Randolph Divorce Attorneys

We see it all of the time.  Your spouse cheated and more than that, spent a lot of money on that #%!@@@ (add your own derogatory word here.)  Your say that your spouse is a terrible parent, a drunk, an addict, beats you and the kids, etc.  You say that your spouse is alienating you from your kids.  Your spouse cheats on his taxes and you can prove it.  Some or all of these things, if true, may have some relevance in a court  to properly address issues in your divorce case.

Cracked Egg Stock Photo

On the other hand, should you be blabbing these things all about town?  Sure it may make you feel good if people think you are good and your spouse is bad, that it is his/her fault, that you are perceived as the victim.  Notwithstanding, should you do it?  Now this does not mean that you can’t speak to family members, your therapist of closest confidantes.  But does it make sense to hurt your spouse’s and the parent of your children’s reputation in the community.  What if she/he has a business?  Does it make sense to do something that may impact the business?  What if he has a professional license?  Does it make sense to file a dubious report trying to get your spouse to lose their license – the very license that they will rely upon to pay the support you are seeking?  Worse yet, does it make sense to have your spouse arrested or file abuse claims that have to be investigated by authorities, that are not grounded in fact and/or are meritorious?

If you read today’s New York Daily News (or Post for that matter), the answer to these questions was a resounding NO in the case of Schacter v. Schacter.   In this case, the wife got a lesser share of the value of the husband’s interest in his law firm and less maintenance (aka alimony), because of her conduct that impacted the husband’s reputation and thus, as the court found, both the value of his interest in the law firm and his income.

In this case, much of the above hypothetical conduct was alleged to have occured.  Moreover, the wife went to the press with things which wound up in the paper and other web sites.  New York Judge Laura Drager’s rationale was interesting:

… But for her actions, notwithstanding the recession, his partnership value would not have declined.  In light of that position, the court concludes that the appropriate value of the partnership is as of the date of commencement of the action. The effect, if any, of the Wife’s actions during the pendency of this litigation is more appropriately addressed in determining what percentage of the value of this asset should be distributed to each party …

Thus, the judge determined that because of her actions, the was going to receive a smaller share of the of the law practice.  The judge went on, including addressing the wife’s claim that she did not intend to harm her husband’s career:

From the evidence presented, the court concludes that the Wife contributed to the decline in value of the Husband’s law practice. The court has considered the multitude of newspaper articles and website postings arising from this divorce litigation. The article and a significant number of the postings presented the Husband in a negative light. Although the Wife was not necessarily the source of each of these postings, she was the initial source of the articles, and, throughout these proceedings, regularly posted negative information about the Husband to various web sites. The Wife claims she never intended to harm the Husband’s career and that she, herself, never mentioned his law firm by name. The court finds her claim completely lacking in credibility. The Wife is intelligent and very savvy with respect to public relations. She would surely have understood that the reason why her stories had legs was precisely because her Husband was a partner at a major law firm. Even if by some stretch of the imagination she thought otherwise, the very first article printed in the Daily News, in which the Husband’s law firm was mentioned by name, should have disabused her of the belief that the Husband’s career might not be affected.

In the initial Daily News article, she accused the Husband of assaulting her, immediately after the charges had been dismissed on the merits by the District Attorney’s office. Later, she was the source of an article in the New York Post complaining that although the Husband had not paid $12,000 for new hearing aids for the daughter, he had purchased an engagement ring for his fiancee costing $215,000. This article appeared in the papers in late October 2011  In fact, the daughter received the hearing aids in July 2011. By the time the article appeared, the only point in issue was who bore the responsibility for the cost of the hearing aids in light of certain events that were in dispute. That issue was pending before the court. The Post article was picked up and circulated by numerous other web sites around the world. Some of those articles included the name of the Husband’s law firm. The court finds that the purpose of the original article was to embarrass the Husband and negatively affect his reputation. The Wife admitted in testimony that she spoke to reporters so often she could not recall how many conversations she had with them.

The Husband, in articles that mention his law firm by name, became an involuntary contestant for the negative award of Lawyer of the Month conducted by the Above the Law web site because of his alleged failure to pay for the daughter’s hearing aids. Although he “lost” the contest, several articles on that site and other web sites contained negative references to him resulting from thiscontest.  The Husband was then included in Above the Law’s contest for the negative award of Lawyer of the Year.  (Exhibit references in original omitted)

If that wasn’t enough, there is more:

The Wife argues that the drop in the Husband’s business was caused by his own failure to work as hard as he had in the past. She claims that in her comments to the media, “(s)he never disparaged (the Husband’s) legal abilities”, and therefore cannot be blamed for the loss in his income. However, as the Wife, herself a lawyer, would know, an attorney’s reputation is based not only on legal ability but on his reputation for integrity. Accusing a person in the media of an act of domestic violence (although the action was dismissed) and negatively raising an issue regarding payment of the daughter’s hearing aids when the issue was sub judice, could only have been intended to harm the Husband’s reputation. The Wife was well within her rights to publicly raise her concerns about domestic violence. However, the Wife’s incessant postings and discussions about the Husband went beyond any reasonable discussion of this very serious issue.

Perhaps most disturbing, the Wife may have filed grievances against the Husband with the New York State Supreme Court Appellate Division First Department Departmental Disciplinary Committee, potentially directly affecting his license to practice law. In the midst of the trial, the Wife acknowledged that she “tried” to file a grievance against the Husband. When pressed on this issue,the Wife “couldn’t recall” if she had filed a grievance against the Husband.

At trial the husband presented lay and expert testimony about how this conduct impacted his business.

As a result of the above and more, the Judge concluded:

The Wife’s conduct during this litigation has negatively affected his earning capabilities. It is appropriate for the court to consider the effect of her conduct in distributing the assets of the marriage. It has been held that actions taken by a spouse that damage the other spouse’s career can be considered in setting a later valuation date of that spouse’s enhanced earning capacity. For the same reasons, such behavior may also be considered under the statutory factors used to determine the distribution of marital assets. (legal citations omitted)

As a result of the conduct as well as the loss in value and income caused by the ecomony, the wife only received a 17% of the value of the husband’s interest in the law practice.  In addition, because the conduct decreased the husband’s earnings, the alimony was less too.  As to the rationale for this, the court noted:

In addition to the effects of the economy, the Husband had to endure the Wife’s attacks on his reputation in the media and on the internet. The impact of these stories on the Husband’s ability to generate income has already been addressed. In essence, the Wife chose to bite the hand that fed her. Although the court recognizes that the Wife feels she was badly treated by the Husband, her repeated attacks against him have played a part in diminishing his income. It may be that the Husband will be able to restore his career, but the Wife presented insufficient evidence to support a finding that he has already done so.

The take away from this is though you may have a hundred good (in your mind) reasons to do so and may feel totally justified in doing so, attempting to kill the goose that laid the golden egg – or as Judge Drager said,  choosing to bite that hand that feeds you, should be done with the knowledge that it could impact your overall entitlements.


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

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Judges want all issues resolved but especially custody and parenting issues.  No issues are more difficult and heart wrenching to decide – especially when facing a true, bona fide custody dispute (and I am not sure that there are really many of those – but occasionally they occur.)

Conflict Resolution Buttons Show War Or Reconciliation Stock PhotoPhote courtesy of freedigitalphotos.net

The New Jersey Court system is set up to try to resolve custody and parenting time issues first.  There is a mandatory parent education program in each county that the parties have to attend (separately) not long after filing.  There is no mandatory alimony, child support or property distribution workshop.  Shortly thereafter, there is mandatory custody and parenting time mediation at the court house – again at the very beginning of the case.  The point is to ferret out those cases where custody really is not in dispute.

Why?  Because the process gets painful and expensive when custody is in dispute.  If custody is not agreed upon, the parties may agree or the court may appoint a custody expert.  Sometimes the parties each get their own expert.  Sometimes, the court adds a third, court appointed expert to the mix.  If things are really bad, sometimes Guardian Ad Litems and/or attorneys for the children are appointed.  Everyone undergoes psychological testing, perhaps more than once (the appropriateness and repetitive testing is a discussion for another day.)  The children are interviewed one or more times by each expert.  They are interviewed and observed with each parent and perhaps their siblings.  Collateral sources are contacted.  Sometimes there are custody interrogatories to be answered and depositions focused on custody issues.  Again, when there is a real custody issue, all of this is fair gain and much, if not all may be necesssary.

But what if it really isn’t necessary because custody and parenting time is or can be resolved except that one parent refuses to settle the issue unless they get what they want financiallyThere should be a special place in you know where for these people.  In light of what I described in the prior paragraph, think about what they are putting their kids through, not because of a good faith custody dispute, but because of money.  Think about what it costs that could be better spent on the kids.  Think about the added stress on everyone, over money.  Think about the ethics of this.  Is this extortion on some level?

Yet it happens all of the time.  We have more than one case in the office now where the other side wont actually settle the custody issues or even address them until the finances are resolved.  In one, they refuse to go to the custody expert either – thereby delaying resolution of the entire case if our client won’t capitulate to unreasonable financial demands.

Unfortunately, this happens way to often at an expense not merely measured by dollars.

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

A plague (commonly quoted as a “pox”) on both your houses.   One web site noted that the “… phrase is commonly applied to criticize warring factions whose rivalry brings ruin to others.”   Who would have thought that Shakespeare (in Romeo and Juliet) would have coined a phrase that is as apropos to the goings on in family court, as it is anywhere else?

How often do we see fighting, for fighting sake?  How often do we have to explain to clients, just as we may explain to our children, that two wrongs don’t make a right?  How often do we suggest to our client, that is when we get a chance to stop the retaliation as opposed to being presented with the fait accompli, that it is better to be the bigger person, to have the court perceive you as pure as the driven snow, to be seen as the one trying to de-escalate the situation?  How often do we see the use of a bazooka in response to a small afront?  The answer is all too much.

Resolution Conflict Buttons Show Fighting Or Arbitration Stock PhotoPhoto courtesy of freedigitalphotos.net.

Recently, I heard of a parent cutting off her children’s cell phones because that parent didn’t like what the kids told the custody evaluator?  Was that a good idea to fix the already strained relationship?  Probably not.  I have recently heard someone say, in the same sentence, that we had to win the case for her, but also, get the case settled immediately – two entirely mutually exclusive results.  We have all heard of parents wanting to cut off parenting time because the other parent isn’t paying support.  Or a party that has the upper hand by virtue of an improvidently granted Order sticking it to the other parent for as long as possible, without regard for the affect on the children or the cost.

Granted, divorce and custody are emotional matters.  Granted, there are often real and bona fide disputes during the process.  I am not talking about that.  What I am talking about is the petty, and perhaps not so petty warfare that has little to do with the ultimate merits of the case.  What is worse is that the parties often lose sight of the big picture, and more importantly, lose sight of the fact that they are at least, if not just a little, at fault for the costly war that has ensued.  After all, they feel morally justified in their position.  The will say that they are only protecting their kids, they are only doing what was right, that she/he started.

Here’s the problem, aside from the cost and the merits of the case getting off track, judges quickly get a sense of what is really going on in a case.  Sometimes, where appropriate, that see that it is really one party who is the “bad guy” and then manage the case accordingly.  That is when you want to be the party who has taken the “high road” and is pure as the driven snow.  When you act that way, you are largely free from he criticism that can ensue.  This may be a particularly useful position to be in when the issue of counsel fees arises, either during a motion or at the end of the case.

On the other hand, when both parties act badly, the judge gets that quickly too. At the beginning, you might get the pep talk about knocking it off for the benefit of the kids, to save money, etc.  Thereafter, if the bad behavior continues, the result is often ” a pox on both of your houses.”  Courtesies from the court regarding scheduling may go away.  There may be more active case management which costs more money.  Discovery masters, parent coordinators, mediators, etc. may be appointed by the court so that the court doesn’t have to deal with the skirmishes as much, all at greater expense to the parties – both economically and emotionally.

So better to try to avoid being considered the plague and start taking the higher road.  Unfortunately, many who will read this probably wont think that they are the part of the problem (too) and that is the problem.

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

 

Given the shortage of judges, backlog in the system and the rash of new judges, alternative dispute resolution has been coming more and more prevalent in the divore cases.  For as long as I can remember, custody and parenting time mediation and Early Settlement Panels have been mandatory in New Jersey.  For the last decade, give or take, there has been mandatory economic mediation too.  Throw in Intensive Settlement Conferences (ISCs), Intensive Settlement Panels (ISPs), Blue Ribbon Panels, Blitz Weeks, etc. and the message is clear – do everything you can to avoid a trial and settle your case.

Bilancia Su Piano Bianco Stock Photo*Image courtesy of FreeDigitalPhotos.net

But what if you cannot settle your case but for a variety of reasons, tax, or otherwise you need a decision?  What do you do?  An alternative is arbitration, where the case is presented to a private judge in a manner determined by the parties and decided with relative finality.  What often happens once you select your arbitrator?  The settlement process oftens picks up again with that person.  Maybe even that person begins to serve as a mediator, either formally or informally.  Can that person then serve as an arbitrator?  Yesterday (9/25/13), the Appellate Division said no in the case of Minkowitz v. Israeli and concluded that “… once the arbitrator functioned as a mediator, he may not then conduct arbitration hearings.”

The facts of that case, while interesting, are not that important for this discussion other than to know that at some point, the arbitrator that was selected morphed into a mediator – although he didn’t believe so.  Plaintiff asserted that the:

arbitrator “committed misconduct and exceeded his powers by acting as botha mediator and an arbitrator.” She further explains the arbitrator aidedmediation of the disputes, then, when she sought underlying documentation, he”enforced the [agreements] that he had written [as a mediator] as if they were the result of an actual arbitration,” converting the result to a binding arbitration award.

The Appellate Division noted that this was an issue of first impression.  The Court then noted:

While we recognize the Act envisions a need for flexibility to meet a wide variety of situations presented in arbitration proceedings, we are not persuaded the Act intended an appointed arbitrator may first assume the role of mediator then switch back to conduct final arbitration hearings. As noted, an effective mediator gains each party’s confidence and offers advice to steer them toward settlement.   Those confidential communications gained in mediation are precluded from being considered in a court contest, Isaacson v. Isaacson, 348 N.J.  Super.
560, 577 (App. Div.), certif. denied, 174 N.J. 364 (2002), and would similarly be precluded from consideration in an arbitration hearing. See also Willingboro Mall, supra, ___ N.J. (slip op. at 9) (“Communications made during the course of a mediation are generally privileged and therefore inadmissible in another proceeding.”).

The court went on to hold:

Based on our review of the distinctly different proceedings of arbitration and mediation, we conclude the positions of arbitrator and mediator are in conflict. An arbitrator must “maintain ‘broad public confidence in the integrity and fairness of the [arbitration] process.'” Barcon, supra, 86 N.J. Super.  at 190 (quoting Holtzmann, The First Code of Ethics for Arbitrators in Commercial Disputes, 33 The Business Lawyer 309, 312 (1977)).  If the same person acts as a mediator, obtains  party confidences or offers opinions on the issues in dispute, a conflict arises were he or she to then switch roles to act as an arbitrator, making the final call.   We find the need for an  arbitrator’s complete objectivity bears heavily on the integrity of the arbitration process. This concern becomes even more  problematic when arbitrating matrimonial disputes between already suspicious adverse parties.

In the family law context, we could envision parties agreeing in writing to allow one person to perform these roles regarding separate issues; for example, mediation of custody matters and arbitration of financial issues. However, this should be the parties’ choice.  Absent a specific agreement clearly defining and accepting the complementary dispute resolution rofessional’s roles, dual roles are to be avoided.

So the court made clear that a dual role is still permissible, but only if the parties agree to it, in writing, in advance.  The court then noted the better practice, as follows:

It is advisable for parties to exhaust all applicable dispute resolution alternatives, including settlement conferences and mediation before undertaking arbitration. Once these available courses are exhausted and arbitration is chosen, the arbitrator should promptly commence hearings and resolve matters expeditiously.  (Emphasis added).

The court went on to discuss how arbitration should proceed and how the trial court should be out of that process.  That will be the subject of another blog

Query how the rationale of this holding holds up when juxtaposed against the fact that judges hold Intensive Settlement Conferences and otherwise try to assist in settlement all of the time.  In fact, there was another unreported decision yesterday that said recusal of a judge who was involved in settlement discussions was unnecessary because that is part of the judicial role.  Do not judges serving in these roles her things they would not hear during a trial?  Do they not hear confidential settlement positions?  Perhaps that will be a discussion for another day.

That said, the takeaway here is that if you want your arbitrator to assist in settlement, then you have to put it in writing that she/he can do so.  If you want the arbitration process to be pure, then then do all that you can to settle before the arbitration starts, but when it starts, call your first witness.

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

When laws get changed, the preamble to the statute and/or the legistlative history often tells you the perceived need for the change.  As an example, when the palimony law, which we have blogged on numerous times before, changed a few years ago, the preamble of the amendment to the statute mentioned several palimony cases that the law sought to overturn.  We have also blogged on the possible alimony reform movement.  If the reform now passes, I would not be surprised if it is response to Gnall v. Gnall, a published (precedential) Appellate Division opinion decided on August 8, 2013.

  • Business People Fighting Over Some Money  Stock Photo   *Image courtesy of FreeDigitalPhotos.net

Gnall is interesting for a lot of reasons and we will blog about some of the other reasons later on.  That said, the greatest significance of Gnall is that some will now argue that the new black letter law is that a 15 year marriage automatically requires permanent alimony.  I am not sure that it actually means that but the fact is that many people will be advancing that proposition.

In this case, the parties were married for 15 years (obviously) and had 3 children.  The parties were about 41 at the date of Complaint and both 42 at the time of trial.  The wife worked outside of the home for the first 6 or so years of the marriage, earning more than $100,000, and then “principally cared [sic]” for the children for the remainder of the marriage.  The husband’s income grew from about $500,000 to about $1 million at the date of Complaint to about $1.8 million in the year of the trial to over $2 million thereafter.

As noted by the Appellate Division, when analyzing the statutory factors. the trial judge found:

.. the parties’ fifteen-year marital relationship was “not short term[.]” Nevertheless, when he weighed the “relatively young” age of the parties, and their good health and education, which allowed them to obtain employment “at good salaries” and thereby support “excellent lifestyles for themselves and their children[,]” the judge concluded “the parties were not married long enough and  are not old enough for [defendant] to be responsible to maintain that lifestyle permanently for [plaintiff].” He therefore concluded, “this is not a permanent alimony case.”  (Emphasis added).

The Appellate Division disagreed and reversed.  The analysis given reiterated the purpose of alimony:

We nevertheless emphasize that judges considering an alimony request must always keep in mind the primary “purpose of awarding alimony to a spouse is based on ‘an economic right that arises out of the marital relationship and provides the dependent spouse with a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.'” Clark v. Clark, 429 N.J. Super. 61, 72-73 (App. Div. 2012) (quoting Mani v. Mani, 183 N.J. 70, 80 (2005) (internal quotation marks and citations omitted)). The economic dependence created as a result of the marital relationship is a crucial finding necessary to impose the ongoing financial entanglement of an alimony award. The law attributes a party’s individual success to have been achieved by virtue of the joint union — “a shared enterprise, a joint undertaking, that in many ways . . . is akin to a partnership.” (some citiation omitted)

The Court then turned to the basis for why limited duration alimony was added to the alimony stated about 15 ago, noting that it was “… a remedy was to address a dependent spouse’s post-divorce needs following “‘”shorter-term marriages where permanent or rehabilitative alimony would be inappropriate or inapplicable but where, nonetheless, economic assistance for a limited period of time would be just.” (Emphasis added).

Now, the analysis turned to whether the Gnall’s marriage, 3 months shy of 15 years, qualified for permanent alimony.  The Court noted:

Assessing the facts here, the trial judge correctly identified this marriage’s length as “not short-term.” He further acknowledged plaintiff would be unable “to maintain the marital lifestyle without alimony now and probably not for some time[.]” Nevertheless, he concluded, consideration of an award of permanent alimony was obviated by the parties’ relatively young ages and the fact that they were not married long enough — commenting theirs was not a twenty-five to thirty-year relationship. This conclusion was error and must be reversed.

What?  Did the Appellate Division just disregard or devalue the ages of the parties as a factor or imply that that when the parties’ ages are in equipoise with duration of the marriage, we defer to duration?  But as said earlier, did the court mean to draw a line in the sand or a bright line rule?  Maybe not, as they then said:

We do not intend to draw specific lines delineating “short-term” and “long-term” marriages in an effort to define those cases warranting only limited duration rather than permanent alimony. We also underscore it is not merely the years from the wedding to the parties’ separation or commencement of divorce that dictates the applicability or inapplicability of permanent alimony. Nevertheless, we do not hesitate to declare a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony.

A dependent spouse’s age alone also cannot obviate permanent alimony….

Aha.  So the court does not intend to draw absolute bright lines but 15 years seems like it might be one.  What about 14 years, 13 years, 12 years.  The Hughes v. Hughes case decided before the limited duration alimony statute said that a 10 year marriage was long-term. What does that mean now, when read with Gnall?

What does this mean in this case?  If neither party dies and plaintiff does not remarry, the alimony in this case can go on for almost twice the length of the marriage (assuming Mr. Gnall some day gets to retire and stop paying – not assured under the current law – and given his income, he may very well be able to continue paying long after his retirement if his success continues).  Does this preclude Ms. Grall from seeking a new spouse for fear of loosing permanent alimony?  As noted above, it would seem to me that this case is the type of case that may give fuel to the raging alimony reform debate so stay tuned on that front too.

There are other issues of interest in Gnall including those relating to imputation, lifestyle, and others that I will blog on in the coming days.

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

Back in October, I blogged about the potential amendments to the New Jersey’s Premarital Agreement Act.  As of June 27, 2013, the proposed bill is now new law.

Prenuptial Agreements are meant to fix parties rights and responsibilities in advance, so as to avoid litigation and aggravation in the future.  In fact, right up front in many if not most prenuptial agreements there is a “Statement of Intention” as follows:

It is the intention of the parties in entering into this Agreement that in the event of the termination of the marriage by divorce or death, certain rights shall be fixed in advance. It is their intention to avoid litigation and intrusion into their professional and personal lives and the lives of their families and business associates, which would perhaps otherwise occur if this Agreement had not been entered into.

Unfortunately, unlike in many other states, where prenuptial agreements are usually ironclad as long as there was full disclosure and the other procedural requirements are met, that has not been the case in New Jersey.  The major reason for this is that in New Jersey, aside from setting aside a prenup due to failure to follow the procedural requirements, including full disclosure, agreements can be set aside if they are deemed to be unconscionable, not only when they are entered into, but when they are to be enforced at the time of the divorce.  As a result, I have heard judges say that they have never enforced a prenuptial agreement.  I have heard other judges give the rationale that because you don’t know what is going to happen in the future, it is unfair to enforce the agreement against a spouse where she/he waives alimony or the equitable distribution rights.  That rationale misses the point as that is the entire reason for a prenuptial agreement.

I have even had cases where the judge allowed the entire case to go forward, including the appointment of forensic accountants to value a business that was excluded in the prenuptial agreement as a separate asset, not because the adverse party was arguing fraud or unconscionablity up front, but because they wanted to see if they could go on a fishing expedition in discovery to try to come up with something to set it aside.

The amendment to the statute essentially removes the “unconscionability at the time of enforcement” attack on agreements.  As noted in the last post, the reason for Amendment was as follows:

The bill eliminates this statutory definition as well as the determination of unconscionability on the basis of when enforcement of the agreement was sought. It instead provides that a premarital or pre-civil union agreement could not be deemed unconscionable unless the agreement was unconscionable when executed because the party seeking to set aside the agreement: (1) was not provided full and fair disclosure of the earnings, property, and financial obligations of the other party; (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; (3) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or (4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

This bill applies to all future prenuptial agreements and any agreements revised after the amendment.

So now, as long as there has been full disclosure, and the agreement is not unconscionable when it was entered into, it should likely be enforced.  This represents a major departure from the prior law.

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

 

Yesterday, I blogged on the proposed alimony reform legislation in New Jersey.  At the end of that post, I posited the following questions.  Is this really a radical change, or in many respects, does it simply codify what is often done in practice anyway? Will it really take away advocacy when circumstances so require?

Aside from removing the term "permanent alimony" and perhaps sickening reaction in causes in some people, does the proposed legislation really do more than codify the case law or what was done in practice, in many respects.  Remember, is "permanent alimony" really permanent now anyway?  Can’t people seek to retire already and isn’t retirement a change of circumstances?  Don’t people already negotiate, when appropriate, limited duration alimony when people are divorcing close to retirement age, as opposed to buying a second litigation to occur a few years later? 

The following are some other random thoughts, in no particular order and of no particular importance. 

1)  Is "indefinite alimony" a nicer term for "permanent alimony"

2)  While certainly possible and appropriate in many circumstances under existing law for marriages of less than 20 years, permanent alimony was infrequently given in marriages less than 20 years after the limited duration alimony statute was enacted. In fact, I heard someone on a panel at the State Bar Convention last year state that 20 years was sort of a magic number ensuring permanent alimony.

3)   The concept of imputing income to someone that is unemployed or underemployed essentially  already exists in the case law and child support guidelines, and thus, really is not new.

Continue Reading Random Thoughts Regarding The Proposed Alimony Reform Statute

There are many cases that say that the settlement of litigation ranks high in the public policy of this state,  As such, there are many cases that say that an agreement can be enforced, even if it is not reduced to a writing, if the major terms have been agreed to.  As my client learned in Brawer v. Brawer, the unexpressed intention not to be bound is irrelevant.  There is no place in the law for second thoughts where the parties have expressed their agreement.  In fact, in a case called Bistricer, the judge said:

… the proposition that a case is not settled until the last “i” is dotted and the last “t” is crossed on a written settlement agreement carries the germ of much mischief. A party could, in bad faith, waste the time of the court and the other litigant in protracted settlement negotiations, and then, after a “framework” has been established, wiggle out of that framework by creating a flood of new issues and questions.

Just as you can’t wiggle out of a settlement, similarly, you cannot appeal a settlement.  This issue reared its head in the case of Courboin v. Courboin, an unreported (non-precedential) opinion decided on February 21, 2013.  In this case, after two days of trial, the parties settled and put their settlement on the record. The husband testified that he agreed to be bound.  As part of that settlement, the home was to be sold.

Continue Reading If You Enter Into An Agreement or Consent Order, You Can't Appeal It

Several years ago, I posted a blog entitled "Some Times You Just Have to Try a Case."  In that post, I discussed that there are some times where a litigant simply refuses to settle making a trial inevitable.  Are there times, however, when a trial might be less costly, quicker and preferable to long, drawn out, and perhaps insufferable negotations.  I have dubbed these mind numbing, perhaps bad faith negotiations, where sometimes you take one step forward and two steps back and sometimes, no issue is ever resolved, and sometimes, you make an offer about alimony and the response is about equitable distribution – death by a thousand paper cuts.  Whether intentional or not, you wonder whether a trial would have just been bettter.

I ponder that after recently concluding a case that, while having one little twist, which we got past several months ago, then endured numerous mediation sessions, numerous Intensive Settlement Conferences at the Courthouse and even more than one scheduled uncontested hearing where even the final changes had final changes, plus new changes.  In fact, I have recently had several cases where it took an inordinate amount of mediation sessions to resolve simple cases.  In one reasonably simple case, the parties went to mediation 6 or 7 times, before attorneys attended and even then, it did not settle despite the outcome being obvious.  In another, after 9 mediation sessions (7 with lawyers present), the case remains unsettled though only small dollars in the big picture remain in dispute. 

In your garden variety case, the inordinately drawn out process only serves to either wear a party out and forces the righteous client to give up to either move on or stop the bleeding of legal fees.  Otherwise, they incur a large legal bill just to get to the place they should have been had the other side acted reasonably (presuming for the second that they have negotiated fairly and reasonably.)

While I understand the desire to avoid trial at all costs for all of the usual reasons – finality, having control of your own destiny as opposed to putting the decision in the hands of a stranger, etc.- if the process comes to a place where all things considered, you cannot do worse if you go to trial, maybe a party should consider pulling the plug on these expensive snails pace and/or bad faith drawn out negotiations,  Perhaps the threat, if it is a real threat and you actually start doing what is necessary to prepare for trial, will stop the nonsense and get the other side to end the case once and for all. 

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

Every month, I get an email with entitled Case Update from the ABA Family Law section which contains blurbs from interesting decisions throughout the country.  This week, I got the December 2012 update and had to take two steps back when I read the following blurb:

Trial court may, in an initial custody determination, consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child; court may also consider fact that parent does not regularly attend church.

Wow!!!  Mind you, the case is from Alabama, not New Jersey.  In New Jersey, I doubt very much that conduct which is not detrimental to the child would be considered, whether it is gambling (and I actually had a case where a father, a bookie in his spare time, took his kids when he was meeting his bookie), use of pornography, affairs, an affinity for S&M, etc. 

That said, the blurb appealed to my "prurient interests" and hooked me in so I had to read the case.  I figured that there must be some crazy conduct going on.  I figured. at the very least, I may have a good story to tell.

Wrong!  The parties were divorced in 2007 but the ancillary issues, including custody were bifurcated.  The custody hearing took place in 2010.  What was the crazy sexual conduct that impacted the custody determination, you then ask.  The mother was living with her fiance’,  The relationship, by the way, did not become sexual until 2009.  By the way, part of the reason for the delay in addressing custody was that the issue was put on the back burner in the divorce decree until the conclusion of criminal proceedings against the father for the alleged sexual abuse of the mother’s child from a prior relationship.

Continue Reading A Parent's Sexual Conduct and Whether they Take Their Kids to Church Can Impact a Custody Determination ….. In Alabama