraid of trying a case or have other reasons that they don’t want to appear, either.  Like teachers who have heard the “dog ate my homework” excuse one too many times, I am sure that judges also hear every excuse under the sun to delay a matter.  Should they just grin and bear it and give the brief adjournment or should they force the issue?  If they don’t grant the adjournment and the party still does not appear, should a court proceed without them (even if the court warned that that is what would happen)?  What happens then? Should the other side consent to the adjournment?

Doctor Writing On Pad Stock Photo Photo courtesy of

These issues recently came up in the case of Ross v. Ross, an unreported (non-precedential) Appellate Division decision that reversed a trial decision because the trial court disbelieved the defendant’s (wife) doctor’s note and proceeded at a trial without her.  In this case, the wife was pro se.  After 4 trial adjournments, the trial finally started.  When it did, defendant told the court that she was having a medical emergency but was willing to stay.  The trial was supposed to resume two days later but on the following day, defendant’s doctor faxed the judge a note saying:

… is suffering from menorrhagia Started hormonal treatment today. I advise bed rest for then [sic] next 2-3 days, until her bleeding stops.

The Appellate Division was kind enough to add the following footnote, because we really needed to know:

Menorrhagia is the medical term for abnormally profuse menstrual flow. Webster’s Ninth New Collegiate Dictionary 741 (9th ed. 1988)

The judge apparently never called the doctor, on the record, or otherwise, to get to the bottom of the issue.  Rather, the trial judge denied the request for an adjournment, (1) because of defendant’s prior history seeking adjournments; (2) because the note was handwritten on a prescription pad, and because he was unaware of whether the doctor even saw defendant before writing the note.

Defendant appealed and the Appellate Division reversed noting:

Here, the note defendant’s doctor faxed to the court identified the condition from which defendant was suffering and specified the treatment required (bed rest for two to three days, or until the bleeding stopped). The judge questioned the legitimacy of the treatment the doctor recommended, because the note did not indicate whether the doctor had physically examined defendant or whether his conclusions and recommendation were based merely upon defendant’s “self-report.”

What information the doctor needed to have before making his recommendation is not common knowledge … Without input from a medical expert, or the doctor himself, the judge did not know that the doctor possessed insufficient information to have given the advice he did. …  Absent further inquiry, such as a telephone call to the doctor in the presence of the parties and on the record, the judge should not have concluded the treatment the doctor ordered was invalid.

The trial court also discounted the worthiness of the note because it was handwritten on a sheet from a prescription pad. There is, however, nothing about a handwritten note which undermines the substantive content of such note, per se. Certainly, the fact the note was handwritten does not detract from its authenticity. …

The Appellate Division recognized the trial judge’s frustration and the fact that people sometimes scam the system to delay things.  That said, there was no way to determine that in this case.  The Court noted:

We are mindful there are litigants who stoop to unscrupulous conduct in an endeavor to delay court proceedings. We do not suggest there are not instances when there is a reasonable basis to reject the authenticity of a doctor’s note or the legitimacy of a doctor’s recommendation that a litigant be excused from appearing in court. Each case is fact sensitive and must be examined on its own merits.

Here, however, there was not a reasonable basis to reject as unreliable the note from the doctor indicating defendant was suffering from a malady requiring bed rest. Given the absence of any evidence the doctor and defendant colluded to “game the system” or that the contents of the note were otherwise unworthy of belief, it behooved the judge to grant a short adjournment of the trial until defendant was well enough to attend court. Under the factual circumstances presented, we are constrained to conclude that the denial of the adjournment request was a mistaken exercise of discretion. Given our disposition, we need not reach the other points raised by defendant in this appeal.

Reversed and remanded for a new trial.

The opinion doesn’t say whether plaintiff objected to the adjournment or not.  If he did, all that got him was the expense of a new trial.  If he didn’t, the take away here is that maybe, in these situations, counsel might want to suggest that the doctor be contacted before disregarding the note and proceeding without a litigant present.


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