"Somerset County Divorce Attorneys"

Yesterday, Eric Solotoff blogged about the phenomenon of the New Years Resolution Divorce.  It happens.  I encourage you to read that post prior to the one below because it provides some useful background on the issue:

It’s the New Year. A time filled with resolutions, promises to change, and commitments to begin anew.  Your marriage is no exception.  You’re fed up – the affairs, the reckless spending or the mistreatment. You’ve determined that this is your year to finally take the road to singles-ville, to start a new life free of this weight you’ve been carrying around for years.

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But…what happens your resolution to break free of your spouse coincides with your spouse’s resolution to recommit to the relationship? He promises things will be different; she will take steps to treat you better; he’ll pitch in more with the children; the “extracurricular activities” will stop. Your spouse promises he/she will magically morph into a different person. All of a sudden, your jaded, tired, fed up self is looking at your future model spouse. And now you’re in a quandary.

So the question becomes, which one of you wins the war of the resolutions? Science says, if you’re looking for a complete personality overhaul, think again.

Brian Little, a professor of psychology at Cambridge University and author of Me, Myself, And Us: The Science of Personality and the Art of Well-Being stated in a 2014 interview that in adulthood, your personality becomes pretty much set in stone.

You can thank your parents for that; many of our personality traits have a very strong genetic component, which remains constant throughout much of our lives. However, in your teens and twenties, your personality matrix evolves rapidly while you mature.  As people enter their thirties and beyond, those traits solidify; change slows to a crawl and requires far more effort, according to Paul T. Costa Jr., scientist emeritus at the laboratory of behavioral science at the National Institutes of Health.

The situation becomes even more complex when dealing with a personality disorder, such as Narcissistic Personality Disorder (NPD). This is because NPD had a serious environmental component – it emerges from an environment in which vulnerability feels dangerous to the person.  In turn, insecure attachment styles emerge, where fears of depending on anyone result in attempts to control the relationship or avoid intimacy altogether. For people with NPD, change would mean unlearning a whole host of feelings that are ingrained in them and they subconsciously believe keep them safe.

Essentially, asking or expecting a person to change would be asking them to act “out of character” – an unremitting show where he or she plays a part for your benefit. Little, says, however, that this act has a serious effect on the automatic nervous system, somewhat akin to anxiety.  You heart rate quickens, your muscles tense – as if you’re experiencing a stress reaction.  Eventually, you revert back to yourself because the whole process of morphing into another person can be both physically and mentally taxing.

The amount of time a person can play another character has yet to be studied. But the question is, do you want your marriage to be the test case?

Now, that is not to say that people have not successfully improved marriages that once were on the precipice of the abyss. However, odds are, if you think your spouse is going to assume a completely different personality to save your marriage, you may just lose the war of the resolutions.

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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.

I get it – you want your divorce over as quickly as possible.  In fact, you wanted it over yesterday.  Wait, you not only wanted it over yesterday,  but you also wanted it to end with you getting everything you wanted, as if your soon-to-be ex is going to crawl into a fetal position on the ground and raise a little white surrender flag.

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Perhaps you have a new boyfriend and you don’t want to wait a year or longer to finish your divorce from the guy living in your house still known legally as your “husband”.  I get that.  Perhaps you own a business and you want the case over at ludicrous speed because you don’t want a forensic accountant snooping around the company books.  I get that too.  You make wild claims like, “she can have all of the money, as well as my kidneys and soul, let’s just get this over with!”  I get that, but a little less so, especially when you are reluctant to even prepare a Case Information Statement with basic financial disclosures.  Simultaneously, you are willing to settle one day, but the next is like the opposite side of a black and white cookie.

Unfortunately, Harry Potter cannot use his wand to get you the exact result that you want in the time that you want it.  Sometimes, as Axl (Rose, not Foley) once said, all we need is a little patience.  The divorce process can take some time, for just a few of the following reasons:

1.  Discovery to be exchanged – Maybe you need to find out where that $50,000 went from your spouse’s account in the three months leading up to the divorce.  Maybe you don’t care, but your spouse wants to know what is going on with your accounts.  There are countless iterations as to why discovery needs to be exchanged and, at the very least, Case Information Statements filed detailing the parties’ respective financial pictures.

2.  A business needs to be valued – While you may believe that your business is worth $0 or something close to it, a forensic accountant may disagree when employing the valuation standards relied upon by judges in determining the value of a marital share in a business and how to divide it in equitable distribution.  The process can take time and, if there are multiple experts, conclusions of widely divergent values that may ultimately necessitate a judge making the value call at trial – only after months have passed and unknown amounts of money have been spent in expert and counsel fees to get to that point.

3.  A custody evaluation needs to be prepared – Your spouse insists that he was just as much of a  caretaker to the kids during the marriage as you were and, as a result, is insisting on a joint, 50/50 residential custody arrangement.  You do not agree.  Unless the dispute is going to resolve itself shortly thereafter, through mediation or otherwise, a custody evaluation (or maybe more than one – perhaps each party has an expert) is going to occur that will likely take several months just to get to the point where the expert(s) can make recommendations without even putting pen to paper to prepare a final report that can be utilized at trial.

4.  The parties (or at least one party) are not emotionally ready to move on – Sometimes one party does not want to get divorced, or may need several months just to get to a point of acceptance.  This is especially true in cases where one spouse sprung the divorce on the other, for whatever reason.  Litigating or trying to reach a resolution with that person can be very difficult, as the emotions can override the ultimate goal of reaching a conclusion that is fair for all involved.

5.  Court calendars are overburdened and judges in short supply – A settlement hasn’t occurred, but your case has been going on for more than a year, if not years.  Whether you believe it or not, the trial judge is doing everything that can be done to get your trial done.  Each judge, however, routinely has several hundred cases at once of all different varieties, and works long hours, nights, and weekends to address every issue, motion, trial and more that may arise.  There are only so many judges on the bench for an overwhelming number of cases, so do not be surprised if your trial does not start for well more than a year after it commenced, does not occur for full consecutive days until its conclusion, and does not result in a trial decision immediately thereafter no matter how hard the judges try to accommodate litigants.

6.  One party isn’t playing nice in the sandbox – When one party doesn’t play nicely, or uses financial superiority to squeeze the other spouse, or engages in any sort of misconduct during the divorce proceeding, it is very likely that the proceeding will take longer, and cost substantially more, just to get to a conclusion.  Motions are filed if support is cut off, parenting time is being prevented, and so much more.  Litigants want immediate help, and do not want to wait a month or more to get a day in court on the motion and hopefully a decision at that time.  Weeks and months pass, with misconduct resulting in increased counsel fees and no resolution.  At some point, the case may become only about the counsel fees that have been incurred and who is going to pay for them, because all other issues have settled.  This is a place where no litigant wants to be, but should not be surprised when his or her own conduct may have led to that very situation.

With the above hurdles that often have to be scaled in order to reach the finish line, sometimes that finish line takes longer to cross than you may like.  You may have to put off those future plans, or allow that expert to do his or her work, or exchange those documents, just to get to an ending through trial or settlement.  While I get that you want the process to be over faster than Barry Allen can save Central City, exercising some patience, rather than impulse, will prove to be the best solution for all involved.

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

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*Photo courtesy of google free images.

As loyal readers of this blog may know, I often write about the trials and tribulations of practicing law in the Family Part.  Whether to benefit readers, engage in a vent session, or a bit of both, this particular post focuses on what evidence litigants should and should not include in support of a motion filed with the court.  For our non-attorney readers, a motion is what a litigant files when he or she wants the court to do something – hopefully only after efforts to resolve the issue with the other party have failed.  For instance, maybe the divorce proceeding just commenced and the other spouse has financially cut you off from everything.  You tried to discuss it with him, but he had no interest in resolving the issue.  Perhaps there is a custody and parenting time agreement in place, but she refuses to abide by its terms.

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There are countless reasons to file a motion with the court asking for help.  In support of the motion listing your requests for relief, you may file a brief setting forth the relevant law.  In family law practice, briefs are not necessarily the norm, although a judge may find it useful depending on the subject issues.  The litigant will also file an affidavit/certification telling his or her story and why the court’s help is needed.  When putting together the certification, how is the litigant supposed to know what the certification should say, or what proof should go along with it.

The Rules of Court in the State of New Jersey talk about how certifications filed with the court can be based ONLY on the certifying litigant’s personal knowledge.  Specifically, Rule 1:6-6 provides:

If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein.  The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.

Well, what on Earth does that mean?  The personal knowledge part is in there, but then it talks about facts that are admissible in evidence to which the certifying party can testify.  Well, what does that mean?  Does that mean that a litigant can certify to what her friend told her about her husband?  Not likely, because that would constitute inadmissible hearsay (defined as an out of court statement submitted for the truth of the matter asserted).  Does that mean a litigant can certify as to what a child’s therapist said to her about the other party?  No, for the same reason.  Does that mean that a litigant can certify as to the details of all settlement discussions to show that the other party is being unreasonable?  No, because those discussions are supposed to be confidential.

Most importantly, however, does that actually stop litigants from doing any of the above?  Of course not.  Despite certifying under oath, litigants will essentially throw whatever they can at the wall to see what will stick in the mind of a judge including, but not limited to, unsubstantiated assertions, inadmissible hearsay, settlement discussions, argument, and the like.  There is little that can be done to stop it.  Objections are made but, at that point, even if the objection is sustained, the damage may have already been done.  There is no jury to excuse should something come out that should not have been said.  There is no cork to shove the genie back in the bottle.  Motion papers typically do not involve testimony, so a family court judge is being asked to make a determination based on nothing more than competing certifications. Judges are not supposed to weigh the credibility of Certifications.

While a plenary hearing may ultimately be scheduled so that the judge can take testimony based on the competing certifications, temporary relief is often granted until such time, with such relief based solely on what either party has to say.  I was recently in court on a matter where one party filed an emergent application against the other party to suspend my client’s parenting time based on allegations that were completely unsubstantiated and supported with nothing more than inadmissible hearsay.  Understandably erring on the side of caution, the family court judge imposed the temporary restraints and suspended the parenting time pending a return date.  It was not until the return date that the judge could see, after hearing from both parties rather than just one, that the allegations were completely bogus.  The parenting time was restored in full, as a result, and additional parenting time granted to repair the potential damage done by the time lost.

The reason for telling the story is that the judge, in rendering her ruling, generally noted how affidavits or certifications – even in the family part – must be properly prepared and filed in accordance with the rules, with appropriate references to the record and without the very sort of assertions prohibited by Rule 1:6-6.  It was a keen reminder from a jurist about how litigants and practitioners are not absolved from following the rules simply because a family part matter is involved.  If anything, with the stakes often higher in this part than any other, the rules carry a greater significance.

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

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*Photo courtesy of freedigitalphotos.net (attributed to Stuart Miles)

Everyone knows that divorce and custody matters can be emotionally charged proceedings that tear away at the very fabric of a particular family.  Many of these cases, as family law practitioners know well, also involve family members who are willing to do whatever it takes to fight for and protect the interests of a divorcing son, daughter, grandchild, sibling and the like – even when such efforts go beyond that which the litigant family member may want for him or herself.

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Whether a family member provides financial support by paying for the litigant’s counsel fees, or is calling the shots/making strategic recommendations directly or indirectly to the litigant’s attorney (where issues of attorney/client privilege come into play), family member involvement is a common and largely accepted component of family law practice.  In fact, in many cases such involvement can prove vital to ensuring that a litigant has the necessary familial support system in place to get him or her mentally through a proceeding.

Can such involvement, however, reach a point that it negatively impacts upon the very interests of the litigant that the family members seek to protect?  Even worse, can it have a detrimental impact upon you as the attorney representing such a litigant?

I present to you the case of the Gottliebs, whose son Michael was getting divorced from his wife Lauren in a Manhattan proceeding.  Michael and Lauren had an 8-year old daughter, and the relationship started to fall apart after Michael suffered a brain aneurysm in 2008 and Lauren started having disagreements with Michael’s parents about his course of medical treatment.  In 2013, the Honorable Ellen Gesmer granted primary custody of the child to Lauren, and went so far as to allow her to “exclude the paternal grandparents and other members of the father’s family” from seeing the child, which is telling of the level of the Gottliebs’ misconduct.

Despite Michael indicating that he was not seeking primary custody of the child, the Gottliebs were found to have dragged on what should have been a simple divorce matter for five years simply to maintain their relationship with their granddaughter.  Judge Gesmer ultimately fined the Gottliebs more than $200,000 for violating her Order to disclose who was paying Michael’s legal fees (it turned out that Michael’s parents had entirely funded his litigation expenses).

More concerning is that the sanctions extended well beyond the Gottliebs personally, as yesterday Judge Gesmer handed down a decision sanctioning their lawyers to the tune of $317,000 fine for facilitating their directive to “go after the mother with a vengeance.”  The judge even referred the lawyers to the state disciplinary committee, concluding that the lawyers acted in an “evasive”, “uncooperative” and “not credible” manner.

This case should not only serve as a cautionary tale to family members who, in their efforts to do what is best for the family member litigant may ultimately step over the line of being a supportive family member into something far worse and destructive, but also to lawyers who are willing to do whatever the family member of the client asks of him or her during the course of legal representation rather than put an end to it before it is too late.

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

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Law is never easy.  Practicing law can be even less so.  How about going it on your own without an attorney?  Not everyone may know that a “pro se” litigant acting on his or her own behalf is expected to know all of the rules and law that apply to their given case.  However, going through the process of litigation, let alone appearing in court and proceeding through a trial, can be overwhelming for even the most knowledgeable of self-represented litigants (not to mention some licensed attorneys).

What happens, then, in a case where the self-represented litigant is denied the ability to question a witness and present his case?  That was the scenario in C.H. v. J.S., a newly unpublished (not precedential) decision from the Appellate Division where a final restraining order entered against a defendant in a domestic violence matter was vacated due to a lack of sufficient evidence and based on a finding that the “procedures employed at trial deprived defendant of fundamental due process.”

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The known facts are sparse.  The plaintiff asked for a final restraining order based on her alleging that defendant (her former dating partner) engaged in criminal harassment by sending plaintiff a series of “six or seven ranting text messages” calling her names and suggesting that he intended to post private videos of her on the Internet.  She further claimed that he had made such threats before, wanted to end the conduct and, when questioned by the trial judge during the final hearing, indicated that “once something goes on the Internet it doesn’t come off the Internet.”

The judge asked the defendant if he had any questions for the plaintiff, to which the defendant responded to the effect that he did not know.  The judge then asked the defendant if he disputed having the alleged conversation with the plaintiff and sending the subject emails, to which defendant responded that he was hurt by the plaintiff breaking up with him a third time, said things he didn’t mean, but that she knew he would never do such things to her.  The judge then ended the hearing, deemed the defendant’s response to his question an admission of harassment, and implemented the final restraining order.

Notably, while the trial judge was detailing on the record the provisions of the FRO, the defendant objected and indicated that he was unable to ask several questions that he had (to which the judge responded such questions could be posed after the Order was issued), and that he was unable to cross-examine the plaintiff as to her allegations and his defenses.

On appeal, the Appellate Division first concluded that there was insufficient evidence that the defendant had committed an act of criminal harassment and, more specifically, that he had a purpose to harass the plaintiff.  It is at that point where the decision gets interesting, as the Appellate Division strongly concluded that the defendant was denied his fundamental due process rights by what transpired:

Even more important, we conclude defendant’s fundamental rights to be heard were trampled by the hearing procedures employed. A litigant in civil proceedings is entitled to a fair hearing, imbued with the protections of due process. See A.B. v. Y.Z., 184 N.J. 599, 604 (2005); H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003).  The due process guarantee expressed in the Fourteenth Amendment to the United States Constitution requires assurance of fundamental fairness during legal proceedings. U.S. Const. amend. XIV, § 1. This includes the opportunity to be heard and requires “procedural safeguards including the right to cross-examine adverse witnesses and the right to call witnesses . . . .” Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).

It is clear from this hearing transcript defendant was not given the chance to meaningfully respond to plaintiff’s allegations and was never permitted to present evidence, including witnesses or documents he believed supported his defense.  Rather, the judge concluded the hearing when he understood defendant’s response amounted to an admission that satisfied plaintiff’s elements of proof.

We recognize these matters are summary in nature, which may be accompanied by some relaxation of formal trial procedures, such as requiring a party to stand when addressing the court or requiring witnesses to take the stand. We are also aware of the limited need of trial judges to aid the trial process by initiating examination. However, we will not condone the relaxation in trial formalities that deprive due process.

Many litigants who come before our courts in domestic violence proceedings are unrepresented by counsel; many are unfamiliar with the courts and with their rights. Sifting through their testimony requires a high degree of patience and care. The pressures of heavy calendars and volatile proceedings may impede the court’s willingness to afford much leeway to a party whose testimony may seem disjointed or irrelevant. But the rights of the parties to a full and fair hearing are paramount.

[M.D.F., supra, 207 N.J. at 481.]

Defendant was not afforded a “full and fair hearing,” which must be provided before entry of something as serious as a final restraining order. The July 9, 2014 order must be vacated.

The Court’s findings and conclusions as to due process were in the context of a domestic violence matter, but are not limited to that type of matter.  While self-represented litigants are, thus, expected to know the law, rules and procedure that apply to their matter, this decision guides trial courts and practitioners to ensure that such procedures are properly followed and notions of due process maintained in all types of litigation.

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

Connect with Robert: Twitter_64 Linkedin

 

With finger pointing, unsolvable problems, sad thoughts about the good times, and, most eloquently, “No I don’t fear no more, better yet respect ain’t quite sincere no more,” it is as if Taylor Swift’s latest hit was born for this blog.  Does it always, though, have to be about “Bad Blood” or will it ever get to the point that you can just “Shake it Off” (forgive me Sir Paul)?

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Readers of this blog know that I regularly discuss how the emotionally charged world of family law can only be made more so when two parties refuse to work with each other towards an amicable resolution, especially when represented by unreasonable attorneys furthering the charge.  When the smoke clears, however, the parties may be left barely standing and wondering where it all went wrong – the exhausted emotions, the legal fees needlessly incurred/spent while trying to figure out how they will be paid, the years of lives lost to litigation, the children destroyed by the endless battleground.

Taking a step back, no one really wants to go through this process.  The challenge comes when the wallet does ultimately have a bottom and decisions have to be made that not only can preserve the present, but also the future of all involved.  It never ceases to amaze me how frequently parties and, as a result, the attorneys on their behalf lose sight of the long-term goal simply to procure the short-term “win”.

What, then, is a frustrated litigant to do?  Being reasonable should be the right thing to do, but what happens when the other side has other ideas?  What if the other side is pressuring you through the kids, or with money on their side?  What if his family members are funneling money to pay for counsel fees while you are wondering how the next bill will be paid?  You can always ask for counsel fees but they are by no means a guarantee no matter how strong your position may be and, ultimately, you are faced with the unenviable choice of capitulating to your spouse’s unreasonable position, or continue fighting the exhaustive good fight.

Effective mediation.  Productive collaboration.  A common goal to bring a case to a reasonable conclusion.  Each is often effective, but oftentimes it is not until the end stages of a divorce litigation, with trial on the horizon, that parties finally realize that allowing a trial judge who knows little about their lives should not be the one to make decisions that will impact them for years, if not decades to come.  These are all lofty, but sometimes unattainable goals.  The only option may ultimately be that very trial, allowing the cards to fall where they may and seeking counsel fees as a component of any overall relief.

None of this is easy, no matter how simple the case.  The very nature of what is happening defies ease.  However, just because you may be “never ever (ever) getting back together” does not mean that the end cannot be done in a way that minimizes the long-term damage (emotional, financial and otherwise) for all involved.

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

Connect with Robert: Twitter_64 Linkedin

In many cases, experts are a necessary, if not invaluable asset to have on your team. Often, they are not only needed to provide the necessary financial calculations (e.g. business valuation, calculating true income/cash flow, lifestyle analyses, tax calculations, alimony and child support scenarios, etc.), they can often help with the negotiation of issues relating to the calculations that they prepared.  Also, many clients have great trust in their experts so they are helpful in reassuring them that the deal is fair from their perspective or to explain why certain concessions may be worthy of consideration.

On the other hand, there are certain experts out there that usurp their role and act like they are the attorney, whether because that is their nature or because the attorney that they are working with has deferred the matter to the expert.  Using a football metaphor, the attorney should be the quarterback of the team, not the expert.

In one recent case, the adverse expert started by trying to value entities not owned by the parties; started preparing a lifestyle analysis when the parties were of retirement age; delayed doing a site visit on the business for no apparent reason and when he did, seemingly knew nothing about the case; kept claiming that he was waiting for documents – but couldn’t tell which documents he needed and there were no documents that had been requested which hadn’t been provided; delayed in providing a report and then when just schedules were agreed to be exchanged, were wrong, grossly deficient, and far less than what was provided by our experts; came to two settlement conferences and became the point person for the negotiations despite clearly/admittedly not knowing the law and then creating issues that simply did not exist (including saying that something which was not an asset, was an asset.)  It seem clear that that expert had made promises to the client at the beginning of the case that he could not keep at the end of it.  In fact, it appeared as though he pre-judged the matter and just assumed there should be more based upon the income, without looking at the spending or the assets in any depth.  Curiously, he kept saying that money “had to be missing” based upon one party’s income, but never bothered to do the forensics to prove or disprove his theory (though if he looked at the taxes paid and spending during the relevant period including weddings for two kids and educational costs, it was clear that no money was missing.)

At the mediation, the expert was doing a lot of the talking and negotiating while the lawyers sat largely silent.  The expert continued to press an agenda not based in reality.  The outcome of this was that the parties substantial needless legal and expert fees, and have delayed if not driven the parties further from settlement.

At a different matter in the last year or two, the experts had a several million dollar math error in their report.  There were also other issues/errors that the mediator (another forensic accountant) saw with their report.  Rather than trying to close the gap, the expert amazingly said, even if I fix the errors, I will change something else to get back to the same number.  It took extricating the experts from the equation to get the case settled.

Again, while experts are a valuable and necessary part of the team, neither the lawyer nor the client should let them run the show.  They are not the quarterback.

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

When an attorney asks me to consent to an adjournment of a pending court date, deadline, or otherwise, I generally consent as a matter of professional courtesy unless there is a good reason not to (perhaps there is someone else who can fill in for the attorney who is familiar with the matter, or consent was already given on an earlier occasion in connection with the same court date and, quite frankly, enough is enough).  We as family lawyers have all stood in each other’s shoes on many occasions for better or worse, and also know that a family judge, or appellate court may not kindly view your refusal to consent to an adversary’s request (especially if the requesting attorney has a conflict or personal issue).  In other words, your client’s best interests may be negatively impacted if you DON’T consent.

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I recently concluded a case where the trial court advised me that I would have to file a motion to procure a form of relief that was actually sought by both parties.  Since a Consent Order would not suffice, I contacted my adversary to procure her consent to filing the motion and the relief sought so that I could note the consent in my paperwork and make it easier for the deciding judge.  The other attorney provided consent without hesitation.  It was, thus, astounding to me when, after I filed my motion, suddenly I received an opposition to my motion that – bizarrely – indicated that her client wanted the relief sought, but that my client had not fulfilled the requisite legal burden.  When I contacted the other attorney to ask why on Earth the opposition was filed, she indicated that she was just “following orders.”  Now whether that meant her client or a superior was unhappy that consent was provided and was calling the shots, I will never know.  The point, however, is that there was no reason not to provide consent when both parties wanted the same relief.  What should have been easy thus, became an issue of gamesmanship and unnecessarily increased counsel fees for both parties.  Proceeding in the manner that ultimately occurred only showed her client’s bad faith intentions and impacted her when the issue of counsel fees arose.

In another prior matter that comes to mind, I immediately consented when an adversary requested an adjournment of a court date because of his own personal issue.  My client had been waiting for the court date for quite some time, but the judge undoubtedly would have granted the adjournment request under the circumstances and only the client would have looked bad if I didn’t provide consent, especially because there was no one else to fill in for the requesting attorney.  Incredibly, I have had adversaries refuse to provide consent to my own adjournment requests under similar, if not far worse circumstances because the forest gets lost in the trees.  Even years later, we still remind the attorney in that earlier matter of his refusal to consent to an adjournment in that situation because of how unreasonable it truly was.

Ultimately, this is not simply about working with each other as family lawyers.  It is also about the clients and how certain actions that may seem harmless at the time can come back to bite both you and the client at a later date.  In other words, consenting could be about both professionalism and strategy.

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

Connect with Robert: Twitter_64 Linkedin

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.

It is that time of year – snow is on the ground (at least here in Jersey), the temperatures are bone chilling, football is over, many women are already lining up to see Fifty Shades of Grey and what else?  Oh right, Valentine’s Day, where men scramble for the perfect gift, the ideal box of chocolates, and something inspirational in a card to say other than “Happy Valentine’s Day.” I was reading a list of the top Valentine’s Songs the other day and “Endless Love” topped the list.  If you are going through a divorce or are already divorced, however, you likely want to delete this Diana Ross and Lionel Richie ballad from your iTunes account because Valentine’s Day need not be the reminder of better times that most think it should be.

HEART

Instead, it can be thought of as a fresh start for the newly divorced, or a reminder that that you moved on from that previously bad situation.  Valentine’s Day is completely commercialized anyway, right?  Maybe you were waiting for the 14th to pass, or that huge blow up finally occurred that broke the camel’s back.  In fact, while most stories focus on the rise of divorce filings in January or in September after the Summer comes to a close, filings also rise soon after VD.  It may be more of the so-called “new year” effect carrying over into mid-February, where people first meet with attorneys and get their documents together in January, and then file before March.  I have also previously blogged about how divorce filings are actually at the highest point in March each year.  So either there is a trend, or divorce filings are simply higher at all times of the year except for the Summer when people are with their kids or traveling more frequently.

Being mentally prepared to move on with your life and cast aside memories of the annual gift of roses is critical.  Going through a divorce or a post-divorce matter is not just about getting your documents in order and having your lawyers draft vehement arguments and advocate in your favor.  Rather, it is also about being psychologically willing and able to stand up to the other person who will do everything that can be done to make a final termination of your relationship as difficult as can be.  This may go well beyond the litigation in and of itself.  Oftentimes, a therapist may be the right move to get you into the right frame of mind to move on with a healthier life from an unhealthy situation.

Valentine’s Day need not be about remembering the champagne, candy and teddy bears.  Rather, it can be seen as that true clean slate or fresh start that you need it to be.

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

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*photo courtesy of freedigitalphotos.net