Morris County Divorce Attorney

Someone recently showed me a bar coaster that was being used advertising for a divorce lawyer.  While amusing, maybe, are gimmicks, as opposed to something that suggests knowledge, expertise and/or experience, how you really want to find the lawyer that will be shepherding you through a very difficult time?  Similarly, when you see an ad where someone proclaims themself to the be absolute “best”, should your radar go up?   Aside from being potentially unethical, should you be concerned when someone needs to proclaim themselves the best?

This all reminds me of a blog I posted a few years ago.  One weekend, I was driving around town and saw many lawn signs, like those you would see for a political candidate, advertising a “Free Divorce Seminar.” The old adage, “you get what you paid for” came to mind.

While I am aware of the phenomena of these “seminars” over the last several years, putting aside potential conflict of interest issues that could perhaps be created, is this the type of thing that one contemplating a divorce should be attending?  Or rather, should a person schedule an honest to goodness divorce consultation with an attorney to which they have been referred or otherwise have researched?

There is no privacy or anonymity at the seminar – you may see neighbors, parents of your children’s classmates, etc.  There is no confidentiality or privilege at a seminar.  You have these things at an initial consultation.

You cannot ask confidential questions at a seminar; maybe you cannot ask questions at all (and the smart attorney probably would not take questions for risk of prematurely creating an attorney client relationship.)  You cannot show the attorney any pertinent document for the same reason.  And how can you develop a rapport with a speaker at a seminar?  The seminar can never be tailored to your special circumstances because one size never fits all. At a seminar, you cannot really probe the presenter’s experience, depth of staff and other resources of the firm, ability to commit to your case, etc.

At the end of the day, a one-on-one consultation, even if you have to pay for it, will be far more worthwhile to protect your dignity and get the attention and information you deserve.  Amd beware of gimmicks that don’t deliver content or value.  Enjoy the joke, but them make sure to find the right professional for you.

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

It is not uncommon for divorcing parties or parties who may have never married but share a child in common to face the issue of the costs of childcare.  In a time and economic climate where more often than not, both parents must work to support a household, payment of child care costs is an issue that must be addressed.

When calculating the Child Support Guidelines, which is the method NJ courts use when determining how much child support one party will pay to another for a child or children, part of the consideration allowed is a credit for child care costs paid.  It is not necessary that the cost of child care be included in the Guidelines calculation, as sometimes there are situations where parties will negotiate payment of this expense outside of the Guidelines calculation.

Continue Reading Child Care Expenses as Child Support

Driving around town this weekend, I saw many lawn signs, like those you would see for a political candidate, advertising a "Free Divorce Seminar." The old adage, "you get what you paid for" comes to mind. 

While I am aware of the phenomena of these "seminars" over the last several years, putting aside potential conflict of interest issues that could perhaps be created, is this the type of thing that one contemplating a divorce should be attending?  Or rather, should a person schedule an honest to goodness divorce consultation with an attorney to which they have been referred or otherwise have researched? 

There is no privacy or anonymity at the seminar – you may see neighbors, parents of your children’s classmates, etc.  There is no confidentiality or privilege at a seminar.  You have these things at an initial consultation. 

You cannot ask confidential questions at a seminar; maybe you cannot ask questions at all (and the smart attorney probably would not take questions for risk of prematurely creating an attorney client relationship.)  You cannot show the attorney any pertinent document for the same reason.  And how can you develop a rapport with a speaker at a seminar?  The seminar can never be tailored to your special circumstances because one size never fits all. At a seminar, you cannot really probe the presenter’s experience, depth of staff and other resources of the firm, ability to commit to your case, etc. 

At the end of the day, a one-on-one consultation, even if you have to pay for it, will be far more worthwhile to protect your dignity and get the attention and information you deserve.

It has recently come to light that the court may have been calculating child support incorrectly.  This revelation comes to light from a Mercer County case where an attorney recalculated child support using the software in his office and came up with the different result than the Court.  As a result, the attorney wrote to the Court and the Court directed the matter to the Administrative Office of the Courts (AOC) for review.  Sure enough, the attorney was correct and a corrected Order was entered. 

Since the support as calculated by the Court’s child support software was about 10% too high, this has raised concern among the bar whether all support orders calculated by the Court in the recent past have been too high. 

When the new Child Support Guidelines came out about a dozen years ago, there were essentially two main software packages that calculated support and the Court had one of the two.  While they usually were close, it was not uncommon for their to be a slight deviation in the calculations.  If there was a real discrepancy, the Court would usually accept the guidelines calculated using the same software that the Court had.

Several years ago, the Court went to a web based program to calculate child support.  This program was not available to the public or attorneys.  It now appears that there could be a problem with this program. 

If this is so, who knows how long it has been going on.  Perhaps there was user error in the matter described above – but that does not seem to be the case. Further, as both the taxes considered and other aspects of the Guidelines are essentially updated yearly, perhaps there was a programing error in the most recent update.  Worse yet would be if there has been a "glitch" in the Court’s program since it’s inception.

In the mean time, if your child support was calculated by the Court, you may want to have the calculations checked. 

Either way, stay tuned for updates on this story.

Week after week I find myself reading decisions that deal with the imposition of sanctions against one party in a family law matter and the validity of these sanctions.  Oddly enough it seems as though the recent flood of sanction-related cases have to do with a party’s aberrant behavior and the court’s attempt to curb this behavior in the form of a financial punishment.

Sanctions are not a new method of coercion or punishment in the court system.  Non-family related matters often use sanctions and some may say do so more willingly that family part judges.

As with anything in life, there are times when we are asked or have to do things that we simply don’t want to do or perhaps don’t feel like doing at that moment.  Well imagine that feeling mixed with the high emotions that often run in any family law matter.  The simple reality is that there are times when despite an attorney’s best efforts, a client simply will not do what they are asked to do or what the court and rules require them to do.  This is not only an uncomfortable and perhaps frustrating position for the attorney but even more importantly, a precarious position for the client.

When the courts are involved disobedience on what one may deem is ‘not a big deal’ or ‘won’t make a difference’ can carry heavy consequences.  Most frequently a court will hold one party in violation of litigant’s rights.  In simplest terms, that means that one party has violated the rights of the other party and the court is noting this violation in a formal record, by way of an Order memorializing the violation.  The next step or often coupled with a finding of a violation of litigant’s rights is an award of counsel fees to the non-violating party.  Often as a deterrent to future non-compliance and perhaps even as a punishment, the court will order the non-complying party to pay either all or a portion of the other party’s counsel fees.  Oftentimes, this is enough to get the misbehaving party’s attention.  It may not be though and where it is not and all other remedies have proven fruitless, a court can and will order sanctions.

Sanctions are often a monetary fine but tend to be more serious then a payment of counsel fees.  I have seen sanctions in the form of a daily payment for each day that a party is non-compliant.  I have also seen bench warrants issue for the arrest of a non-compliant party.  In family law matters, these two methods are used – but they are far from everyday occurrences, as court’s many times give litigants way too much leeway even when orders are clearly violated.

So what’s with all the fuss from the Appellate Division about these sanctions if they are used when everything else fails you ask?  Well the recently decided case that I’m referencing dealt with an award of future sanctions for future non-compliance of an order.  In the matter of Sheinbaum v. Campbell, A-3857-07T3, decided August 25, 2009, the court ordered a $500 sanction against a party for each future violation of a court Order.  In this highly litigious matter where several motions and emergent applications had been filed where the one party failed to comply with multiple Orders issued, the trial judge ordered the above future sanction in conjunction with counsel fees and other relief.

On appeal, the Appellate Division held that the ordering of a $500 sanction for each future violation was “premature”.  In addition, because the lower court did not explain how it arrived at the the amount; why a smaller sanction would not have been effective; or consider the party’s inability to pay, the Court could not uphold the Order as it stood.

The message – perhaps if the lower court had explained how it came to the $500 amount and justified this amount versus a smaller amount and considered the party’s ability to pay, the sanction may be have been upheld.  That remains to be seen.  In navigating your way through the court process, keep in mind that your non-compliance could have serious monetary or other consequences.  Then again, maybe it wont.

EDITOR’S NOTE:  I have previously blogged about frustrations by lawyers and litigant’s alike about a court not enforcing their own orders, not granting counsel fees when enforcement motions are filed, etc.  Too many recalcitrant litigant’s know this too and take advantage of the system, knowing it will cost the other party money to get what they are entitled to and that they may suffer a slap on the wrist.  As a young lawyer, I practiced in Colorado for about 2 years after practicing in NJ for a year.  After my brief experience in NJ, I was shocked dung my first contempt hearing when the dad was cuffed and sentenced to 6 months for contempt for failing to pay child support.  Attorneys in other states have commented to me that they are surprised how lax our courts are in enforcement matters.  That does not mean that a litigant should give up and not file enforcement motions.  As in the case the Sandra blogged about, eventually enough was enough.  That said, even when sanctions were imposed, they did not hold up.  ERIC S. SOLOTOFF

Summer is over.  Kids are either back to school by now or will start by Tuesday.  The regular routine for most families will soon be back in full swing.

Another phenomena occurs this time of year.  A surge of people call for divorce consultations.  At first I thought it odd or coincidental.  Over the last several years, it has become commonplace.  There is a similar phenomena after New Year’s Day. 

New Year’s seems logical – New Year’s resolutions.  Seemingly decisions are made to not be unhappy anymore and improve what one perceives to be a problem in their lives.  Back to school, however, does not have the same immediate "of course" as to why things occur this time of year.

I suspect that for most people, theirs kids are the most important thing. Since the kids are off and around during the summer, I suspect that many people do not want to start the process while their children are off, where long planned family vacations are scheduled, etc.  Once the routine is back it place, there are more distractions.

This is not to say that people do not start divorces at other times of the year.  Just that there are noticeable surges at these two times of years.

Though this is not to suggest that anyone should rush out to get a divorce, for those with questions about the process, our firm can answer any of your questions.  With our three offices in New Jersey, we cover the entire state.

In my opinion, perhaps the saddest and often most heart wrenching part of a family law matter is a fight over children.  Custody disputes are so personal and important to each side that if the right people aren’t involved they can get downright nasty and last many years.  This is especially so when children are young at the time the divorce begins.

Like it or not, once children are involved parties are connected to one another for life.  While not always possible, children are best served when parents can put their differences aside and the children’s needs and best interests first.  Typically that means being the bigger person, taking a few deep breaths and staying focused on the goal at hand- the children.  While this may be easier said than done, parties who cannot agree or who engage in bitter custody battles can spend years in the court system not to mention thousands of dollars on experts, court appointed or otherwise who become involved to help the parties resolve their issues.

There are several experts who can become involved in a litigated custody matter.  Forensic psychologists, psychiatrists and/or social workers can either be court appointed or selected independently by a party.  Their function can be to provide a medically based opinion of each party and the child(ren) and the interrelationships in the family.  Through a series of tests and interviews, the psychologist can offer a medically based, informed opinion as to the best interests of the child(ren).  They can also function in a therapeutic setting to repair, re-establish or reunite a parent’s relationship with a child.

Parent coordinators can either be psychologists, attorneys or even licensed social workers.   Their function is to serve as a neutral third party to effectuate communication between parents as to child centered issues.  Often, parent coordinators refer to themselves as referees as they can offer insight and a perspective from an outside vantage point.  Parent coordinators do not have authority to make the final call and either parent can still raise an issue to the court for determination.

An attorney appointed to represent the interests of the child(ren) acts as an independent legal advocate for the best interests of the child(ren) and takes an active part in a hearing.

A guardian ad litem acts as an independent factfinder, investigator and evaluator as to the best interests of the child(ren).

The same person cannot serve as the guardian ad litem for the child(ren) and a court appointed attorney.

Once some or even all of these professionals are involved and a resolution is not reached, the issue of what’s best for the child(ren) is placed before the court for determination.  A plenary hearing must be conducted “when the submissions of experts show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute.” “In child custody cases, a ‘plenary hearing is virtually a necessity…unless there are overwhelming admitted facts (e.g. child abuse).  Such a hearing must be held…where serious and long standing effects on the life and well-being of the child may result.'”

For an in depth discussion of guardian ad litems, court appointed attorneys for the child(ren) and the court’s role in making the decisions, see Bell v. Bell, A-0308-06T3, Decided August 10, 2009.

Through the judicial system parents are given opportunities and tools to resolve these issues between them.  However, the best decisions are the ones that parties can agree to amongst themselves as they are the most likely to be followed.

A typical question that I hear at most initial consultations (and I suspect most other divorce attorneys hear the same question) , is "how do I get my spouse out of the house?"  The typical answer is that unless there is a new act of domestic violence, you cannot usually have a spouse removed from the house while the case is pending.

While in a perfect world, attorneys are not telling their client’s to get restraining orders that are not legitimate, that seems naive.  Similarly, I am sure that badly motivated litigants, when hearing that a restraining order is necessary to get rid of their spouse, will do whatever it takes to get that restraining order, including provoking altercations and/or fabricating an incident.  I have, unfortunately seen or heard of this many times.  In fact, I often advise people to have a recorder with them at all times to protect themselves from a set-up.  In a recent case, the wife told the husband that she would no anything she could to get him out of the house.  I have unfortunately heard this a lot.  Aside from the obvious reason to get rid of a spouse, the other reason is that with the entry of a final restraining order comes a rebuttable presumption that the victim should get custody of the children.  Also, there is the practical advantage of gaining possession of the home and temporary custody of the children by virtue of a restraining order. 

Don’t get me wrong.  Domestic violence, real domestic violence is a blight on our society and is in no way acceptable.  That is not what I am talking about.  I am talking about, at best, what the Appellate Division has called "domestic contretemps" (i.e. your garden variety argument) and at worst the set-up noted above. 

Continue Reading THE ABUSE AND MISUSE OF THE DOMESTIC VIOLENCE STATUTE

Oftentimes clients will ask once an Order or Judgment of Divorce is entered, what happens if he/she does not comply with its terms? The bitter and harsh truth is that an Order or Judgment is a piece of paper that is enforceable by the Court. So what does that mean exactly? Well, in simplest terms, if a spouse or ex-spouse does not comply with its terms, then a enforcement application will have to be filed with the Court. That application, among seeking enforcement of the Order or Judgment, can also request additional relief such as the payment of counsel fees, sanctions, interest payments, possible jail time, etc.

Recently, the Appellate Division addressed this issue in the unpublished decision of Scheps v. Paparazzo, A-0717-08T1, decided July 29, 2009. This appeal stemmed after Wife filed several post judgment applications seeking to enforce the parties’ Property Settlement Agreement for her payments of alimony and a subsequent more detailed Consent Order regarding these payments. From the record it appears as though Husband had the ability to pay the monies owed, however he would not make these payments according to the schedule set forth in the Agreement and subsequent Orders.

After Husband had been found in violation of litigant’s rights on more than one occasion and judgments were entered and recorded against him , the parties entered into negotiations. As a result, a Consent Order was drafted and executed which carefully delineated the result of Husband’s continued non-compliance. The relevant portions stated that Husband would “pay any and all legal fees and costs associated with plaintiff’s enforcement of the terms of this Consent Order….., if defendant does not make timely payments on or before the first of each month as defined above, the defendant expressly agrees to pay the plaintiff interest in the amount of 6% per month on any balances due and owing…” The 6% monthly interest was in addition to a 7% annual interest on the monies owed.

Continue Reading Interest: Penalty or Right By Contract?

i have heard on a number of occasions lawyers and judges saying that they cannot, at trial, award retroactive support for the pendency of case if no interim (called pendente lite in New Jersey) support motion was made seeking support.

In the unreported case of Bright v. Bright decided July 9, 2009, the Appellate Division firmly holds to the contrary, affirming the decision of the trial court.  While the case is very fact specific, the logic of the decision was clearly enumerated as follows:

The purpose of pendente lite support is to preserve the status quo, maintaining the parties in the positions they were in prior to the litigation. Mallamo v. Mallamo, 280 N.J. Super. 8, 11-12 (App. Div. 1995); Rose v. Csapo, 359 N.J. Super. 53, 58
(Ch. Div. 2002). "Maintenance of the status quo involves payment of the marital bills and expenses necessary to maintain the dependent spouse at the standard of living enjoyed during the course of the marriage." Rose, supra, 359 N.J. Super. at  60.

Moreover, logically, if someone is not receiving proper support during the pendency of the matter, eatery because they didn’t seek it, by agreement or by court order, why should it matter how the deficiency occurred?