Roseland Divorce Attorneys

I previously blogged on economic abuse as a form of domestic violence in a post titled Financial Abuse: The Invisible Wounds of Domestic Violence. Although occurring in approximately 98% of all domestic violence situations according to National Network to End Domestic Violence, economic abuse is not what most people think about when they hear the term “domestic violence”.

Recently, the unpublished decision of C.G. v. E.G. addressed interference with employment as a harassing and coercive form of domestic violence. In this matter, the defendant intentionally attempted to obstruct and interfere with plaintiff’s new employment by calling her place of work without her consent, bothering her employer as well as her employer’s wife, and embarrassing plaintiff by alleging that she and her employer were having an affair.

Judge Jones defined economic harassment as “including purposeful acts which a defendant perpetrates while intending that such acts either (a) impair or obstruct a plaintiff’s actual or prospective job or job-related duties, or (b) threaten to do so with the purpose of controlling [someone], and/or pressuring or intimidating [someone] into submitting to [their] demands or wishes.” Judge Jones went on to describe this behavior as “fear-inducing to a victim of physical abuse” and that “there are arguable few threats more potentially harassing and coercive than threatening one’s livelihood or employment.”

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So what encompasses purposefully interfering with another’s employment?

(1)        Directly threatening to contact the victim’s place of employment and attempting to get the victim fired, either by making false allegations, or improperly publicizing private, personal and embarrassing information about the victim;

(2)        Actually contacting the place of employment and following through with actions designed to damage the victim’s status, and stability at his/her job; and

(3)        Repeatedly appearing uninvited at the victim’s place of employment and causing a disturbance, or otherwise acting in a manner which is disrespectful of, and/or embarrassing to, the victim, and disruptive to the victim’s job responsibilities and performance, and/or standard business operations.

The abusers underlying behavior, while an obvious form of harassment, is often times done as a way to corner the victim into either interacting with the aggressor or submitting to certain demands. Often times the victim, in order to avoid embarrassment gives in to the aggressor’s behaviors to their detriment.

Such interference with employment may constitute both harassment and coercion. The National Coalition Against Domestic Violence has reported that between 35% and 65% of victims of domestic violence are harassed at work by their abusers.

The New Jersey Supreme Court has recognized the right to be left alone in State v. Hoffmann, 149 N.J. 564, 585-85 (1997). Thus, “a person has a basic right to be left alone by an estranged or former spouse or dating partner at his or her place of employment.”

The Court concluded in C.G. v. E.G. that by phoning “plaintiff’s place of employment against plaintiff’s wishes, with the purpose and tactic of causing her harm as expressed and desired in his text message, and/or otherwise wearing plaintiff down into submission”, defendant “knew or should have known that he was improperly encroaching on Plaintiff’s new employment, while potentially subjecting her to public embarrassment in front of her employer and co-workers” and that these actions constitute harassment.

Additionally, defendant’s actions constitute a new form of domestic violence, coercion. In August 2015, the New Jersey Legislature amended the Domestic Violence Act to include “coercion”.

Coercion is defined as “threats made to unlawfully restrict another’s freedom of action to engage or refrain from engaging in conduct by threatening to:

(1)        Inflict bodily injury on anyone or commit any other offense;

(2)        Accuse anyone of an offense;

(3)        Expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;

(4)        Take or withhold action as an official, or cause an official to take or withhold action;

(5)        Bring about or continue a strike, boycott or other collective action, except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the actor acts;

(6)        Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

(7)        Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Interference with one’s employment can be considered both harassment and coercion, the latter expanding the prior definition of domestic violence to give victims more alternatives for protection against their abusers.

If you or someone you know is a victim of domestic violence, contact your local law enforcement and/or the confidential and anonymous National Coalition Against Domestic Violence Hotline at 1-800-572-7233.

The way things have gone lately, I thought it was time to reprise this blog post, originally published in April of 2014.  It is unfortunate for the system and the litigants to have to endure the misrepresentations by people who should know better.

I like a good joke as much as the next person.  That said, like many in my profession, I get sensitive about lawyer jokes.  Often, they are just cheap shots that in no way reflect the reality of what most of us do.  I particularly despise this one, “How can you tell when a lawyer is lying? His lips are moving.”

This one is particularly offensive on many levels.  Justice cannot tolerate dishonesty on the part of the lawyer.  In fact, honesty permeates the Rules of Professional Conduct:  meritorious claims and contentions; duty of candor to the tribunal; fairness to the opposing party and counsel; truthfulness in statements to others; not engaging in conduct that involving fraud, deceit, dishonesty, mispresentation or that which is prejudicial to the administration of justice are just a few of the rules where the bedrock is the lawyer being truthful.  There is an expectation in the system that someone is not telling the truth.  That is why judges and juries have to determine who is more credible.  That said, a lawyer cannot allow their client to get on the stand and lie.

(photo courtesy of free Google images.)

Unfortunately, however, lawyers lie all of the time.  Small lies and big lies.  They lie to their adversaries and they lie to judges.  I am not talking about an honest mistake – you believed that documents were not provided, but they actually were.  That said, too few people will even admit to the honest error, and then perpetuate the side show rather than just acknowledging that they were wrong with a lower case “w.”  Efforts then digress into addressing the misrepresentation that could simply be avoided.

A few years back, I was new to a case and at a case management conference, the other side alleged that my client had not produced his tax returns.  I did not believe this to be true and said as much, but I had only been in the case for a few days.  The judge reamed my client.  When I got back to my office, I contacted prior counsel who not only confirmed that the tax returns were produced, but there were emails from the adversaries office confirming receipt.  Given that my client had just been ripped by the judge, I asked the adversary to simply correct what must have been an inadvertent mistake.  She refused and then it became a much bigger issue.  It was a total and needless waste of time.

That’s a small lie that caused damage.  What about the big lie?  In one matter, opposing counsel insists that he was called “stupid” in a letter from one of my colleagues, and worse yet, that that letter justifies his vendetta against our client.  The problem is that no such letter exists yet he persists in pursuing this phantom letter, to the detriment of his client and ours.

In another matter, a lawyer denied taking a position on a major issue in the case in an earlier motion, even after the transcript showed otherwise.  She disavowed her own statement.

In another matter, the adversary epitomizes the distasteful joke noted above, from telling a court that documents were signed to allow us to get documents, when they were not, to misrepresenting income, to denying events that are not deniable, and on and on.

Why do lawyers lie?  Some do it to get an advantage in the case.  Some do it because they are afraid of losing the client if they don’t do their client’s bidding and/or are unsuccessful.  Some do it because it is a personal game – I win – you lose.  Some do it because they are unprepared or did not do what they are supposed to do so they are covering up.  Some do it to cover for their client’s misdeeds. Some do it because they just always lie.  For some, it is all of the above.

What do you do about it?   You raise the issue to the judge – but often, the judge doesn’t do anything about it.  Some times, it takes a trial to prove it and trials are few and far between.  Further, ethics complaints are usually tabled if not dismissed until a litigation is over.  If the perpetrator is a junior lawyer, perhaps you speak to their supervisor – but often that goes no where, because people protect their own.

That said, don’t let it go.  Call the person out.  Be prepared with your proofs.  At the appropriate time at a motion or a trial, let the judge know. Litigation is hard enough when people play it straight.  It is untenable when they lie and it does a disservice to the litigants, the courts and the system.  Moreover, clients are outraged when their spouse lies, but when it is the other lawyer, it is often impossible to control the justifiable outburst.  And lawyers, if you accidentally misspeak or make an honest mistake – you are human – it is better to own up to it and put the issue to bed then let it fester into something unnecessary and totally avoidable.  And don’t tell the big lie, for any reason.


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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Last week, the prolific Judge Lawrence R. Jones, J.S.C. shed some much-needed light on an essential question; namely: can the court retroactively set an obligor’s child support obligation to a date earlier than the filing date of an actual motion to establish child support in the reported case of Kakstys v. Stevens?  According to Judge Jones, the answer is yes.  More specifically, the answer is yes – at least as far back as the filing date of the complaint for divorce, where the complaint asserts a claim for child support.

In his carefully reasoned decision, Judge Jones drew an important distinction between modifications of existing child support orders as compared to the initial establishment of a child support order.  At first blush, the experienced attorney might react to the suggestion of applying a child support order retroactively by insisting that the “anti-retroactivity” statute, N.J.S.A. 2A:17-56.23a, prohibits modifications of child support retroactive to a date earlier than the filing date of the motion seeking to modify the support award.  And that attorney would be right, if the issue was whether an existing child support obligation should be modified.  Judge Jones’s recent decision applies not to modifications of child support, but in the limited context of establishing the initial child support obligation.

Just How Far Back Can Child Support Go?

For Judge Jones, the critical question as to how far we can retroactively establish child support seems to hinge on the concept of fair notice.  Specifically, the Court found that a properly filed and served Complaint that asserts a claim for child support is clearly sufficient notice to the obligor; however, the Court declined to make this a hard-and-fast rule:

[T]he Court holds that when a party files a divorce complaint that includes a specific claim for child support, the court may ultimately set a child support order retroactive to the filing date, whether or not the applicant has also filed a follow-up pendente lite motion at some date thereafter and irrespective of the date or disposition or any such interim pendente lite motion.  Ultimately, the issue of whether to retroactively set child support to the complaint filing date, or to a motion filing date thereafter, is subject to the discretion of the court, based upon the factual circumstances and comparative equities presented.

As with most things in family law, the discretion of the court and a balancing of the equities are paramount.  And this makes sense.  If the parties lived together, say, for three months after the complaint was filed and paid for the child’s expenses from their shared resources as they always had done, then why should a formal child support order be in effect for those three months?

But the decision arguably opens the door for setting child support effective to an even earlier date.  Here’s a scenario:  The parties have been separated for a year before the complaint was filed.  The mother is the custodial parent, and six months into their separation (i.e. six months prior to the complaint being filed), her attorney sends a letter to the father’s attorney formally notifying him of a claim for child support.  Although not formal notice by way of complaint, this would seem to achieve the goals of adequate and fair notice of a claim for child support that the Court deems critical for establishing an effective date for child support.

Another question that the Court seems to leave open is whether or not child support can, under its holding, be applied retroactively to the filing date of the complaint, or the date of service of the complaint.  Although the Court did not reach an answer to this question, it suggested that the date of service would be the date on which the obligor was actually given adequate notice.  All the more reason to timely serve a filed complaint upon your adversary.

 What about Alimony?

One important question that is raised by the Court’s recent decision is how this may effect alimony.  If notice of a claim for child support serves as the fair and equitable effective date for child support, then couldn’t one argue the same for alimony?  The Court in Kakstys seems to leave the door open for this argument by noting that “New Jersey law makes clear that when parties divorce, certain financial issues . . . are determined by the filing date of the complaint, not by the filing date of any subsequent interim application.”  The Court continues, “If, at a final hearing, these financial claims may be determined and adjudicated retroactive to the filing date of the complaint, logic and reason support the concept that a child support claim, initially set forth in a divorce complaint, may be equitably preserved for trial as well.”

If child support, as a financial issue, can be established as far back as the filing date – or whatever date adequate and fair notice is given – then by this logic, why can’t the same be true for alimony?  Only time will tell, but Judge Jones’s decision seems like a good jumping off point to make this argument under the appropriate facts.


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

On September 9, 2015, the Appellate Division determined in  a reported (precedential) decision, N.T.B. v. D.D.B. (A-4542-13T2), that a spouse’s destruction of a door within the couple’s jointly-owned marital home constitutes the predicate act of “criminal mischief,” pursuant to N.J.S.A. 2C:17-3, thereby supporting a finding of an act of domestic violence.

Background

The parties, husband, N.T.B., and wife, D.D.B., married in 2012 and had one (1) child, an eight (8) year old daughter. The parties resided together with their daughter in a home they purchased during their marriage and owned as tenants by the entirety (i.e. jointly owned as husband and wife).

In December 2013, N.T.B. filed for divorce, and as of March 2014, the parties were sleeping in separate bedrooms within the home. On March 30, 2014, D.D.B. was listening to music in her bedroom alone when N.T.B. told her to lower the volume. When D.D.B. refused to lower the volume, N.T.B. poured juice onto the speakers in an effort to silence them. When that did not work, he ripped the speakers out of the wall, brought them into the bathroom and threw them into the toilet.

The following evening, the parties engaged in an argument in the living room. D.D.B. and the parties’ daughter went inside D.D.B.’s bedroom and locked the door. Plaintiff attempted to open the door and when he realized that it was locked, he broke the door open “by slamming his body against it, splintering the door frame in the process.” After N.T.B. broke the door open, D.D.B. maintained that N.T.B. prevented her from leaving the bedroom, so she slapped him in the face in order to leave. N.T.B. maintained that he never prevented D.D.B. from leaving the room and that she punched him in the face without provocation.

The parties filed cross-complaints each seeking a Final Restraining Order (FRO) against the other. This wasn’t the first time the parties had been involved in a domestic disputes as prior to their marriage, N.T.B. previously obtained a Temporary Restraining Order (TRO) against D.D.B after she burned him with a curling iron.

D.D.B.’s complaint alleged that N.T.B.’s actions constituted both the predicate acts of criminal mischief (N.J.S.A. 2C:17-3) and harassment (N.J.S.A. 2C:33-4), thereby warranting an entry of an FRO against him. N.T.B.’s complaint alleged that D.D.B.’s action of striking him constituted the predicate act of simple assault (N.J.S.A. 2C:12-1).

The trial Judge determined that D.D.B. did not establish either predicate act and denied her request for an FRO. With regard to criminal mischief, the trial Judge concluded that D.D.B. failed to establish that N.T.B. damaged “the property of another” as required by the statute, because “the speakers and bedroom door [were] within the martial home that is shared by the parties, both appearing to be marital property,” The trial judge further held that D.D.B. failed to establish any of the elements constituting harassment.

Under N.J.S.A. 2C:17-3(a)(1), a person is guilty of criminal mischief if he “purposely or knowingly damages tangible property of another…” The trial Judge reasoned that since “the statute does not prohibit a person from causing damage to their own property”, D.D.B. failed to show that N.T.B. committed an act against the tangible property of another, thereby preluding a finding of criminal mischief.

D.D.B. appealed both the trial court’s decision that N.T.B.’s destruction of the speakers did not amount to criminal mischief and that N.T.B.’s conduct was insufficient to establish harassment (among other things); however, she did not challenge the trial Judge’s determination that the destruction of the bedroom door did not amount to criminal mischief and the Appellate Division chose to address this issue on its own accord.

With regard to N.T.B.’s destruction of D.D.B.’s bedroom door, the Appellate panel observed that the parties acquired the home during their marriage as tenants by the entirety.

A tenancy by the entirety allows spouses to jointly own property together as husband and wife, but neither they, nor their creditors, have the right to attach, encumber, convey or transfers their interest. A tenancy by the entirety includes a right of survivorship, so that upon the death of one spouse, the remaining spouse inherits the whole of the property. Therefore, under a tenancy by the entirety, each spouse owns an undivided interest in the whole of the property.

A tenancy by the entirety differs from ownership as tenants in common. Under a tenancy in common, all tenants have an individual, undivided ownership interest, which they may transfer, convey, encumber, etc.

The Appellate Court concluded that while “each tenant by the entirety is a tenant in common with the other during the joint lives of the spouses”, “each co-tenant has a separate and distinct freehold title and each holds his or her title and interest independently of the others.” In light of this, the Appellate Division determined that N.T.B. and D.D.B. each held a separate and distinct interest in their home and therefore, N.T.B.’s act of breaking down D.D.B’s bedroom door did in fact destroy the “property of another” (due to D.D.B.’s undivided interest in the home) and he therefore committed the predicate act of criminal mischief.

The Appellate Division opined that to conclude otherwise would “permit a spouse to purposely and maliciously totally destroy his or her jointly owned marital home, without sanction, leaving no recourse for the innocent spouse to secure an FRO on the basis of the home’s ruin.”

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The Appellate Division further disagreed with the trial court’s conclusion that N.T.B.’s act of pouring juice on D.D.B.’s speakers, ripping them out of the wall and throwing them in the toilet did not establish criminal mischief through damage to the “property of another”.

The Appellate panel noted that D.D.B. testified that the speakers belonged to her and were kept in her bedroom, while N.T.B. testified that the speakers were marital property since they were purchased during the marriage and were located inside of the home. However, the trial court did not engage in any analysis to determine whether the speakers were the “property of another” for the purpose of the criminal mischief statute.

The Appellate Division instructed the trial judge on remand to “make specific factual findings as to when, how and by whom, [the speakers] were purchased, for the purpose of determining whether [N.T.B.] enjoyed any tangible proprietary interest in them.”

To assist the trial judge on remand, the Appellate Division even went so far as stating that they “disagree with the proposition that, under New Jersey law, any personal property acquired during the marriage automatically becomes joint property.” To support this conclusion, the Appellate Court cited N.J.S.A. 46:3-17.2, “which recognizes the establishment of a tenancy by the entirety in personal, as well as real property.” This statute requires that “for acquired personalty to be considered joint property held by the entirety, the spouses must “take title to an interest [therein]…under a written instrument designating both of their names as husband and wife.” N.J.S.A. 46:3-17.2(a). “Absent evidence of such an instrument, the common-law prohibition against personal property being held by the entirety prevails.”

Parting Words

Does this decision intend to reach out from the realm of domestic violence law into the sphere of equitable distribution? Matrimonial attorneys routinely divide assets, real property, personalty, etc. based upon the presumption that same were acquired during the marriage, with marital funds, thereby making them “joint marital assets” regardless of title. It appears from the holding in N.T.B. v. D.D.B. that unless there is an instrument designating property as joint, all property acquired during a marriage, with marital funds, would purportedly belong to the possessory owner. Of course, as the trial judge was instructed on remand, specific findings must be made to determine whether another has a proprietary interest in the property. I can’t help but wonder how this decision may change the landscape of equitable distribution of marital assets.

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

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

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

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

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

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

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Divorcing a narcissist may be the most difficult thing you will ever have to do.

But it also may be the most rewarding for you and your family in the long term.

In this podcast, Robert A. Epstein and I highlight the special considerations that should be taken into account when divorcing someone who has a narcissistic personality.

Listen to the Podcast.

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The above link will allow you to listen to the podcast, while the you can also  Download the Transcript here for your reading pleasure. Enjoy!

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Robert Epstein and Eliana T. Baer are associates in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com. Eliana practices in the firm’s Princeton, New Jersey office and can be reached at (609) 895-3344, or etbaer@foxrothschild.com.

 

There are always going to be those divorce litigants that, no matter what we say or do as the divorce lawyer, he or she is going to do what they want.  Legal advice, no matter how costly, falls on deaf ears, only leading to more counsel fees and issues to address in an ongoing matter.  Don’t get me wrong – I completely understand why this may occur, especially in the context of an emotional proceeding that impacts upon the members of what was once an intact family.  As a litigant, however, you have retained a divorce lawyer to provide a specific service on your behalf.  These experiences and litigants have inspired me to provide this brief list for you, as the litigant, to be aware of.

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1.  Disagreement is a Good Thing – Many clients often do not like to be told that his or her position or approach is not the best way to go.  This, however, is not necessarily a bad thing.  This does not mean that your lawyer does not like you.  This does not mean that your lawyer does not support you and will not do everything possible to provide zealous advocacy.  As a litigant, you are going to work closely with your divorce lawyer to reach a resolution or result that is in your best interests.  The process should be collaborative, and not confrontational.  Disagreement can lead to a better strategic path since, ultimately, your lawyer is there to act on your behalf and to guide you through the process based on years of knowledge and experience in family law.

2.  Your Divorce Lawyer is (Hopefully) Not a “Mouthpiece” – Oftentimes, a litigant will retain an attorney simply to do his or her “bidding,” so to speak.  The litigant will insist on drafting letters, briefs, and more, and will completely disregard the attorney’s advice.  Usually, however, this is a terrible idea, as your attorney knows the law (presumably), knows how to address adversaries and the court (ideally), and knows how to strategize on your behalf for your specific case.  While a client’s input is oftentimes instructive and quite helpful, and this approach can be more cost effective, I am not simply going to sign my name to a pleading or letter drafted by a client unless it is something with which I am completely comfortable.

3.  Time Wisely Spent is Critical – Do not handcuff your attorney’s ability to act on your behalf.  Directing your attorney not to review a certain document that may contain valuable information, or not to incur fees communicating with an adversary, may ultimately impair your case.  While it is your right, as a litigant, to tell your attorney not to do something, it is also the attorney’s right to tell you that she cannot represent you if you are not going to allow what she believes is appropriate representation.

4.  Saving Fees is Not a Sign of Surrender – There is no doubt that divorce proceedings can often be quite expensive and drag on for months, if not years.  While you may be intent on fighting about every issue no matter how big or small, without concern for the dollars spent, your lawyer will hopefully advise you of the cost/benefit analysis of your approach.  Is it worth spending $20,000 fighting over a $500 lamp?  Is it worth spending $5,000 fighting over $200 in reimbursement credits?  Ultimately it is up to you what you spend on what issue, but do not take your lawyer’s concern over the cost of litigating and recommendation to resolve the issue as a sign of surrender.

5.  Typically, it Takes Two to Tango – Some clients refuse to take accountability and will blame only the other spouse for the divorce and what has transpired during the divorce proceeding.  In certain cases, this position certainly has merit.  Oftentimes, however, the situation is otherwise.  The litigant does not like being told that he also could have handled a specific issue or incident differently, could have said something else to the children, could have refrained from sending that damaging email.  These clients are usually unambiguous and unrelenting in this sentiment – he has done everything wrong, I have done everything right, how can you as my divorce lawyer think otherwise?  Ultimately, one of the best ways to bring your case to an amicable, and equitable end, is to acknowledge that (usually) both parties have had a role in the undoing of a marriage or some other related issue.

6.  Keep Focused on the Long-Term Goals – When you first met with your lawyer, you had goals.  Get a divorce.  Procure primary custody.  Receive alimony for X years in a specified amount.  Move on with your life.  Protect the best interests of your children.  Do not get consumed by the daily back-and-forth, alternate universe world created by a divorce proceeding, where nothing is what it once was because everything you say and do is under a microscope.  The goal here is to get through the proceeding and onto the next stage of your life.

These are just a few of the tips on how “not to be that divorce litigant” that I describe at the outset.  It will only help you, your mindset, and, hopefully, your wallet, to keep these tips in mind when litigating your case.

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Robert A. EpsteinRobert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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Yesterday, I blogged on the Gnall case for the proposition that it appears to say that a 15 year marriage automatically merits permanent alimony.  There were other interesting issues in Gnall too.  Particularly interesting was the discussion of marital lifestyle.  This issue is often vexing, and while there is a lot of discussion regarding marital lifestyle, there is not a lot of agreement regarding how it calculated.

Broken Piggybank Showing Regular Earnings Stock Photo *Image courtesy of FreeDigitalPhotos.net

As noted in the prior post, the husband’s income had be rapidly increasing during the last several years of the marriage.  Here, the wife argued that the lifstyle should be calculated based on the “… the dollar amount of expenses incurred immediately prior to filing for divorce.”  The Appellate Division rejected this and affirmed the trial judge’s averaging the parties’ expenses over several years.  The Appellate Division noted:

.  The “standard of living enjoyed during the marriage” is a concept that certainly includes objective criteria, such as the actual amount spent for mortgages, real estate taxes, car payments, and food expenses. However, it also encompasses more subtle components such as the intervals between car purchases, whether there has been a preference for new or pre-owned vehicles, and the frequency of and nature of restaurants when dining out.

The court also gave some guidance regarding consideration of taxes, since we know that alimony is taxable to the recipient, and also reminded that we have to back out children’s expenses.  The Court said:

The judge understood plaintiff’s CIS budget addressed the needs of plaintiff and the children, and did not include a reserve for income taxes or savings. We determine that once the children’s needs, satisfied by the basic and supplemental child support awards, are removed, the monthly sum awarded sufficiently includes estimated income taxes.

The Court noted that the trial court failed to address savings, noting “… a court may design an award sufficient to permit the supported spouse to bolster his or her savings to “protect . . . against the day when alimony payments may cease” due to the supporting spouse’s death or other change in circumstances.”  In this case, the wife sought savings based upon the amount saved in the prior 4 years.  It does not appear that the Appellate Division was endorsing saving at the same level, only that the savings component had to be considered.

This holding regarding lifestyle is interesting, but is it consistent with other alimony case law?  In situations where income goes up precipitously during the last few years of the marriage, is the use of an “average” for lifestyle fair?  We know that we would not likely use an average of the income for the last several years if it appeared that the income in the year of divorce is more indicative of future income (i.e. there is no fluctuation up and down, but rather, a steady increase, especially if the payor is not in a job where yearly fluctuation would be expected).  Also, we also know about those “marital momentum” cases that allow us to look past the historical income if efforts during the marriage caused an increase in income that was anticipated during the marriage (the Guglielmo case for example.)  In fact, it is difficult to square the holding in Gnall to the holding in Guglielmo on this aspect of the legal analysis.

It will be interesting to see if this case goes up to the Supreme Court and if so, if this is an issue.

There are other issues in Gnall that will be the subject of future blogs.

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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 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.

All too often one spouse will pressure the other to settle an ongoing case, using finances, custody, or some other issue to force an inequitable end to a matter.  This comes up all the time, yet the pressured spouse frequently doesn’t realize that it is happening, whether it is because she trusts her soon to be ex-spouse, is scared (or simply does not want) to litigate to obtain what is fair and reasonable, or for a variety of other reasons.

So what type of comments/efforts will one spouse make to pressure the other spouse into a settlement?  For the sake of brevity, I provide a list of ten fan favorites below, although the list could likely go on and on without end.  

1.  You are going to have to start cutting back on your (not his) lifestyle expenses or else we are not going to be able to afford to litigate this matter.  While in some cases this may be a true statement, I find this one particularly obvious and offensive in cases where there is more than enough income and assets to litigate and maintain the marital lifestyle for both parties.  

2.  You are going to cause us to go to trial (alternatively, "my lawyer told me that I am right, so I would rather go to trial than give you what you want").

3.  Do you really want to drag the kids into the middle of a (legitimate) custody dispute?

4.  I will give you what you want on custody and parenting time so long as you give me what I want financially.  This example is particularly common, but the issues should not be intertwined.

5.  Your lawyer is preventing us from settling (alternatively, "I want to try to work this out with you privately and impose my terms without your lawyer getting in the way").

6.  My income this year is not going to be what it once was, so we really cannot afford to litigate this matter.  (see also prior blog posts on Rapidly Acquired Income Deficiency Syndrome "RAIDS")

7.  I would rather pay my lawyer than pay you.  This classic line really has no bearing on the outcome of a support or equitable distribution issue, and, in fact, provides a compelling argument by the supported spouse for counsel fees due to the payor spouse’s unreasonable conduct.

8.  The act (or repeated act) of violating an interim support ("pendente lite") Order requiring payment for various expenses.  This form of non-compliance forces the supported spouse to determine whether she wants to continually file costly motion after costly motion to address the payor spouse’s non-compliance, or simply give in and surrender in the matter.

9.  Threatening the supported spouse that if she does not agree to go to mediation, she will "regret it".

10.  Any type of what is commonly known as "Divorce planning", ranging from ensuring a reduction in income (see #8, above), spending down assets, hiding assets, or engaging in any course of wrongdoing geared towards the divorce matter.

The possibilities are really endless, so it is important that you keep an eye out and understand that each of the above examples may (and I say "may" because some of the above claims may be truthful and legitimate) be designed to do nothing more than pressure you into an inequitable settlement that you may regret having to live with when you wake up the morning after that final judgment of divorce is entered by the Court.

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com

In the newly published decision of Benjamin v. Benjamin out of the Ocean County Family Part, which has released several reported decisions within the past few years, the court held that having a guaranteed job in another state is not a mandatory prerequisite for it to approve a custodial parent’s request to relocate to another state with a child born.  The court did hold, however, that the "likelihood that the custodial parent can provide the child with a financially stable household in the new state, including obtaining employment as necessary is relevant in determining whether a proposed relocation is reasonable or inimical to a child’s interests."

On first blush, the court’s statement that the primary residential custodian has the right to seek relocation almost suggests that such a right is automatic.  A closer read of the decision and its ultimate holding, however, indicates that the standard fits within the existing relocation standard. 

The parties were divorced in 2008 and agreed in a settlement agreement that mom would be the child’s primary residential custodian.  In 2012, mom filed an application to relocate with the child to North Carolina, which dad objected to by filing a cross motion seeking a transfer to him of residential custody.  One of dad’s arguments was that mom did not have a job in North Carolina, which would inure to the child’s financial detriment.

Continue Reading DOES NEW DECISION STRETCH RELOCATION STANDARD TO ITS LIMITS? NOT SO FAST…