Morristown Divorce Attorneys

In law school, lawyers begin to be engrained with the concept of ethical duty of zealous advocacy.  While this concept used to be in the Rules of Professional Conduct, over time, it has been removed.  It has even been largely removed from the ABA’s Model Rules, upon which many State’s rules have been based upon, other than in statements in the Preamble that say, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system” and:

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (Emphasis added).

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Nevertheless, time and again you hear the refrain, in defense of an aggressive if not improper action, position, etc. that “I was only being a zealous advocate.”  However, assuming for arguments sake, that the duty of zealous advocacy exists in either some express or implied way, there certainly seems to be a difference between zealous advocacy and overzealous advocacy.  While the former may be appropriate, the latter is often not.  Moreover, it can be very costly, both financially and emotionally for the parties.

In a recent matter, I have seen an attorney send subpoena after subpoena seeking records, that if obtained, would add nothing to her client’s case.  In some instances, it is more than a fishing expedition or seeking a needle in a haystack, as even if the records were produced, no matter what they said, they would have no probative value in the case.  Moreover, when the subpoenas were not responded to or not responded to the their liking, threats of contempt followed.  Even the seemingly appropriate subpoenas seem needless given that a third party with much greater resources had already done an investigation.  There is one thing about leaving no stone unturned when there is a possibility that the due diligence will be fruitful, and quite another when it is a clear waste of time and money, if not harassment of third parties, from the start.  In that case, the “my client just wants to be sure” defense may not really cut it.

What about the lawyer that lies to further their client’s interests.  I have previously done a blog entitled The Lawyer The Liar which discussed this improper practice.

How about taking and litigating a position that is either contrary to the law, contrary to the facts, or both, and refusing to give it up notwithstanding.  I have seen lawyers push these issues because their client wanted to, because they figured they could make money and/or they figured they would wear the other side down and force them to capitulate to be done.   There are many other examples that I am sure my colleagues can add about examples of overzealous advocacy.

When the offender is called on these tactics, they hide behind the “zealous advocacy” shield. The question to ponder is what is a court to do when zealous advocacy crosses the line to overzealous advocacy.  Whether or not this rises to an ethical issue, will a court make the other party whole or at least put a stop to it?  If not, are we not rewarding pushing the envelope?


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 August 2015, the New Jersey Legislature formally amended the Prevention Against Domestic Violence Act (N.J.S.A. 2C:25-19(a)) to include the predicate act of criminal coercion as a fifteenth form of domestic violence (in addition to: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking, all of which are as defined under their respective criminal statutes).

By way of background, in order to obtain a restraining order under the NJ Prevention Against Domestic Violence Act, the plaintiff/victim must have a qualifying relationship with the defendant, must prove that one or more of the (now) 15 qualifying “predicate” acts of domestic violence was perpetrated against you, and  must also show that there is a continuing need for protection based on the facts of your case.  The addition of criminal coercion as a predicate act opens an additional avenue by which victims can seek to obtain protection under the Act.

Criminal coercion is defined as a threat made to unlawfully restrict freedom of action, with a purpose to coerce a course of conduct from a victim which defendant has no legal right to require, including threatening to:

  1. Inflict bodily injury on anyone or commit any other offense;
  2. Accuse anyone of an offense;
  3. Expose any secret which would tend to subject any person to hatred, contempt or ridicule or to impair credit or business repute;
  4. Take or withhold action as an official or cause an official to take or withhold action;
  5. Bring about or continue a strike, boycott or other collective action except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the defendant acts;
  6. Testify or provide information or withhold testimony or information with respect to another person’s legal claim or defense;
  7. Perform any other act which would not in itself substantially benefit the defendant but which is calculated to harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

coercion graphic

A recent opinion penned by Judge Jones, J.L. v. A.C. specifically addressed the first category of criminal coercion.  In that case, Judge Jones found that the defendant had criminally coerced the plaintiff into meeting with him, at which time he brutally beat her, by threatening the safety of her child if she refused to meet with him as he demanded.  As Judge Jones notes in his opinion, the NJ Prevention Against Domestic Violence Act has been criticized for its failure to provide protection to children because the Act only extends protections to victims who are over the age of 18 (except in cases where the relationship between the victim and defendant is a dating relationship).  Thus, Courts have typically denied relief to plaintiffs who try to obtain restraining orders for acts of violence committed against their children, rather than against them personally.

The major takeaway from this decision?  As a parent, it seems that you can definitively obtain protection under this Act where the defendant coerces a course of conduct from you by threatening to inflict bodily injury or commit an offense against your child.  It would also seem that this could extend to threats against anyone else in the plaintiff/victim’s life, including a boyfriend or girlfriend, co-worker, friend, or other family member.  However, there are limits.  Although Judge Jones’s opinion emphasizes that the new predicate act of criminal coercion fills in the gap where there was no way to obtain a restraining order for threats of violence toward a child or third party, it is important to note that there must also be “purpose to coerce a course of conduct” from the plaintiff him/herself.  A threat to harm a child or third party is not enough; that threat must cause the victim to engage in a particular course of conduct.  In J.L. v. A.C., that course of conduct was the act of meeting with the defendant, which the victim would not have done but for the threat to her child.

Additionally, it is vital to remember that the restraining order is still going to be between the plaintiff and the defendant – NOT between the defendant and the third party against whom a threat has been levied.  With that said, the court has always been empowered to issue a final restraining order that includes a victim’s family members as additional protected persons.  As an important practice tip, if you are an attorney or a self-represented party seeking a restraining order based upon criminal coercion that includes a threat to inflict bodily injury or commit an offense against a third party, it is imperative that you seek to include the threatened third party as a protected party on any final restraining order issued by the Court.

 headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or

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

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

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

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

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

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

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

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Ah, the moment you have been waiting for – nay, dreaming of – has arrived:  your child has gotten his or her driver’s license!  It was a long time coming, after 17 long, hard years of carpooling to school, arguing with the other parents about who is going to pick the kids up from their mall hang-out session, shuttling your child to sports practices, lessons, tutors, and so forth.  Freedom is yours!  There’s just one question:  who’s going to pay for the expenses associated with your son or daughter’s car and insurance expenses?

teenage driver graphic

When it comes to working out a fair child support arrangement, the devil is often in the details.  Child support recipients often feel that the support awarded to them under the Child Support Guidelines – the formula used in this state to calculate appropriate child support awards in most cases – isn’t enough.  After all, kids cost a lot of money.  Plus, their needs are constantly changing.  A child support award entered when the child is 3 years old may not be adequate when that child turns 13.  For parents of teenagers, one life change that often creates a dispute about the adequacy of the child support award occurs when the child begins driving and, at the very least, increases auto insurance costs.

For years, family law attorneys and our clients have grappled with the issue of whether the cost of a child’s car insurance as a new teenage driver was intended to be covered by a Child Support Guidelines-based award or, alternatively, it should be treated as an “add-on” expense to be shared by the parties over and above the child support payment.  And, as Judge Jones points out in his latest thoughtful opinion, Fichter v. Fichter, it has been unclear as to whether the Court may use its discretion to increase the child support contribution in order to address the costs of having a new teenage driver of divorced or unmarried parents.

In 2013, The New Jersey Child Support Guidelines were amended and gave us some answers to these questions.  As amended, child support is to include:

Transportation – All costs involved with owning or leasing an automobile including monthly installments toward principal cost, finance charges (interest), lease payments, gas and motor oil, insurance, maintenance and repairs. Also, included are other costs related to transportation such as public transit, parking fees, license and registration fees, towing, tolls, and automobile service clubs. The net outlay (purchase price minus the trade-in value) for a vehicle purchase is not included. Transportation also does not include expenses associated with a motor vehicle purchased or leased for the intended primary use of a child subject to the support order.

So, the 2013 amendments told us that if a child is going to drive his/her own car, the expenses associated with buying that car, and all other expenses associated with that car – which presumably includes insurance costs – are more appropriately considered “add-ons” to child support and not part of the child support expense.  By contrast, the 2013 amendments tell us that if a child is driving his/her parents’ car, child support will include all costs associated with that car.  And that makes sense:  if no new car is being purchased for the child, the actual expenses incurred by the parent who owns that car are going to remain the same.

Well, except for the auto insurance.  New teenage drivers can increase the cost of auto insurance for an existing car exponentially – they are one of the most expensive classes of drivers to insure due to their inexperience.  To say that an existing child support award covers the cost of adding a newly licensed teenage driver to the auto policy for an existing family car – while the cost of insurance for a new car primarily for that child’s use is NOT included – seriously prejudices those families who can’t afford to, or don’t want to, buy a new car just for their child to use.  Judge Jones’ new decision recognizes that inequity and allows the Court to deviate from the Child Support Guidelines and craft a child support award that takes into account the new expense of adding a teenage driver to an existing auto insurance policy:

The Court finds that, based upon the totality of a family’s economic circumstances, a court may in its discretion find good cause to deviate from the guidelines and require each parent to contribute additional reasonable and affordable monies towards a newly licensed teenage driver’s car insurance.  Good cause may logically include, but not necessarily be limited to, the special nature and importance of car insurance and the need to adequately protect a child as a newly licensed driver.

And that seems fair.  Shouldn’t both parents contribute to the increase of the cost in insurance if they agree they will not purchase a new car intended primarily for their child’s use?  Of course, like most other things in family law, Judge Jones’ decision is fact-sensitive and not a brightline rule.  Although the decision opens the door for a Court to decide to adjust child support to take into account the cost of insuring a newly licensed teenage driver on an existing family vehicle, good cause to do so must still be shown.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or

I recently came across an article, Getting Financially Naked with Your Partner, by Erin Lowry, that got me thinking about a question that is bound to arise more and more in this practice.  Millennials, as a generation, are beset by student loan debt at the highest levels in history.  As they start marrying and, as a corollary, divorcing, a common question they will ask is: what responsibility do I have when it comes to my husband’s / wife’s student loan debt?


student loan debt graphic

As with many issues, the answer will be fact specific.  It is well-settled law in New Jersey that any pre-marital assets or debts, and any passive growth of either the asset or the debt, are the separate property of the spouse who acquired the asset or the debt.  For example, Doug Debtor may have acquired $50,000 in student loan debt when he was in college, years before he met his wife.  In principle, if that debt still exists when Doug and his wife get divorced, he is going to be responsible for the entirety of it, including any interest on the debt that accrued while Doug and his wife were married.  Of course, the facts of any individual case may very well blur that bright line rule.  For example, maybe the parties lived together (though were not yet married) when the debt was incurred, and it was used to pay for living expenses.  In that case, an argument could be made that the non-debtor party should share in the debt – after all, s(he) benefited from the loan.

However, both parties will share in responsibility for debt incurred during the marriage – including student loan debt incurred by one of the parties for his or her education.  The idea here is that the parties as a united front made the decision to take on that debt and, hopefully, reap whatever benefits come with the spouse’s education; therefore, they are both responsible for the debt.

The set of facts raised in Lowry’s article present some interesting questions.  While the debt is pre-marital and was incurred apparently before the couple ever knew each other, the “deal” they make is that when they’re married, they will live off of Lowry’s income, and use her boyfriend’s income to pay off his student loan debt.  That is a fairly explicit declaration that, although he will be responsible for paying off the debt, she will be responsible for supporting him.  In New Jersey, such an arrangement in combination with other facts could be used to show that she was the supporting spouse during the marriage and that he is entitled to alimony in the event of their divorce – and what’s more, entitled to alimony in an amount that would allow him to continue devoting his entire income to paying off his student loan debt.

Certainly, it’s important to “get financially naked” with your husband or wife – after all, you need to be transparent with one another so you can financially plan for your future.  But in the event of a divorce, it’s also important to realize that the way you dealt with pre-marital student loan (or other) debt during your marriage may have an impact on the outcome of financial issues attendant to a divorce.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or

Family law and estate law are undoubtedly two very personal areas of the law that often cross-over with one another depending on the issues at hand.  In the Matter of the Estate of Michael D. Fisher, II presents us with one of the more tragic factual scenarios where the two worlds intertwine.


These are the facts that you need to know:

  • The parties were married in 1994 and had one child, who was born in 1995.
  • The parties separated in 2001 and mom procured a final restraining order against dad after he tried to move child from school without first telling her.    Dad, under the terms of the FRO, was permitted supervised parenting time with child at dad’s psychologist’s office, and dad was to undergo a risk assessment and “receive professional domestic violence counseling.”
  • Dad neither attended all supervised time with his son or undergo either the risk assessment or counseling.
  • In November 2001, dad filed a motion for unsupervised parenting time.  Mom cross-moved for all time to be supervised until dad completed anger management and the risk assessment.
  • In January 2002, the court temporarily suspended dad’s parenting time pending his enrollment of the above-referenced anger management and assessment.
  • In March 2002, the court entered a final judgment of divorce, incorporating the terms of the parties’ settlement agreement.  Mom procured sole custody of the child, and dad’s parenting time remained suspended until he complied with the terms of the January 2002 Order.
  • During the divorce proceeding, mom presented dad with an offer that, if dad agreed to give up his rights to the child, she would not seek child support.  Dad rejected the offer “out of hand”.
  • Dad did not appear for the scheduled risk assessment.  As a result, the parenting time suspension continued.
  • From January 2002 until the child’s death in September 2010, dad “never had any legal visitation with his son” and had some phone conversations with him in 2001 and 2002.  He occasionally saw him in public places.
  • Through subsequent litigation, dad, who had moved to Florida and became ill, procured a termination of his child support obligation.  He was obligated to pay substantial arrears that had accrued, but had otherwise paid support throughout the child’s life.  He even continued to pay a portion of the support when he was in poor health.  Interestingly, the trial court was critical of dad because he paid support through a wage garnishment even though this was specifically agreed to in the parties’ settlement agreement.
  • Dad learned of the child’s death from a relative and returned to New Jersey to attend the funeral.  The child died intestate and, with dad’s consent, mom was appointed as administratrix and administratrix ad prosequendum (named where a wrongful death suit is to be filed) of the child estate.

Since the child had no spouse or children of his own, the parents were to share equally in his intestate estate under N.J.S.A. 3B:5-4(b).  However, another law that became effective only a year prior to the child’s death, N.J.S.A. 3B:5-14.1, provides:

1.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

As expected, mom filed a complaint to bar dad from receiving a share of the child’s estate under the newly passed law, alleging that dad abandoned the child after the divorce by failing to have any contact with him or pay his full child support obligation.  Dad denied that he abandoned the child.

The trial court granted mom’s application despite concluding, “[a]dmittedly, it may not have been [dad’s] specific intent or purpose to abandon his son.”  In so doing, the court found dad’s acts were “unequivocally intentional rather than accidental or involuntary” because it was his choice not to attend supervised parenting time or anger management counseling, as well as not pay child support.

On appeal, the court determined that whether dad “abandoned” the child turned upon an interpretation of the new statute, which provides:

b.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

Analyzing the language, the Appellate Division found that a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by taking any one of the following three specific steps:

  1. willfully forsaking the decedent;
  2. failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection; OR
  3. failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death.

In so finding, the Appellate Division noted that death or serious harm to the child need not occur for the statutory definition of “abandonment” to be fulfilled and that the law was not supposed to be so limiting in its application.

The Court also engaged in a statutory interpretation of the phrase “willfully forsaking”, noting that it was inappropriate for the trial court to utilize a dictionary definition of “willfully” when many prior cases had interpreted the phrase under a similar statute.  After engaging in its analysis, the Appellate Court determined:

After carefully reviewing these precedents and distilling them to their essence, we hold that, in order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.

The burden of proof to be applied?  A “preponderance of the evidence”, rather than the more strict “clear and convincing evidence” because the issue merely involved whether a parent may share in a child’s financial estate, rather than the actual “best interests” of the child.  This despite will contests often involving the stricter standard.

Following its legal analysis, the Appellate Court found that dad did not “abandon” his son by “willfully forsaking” him even though he did not take actions necessary to enable him to have parenting time with the child after the FRO was procured by mom.  Ultimately, dad did not manifest a settled purpose to “permanently forego all parental duties and relinquish all parental claims to the child.”  Dad took repeated steps to restore his relationship with the child, would not agree to mom’s offer to terminate his parental rights in exchange for no child support, and paid child support throughout the child’s life (the Court noted that simply filing a motion to terminate child support is not evidence of a “settled purpose” to “permanently forego all parental duties and claims to his child” – in fact, dad did not oppose mom’s motion to reinstate child support if dad could procure Social Security Disability benefits.)

As a result, the Court concluded that the exception to intestate succession that mom sought to apply here was not appropriate and dad was entitled to share in the child’s estate.


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

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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.

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 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 2015 as a chance for happiness or a fresh start. Happy New Year?!?!


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


Litigants and family lawyers have eagerly awaited each decision from the Appellate Division that could shed some light on the numerous provisions in the amended alimony law that became effective on September 10, 2014.  On November 6, 2015, the Court released an unpublished (not precedential) decision in Court v. Court, wherein the trial court’s order denying an ex-husband’s motion to terminate his alimony obligation and vacate his alimony arrears was reversed and remanded for a plenary hearing.

retirement pic

The decision is interesting in its application of the amended provisions of the alimony law with respect to the issue of retirement, especially based on the chronology of the facts at issue.  The factual highlights are as follows:

  • The parties were married in 1981 and a judgment of divorce was entered in 2003 – approximately 11 years before the amended law took effect.
  • The court in the JOD ordered ex-husband to pay $1,000 per week in alimony.
  • Ex-husband was not paying as ordered and, in July 2013 he moved for a modification that resulted in a weekly alimony reduction to $500, plus a weekly payment towards accumulated arrears in the amount of $250.
  • An economic downturn in ex-husband’s industry and his deteriorating health caused him to retire in August 2014.
  • In 2014, ex-husband sought to terminate his alimony obligation based on his retirement at age 72.  He claimed that earned approximately $27k annually from Social Security and ex-wife was eligible, but refrained from applying for what would amount to $1,221 in monthly Social Security benefits.
  • Ex-husband’s arrears totaled almost $200k as of July 30, 2014 – less than 2 months before the amended law went into effect.
  • The trial court found ex-husband “provided the [c]ourt with sufficient evidence of his health problems to show he ha[d] lost his life insurance and [was] unable to be gainfully employed.”  It also found both parties in a “difficult financial situation” and noted how ex-husband’s sole income source of Social Security benefits was not enough for him to pay his bills, alimony and arrears.  The court also noted, however, that ex-husband – at age 72 – may again find work in the future and, as a result alimony should only be reduced.  The court, as a result, reduced the alimony obligation from $750 per week to $400 per week, with a $50 payment towards alimony and $350 towards arrears.

On appeal, the Appellate Court found that the trial court failed to make sufficient factual findings in support of its decision, specifically, it did not directly address the issue of ex-husband’s retirement, nor did it provide a basis for the reduced amount or ex-husband’s ability to pay “despite the findings defendant was unlikely to become reemployed given his advanced age and deteriorated health.”  Finally, the Court found that the family part judge “ignored defendant’s right to retire in good faith at age seventy-two.”

Notably, the Appellate Court directed the trial court to apply the amended alimony provisions on remand to determine whether ex-husband was still required to pay alimony.  In so doing, the Court conveyed “There is a rebuttable presumption alimony shall be terminated ‘upon the obligor spouse or partner attaining full retirement age.'”  It then cited to subsection (j)(1) of the amended law, which provides that alimony could only continue if ex-wife presented proof to overcome the rebuttable presumption based upon the following factors:

(a) the ages of the parties at the time of the application for retirement;

(b) The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

(d) Whether the recipient has forgone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

(e) The duration or amount of alimony already paid;

(f) The health of the parties at the time of the retirement application;

(g) Assets of the parties at the time of the retirement application;

(h) Whether the recipient has reached full retirement age as defined in this section;

(i) Sources of income, both earned and unearned, of the parties;

(j) The ability of the recipient to have saved adequately for retirement; and

(k) Any other factors that the court may deem relevant.

The Court added, in reference to subsection (j)(1) that “any arrearages that have accrued prior to [alimony] termination shall not be vacated or annulled.”  Thus, a payment towards arrearages was required in an amount based on ex-husband’s ability to pay.  Interestingly, Court indicated that the amount due could be reduced to a judgment upon which interest would accrue, thereby allowing ex-wife to take appropriate steps to collect.

I found the decision noteworthy multiple reasons, each of which have to do with the Court’s application of the rebuttable presumption under the new retirement language and its related factors.

Generally, the amended law seemingly, but not definitively from a legal application standpoint, provides three subsections in connection with an application for retirement that a trial court is to utilize depending on the facts of a given situation: (j)(1), (j)(2) and (j)(3).  Each subsection contains its own similar, but somewhat different sets of factors.  Only subsection (j)(1), which the Appellate Court referenced here, contains the “rebuttable presumption” language.  Subsections (j)(2), which applies to applications for early retirement, and (j)(3), which applies to retirement applications filed in cases where there is an existing final alimony order or enforceable written agreement, do not contain such language.

As a result, there existed a question emanating from the new language as to whether the rebuttable presumption referenced in (j)(1) applies to any retirement application, or just retirement applications stemming from final alimony orders/enforceable agreements entered AFTER the amendment’s effective date.  In other words, does the rebuttable presumption also apply to applications made under subsections (j)(2) and (j)(3)?  As the factual circumstances in Court involved a pre-amendment final alimony judgment, the answer from the Appellate Division, although not in a reported decision, suggests that the rebuttable presumption may apply to all retirement applications made under the new law.

The answer becomes somewhat uncertain, however, because the Appellate Court  remanded to the trial court with a direction that it apply the rebuttable presumption and factors enunciated in subsection (j)(1).  No reference in the decision is made to subsection (j)(3), which, as noted above, applies to retirements applications filed in cases where there is an existing final alimony order or enforceable written agreement.

Thus, while the decision in Court sheds some light on applying the retirement provisions of the amended law, it and future decisions will only provide a greater roadmap for litigants and attorneys with respect to seeking an opposing an alimony termination.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

I was recently reading a New York Times article from early November entitled “Stressed, Tired, Rushed:  A Portrait of the Modern Family”, and couldn’t help but see the commonalities between today’s modern family and the ever-changing issues raised in divorce.

The author, Claire Cain Miller, citing from a new Pew Research Center Study, conveyed to readers what many of us may already believe/know, even without statistical support in our back pockets – namely, that children in today’s society are more likely than not to grow up in a household in which their parents work.  The study also found the existence of households with both parents working full-time “in nearly half of all two-parent families” (46% of all two-parent households have both parents working full time – an increase of 31% from 1970; similarly, the percentage of households in which mom stays home has declined from 46% to 26%).

high wire

Parents’ ability to balance everything that comes with everyday life has only become more difficult, the study concludes, since there is only so much time that can be devoted to the kids, each other, friends, the house, the family dog, and, last but not least, the workplace.  Miller also noted that how the data reveals that workplace policies (such as paid family leave and before/after child-care) are not yet up to speed, or current to truly help with the situation when dealing with what is described as a permanent and societal shift in the traditional family structure.

Pew found that 56% of all working parents say the “balancing act is difficult, and those who [found such difficulty] are more likely to say that parenting is tiring and stressful, and less likely to find it always enjoyable and rewarding.”  It should be no surprise to anyone, as a result, why divorce rates are rising nationwide.

Interestingly, the article touched upon a changing shift in the mentality of parents that divorce lawyers find more common than ever in custody disputes – specifically, situations where mom still asserts that she has always handled primary caretaking responsibilities despite working full-time, and dad asserting that he does just as much as mom, if not more.  In other words, the article notes:

In most cases . . . women still do the majority of the child care and housework – particularly managing the mental checklists of children’s schedules and needs – even when both parents work full time . . .Just don’t tell fathers that.  They are much more likely than mothers to say they share responsibility equally.

Not surprisingly, more dads say they equally share in such tasks than moms think they do.  Custody evaluators in our field are, more than ever, making recommendations about what is in the children’s best interests where both parents work full-time.  For better or for worse, evaluators are seemingly more likely, under such circumstances, to recommend an equal residential parenting time arrangement.

Some other notable statistical findings from the Pew study:

  • Of full-time working parents, 39% of moms and 50% of dads say they feel that they spend too little time with the kids.
  • 59% of working moms, and more than 50% of working dads, say they don’t have enough down time.
  • The difference between working parents with college degrees versus parents without such degrees (65% with and 49% without) found the work-life balance difficult, with Miller speculating that the reason may be that workers with degrees may be expected to log in hours even after they leave the office despite increased flexibility during the work day.
  • White parents are more than 10% likely to express stress than nonwhite parents.
  • 41% of working moms said being a parent made it harder to advance at work, compared with 20% of dads.
  • Parents spend more time with the kids and less time maintaining the house due to less available time for both.  As compared to past surveys, however, Dads spend less time working, double the time on housework, and tripe the time time on child care.  Even still, the article noted how women still do much more, especially when it comes to raising kids, managing their schedules, caring for them when they are sick, and the like.  In addition, “Fathers and mothers are much more likely to equally share in doing household chores, disciplining children and playing with them.”

The article highlights the changing, or permanently changed nature of today’s modern family, which, from an overarching perspective, will continue to shape the divorce landscape for decades to come.  Litigants’ positions in divorce proceedings, as a result, will continue to evolve and, more likely than not, be less grounded in notions of the traditional family that is ever slowly, according to Pew, becoming a thing of the past.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

Ah, Thanksgiving, Christmas and Hanukkah.  What many people generally consider to be the most important holidays of the year are upon us.  The time of year for being thankful, enjoying good food, football on Thanksgiving or basketball on Christmas, and celebrating with family another year gone by.  After almost eight years, this blog contains so many hundreds of posts that they frequently blur together for this writer, but one post written two years ago by Lauren Beaver about being thankful for what you have stands out if you want some inspiration this morning.


Thus, while one can only hope that the holidays bring minimal conflict and nothing but happiness for your family, oftentimes, especially for divorced or divorcing couples, conflict is front and center.  Interestingly, I have seen increasing conflict between parents as to even the Halloween holiday, but such issues generally pale in comparison to what transpires at the end of the calendar year.  I have written about holiday parenting time issues before, and, with Thanksgiving mere weeks away I thought it would be a good time for a brief refresher course so that you can address any issues now – before it is too late.

1.  Who has the kids and when? – Many parenting time agreements provide details down to the very minute of when the kids are with mom and when they are with dad, who is picking them up and taking them to the other parent’s house, and more.  Day before Thanksgiving, Thanksgiving Day, Thanksgiving weekend, Christmas Eve, Christmas Day, the first night of Hanukkah, second night, third night, winter break…the possibilities and machinations are seemingly endless.

Many agreements, however, are far more general, perhaps agreed upon at a time with you thought you would have no issue in working out these issues with your former spouse on an annual basis.  Who gets to put Bobby to bed on Christmas Eve?  Who gets to open up gifts with lil’ Tammy on Christmas morning?  Who is lighting the menorah with Benny?   Now is the time to firm up the details, because any conflict may leave you with no choice but to bring the issue to a family court judge.

2.  What holidays will the children be celebrating? – Perhaps one parent celebrates Christmas and the other celebrates Hanukkah.  Now what?  While the law generally provides that the primary residential parent can have the final say in deciding what religion the children are raised in, there is, for the most part, no issue with the child being exposed to and celebrating both holidays.  This, however, may not sit well with both parents.  If the issue of religion and religious holidays are not addressed in your agreement or court order, try to work it out to avoid a holy war.  Otherwise, you may end up having a judge decide the religious issue for you, which is not a place where you want to be.

3.  Who is buying gifts for the kids?  Who is buying that Thanksgiving turkey or Christmas ham?    This type of issue typically arises when the holidays fall during a divorce proceeding, but oftentimes fall afterwards as well.  Perhaps the monied spouse refuses to give money to the dependent spouse for such items, and prefers to lavish his or her own gifts upon the children as a way to buy the kids’ affections.  I once had a case where the dependent spouse was not receiving her ordered support and, as a result, actually had to go before the court and ask for money to buy a Christmas turkey and gifts for the children.  Suffice it to say, the judge was horrified at such a situation.  Do not let it happen to you.

4.  Who is saying what to the kids about whom?  Again, this is supposed to be a time of year for celebrating, being thankful, enjoying family, and looking forward to a new year.  Do not let your kids become the epicenter of your conflict with your spouse or former spouse.  Do your best to avoid disparaging the other parent to the kids.  Do not let anyone else talk badly about the other parent, including grandma or grandpa who may no longer have that loving feeling for their former son or daughter in-law.  Stop yourself from getting into an argument with the other parent in front of the kids.  Keep in mind that the kids will remember these holidays for years, if not decades to come.

These are just a few of the issues that may arise at this time of year and some tips to avoid or address them.  Now is the time – and not the day before Thanksgiving when family court judges are often inundated with emergency applications because mommy refuses to bring Johnny to daddy’s house, or on Christmas Eve when daddy refuses to allow Sammy talk to mommy – to address these issues through amicable agreement or litigation.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.