Morris County Divorce Attorney

Part of my passion (some say illness) for what I do is to read almost every new case that is decided – whether it is precedent setting (reported) or not (unreported).  I am always looking for an interesting take on an issue, or to be reminded about some nuance of the law, and otherwise, sometimes just for wonderment about how people act toward each other. Today was no different.  I was reading a new reported decision, P.M. v. N.P. that was decided today.  The case is about the potential recusal of a trial judge when their law clerk gets hired by the attorney for a litigant in a contested case before them.  This post is not about that case, which while interesting, you can read for yourself.

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Rather, tucked away at the end of the opinion was a quote and a paragraph reminding judges, and perhaps us all, why these cases are so emotionally charged and more importantly, why family court judges must be particularly sensitive to the litigants whose lives are in their hands.

Judge Fuentes gently reminded us all of the following:

Matrimonial cases present particular and unique challenges to the judiciary. These cases are often contentious because the nature of the controversy strikes at the very core of one of the most intimate of all human relationships. As our colleague Judge Donald Collester, Jr. eloquently noted:

“[S]omething . . . goes to the essence of marriage and is probably best left to poets rather than judges. It is the reason that people do get married. For marriage changes who you are. It gives stability, legal protection and recognition by fellow citizens. It provides a unique meaning to everyday life, for legally, personally and spiritually a married person is never really alone. Few would choose life differently.”  [Lewis v. Harris, 378 N.J. Super. 168, 220 (App. Div. 2005) (Collester, J., dissenting), aff’d in part, modified in part, 188 N.J. 415 (2006).]

Given this exalted place marriage as an institution occupies in our society, litigants embroiled in the legal dissolution of their union are often emotionally traumatized. They bring to these legal proceedings a deep sense of disappointment and an element of distrust that is rooted in the nature of the dissolution itself. Our Supreme Court has consistently recognized that judges who sit in the Family Part have a great sensitivity to these concerns and bring a high level of expertise to these emotionally fragile matters. (citations omitted) We thus expect our colleagues who sit in this legally difficult and emotionally demanding Part of the Chancery Division to be especially mindful of the challenges associated with this assignment. (Emphasis added).

We have all heard of the phrase, “there’s a fine line between love and hate.”  Many times, judges get angry and frustrated with parties to a divorce or any family court proceeding, because of the level of hostility and the intensity of the conflict.  Believe it or not, sometimes the lawyers do too.  The next time we feel that way, we should remember Judge Fuentes’ reminder and take it to heart.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

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

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

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

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

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

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

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After almost three years of legislative discussions, negotiations, arguments, and the like, alimony reform is coming to New Jersey in what is turning out to be light speed.  Late last week, the New Jersey State Assembly unanimously passed a compromised form of long-debated legislation that would represent what many consider to be a substantial overhaul of New Jersey alimony law as we know it.  Today, the Senate Judiciary Committee approved the bill, after which it was granted “emergency” status, and followed by a full Senate vote.  The bill now rests on Governor Christie’s desk for his review.  There are many changes in the present form of the bill from that earlier debated in the legislature, by the State Bar, various family law committees, and the like, as this issue has quickly come to a head.  I provide below the major highlights of the law in its present form.

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Regarding alimony awards, the law would only apply to awards involved in divorces that are in process, but not yet finalized, and future divorces that have yet to commence.  While some alimony reformists were seeking a retroactive application of the law to provide alimony relief to those payor spouses whose divorces were already finalized (other than through circumstances such as retirement, cohabitation and involuntary job loss/income decline-type modification), the legal and practical implications of such a provision would have raised major questions that are beyond the content of this blog entry.  For practitioners, this law will not only provide future guidance, but, critically, will provide for great use in ongoing divorce matters, especially where a question exists regarding whether alimony should be “permanent”, or what should happen to alimony once the payor reaches the age of retirement.

To that end,  the alimony reform movement seemed to gain momentum following last year’s Appellate Division decision in Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013), which is now pending before the Supreme Court of New Jersey.  One of the major issues in that case was the Appellate Court’s apparent holding that a 15-year marriage is one of long-term duration meriting a permanent alimony award.  Under the new legislation, however, that would not be the case.  As discussed below, the word “permanent,” in reference to alimony, will be removed from the statute, and a marriage of 15 years would no longer merit a “permanent” award.

Now for the highlights, some of which already exist as previously decided New Jersey case law, but of which are now being statutorily codified:

1. Standard of living – Neither party would have a greater entitlement to the standard of living (or a reasonably comparable standard of living) established during the marriage.

2.  Pendente Lite support payments – The nature, amount and length of pendente lite support, if any, paid during a divorce proceeding is now a statutory factor to consider when rendering an alimony award.  This bolsters the argument for those payors who pay interim support during a proceeding for months, if not years during a divorce proceeding.

3.  Weight of alimony factors – In analyzing the alimony factors, the court is required to “consider and assess evidence with respect to all relevant” factors and specify, with written findings of fact and conclusions of law, if it determined that certain factors are more or less relevant than others.  No factor shall carry more weight than any other factor unless the court finds otherwise.

4.  Duration of alimony – For any marriage of less than 20 years in duration, the total duration of alimony shall not, “except in exceptional circumstances,” exceed the length of the marriage.  The length and amount of alimony shall be determined pursuant to the statutory factors, as well as “the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage . . .”  A non-inclusive list of “exceptional circumstances” are set forth in the proposed law.

6.  Reimbursement alimony – May not be modified for any reason.

7.  Permanent alimony – The word “permanent” is changed to “open durational” alimony.

8.  Retirement – The proposed law provides extensive language addressing a retirement scenario and, as a threshold matter, alimony may be modified or terminated upon the prospective or actual retirement of the obligor.  While another post will merit a more in-depth discussion on this topic, the major changes include:

  • “Full retirement age” is defined as the age at “which a person is eligible to receive full retirement benefits under the Social Security Act” – presently 67 years of age.
  • There will be a rebuttable presumption that alimony terminates once the obligor spouse reaches full retirement age (which can be set to a different date based on a showing of “good cause”).  The law then provides several factors for a court to consider in determining whether the rebuttable presumption can be overcome.
  • If the rebuttable presumption is overcome based on the enunciated factors, the court is required to apply the standard alimony factors to determine whether a modification or termination of alimony is appropriate.  Critically, “if the obligor intends to retire but has not yet retired, the court shall establish the conditions under which the modification or termination of alimony will be effective.”
  • If the obligor seeks to retire before full retirement age, the obligor must prove by a preponderance of the evidence that the prospective or actual retirement is reasonable and made in good faith.  A series of factors are then set forth to determine what constitutes “reasonable and made in good faith.”
  • When a retirement application is filed in cases where there is an existing final alimony order or enforceable written agreement established prior to the effective date of the new law, the obligor’s reaching of full retirement age shall be deemed a good faith retirement.

9.  Modification of alimony – The law separates self-employed obligors from non-self-employed obligors.

  • As for non-self-employed obligors: a) a variety of factors are enunciated for a court’s consideration, most of which are already considered as part of the process when an application to modify alimony is made pursuant to Lepis v. Lepis, 81 N.J. 281 (1980); and b) importantly, the law provides that no application shall be filed until a party has been unemployed (involuntarily), or has not been able to return to or attain employment at prior income levels – or both – for a period of 90 days.

10.  Cohabitation – Alimony may be suspended or terminated.  The term is defined as involving a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.”  A variety of factors are enunciated, similar to those detailed in existing case law.  There cannot be an absence of cohabitation “solely on the grounds that the couple does not live together on a full-time basis.”

These are mainly the highlights of the pending law, and much discussion will follow once the law is enacted, interpreted, relied upon, and utilized in negotiations, arguments and the like.  The changes to alimony duration, retirement and modification are undeniably significant to family law practice.  Stay tuned to this blog for more updates and analysis on the new law as they unfold.

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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 repstein@foxrothschild.com.

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For the last few years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again.

Billboard Advertising New Year 2014 Stock Photo Image courtesy of freedigitalphotos.net

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

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

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

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

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse. Whatever the reason, we await those who see 2014 as a chance for happiness or a fresh start. Happy New Year?!?!

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

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.