Archives: Princeton Divorce Attorneys

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

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

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

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

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

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

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

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

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

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

Cersei Lannister may seem like she has it all: unbridled brutality, a mountain of a protector, disfavor in the Realm and a growing list of enemies she’s collected along the way. After all, she’s just destroyed her enemies in one fell swoop as she blew up the Great Sept of Baelor. Although Cersei seemed to have finally served her sweet revenge, she comes to discover that bittersweet aftertaste that just won’t quit.

Cersei soon found out that the fleeting rush she got from all the carnage and destruction (just a few of her favorite things) gave way to a mixed bag of emotions; on the one hand she finally got her seat on the Iron Throne, but on the other hand, she had lost all of her children in the process.

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HBO.com

Apparently, Cersei’s conflicted feelings on the subject of revenge are not unique to her.
A recent study in the upcoming edition of the Journal of Experimental Social Psychology found that the emotional consequences of revenge “are a mixed bag, in that we feel both good and bad when we take revenge on another party.”

Take the good: we love revenge because we punish the offending party. Apparently, the brain areas in charge of making crime and punishment judgments overlap with areas that process reward, which explains the pleasure in punishment/ revenge.

But then there’s the bad: it reminds us of the original act. To put that kind of pain it in context, think about the revenge your stomach exacts the morning after you eat an entire pizza. We’ve all been there.

In fact, just ask anyone who has slashed their cheating ex’s tires. Or take the story recounted by Marylin Stowe, one of England’s top divorce lawyers: Lady Graham Moon has gone down in English family law history for acting like a milkman, except that she was delivering to her neighbors the contents of her estranged husband’s valuable wine cellar.

The act of revenge may feel good in the moment, but soon thereafter, people are reminded of how they felt to have evoked the desire for revenge to begin with.

The stakes become even higher when that cheating ex and you share children together. Indeed, the Journal of Experimental Social Psychology study found that feelings of revenge support endless cycles of retribution that may emerge in the context of conflicts between families. And we all know how that can turn out for parents and children alike.

So take a page out of the book of Cersei, the Queen of Family Dysfunction, and now, the Seven Kingdoms. She should have listed to Mark Twain who said: “Therein lies the defect of revenge: it’s all in the anticipation; the thing itself is a pain, not a pleasure; at least the pain is the biggest end of it.”
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Eliana Baer, Associate, Fox Rothschild LLPEliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

I’m not usually one to place a lot of stock in celebrity gossip, but I couldn’t help but take notice of the fact that it has been rumored that Amber Heard’s monthly income is $10,000, yet she spends $44,000 a month on shopping, dining out and vacations. Her ask for spousal support: $50,000 per month, based upon the parties’ marital lifestyle.

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45351836 – champagne bottle in ice bucket and two full glasses realistic vector illustration

Amber Heard may not be only one spending beyond her means. This phenomenon applies to us common folk as well.

Particularly during the economic downturn, we have seen many cases where parties have splurged during times of plenty and then failed to scale back when the economic downturn hit. As a result, the parties are living on credit or perhaps not paying their bills. It, in effect, creates an artificial lifestyle which neither party really has the ability to maintain.

This puts the Court in a tough spot. On the one hand, the Supreme Court explained in Crews, “the standard of living experienced during the marriage . . . serves as the touchstone for the initial alimony award.” On the other hand, what happens when the marital standard of living is based on nothing more than irresponsible spending?

An unpublished case was just recently decided by the Appellate Division that touched on this issue. Although the crux of the case really focused on the reversal of a judge’s suspension of alimony as a discovery sanction, what peaked my interest was how the judge dealt with what he classified as an “artificial lifestyle,” marked by the parties’ “irresponsible spending and outlandish behavior, whether going on expensive vacations to South America and Europe, or purchasing fancy cars” when awarding alimony.

In Ponzetto v. Barbetti, decided on June 28, 2016, the parties had a nineteen year marriage which ended in a contentious divorce when the parties were in their mid-forties. The parties did not have any children and the only issues in the case were equitable distribution and alimony, both of which were hotly litigated during the course of a lengthy trial.

The husband had started a sound system business when he was a teenager, for which the wife kept the books. At one point, the business was so lucrative, that it generated revenue of $500,000 per year. These were the times of plenty.

Unfortunately, the business suffered during the economic downturn. The parties’ lifestyle, however, did not. They continued to spend lavishly. By the time of the divorce, they had two Ferraris, a Harley Davidson, Pontiac Fiero and two hummers.

While typically a judge would look at the parties’ spending during the last several years of the marriage to determine lifestyle, in this case, the trial judge found that it would not be appropriate to do so in this situation, where the lifestyle was not based on income or need.

As a result, the judge declined to use “the parties’ irresponsible spending from 2006 through 2008 in determining marital lifestyle” and instead determined to “kindly” utilize the marital lifestyle from 1990 through 2006, which the judge determined to be $14,500 per month. Ultimately, the wife was awarded $400 per week in alimony.

This is just one example of how a judge has dealt with this increasingly common situation. However, judges are frequently placed in these precarious situations, where the parties have exceeded a reasonable lifestyle based upon their income as compared to their expenses. In the case of Ponzetto v. Barbetti, the judge crafted a remedy that was equitable given the specific circumstances of the case.
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Eliana Baer, Associate, Fox Rothschild LLPEliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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

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

45567922 - graduate figure made out of falling sand from dollar sign flowing through hourglass

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) LEGALLY

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

(2) FINANCIALLY

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

(3) EMOTIONALLY

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

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

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

Accordingly to a Pew Internet Project research study, as of 2014:

  • 90% of American adults own a cell phone
  • 32% of American adults own an e-reader
  • 42% of American adults own a tablet computer
  • 64% of American adults own a smartphone

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As with all advances in technology however, we take the good with the bad.  For example:

The good: You can see cute pictures of your kids every day while you’re at work.

The bad: You distract yourself all day with cute pictures of your kids while you’re at work.

The good: You can communicate with that special someone day and night.

The bad: That special someone turns out to be not-so-special and communicates with you day and night.

Cell phones enable us to access information rapidly, and to communicate with loved ones around the world instantaneously.  But that instantaneous communication comes at a price.

In the recent decision of E.C. v. R.H., Judge Jones in Ocean County examined the proper use of cell phone evidence when communications potentially cross the line from wanted to unwanted; from mild annoyance, to harassment.

E.C. involved a situation where one party alleged that she was being harassed via text messages, voicemails and social media evidence. She wanted the defendant to leave her alone, and asked the Court to enter a final restraining order against him. In support of her claim, E.C. sought to introduce evidence directly from her cell phone.

In examining the question of how to appropriate accept evidence from E.C.’s cell phone into the record, Judge Jones delineated a litany of issues with utilizing evidence that comes directly from the cell phone:

  1. When a litigant attempts to offer images on a cell phone screen, it becomes difficult to preserve the image for the record unless there is a hard copy printout of the image as well.
  2. The small screen on a cell phone makes it impossible to see an entire document at one time, which create reading challenges even after on-screen enlargement.  Scrolling can become time consuming and cumbersome.
  3. It is impractical for the judge and both of the parties to view the evidence on the cell phone at the same time.  This would require the litigants to pass around the cell phone, which is even more complicated when there is a temporary restraining order in place and the parties cannot physically sit or stand next to each other to view the cell phone evidence at the same time.
  4. If a party orally reads the text or email in to the record, without a hard copy in front of each party, there is no guarantee that the oral recitation will be accurate.  It can also be time consuming and confusing if there are multiple lengthy text messages.
  5. With voicemails stored directly on cell phones, it is difficult to hear the exact words.  The Court suggested that a CD or transcript may be useful to assist in deciphering the recording.
  6. The evidence cannot be preserved so that the Court can review it as part of the deliberation process before rending a decision.

In light of the above issues, the Court suggested that the following rules of thumb should be followed for litigants wishing to introduce evidence stored on cell phones:

    Cell Phone Evidence                      Hardcopy form

A) e-mails and texts                          printed on paper

B) Social media messages                printed on paper

C) Photographs                                  printed on paper

D) Audio Recording                          duplicated on C.D. or cassette

E) Video Recording                           duplicated on DVD

 With evidence rules struggling to keep up with rapidly changing technology, Judge Jones’ decision again provides a practical solution to a very prevalent and difficult problem faced by pro se litigants and attorneys alike.  Indeed, the goal of the prevention of domestic violence act is to provide victims of domestic violence with protection from harm.  The last thing that should happen is for a victim to be denied that protection simply because they were unable to introduce relevant and compelling evidence because it was stored in an unusable format.

So what should you do if you have evidence stored on your phone?  Here are just a few tips I’ve picked up along the way from my own experience:

Electronic Messages (emails, text messages, social media messages, etc.):

The best thing to do is to take screenshots of electronic messages and send them to your attorney for review.  There are also paid services available that can do a “dump” of your phone into a PDF document that may be more helpful if there are a large volume of messages you wish to preserve and introduce as evidence. Make sure they are clear such that a third party could decipher the sender of the text message and the receiver of the text message.

Also, be sure to bring the cell phone to Court just in case there is an allegation that the text messages were somehow altered. I once encountered a situation where one party had deleted individual text messages before sending them to her attorney and my client was able to take out his phone and demonstrate that the messages were tampered with.  It ruined the other side’s credibility and demonstrated that the whole text message exchange was rather innocuous, and in fact, demonstrated that my client was in the right.

Audio Recordings:

For audio recordings, while a CD should certainly be made so that the Court can preserve the evidence and listen back to it during deliberations, you should also make sure that there is a place to play the recording in the courtroom.  A laptop usually cannot give you the kind of audio reach for all parties, and the court to hear the message.  You should opt for an audio system with either a CD slot or an auxiliary jack so that you can connect your cell phone to the speakers.

Video Recordings:

Again, make sure there is a place to play video recordings in the courtroom. Again, there are issues with using a laptop, both because it’s too small for everyone to see, and because the audio is insufficient.

Just in case you need to authenticate video, make sure to preserve the original recording on your cell phone so that the Court can verify that the duplicate has not been altered.

Clients should be counseled early on regarding the necessity of preserving information. Similarly, when litigants are pro se they should be advised when they obtain a temporary restraining order that cell phone evidence will not be admitted unless it is in a usable format.

In fact, Judge Jones suggested the following language be added to temporary restraining orders:

If either party is seeking to introduce information stored on his/her cell phone (emails/texts/Facebook posts, etc.), such information should be printed out in triplicate in organized fashion with page numbers on the bottom right hand corner for easy reference. Additionally, if either party is seeking to introduce evidence from their cell phone relating to voice mails, video streams or photographs, same should be duplicated onto a CD or DVD as applicable so that same may be marked for identification in a tangible form.

In the end, Judge Jones allowed for a brief adjournment so that the parties could make hard copies of any cell phone evidence.

It will be interesting to see if judges around the state begin to adopt Judge Jones’ temporary restraining orders.

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

Unless you’ve been living under a rock these past few days, you have undoubtedly heard about the Calgary couple that used their divorce as an opportunity to nab a quick selfie.

Shannon and Chris Neumann looked like they were beaming as they exited the courthouse on August 27, 2015, just after filing for divorce.

divorce selfie

In the caption, Shannon explained that the couple had done something “extraordinary”:

“We have respectfully, thoughtfully and honourably ended our marriage in a way that will allow us to go forward as parenting partners for our children, the perfect reason that this always WAS meant to be, so they will never have to choose.”

“They’ll never have to wonder which side of the auditorium to run to after their Christmas concert or spring play, because we’ll be sitting together. They won’t have to struggle with their own wedding planning because we’ll be sitting on the same side of the aisle – THEIR side.”

In the days that followed the post went viral.  The couple has been receiving numerous accolades for being “inspiring”, with headlines like “Couple Posts Divorce Selfie with Inspiring Message” and “The excellent reason this ‘divorce selfie’ is going viral”.

But the divorce lawyer in me is just not truly convinced.  To be clear, I think that the Neumanns have the best of intentions; intentions to live a harmonious lifestyle post-divorce, with a fluid custody arrangement and little conflict. But intentions sometimes do not stand up to the rigors of divorce.

I think that’s a critical piece of the story that that Neumann’s selfie is not telling.  It’s like soon to be parents posting a pregnancy selfie with the following caption:

We have respectfully, thoughtfully and honourably decided to become parents.  We intend to always be parenting partners for our children so that they will never need to hear us fight about whose turn it is to change the fifteenth diaper of the day.

They will never wonder if mom or dad love them because we will never yell and we will tell them each and every day how lucky we are that they are in our lives. They won’t need to struggle to pay for college, because we’ll be rich.  Anyway, they’ll get full scholarships to Harvard because, well, genes.  Our handmade costumes for the spring play will be glorious, as will the cookies that we bake for all the children in town.

*Comment from all parents everywhere: “LOL”.*

We would be chastising those people as sanctimonious “know-it-alls” who really have no idea what parenting is actually like.

Well, divorce, like parenting, is hard work.

A garden requires patient labor and attention. Plants do not grow merely to satisfy ambitions or to fulfill good intentions. They thrive because someone expended effort on them.

– Liberty Hyde Baily

I have seen those couples in the selfies.  They have walked in to my office with the best of intentions.  But intentions require work.  And sometimes, intentions don’t really pan out the way you had envisioned, because life happens.  There is an argument about money, school, kids…the list goes on. Of course, divorce often magnifies problems, as the emotions of divorce make clear thinking extremely difficult.

That having been said, there are ways to minimize parenting conflict following a divorce:

  1. Make a detailed custody agreement – While an agreement can’t provide for every situation that may arise in the future, an agreement that provides for issues as children get older make it much easier to resolve many child related issues rather than going back to court and fighting about them later.
  2. Keep things factual – Don’t fight or complain just for the sake of it.  If there is an issue, explain it rationally and open a dialogue rather than flying off the handle and hurling insults. In short: choose your battles, keep things clean and don’t fight dirty.
  3. Work, work, work – Tensions run very high soon after the divorce.  Sometimes it dissipates, sometimes it doesn’t. Couples also work years to rebuild a co-parenting relationship, and then one dispute may send you back to your own personal dark age. Climbing out of conflict is hard and maintaining a civil relationship is even harder.  But put in the effort to resolve your issues and you will be glad you did. This may involve co-parenting therapy or the use of a parenting coordinator to help you to minimize conflict.
  4. Put the children first – This is what the Neumanns (laudably) aspire to do.  Even if you hate each other, go to the game, put on a smiling face and reserve the fighting for your 3 AM email exchange.  It may be difficult, but the children will thank you for it later.

The Neumanns are certainly starting off on the right foot.  They are committed, wonderful parents with the best of intentions.  I wish the Neumanns many more happy selfies along their co-parenting journey.

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

Too often, I see people trying to make their co-parent’s life difficult just for the sake of being difficult.  Want to take your child to the carnival?  No – it interferes with dad’s parenting time by 30 seconds.  Want to enroll your child in karate?  Sorry – mom has plans to watch paint dry with your child during her time instead.  Now that summer has arrived, the difficulties you’ve experienced all year tend to culminate in the ultimate co-parenting dispute: Vacation Time.

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Several days ago, I blogged about what parents need to know before they travel abroad alone with their child in a blog post entitled “Single Parent Traveling Internationally This Summer? Read This First.”  The blog discusses the State Department forms that are necessary for obtaining a passport and for traveling outside of the United States.  Of course, many of these forms require either the consent of the other parent, or, in the alternative, for the other parent to somehow be absent from the child’s life thereby waiving the consent requirement.

But what happens when a parent is present, involved and affirmatively withholds consent for international travel without any reasonable basis?

In a June 17, 2015 (unreported) decision, Judge Jones of Ocean County, New Jersey Superior Court answers that question.  And in great detail…

The case involved 2 ex-spouses arguing about whether their child may or may not travel to Holland and the Netherlands this summer with his mother in order to visit his maternal grandparents.

The problem was, however, that the mother unilaterally decided that she wanted to have the child stay in Holland for approximately 9 weeks, thereby depriving the father of any and all summer parenting time.  The kicker was that the mother was only going to stay in Holland for 2 out of the 9 weeks.  The father, understandably, objected.

As the Court succinctly summarized the implications of the mother’s position: “[mother]…basically seeks court permission to leave the child with the grandparents for two months over [father’s] objection, without any apparent regard for the impact such an extended stay will have on [father’s] own father/son plans this summer.”

On the flip side, the father, the Court said, drew and “unreasonable line in the summer sand” by taking the position that the child should not visit Holland at all during the summer.  He postulated that the mother presented a flight risk even though she had no history of being a “parental kidnapper”.  He further argued that if the child’s grandparents wished to see him, they should fly to New Jersey.

Waxing poetic about the value of family summer vacations, the Court found that it is “an extremely important, special and time-honored part of family life [which provides] highly unique and valuable opportunities for a child to bond with parents and other family members, while creating highly positive and lasting memories.”  For divorced parents, the Court said, vacation time should be encouraged as consistent with the “best interests of the child.”

Ironically, however, the judge noted that oftentimes parents spend time and energy warring over summer vacation plans “that are supported to be an escape from such stress and tension in the first place.”  Moreover, these parents sometimes spend all of the money earmarked for summer vacation fighting in family court about summer vacation plans.

Finding both parents’ positions wholly unreasonable, the Court found that a trip to Holland of a shorter and more reasonable length – up to 2 weeks – would be permitted.

Next, the Court tackled the issue of the child procuring a passport in order to be able to travel, which to that date, the father refused to authorize via the signing of a DS-3053 form.  This form and other requirements of travel is more fully described in my prior post.

While the Court poignantly stated that it could not “forcibly put a pen in plaintiff’s hand and force him to sign the child’s federal passport application forms” it did have power to watch over the child’s best interests and therefore granted the mother the power of attorney to apply for the passport without the father’s consent.  She was further directed to fill out the “statement of special circumstances” and to attach a certified copy of the Court’s Order.

While the Court noted that the state court could not compel the federal government to issue a passport, it hoped that it would find the “special circumstances” posed by this case “relevant and persuasive” for the Department of State to consider in determining whether to issue a passport, even without the father’s consent.

The Court’s conclusion actually put a smile on my face (which is rare when reading child custody decisions, I can assure you):

The court wishes the child a safe, happy and exciting journey on his 2015 summer vacation trip to the Netherlands, and thereafter a safe return back home to New Jersey.

So, if you are ever having issues with parental consent to summer vacation, be sure to have Judge Jones’ decision on hand.  It provides witty commentary on this age-old problem and provides some really good insight into the importance of sharing these time-honored traditions with both parents.

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

Recently I met with a new client who brought a close friend who had also been divorced to the meeting. Not surprisingly, I heard much about the friend’s divorce during the meeting, and it was clear that the client’s expectations were influenced by his friend’s story.

Copyright: eisashutters / 123RF Stock Photo
Copyright: eisashutters / 123RF Stock Photo

Thomas Kida, in his book, “Don’t Believe Everything You Think,” notes that anecdotal evidence is a significant factor when we make decisions.  Much of the reason for this is because we like personal stories.  People will believe a theory that is accompanied by a personal story, often in the face of scientific evidence refuting it.   Lawyer’s make much of the phrase, “managing expectations,” which is something we do every day as we try to give our clients a reasonable picture of what to expect. Yet, it is much more than that.  People believe things that they can relate to, and a close friend’s experience is generally easier to relate to, and comforting.  Compared to the unknown of their own situation, it is reassuring to align with the known outcome of the friend’s experience.

The fact that the friend also had a wife, and also had children does not mean that the client’s outcome will be the same or even close.  This can be a problem for the lawyer, particularly when the client perceives his friend’s outcome as a positive one.

Communication at the outset of the case is critical for both attorney and client so that there are reasonable expectations moving forward.  No attorney has a crystal ball, but can only make educated guesses, based on accurate ad realistic information from the client.  The case law will give the courts guidance as to how facts are to be applied in a situation.  For example, when determining if a spouse is entitled to alimony, there are numerous factors that have to be considered, and a court will give more weight to some than others based on the facts of that particular family.  In one case, the absence from the job market for a period of years may hold significant weight for the court, and in the next case, not much at all. This can depend, for example, on the type of skills the worker has, the amount of time it will take for the worker to “get back up to speed,” and any child care responsibilities.  Similarly, the valuation of a business can vary greatly depend on the type of business, the income it generates, and its volatility in the market.

Walking away from preconceived notions based on other people’s stories is the best thing a client can do when embarking on a divorce.

 

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or at jmillner@foxrothschild.com.