NJ Family Legal Blog

NEW COURT RULES TO HELP PREVENT IDENTITY THEFT

edegeorge@foxrothschild.com (Erin DeGeorge ) — Thu, 05 Nov 2009 14:51:18 -0500

So often we hear about how to prevent identity theft. Do not give out your social security number; do not give out bank account information, etc. But what do you do when you are going through a divorce, and the Court requires you to provide documents that contain your social security number and/or bank account information. The thought of one’s personal income tax returns and bank statements floating around the courthouse for all personnel to see can make anyone feel uncomfortable.

The Supreme Court of New Jersey recognized this issue and adopted R. 1:38-7. Said Rule requires that any document or pleading submitted to the Court containing confidential personal identifiers must be redacted. A confidential personal identifier is defined as a Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number, or active credit card number. In addition, in the event one of your accounts, i.e. bank account, brokerage house account, etc. is the subject of the litigation, the Court Rules provide that only the last four (4) digits of the account be disclosed if the account cannot otherwise be identified.

ANOTHER DAY, ANOTHER CELEBRITY DIVORCE

esolotoff@foxrothschild.com (Eric S. Solotoff) — Thu, 05 Nov 2009 05:22:17 -0500

Connecticut seems to be the hotbed of celebrity divorces these days.

Yesterday's news reported that model Stephanie Seymour will have to make due on $270,000 per month in temporary support while her case is pending. The news accounts report that her husband nets $1.5 million per month making this appear to be a veritable drop in the bucket.

Today's new reports that sportscaster Jim Nantz has to pay his wife $72,000 per month in permanent alimony plus $1,000 per week in child support. This is a substantial amount if his income is $3.2 million as noted in one place but not so much if his income is $7 million as reported in other places.

Aside from a look into the lives of the rich and famous, this shows another thing - that is, divorce can be a very public airing of very private matters. While perhaps it may be more noteworthy for celebrities, even much of regular people's divorce can become part of the public record. While it is not possible to completely avoid this, treating each other in a dignified and fair manner and settling issues is a way to help keep things out of the public record.

PARENTAL ALIENATION SYNDROME - IS A DSM MENTAL DIAGNOSIS ON THE WAY?

esolotoff@foxrothschild.com (Eric S. Solotoff) — Tue, 03 Nov 2009 16:47:33 -0500

We have blogged in the past about parental alienation and "Parental Alienation Syndrome." There was an excellent article in US News and World Report on line posted on October 29, 2009. To read the article, click here. To view some of our prior posts on this topic, click here and here.

The article discusses a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association. The new edition is scheduled to be published in 2012.

While there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness. On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified. The people of this view are concerned that making parental alienation a mental illness could be invoked by an abusive parent to gain visitation with a child that has good reason to oppose contact.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.

INTERESTING NEW ALIMONY REDUCTION CASE

esolotoff@foxrothschild.com (Eric S. Solotoff) — Tue, 03 Nov 2009 09:19:29 -0500

We have blogged many times about cases dealing with motions for reductions of child support and alimony. Obviously, that has been a hot topic given the economic downturn that our country has experienced over the last year or so. Another interesting unreported (non-precedential) case was released on November 2, 2009.

That case was Miele v. Miele. In this case, the parties divorced in 2005. In their Agreement, the husband's support was based upon anticipated gross income of $165,000 per year. The reason for this was because he involuntarily changed employment in 2005. In 2004 he earned more than $331,000. Because of these circumstances, the parties agreement required them to exchange W-2 and 1099 forms for 2006, 2007 2008.

The husband's post divorce income did not approach even the $165,000 level. As a result, he made a motion to reduce his alimony in 2007 which was denied. He filed another motion in 2008 which also was denied. This time, he appealed.

The Appellate Division reversed. The Appellate Court found that the parties agreement recognized that there was an involuntary reduction in income and that the $165,000 number was a projection of future income that did not come to fruition. Given that the husband had shown two, if not three straight years of income that was substantially below the anticipated gross income, he was entitled to, at the very least, entitled to a hearing.

This case is instructive because I would anticipate that many current divorces will be faced with a similar situation of someone who lost their job and their new income is speculative. The parties should attempt to include protections in the agreement that take into account that the income could go back to historical levels, as well as what should happen if it does not.

Agreement for Cutoff Date in Lieu of Filing for Divorce

lcutler@foxrothschild.com (Larry Cutler ) — Mon, 02 Nov 2009 12:45:13 -0500

As is widely known, the filing date of the complaint for divorce which actually leads to a divorce is the “cutoff date” for equitable distribution, that is, assets acquired up to that date are generally subject to equitable distribution, and assets acquired after that date are generally not. This is a general rule and cannot be taken as a total brightline test since there are no notable exceptions. Among these are: (1) assets acquired by way of gift or inheritance or intestate succession (death without a will) not from a spouse; (2) assets acquired with other assets which were either from a third party as in the first example of acquired by one party prior to the marriage. An exception to the cutoff date would be an asset acquired by one party after the cutoff date but with assets which were subject to equitable distribution. Again, these are general rules and there are always exceptions or other fact situations which render a general rule inapplicable. Obviously, it is best to consult qualified counsel since each circumstance is fact-sensitive, and the result usually turns on very specific development of the facts.

One exception to the timing of “cutoff date” rule is advantageous to the parties. Say that (for one reason or another) the parties are cooperative and want to attempt to negotiate an agreement before filing for divorce. Their hope is that they can amicable provide the other, through counsel, with sufficient documentary information upon which to adequately understand their financial circumstances and based on that understanding, negotiate an agreement, in which case, they can then file for divorce and obtain an uncontested termination of their marriage within a few weeks. Using this methodology, they can avoid certain judicial systemic entanglements.

Problem: if they were to file for divorce, as stated above, the general rule is that post-complaint asset acquisitions are not subject to being divided in the divorce process. If they try to negotiate without filing, if the negotiations should fail to bear fruit and they must thereafter file and implicate the court system in their settlement process, any assets acquired between the time that they start negotiating and the time it fails and one of the files is subject to equitable distribution.

One party may wish to avoid this problematic result. One way to accomplish is to stipulate a particular date as the agreed-upon cutoff date in the event that they might have to later file without an agreement. Needless to say, such an agreement should be in writing, and for safety sake, signed by both parties, not just their attorneys.

Thus, under this scenario, the parties would be free to continue their efforts but with the effect (relative to equitable distribution) that a complaint had been filed.

A cut off date can similarly be used to fix the end date of the marriage for alimony purposes.

CALCULATING CHILD SUPPORT OBLIGATIONS

sfava@foxrothschild.com (Sandra C. Fava) — Mon, 26 Oct 2009 21:04:47 -0500

I have heard on more than one occasion from a client that their spouse or ex-spouse isn't earning nearly as much income as he/she may be capable of earning. This statement is often made in the face of an alimony or child support calculation. What happens if this is in fact true?

During the divorce process one of the more common ways to determine how much income a spouse can earn is to have them evaluated by an employability expert. Now if you look up "employability expert" as a qualified profession or a course of study available in a college course book, I doubt that you would find it in there. Like many other things, employability experts arose out of a need in the legal profession to have an individual with the proper experience, knowledge and background meet with an individual and assess their skill set to determine what kind of employment they may be eligible to obtain. Viola- a new niche profession is born!

So what about after a divorce is finalized and an ex-spouse is either unemployed (because of the economy, the job market or they simply refuse to work) or is underemployed (earning less than they had previously earned either by choice or no fault of their own) and a support obligation exists? What does the court then rely upon when addressing the recalculation of a support award?

The Appellate Division, in the recent unpublished decision of Bakalian v. Bakalian, A-4773-07T1, decided October 21, 2009, revisited this issue. In this case, the ex-husband appealed, in part, from the trial court's Order that imputed income to him as well as objecting to the way in which the trial judge reached the imputed income number.

Imputed income- what's this? In simplest terms- imputed income is income that is ascribed to an individual as the amount of money they could be earning, if they either chose to work or chose to find employment similar to their past employment and/or earnings.

In Bakalian, where the parties were both employed in the medical field but where child support had to be recalculated because the parties' son decided to live with husband, however hehad given up his chiropractic practice after the death of the parties' 16 year old daughter because he "could not get out of bed in the morning", had to deal with the legal issues stemming from his divorce, and he had raise the parties' other child, a 17 year old son.

The trial judge used the New Jersey Department of Labor statistics (NJDOL) in coming up with a comparable salary for husband if he had in fact been working and imputed that number to him when recalculating the child support obligation.

The Appellate Court affirmed the trial judge's imputation of income and methodology used to determine the amount imputed. First, the Court noted that a trial judge's decision to impute income won't be changed unless the underlying facts to do so are either contrary or unsupported by the available evidence.

That said, the Court went on to hold that whenever a parent remains unemployed or underemployed without a good reason, imputing income allows for a fair and just determination of child support. In doing so, the potential earning capacity should be taken into consideration in the support calculation. The first part of this analysis requires a determination by the trial judge that the parent has good reason to be voluntarily unemployed. To make that decision, the judge needs to consider the employment status and earning capacity of that parent if the family had stayed together, as well as the reasons for the voluntary unemployment or underemployment.

As for the methodology used to determine the imputed income, the New Jersey Rules of Court provide guidance for this process, once a court decides that a party does not have good cause for being unemployed. These three options are listed in descending order of priority:

1). Impute income based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the NJDOL;

2). If potential earnings can't be determined, impute based on the parent's most recent wage or benefit record; or

3). If a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the NJ minimum wage ($7.15 per hour).

As you can see, courts don't simply guess a number when making these determinations. If you are going through a divorce or have an ex-spouse who you believe is voluntary unemployed or underemployed and support (either spousal or child) is an issue in your case, take the above considerations to heart.

READ MARK ASHTON'S EXCELLENT POST ON "CUSTODY EVALUATIONS"

esolotoff@foxrothschild.com (Eric S. Solotoff) — Mon, 26 Oct 2009 10:50:36 -0500

Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled, "Custody Evaluation". To read the post, click here.

I have previously blogged on this topic, as well. To review my prior post on How to Prepare for a Custody Evaluation, click here.

Though Mark is in Pennsylvania, much of what he says would apply in NJ too. However, while he says that the evaluations typically cost between $5,000 and $7,500, while that is not an uncommon "retainer" for an evaluation in New Jersey, it is rare that the costs do not exceed the retainer, and that is just for the report. It does not include fees for testimony at trial or a deposition.

However, in New Jersey, I think that typically, judge's do find the reports useful, especially if the expert is a joint or court appointed expert. That said, a judge is required to make independent fact findings and cannot simply defer to and/or abdicate judicial responsibility to the expert. There are times that you have to fight the deference to the expert. In those cases, you may need to get your own expert. Given best practices, judges do not always allow you to get a new expert if the expert is a joint expert. If it is a court appointed expert, a party has a right to get their own expert.

At Fox Rothschild, our family law group is capable of handling the most complex and/or contentious custody litigation. I have also previously blogged on the new American Psychological Association Guidelines for custody evaluations. To review that post, click here. Similarly, I have blogged on other "experts" for custody/parenting issues in high conflict divorces. To review that post, click here.

Can A Domestic Violence Restraining Order Be Dismissed?

asperalejo@foxrothschild.com (Apple Sulit-Peralejo) — Thu, 22 Oct 2009 13:12:18 -0500

At the time of a break-up of a relationship, clearly emotions are high, it is contentious and people often do or say things that they normally would not. Unfortunately, during this time period where many feel like they are on an emotional roller coaster, the tension escalates to the point where one party has filed a Complaint for Domestic Violence as a result of the actions and/or comments of the other party and the Court enters a Final Restraining Order. Once the emotional roller coaster ride stops, does the defendant have the ability to ask that the Restraining Order be dismissed? The answer is yes but the more important inquiry is whether or not such request will be granted.

In New Jersey, either party to a Domestic Violence Restraining Order may request dismissal of the Restraining Order by way of Motion filed with the Court. The New Jersey Prevention of Domestic Violence Act states that “Upon good cause shown, any final restraining order may be dissolved or modified upon application to the Family Part…” N.J.S.A. 2C:25-29d. In other words, simply asking for a dismissal-- even if you are the plaintiff or the victim-- does not automatically warrant a dismissal of the Restraining Order.

If the Defendant files the Motion to dismiss the Restraining Order, there are eleven factors for the Court to consider when determining whether or not “good cause” exists to dismiss a Restraining Order: the victim’s consent; current relationship of the parties; number of contempt convictions; use of drugs or alcohol; whether defendant is violent with others; whether the aggressor attends counseling; age and health of the aggressor; whether the victim is acting in “good faith” when opposing the dismissal; whether there are any other domestic violence restraining orders between the parties in other jurisdictions; and any other relevant considerations relevant to dismissal of the Restraining Order.

If the Plaintiff is the party making a request for dismissal, before any dismissal is entered, the Court must discern whether the plaintiff is seeking the dismissal voluntarily, without coercion or duress; if the plaintiff understands the cycle of violence that occurs in the domestic violence setting; and if the plaintiff understands the loss of protection if the Restraining Order is dismissed.

Notably, regardless of whether or not Plaintiff consents to, wants to have and does have communication with a defendant to a Restraining order, unless the Court has dismissed the Restraining Order, it remains in full force and effect.

Accordingly, depending upon the situation at the time of the entry of the Restraining Order and the underlying facts resulting in entry of the Restraining Order and the current situation, a Defendant may consider seeking dismissal of a Restraining Order. This is especially the case if the Restraining Order was entered shortly after the parties break-up, a reasonable amount of time has lapsed, and there have been no contempt proceedings. By way of example, I represented a client who had a Final Restraining Order entered against her during her divorce proceedings. The divorce proceedings were very emotionally charged especially because the husband had an affair with one of her close friends. Needless to say, my client was very upset and sometimes very confrontational during this phase. Notably, prior to and after the divorce proceedings, she was actually a very private, quiet and rational person. Once the divorce was completed and after three years since entry of the Domestic Violence Restraining Order and the emotions had long since died down, she found it increasingly difficult to have the Restraining Order in place because she and her ex-husband were very involved in their children’s school and extracurricular activities. Notably, there had never been any contempt proceedings nor any other problems between the parties since entry of the Final Judgment of Divorce and the Final Restraining Order. We therefore filed a Motion to dismiss the Restraining Order which, based upon the facts, was granted. (Readers should not misconstrue the comments in this blog as encouraging dismissal of Restraining Orders or requesting dismissals of Restraining Orders in all circumstances. There are many cases in which it would be absolutely inappropriate to dismiss a Restraining Order especially those that involve violent behavior.)

The Appellate Division recently rendered an unpublished decision indicating that upon filing a Motion to dismiss a Restraining Order if the Court finds that there are factual disputes between the parties, the Court must complete a mini-trial (“plenary hearing”) before making any determination. O.N. v. R.N. (App. Div. decided September 23, 2009). Thus, before filing such application, the defendant must make a thorough analysis with his or her attorney of the eleven factors cited above and weigh the merits of their particular dismissal request. In some cases, defendants are found to use the Motion to Dismiss as a means to harass the victim. Therefore, it is important to first complete an analysis of the factual circumstances to be relied upon in seeking a dismissal and the likelihood that the dismissal will be granted.

A "PURPOSE TO HARASS" UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT

repstein@foxrothschild.com (Robert A. Epstein) — Thu, 22 Oct 2009 05:53:39 -0500

There are numerous criminal acts addressed within the Prevention of Domestic Violence Act, which,if proven,can form the basis for the entry of a domestic violence restraining order.The crime of harassment is one. It is defined by New Jersey law as being committed when a person, "with purpose to harass another," "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy such other person." The person must have a "conscious objective" to harass the victim.

Actually proving a purpose to harass, however, can be harder than it seems. For instance, I recently tried a Final Restraining Order hearing where the husband/alleged abuser admitted to calling his wife dozens of times after she had fled the home and he had obtained a bogus temporary restraining order against her. His defense? I was just trying to "get her back because I love her." Despite the Prevention of Domestic Violence Act requiring a broad interpretation of its terms to protect victims, the trial court dissolved the wife's TRO against the husband, finding that the husband lacked a purpose to harass despite admitting to everything that she alleged. This despite an also undisputed prior history of domestic violence.

It was this oftentimes difficult "purpose" requirement that was recently addressed by the Appellate Division in R.P. v. Somerset, where the Appellate Division reversed a trial court's implementation of a Final Restraining Order because of a misinterpretation of the law. The trial court held that a specific intent to harass was not necessary in proving that harassment occurred. The Appellate Division disagreed and reversed, finding that the "purpose" is an integral part of proving a harassment claim. In its conclusion, it also found that there was no evidence of a purpose in the case at issue, especially in light of a lack of prior domestic violence by the alleged abuser. This despite the fact that the primary incident involved the alleged abuser/ex-girlfriend showing up at the ex-boyfriend's home when he arrived with his new girlfriend, pulling the new girlfriend from the car and assaulting her.

Purpose is critical. So is filling out a domestic violence complaint with as much relevant detail as possible. Any victim will surely be grilled on the contents of the complaint, especially if there is anything missing or contradictory from testimony given. Including details as to current and past incidents is of great importance. Also, considering how difficult it may be to prove harassment, it is also recommended to check off a claim for harassment on the complaint form, as well as any other claim that may be proven by your facts, such as stalking, assault, terroristic threats, etc.

QUESTIONS OF PATERNITY

sfava@foxrothschild.com (Sandra C. Fava) — Wed, 21 Oct 2009 07:24:17 -0500

We've all read the salacious gossip at the local food store news stand when popular celebrities bear children out of wedlock or famous couples battle it out in a nasty divorce and heartless allegations fly. Even in those widely publicized cases, it can be an uncomfortable and awkward situation for any parent to question the paternity of a child. I will admit that in my experience it is not a common occurrence for a parent to question the paternity of a child. That's not to say it doesn't happen. What happens when that question arises?

In NJ and many other states there's a presumption that the name listed on a birth certificate is the father of a child. There is also a presumption that a father who assumes paternity by allowing their name to be listed as the father on a birth certificate along with participating in the upbringing of the child, making financial contributions for the child and representing himself to the public as the child's father is that child's father, whether DNA says so or not. These cases are factually sensitive and depend upon a number of factors for consideration, such as:

-When paternity is questioned?

-Who is questioning paternity?

-Is there another man submitting himself as the biological father of the child?

-Does the mother know who the biological father is?

These are just a few factors to consider. Recently, the Appellate Division, in the unpublished decision of Qian v. Wang, A-1873-08T1, decided October 14, 2009 addressed this issue.

In Qian, the parties had been married for 13 years before the father questioned paternity of the parties' only child in the midst of their divorce. After DNA testing, there was no dispute that the child was not the biological child of the father. The mother testified at trial that she believed the father was the biological parent of the child until the DNA tests revealed otherwise. The trial judge found this testimony to be credible. Also at trial, the father testified that at the child's birth, he had suspicions about paternity but did nothing to pursue those suspicions.

The trial judge addressed the question of paternity in her 34 page written decision. Notably she stated in support of her decision that father should pay child support that 1) father failed to seek genetic testing immediately after the child's birth despite suspicions about paternity; 2) his conduct induced mother and the child to establish permanent residency in the U.S.; 3) he had provided all of the child's economic support since birth; 4) his conduct induced mother not to find the child's biological father; 5) there was now no realistic possibility of finding the child's biological father or obtaining support from him; and 6) father was now, after a decade, the child's psychological parent.

In affirming this portion of the decision, the Appellate Court added that father should have pursued the question of paternity at the child's birth when his suspicions arose. By waiting more than a decade, raising the child as his own, inducing mother and the child to become economically dependent on him and becoming the child's psychological parent- there was no basis to terminate his child support obligation. Because of the length of time that passed since the issue of paternity was raised, there was no realistic possibility that mother could find the child's biological father (who was believed to live in China) and/or obtain economic support from him.

Public policy of our state seeks to protect children. In furthering that policy, the state seeks to ensure that no child is left without a parent. One of the ways it does this is by making it difficult for a parent who has assumed the role of father in his actions (both financial, emotional and psychological) to financially abandon a child based upon DNA when that role has been assumed. If the question arises, be sure to address it sooner rather than later.

CUSTODY - CONSIDERING THE HOME ENVIRONMENT

repstein@foxrothschild.com (Robert A. Epstein) — Mon, 19 Oct 2009 18:27:41 -0500

The scene is not all that uncommon. Two people marry and have a child. The relationship ultimately breaks down and, for one reason or another, one parent leaves the home without the child and tries to establish a new place to live. If a custody order is entered during that time period, will a court consider the living situation of the parent who left the home in rendering a custody determination?

First and foremost, public policy in New Jersey favors relationships with both parents after separation/divorce, and that both parents share in the responsibilities in raising the child. In the eyes of the law, both parents are treated as equals. One aspect of a given situation that the court is to consider is the "stability of the home environment offered."

In Betancourt v. Spratley, the child's mother left the primary home without the child, leaving him with the father. The husband filed an application with the court for custody, which was granted because the mother testified that she was essentially homeless at the time. The court told the mother, however, to file for a custody modification based on a "significant change in circumstances" when her living situation had stabilized. She ultimately did so one month later, providing as evidence her lease and a description of her roommates, living space and neighborhood. She also provided evidence that she had resumed employment and that her employer provided for child-care planning. The court, however, denied her requested relief.

On appeal, the Appellate Division concluded that the mother should not have had to prove a significant change in circumstances. Rather, considering the tumultuous circumstances surrounding the first custody order and the close time within which the mother filed to modify the custody arrangement, the Appellate Division found that the first order was really rendered to maintain the status quo for the child. As a result, the Court ultimately held that the the mother was entitled to a review of the custody situation under the factors listed in New Jersey's custody statute (N.J.S.A. 9:2-4), and did not have to prove changed circumstances. Such a review was to include a look at how and when the mother could be in a position to demonstrate that she had achieved stability; she was to have the opportunity to mediate the situation and have her living arrangements investigated; and another proceeding was to be scheduled in the future to determine custody and parenting time issues.

The custody determination has at its heart the best interests of the child. A consideration of where the child will live is logically an important part of any custody determination made pursuant to New Jersey's custody law. It is therefore critical that the parent establish that the home is a safe and loving place for the child to live.

The mystery of the Judge's Chambers

jmillner@foxrothschild.com (Jennifer Weisberg Millner) — Wed, 14 Oct 2009 07:54:58 -0500

Last Friday, I was sitting in a courtroom, early for my case, when the judge called the two attorneys on the case before mine into his chambers. As the time passed, what interested me was the reaction of both of the clients that were left behind. Both clients were disturbed that they were left alone in the courtroom while their lawyers and the judge were “in the back.” Oftentimes, judges will ask the attorneys to come back to his or her chambers, or office, for a multitude of reasons. And I realized, that in an already stressful situation, not knowing what was going on was just another worry for the litigants.

On many occasions, the reason can be something as simple as the judge wanting to schedule something in the case and needs to look at the court calendar. For that matter, most attorneys will have more than one case in front of the same judge and they may wind up speaking about another case entirely for a brief period ( for example, “ by the way, have you been able to settle the Doe v. Doe case you were here on last week?” “ Not yet, judge, but I think we are close to a resolution.”). I was in a judge’s chambers several weeks ago, and it was nothing more than a scheduling conference as my adversary and I were trying to schedule a next day of trial. Between the two lawyers, we had five cases in front of the judge. It took quite a while to find a common day that both lawyers and the court was available!

The court may want to get a sense of what discovery it still outstanding and what a realistic time frame is for getting a case ready for trial. Other times, the judge wants to speak about an aspect of the case and ask the lawyers for their position on a legal issue, and may explore whether the issues should be the topic of further research. Priority of issues in a case may be a topic of conversation as well. Which issues are ones which will take a longer time at trial and which are not. Are there any issues in a case which may reasonably settle prior to trial? And speaking of settlement, the court may want to know how far apart the parties are to a settlement.

Some judges will become more involved than others when settlement is being discussed. Most issues have come in front of a judge before, and he or she knows that “range” a decision will be in. If one side is being completely unreasonable, the judge may be able to help the parties move towards a settlement. The judge may have some creative ideas for compromise that it wants to share with the attorneys. The court may want to give the attorneys his or her initial reaction in order to focus an argument.

My point is, there are many reasons why the judge may call the lawyers to chambers. Whatever the reason, it is not unusual for the lawyers to get into chambers, and the court’s staff has a pressing matter to speak to the court about, and the attorneys have to wait. In any event, the lawyer, should, upon coming back to the client be forthright about the topic of conversation, however mundane it may have been. It is just one of the ways an attorney should effectively communicate with the client.

Retroactive College Contribution

edegeorge@foxrothschild.com (Erin DeGeorge ) — Tue, 13 Oct 2009 14:22:32 -0500

Many couples in the midst of a divorce have very young children. As a result, the issue of funding their children’s college education is typically reserved until the child is of college age. Parties typically agree to include language in their Property Settlement Agreement wherein they will exchange income information and begin discussions regarding the child’s college expenses during the child’s junior year of high school. This makes sense because after all, no one can predict their financial future. Fast forward 15 years, the child is about to begin the process of applying to college. The parties have informal discussions, sans counsel, regarding their respective contributions. The custodial parent accepts the non-custodial parent’s contribution for a few years then decides it is just not enough. Can the custodial parent seek a retroactive contribution toward the child’s college expenses?

The Appellate Division just answered this very question in the unpublished decision of Kmetz v. Fusaro, Decided October 9, 2009, Docket No. A-5870-07T3. In Kmetz v. Fusaro, the parties divorced when their daughter was 9. Their Property Settlement Agreement includes the following clause “The parties acknowledge their desire of the child to attend college or other post graduate professional schooling consistent with the child’s ability and the parent’s financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after all available financial aid, scholarships and part-time and summer earnings.”

The parties’ daughter attended college immediately following high school graduation. The Father voluntarily paid $1,500 each year toward his daughter’s freshman and sophomore year college costs. In the summer between the daughter’s sophomore and junior year, the Mother asked Father to increase his contribution. Father increased said contribution to $2,000 that year. In the middle of the daughter’s junior year, Mother retained an attorney who contacted Father seeking an additional contribution toward the college expenses. Ultimately, Mother filed a motion with the trial court seeking contribution, in proportion to income, toward the daughter’s college costs for her freshman, sophomore, junior and senior years. The trial court granted Mother’s request and ordered Father to pay 68 percent of his daughter’s college costs for all four years.

The Appellate Division, relying upon Gac v. Gac, 186 N.J. 535 (2006) and Newburgh v. Arrigo, 88 N.J. 529 (1982), concluded that Father should not have to contribute toward the college costs of his daughter’s freshman, sophomore and first semester junior year. Reason being, Mother accepted Father’s voluntary contributions for the aforementioned years. Suffice it to say, if you are the custodial parent of a child on the heels of the college application process, it is essential that you discuss the funding of your child’s college education with your ex-spouse. If you are unable to reach a resolution, it is imperative that you seek the Court’s assistance prior to your child’s first day of college.

EDITOR'S NOTE: To avoid the typical complaints about lack of consultation and lack of notice, the custodial parent should also involve the non-custodial parent in the process as early in college selection process, as possible, and put the communications in writing. Perhaps the non-custodial parent should be invited to make college visits with the custodial parent and the child or otherwise, should be invited to take the child to other colleges for visits. In fact, the other parent should be solicited for schools that he/she would suggest being considered. The more that is done in this regard, the less the other side can object to and as such, the review becomes a financial one, as opposed to dealing with some of the other extraneous issues that often come up. ERIC S. SOLOTOFF

Strings attached to the Engagement Ring?...The Wedding is OFF!

asperalejo@foxrothschild.com (Apple Sulit-Peralejo) — Mon, 12 Oct 2009 16:18:49 -0500

I have heard many beautiful stories about how people became engaged. Some people “pop the question” after a romantic dinner. Some do it during a romantic getaway. Some are very creative and have proposed at baseball games, on television, using banners being tugged from an airplane, on top of a mountain, etc. Clearly, those moments are very emotional and romantic. Moreover, those moments usually include the giving of a sparkling engagement ring that costs more than two months of salary…and that is being conservative. In some cases, the romance is a fleeting moment and the parties never make it to the wedding. When that happens and the wedding is OFF, who gets the engagement ring?

In New Jersey an engagement ring is considered a “conditional gift”. In other words, the ring is being given on condition that the parties will be getting married. Winer v. Winer, 241 N.J. Super. 510 (App.Div. 1990). If the engagement is broken, the condition cannot be met and the ring must be returned. Aronow v. Silver, (Ch.Div. 1989.) Notably, while other states hold that the party who unjustifiably breaks off the engagement loses the ring, in New Jersey, the Courts do not consider fault when determining who is entitled to receive the engagement ring. Id. In New Jersey, if the marriage does not occur and the person giving the engagement ring wants the ring back, the Court will render a ruling requiring return of the ring (or its value if something untoward happens to the ring for example it gets lost or destroyed.) Once the marriage occurs and the condition is met, (regardless of a subsequent divorce), the return of the ring will not be required by the Court.

Therefore, in New Jersey, until the marriage occurs, the strings on the engagement ring are still attached and can be yanked regardless of who jilts who.

JOHN & KATE PLUS HATE - MUSINGS ON HIGH PROFILE DIVORCES

esolotoff@foxrothschild.com (Eric S. Solotoff) — Thu, 08 Oct 2009 09:21:21 -0500

As a divorce lawyer, I follow with interest the high profile divorces when they are in the news. There were actually three in yesterday and today's papers, John & Kate, Christie Brinkley and Peter Cooke and Stephanie Seymour.

If the news accounts of the allegations are correct, then the news of the last few days included one party wiping out a large bank account and leaving the other with little cash; the other party in the same case not allowing the spouse to share in the children's birthday party; failure to timely turn over a passport so that a child could attend a school trip being chaperoned by the other parent; and the destruction of art work in the family home. A few weeks ago, one of the combatants was quoted about how he "despised" the other spouse. Even if you think that, why do you say it, especially in the press, no less.

These kind of things happen every day in divorces that don't make the news. That does not make it right. The process is difficult enough for the parties and their children without having to deal with aberrant, aggressive or hateful conduct. When it clearly happens, the conduct usually blows up in the face of the perpetrator.

Having represented a few professional athletes and celebrities or their spouses in the past, it is fascinating how these things play out in the press. I wonder, with disbelief, especially now that the Internet provides a record of everything, why certain dirty laundry is aired in such a public way where the kids (or their friend, classmates, etc.) may be able to see it either now or in the future. Some of this may be unavoidable because most divorce filings are public records available for anyone to see. That said, one wonders if there is not a better way. Is the prolonging of the 15 minutes of fame worth it?.

RIGHTS OF GRANDPARENTS TO VISITATION

sfava@foxrothschild.com (Sandra C. Fava) — Thu, 08 Oct 2009 06:50:10 -0500

Previously, Eric Solotoff, Esq. of my office blogged on the issue of grandparent visitation in comparison to sibling visitation. To check out his post, click here.

Moriarty v. Bradt, 177 NJ 84 (2003) is this state's seminal decision on grandparent visitation as decided by our Supreme Court. Our courts have held that there is a presumption favoring deference to a fit parent's choice about visitation which must be overcome before the court may enter an order requiring visitation with grandparents on the ground that it would be in the child's best interests. Moriarty at 115, 117. The US Supreme Court also addressed this issue in the matter of Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

In order to overcome the presumption favoring a fit parent, a grandparent must show by a preponderance of the evidence that there exists "exceptional circumstances" which warrant interference. The analysis is not one of merely best interests of the child as is used in parent to parent custody or parenting time disputes.

Recently, the Appellate Division addressed the issue in the unreported decision of Goolsarran v. Rushefsky, A-1084-08T3, Decided September 29, 2009.

In this matter, husband and wife had one child born of their marriage. Husband had a strained relationship with wife's family and for a few years after their marriage, wife had minimal contact with her family as a result of this strained relationship. Husband had no relationship with wife's family. After the birth of their first and only child, wife was diagnosed with a cancerous brain tumor that ultimately led to her death some three years later.

Wife's mother came to see the child in the hospital after her birth. When wife became ill, her mother cared for the baby and her daughter while husband worked. At some point during this time, tensions between husband and wife escalated to the point where they separated and husband moved out of the home. He and wife established a visitation scheduled where each had equal time with the child. When the child was with wife, her mother assumed the responsibility for the child's care when she was unable. When wife's condition worsened, she and the child moved into her mother's home.

On the day of wife's death, husband and his parents picked up the child from wife's parents' home. A subsequent disagreement occurred over visitation scheduling with wife's family. From that time, husband did not want wife's family to see the child and litigation ensued.

The trial court found that wife's mother was the child's primary caregiver during wife's parenting time after the parties separated, for a period of approximately 2 years. Based on that role, the judge concluded that severing ties with the child's grandmother or other members of the wife's family and their traditions would leave a void in the child's life.

Husband appealed the trial court's decision arguing that the trial court misapplied the law as the judge focused his analysis on the best interests of the child without first deciding that the child would be harmed by husband's decision to deny visitation.

The Appellate Decision upheld the lower court's finding. Citing heavily to the tenets of Moriarty, the Court held that wife's mother had become a psychological parent to the child. There was an unusually close relationship between grandmother and granddaughter based upon wife's mother's primary caretaking role in the face of wife's deteriorating health and impending death.

It is critical when determining if a claim for grandparent visitation is viable to carefully scrutinize the relationship between the grandparents and the child. Each case is factualy different and those specific facts must be carefully presented to the court. More often that not, the decision in grandparent visitation suits turn on a specific fact, that is, the nature of the relationship between the grandparents and children. Moriarty made clear that the granparents must show harm to chidren. Vague allegations of harm are not enough.

CHILD CARE EXPENSES AS CHILD SUPPORT?

sfava@foxrothschild.com (Sandra C. Fava) — Tue, 06 Oct 2009 18:17:36 -0500

It is not uncommon for divorcing parties or parties who may have never married but share a child in common to face the issue of the costs of childcare. In a time and economic climate where more often than not, both parents must work to support a household, payment of child care costs is an issue that must be addressed.

When calculating the Child Support Guidelines, which is the method NJ courts use when determining how much child support one party will pay to another for a child or children, part of the consideration allowed is a credit for child care costs paid. It is not necessary that the cost of child care be included in the Guidelines calculation, as sometimes there are situations where parties will negotiate payment of this expense outside of the Guidelines calculation.

However, when it is included in the Guidelines calculation, it is reflected in its own line item on the calculation sheet and will increase the amount of the support calculation.

With that said, the Appellate Division in a recent unpublished decision addressed the issue of whether the expense for child care costs is considered child support and thus not subject to retroactive modification pursuant to NJSA 2A:17-56.23a. To read the entire decision, click here.

NJSA 2A:17-56.23a states in part: "No payment or installment of an order for child support, or those portions of an order which are allocated for child support....shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

In English, the statute basically tells litigants that if you file an application to reduce child support for whatever reason, the court can only grant the reduction for the time period as far back as when the application was served on the other party. The retroactivity will only go as far back as the notice was given of the application.

In the recent unpublished decision referenced above, the father filed an application to reduce his child support payments, which included a credit for child care, based upon the fact that the child was no longer in day care. As of September 1, 2007, the child had started a regular school program. Father, however, did not file his application for reduction until June 2008 and requested that the modification be retroactive to September 2007, when the child began school and not when he filed his application. On appeal, father argued that the day care expenses are not governed under NJSA 2A:1756.23a because they are not "child support".

Both the trial court and the Appellate Division rejected this argument. The court held that day care expenses are comparable to college expenses but are even more clearly part of the child support obligation. "Their payment is necessary to allow the parent with primary residential custody to earn income that will determine her financial obligation to support the child." Cushman v. Losasso, A-0692-08T3, Decided September 24, 2009.

If you are considering filing an application to reduce or terminate a child support award, be wary that you will only be allowed retroactive relief from the time your application is filed.

RESPONSE TO ATTACK OF THE MEDIATOR

esolotoff@foxrothschild.com (Eric S. Solotoff) — Mon, 05 Oct 2009 22:09:53 -0500

Today I came across a blog entry by a divorce mediator which was nothing short of an attack on "best lawyers." It appeared as though the ills of the divorce world were placed at the feet of the best divorce lawyers. Lawyers were castigated for such sins as discovery (obtaining financial documents) and seeking court assistance when you want temporary support or time with the children. He said that any lawyer can get the same result and that hiring a good lawyer sets the client up for a racket that is in the lawyer's best interests, but not the client's.

Unfortunately, this is not the first time that I have seen attacks on lawyers from the mediation community. There appears to be a turf war. Either you are mediation friendly, or you are not. Rather than recognizing that some cases are more amenable to mediation than others, the followers would rather attack the "non believers."

While I agree that most cases will settle, many cases take a fair amount of discovery and litigation to get there. To believe otherwise is simply naive.

Further, while mediation is not for everyone, it is a useful tool in many cases, Then again, just as not all attorneys are alike, neither are all mediators. In fact, I suspect that the author of the blog that I read would agree that not every mediator can get the same result - though he says that any lawyer can.

In a prior blog from May 2009, I wondered whether the mediator's goal was a fair settlement or just a settlement. To see another blog post on mediation that I authored, click here. Are parties, often the woman being protected from the imbalance of power that permeated the marriage? Are people being told of their rights when they appear at mediation without lawyers? What efforts are made to ensure full and accurate disclosure? Are the appropriate appraisals being done at all, and when done, are they being challenged and scrutinized to make sure that they are fair and accurate?

There is no doubt that mediation and other methods of alternate dispute resolution can be a good thing. That said, I have often seen mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable. The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything. Thus, a method meant to avoid litigation can often create litigation. Many of these deals came from the "best mediators."

That said, rather than attacking lawyers, mediators should recognize that there is a place for the best attorneys and the best mediators. I posit that the best and most fair mediated settlements will result from the attorneys and mediators working together rather than attacking each other. I am sure that we can all agree that a fully informed settlement, where both parties interests are fully protected, is optimum.

FREE DIVORCE SEMINARS????

esolotoff@foxrothschild.com (Eric S. Solotoff) — Sun, 04 Oct 2009 20:34:40 -0500

Driving around town this weekend, I saw many lawn signs, like those you would see for a political candidate, advertising a "Free Divorce Seminar." The old adage, "you get what you paid for" comes to mind.

While I am aware of the phenomena of these "seminars" over the last several years, putting aside potential conflict of interest issues that could perhaps be created, is this the type of thing that one contemplating a divorce should be attending? Or rather, should a person schedule an honest to goodness divorce consultation with an attorney to which they have been referred or otherwise have researched?

There is no privacy or anonymity at the seminar - you may see neighbors, parents of your children's classmates, etc. There is no confidentiality or privilege at a seminar. You have these things at an initial consultation.

You cannot ask confidential questions at a seminar; maybe you cannot ask questions at all (and the smart attorney probably would not take questions for risk of prematurely creating an attorney client relationship.) You cannot show the attorney any pertinent document for the same reason. And how can you develop a rapport with a speaker at a seminar? The seminar can never be tailored to your special circumstances because one size never fits all. At a seminar, you cannot really probe the presenter's experience, depth of staff and other resources of the firm, ability to commit to your case, etc.

At the end of the day, a one-on-one consultation, even if you have to pay for it, will be far more worthwhile to protect your dignity and get the attention and information you deserve.

DISABILITY AND ILLNESS AS CHANGED CIRCUMSTANCES

repstein@foxrothschild.com (Robert A. Epstein) — Fri, 02 Oct 2009 06:11:05 -0500

We have blogged several times as to a former spouse's attempt to obtain an alimony or child support reduction based on the existence of substantial and continuing changed circumstances impacting the spouse's ability to pay, as set forth by the New Jersey Supreme Court in Lepis v. Lepis, 83 N.J. 139 (1980). One of the so-called recognized changed circumstances set forth in Lepis is "illness, disability or infirmity" arising after a support Order was first entered.

An interesting question might arise as to whether a payor spouse claiming an illness or disability as the basis for changed circumstances is really trying to engage in a bad faith form of early, voluntary retirement in order to avoid paying support. Generally, a retirement when the spouse hits age 65 may justify a support reduction so long as it was made in good faith. Where the retirement occurs before age 65, however, a Court will look even more closely at the facts to see to what degree the retiring spouse benefits from his retirement compared to the disadvantage suffered by the dependent spouse.

Further, while a temporary change in circumstances, such as through the loss of employment, is generally not enough to obtain a support reduction, what about the reduction of support for a specific, limited period of time? For instance, New Jersey courts have granted this type of reduction where the payor spouse has been imprisoned or cohabitated with another for a specific period of time.

How about in a situation where the payor spouse suffers from a health condition that he claims renders him unable to pay support at the level set forth in the Judgment of Divorce or Marital Settlement Agreement? That was the issue before the Appellate Division in Schvey v. Schvey, where the payor Husband claimed that he was unable to work because of his health following quadruple bypass surgery and other heart-related issues. He was not, however, receiving disability benefits from social security and had not received disability benefits for several years. Based on the evidence, the Trial Court, among other things, terminated the Husband's alimony obligation and reduced child support until the parties' youngest son graduated from college. It also ruled that, when the youngest son was emancipated, child support would end and the Husband's alimony obligation would be reinstated at the level of child support. Notably, the child support obligation was combined with a tuition payment obligation for a child attending college and living away from home.

Finding no evidence of changed circumstances regarding either the Husband's situation or the Husband and Wife in combination justifying a suspension of alimony for a period of time "coterminous" (in conjunction with) with his obligation to continue to paying child support, the Appellate Division reversed the decision to suspend alimony. The Appellate Division specifically found the Husband's evidence lacking as to his health condition and inability to work, since there was nothing to show that he would recover by the time the youngest child graduated from college or that the Wife would have a greater need for alimony at that time.

The Appellate Division found that neither party successfully proved the need for an alimony modification, since the Wife's earnings had significantly increased since a prior post-divorce support modification Order was entered and the Husband failed to prove that he was doing anything other than retiring early. Importantly, there was a lack of sufficient evidence that the Husband was involuntarily unemployed or that the Wife could maintain the marital standard of living at her current income.

The Appellate Division did, however, find sufficient evidence of changed circumstances to modify child support since, at the time of the prior support modification Order, both children were living with the Wife. At the time of the present modification hearing, one child had graduated from college and the other was in college and living on campus during the school year. The Appellate Division, however, again reversed and remanded because the Trial Court failed to provide proper factual or legal findings for its reduced child support/tuition payment figure.

Establishing the existence of substantial and continuing changed circumstances, or opposing such an application, based on the sort of factual scenario detailed above can be a difficult task. One must be certain to provide detailed evidence to support such a claim for a support reduction. Here, the Husband could not even establish that a social security determination had been made that he was disabled or that he was receiving disability benefits. These basic forms of proof contributed to his downfall.