NJ Family Legal Blog

GRANDPARENT VISITATION STANDARD AFFIRMED BY APPELLATE COURT

Sandra C. Fava — Mon, 20 May 2013 05:05:17 -0500

An interesting part of the practice of family law are the rare issues; the one that may not walk through the door every day. Grandparent visitation cases oftentimes fit into this category. They nearly always prove interesting, regardless of whether you represent the grandparent(s) or the parent(s), and they can quickly become complex and difficult (both emotionally and legally).

The NJ Appellate Court issued an unpublished decision in the matter of L.A.B. v. B.L.P. and C.J.B. affirming and reminding both litigants and practitioners of the standard utilized by courts when asked to make a determination of whether or not a grandparent has a legal right to visitation with a grandchild if the parents so oppose the request. Unlike contested custody matters between two parents where the standard the court must use is “best interest of the child”, our Supreme Court has determined that in the cases of grandparent visitation, it is the grandparent who must prove, by a preponderance of the evidence, that not having visitation with him/her/them would cause harm to the health or welfare of the child. Not having the visitation would cause significant harm to the child, which the court must prevent as is its job as parens patraie.

The statute that governs grandparent visitation is known as the Grandparents and Siblings Visitation Statute N.J.S.A. 9:2-7.1. It requires that grandparents who seek visitation plead and show the potential for particularized harm to the child resulting from the lack of grandparent visitation. The spirit of the statute was further clarified in the precedential NJ Supreme Court decision of Moriarty v. Bradt, 177 NJ 84 (2003). Simply pointing out the flaws of the child’s biological parent(s) is not enough. The harm to the child must be directly caused by the lack of grandparent visitation and can be remedied by having the grandparent visitation. The harm must also be to the child and not to the grandparent. The example illustrated in Moriarty, where the court found grandparent visitation appropriate, where the expert opined that visitation was needed “to protect the children from the harm that would befall them if they were alienated from their grandparents,….which would cause the children to believe essentially that half of them, that their mother’s half is evil, is damaged, is bad, and that this would cause self-esteem problems.” This was a particularized, specific harm that would befall the children if the grandparents were not allowed visitation. There was a special need for continued contact. A close and loving relationship with a grandchild is not enough. Neither is the loss of future memories.

DEBUNKING NEW JERSEY'S FAMILY LAW MYTHS

Robert A. Epstein — Tue, 14 May 2013 12:59:07 -0500

Over time, many myths have developed in the ever changing world of New Jersey Family Law. The question is whether they are true, false, or somewhere in between. In a new publication on the Fox Rothschild Family Law Practice Page, we debunk many of those myths one at a time.

The publication, entitled "Debunking New Jersey's Family Law Myths," addresses a wide range of myths including, but not limited to:

Is alimony is determined by a formula?

Does the "permanent" in permanent alimony really mean what it says?

Is joint residential custody ever granted?

Must a palimony agreement be in writing?

Can a divorce occur if only one spouse wants to get divorced?

While family law can oftentimes be filled with many difficult questions, this should aid in gaining a better understanding of some of the basics. Please be sure to consult with experienced family law counsel when addressing these issues and any questions you may have.

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

Alimony and Living Together for Love

Apple Sulit-Peralejo — Thu, 09 May 2013 09:06:19 -0500

If there is cohabitation by an ex-spouse who receives alimony, the ex-spouse is at risk not only to a potential decrease in alimony but also at risk for a total termination of alimony. On March 7, 2013, the New Jersey Appellate Division released the published decision of Reese v. Weis upholding a trial court’s termination of permanent alimony as a result of cohabitation.

As we have blogged in the past, cohabitation is considered a change of circumstances that warrants review of alimony. New Jersey Courts have described “cohabitation” as involving an “intimate” “close and enduring” relationship “requiring more than a common residence” whereby the “couple has undertaken duties and privileges that are commonly associated with marriage”.

Once cohabitation is established, the dependent ex-spouse has the burden of proving that he or she continues to be dependent upon the alimony being paid regardless of the cohabitation. When a dependent ex-spouse economically benefits from the cohabitation, his or her support may be reduced or terminated. A reduction is appropriate where the dependent ex-spouse can prove that he or she still has some need to the support taking into consideration the economic benefit received from the cohabitation.

What triggers a reduction versus termination? In the 46 page Reese decision, the Court concluded that the lower Court’s termination of the dependent ex-spouse’s alimony as a result of cohabitation was appropriate for the following reasons.

First and most importantly, the dependent ex-spouse did not prove a continued need for support. The dependent ex-spouse asserted that her partner did not subsidize any of her expenses and that her expenses and those of the parties’ children were paid solely by her. In the alternative, she argued that if the Court found that the partner was providing a financial benefit to her, such benefit did not equate to a total elimination of support. Unfortunately for the dependent ex-spouse, during the trial, she could not articulate or provide evidence as to her actual need for continued support and how the cohabitation did not impact or only minimally impact her financial needs.

Second, the partner provided a direct economic benefit to the dependent ex-spouse by directly paying a significant amount towards the dependent ex-spouse and the parties’ children’s expenses (such as housing, food, clothing, transportation, etc.).

Third, the partner provided indirect economic benefits to the dependent ex-spouse including gifts and luxury vacations which enhanced the dependent ex-spouse’s lifestyle. It was virtually impossible for the trial court to discern the household financial contributions by the dependent ex-spouse and by the partner because of their intertwined finances.

Fourth, the total years that the dependent ex-spouse and the partner resided together exceeded the term of her marriage to her ex-husband who was paying alimony and child support in excess of $235,000 per year. In short, the partner not only provided direct and indirect economic benefits to the dependent ex-spouse but elevated her lifestyle for a period longer than the parties enjoyed their marital lifestyle.

The majority of the Reese opinion centered on the cohabitation issues. However, the Court also noted that despite the fact that the application to terminate support was filed after there had been ten years of open cohabitation, the ex-husband was not precluded from filing the application after all those years.

The Reese decision shows that when a dependent ex-spouse chooses to reside with a partner, modification of alimony payments are not solely based upon the partner’s dollar for dollar contributions to the relationship but the enhancements to the standard of living of the dependent ex-spouse by the partner and the length of the cohabitation versus the length of the marriage to the party paying alimony also weigh into the Court’s analysis.

Divorce in Your Sixties - Is Permanent Alimony the Right Result?

Eric S. Solotoff — Fri, 26 Apr 2013 13:31:00 -0500

Wikipedia defines grey divorce as a "term referring to the demographic trend of an increasing divorce rate for older ("grey-haired") couples in long-lasting marriages." Now while "grey divorces" of a short or mid length marriage provide challenges for a divorce attorney, many believe that divorces of long term marriages are easy. Just whack up the assets 50-50, agree to permanent alimony and call it a day, right? That is not an uncommon result, but does it really make sense to do so and not consider real life anticipated events such as retirement and the receipt of Social Security, to name just two.

Typically, when marriages are longer than 20 years, the concept of permanent alimony seems like a no brainer. When the parties are in their sixties (or maybe even late fifties) does this make sense? What if the parties always discussed and agreed that at age 65, the husband was going to retire and planned and lived their life accordingly? Now, at age 61, either party seeks a divorce (I was going to say the wife - but it really doesn't matter). Should this be a permanent alimony case? The default answer is yes but should there be more critical analysis to this?

In this case, we can assume that all of the assets will be divided 50-50, except perhaps a business asset. Even then, while business assets are usually disproportionately divided, for longer marriages, the non-titled spouse gets more than they would have in a shorter marriage (the fairness of this may be the subject of another post.) In addition, it is likely that the amount of alimony afforded will not allow the payor to save substantially before the divorce and a normal retirement age in a few years hence.

If the agreement does not account for retirement, aren't the parties just buying themselves more litigation in a few years? Should consideration be given to allowing for retirement and the termination of alimony any time after retirement age without the need to litigate? If that is the case and someone still works full time after the agreed upon retirement age, should alimony continue?

As noted recently, the proposed alimony reform bill is calling for automatic termination of alimony when someone gets to the age of retirement as determined by Social Security. Is this fair if that person keeps working full time?

Several years ago, I had a case where the husband sold his business, but signed an agreement to remain with the company for up to three years (and he had a contract that said he would be paid for 3 years - even if they let him go sooner.) He was probably close to 60 at the time of the sale. He and his wife had agreed that once either the contract was over or they let him go, that they were going to retire and move to the shore house. Half way into the contract, the wife filed for divorce and sought permanent alimony, up to the day of trial. The case ultimately settled just prior to trial when the trial judge learned that the wife admitted at her deposition that the family plan, was in fact, that the husband would retire as noted above. The judge made it pretty clear that permanent alimony was not going to happen here. Unfortunately, it took more than a year of litigation to get to that point.

Also, if one or both of the parties are going to be getting Social Security soon, that factor should at least be considered, though it may or may not make a difference. If a pension is going to be divided that is going to be providing monthly benefits to each party in short order, that too may be something to be considered.

In short, fairness seems to dictate that these things and retirement at least be discussed and some common sense be applied when settling grey divorces after long term marriages.

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

Pennsylvania Ends the Use of Parent Coordinators

Eric S. Solotoff — Fri, 26 Apr 2013 12:14:04 -0500

Earlier this year, we blogged about of our colleague, Aaron Weems' post on our firm's Pennsylvania Family Law Blog, which advised that any recommendations by a parent coordinator would be given a de novo review by a court. A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

This week, Aaron posted a piece entitled New Rule: No Parent Coordinators Allowed on that blog. Aaron advises that the Pennsylvania Supreme Court enacted a new rule that stated:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013)....

Aaron noted that this ended the quasi-judicial role of parent coordinators. He also wondered whether this would result in increased enforcement and modification proceedings.

As I noted when commenting on Aaron's prior post regarding the de novo review:

Isn't that was it supposed to happen in NJ? Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review. That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator. All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened,

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered. On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

As I blogged previously, New Jersey, while ending the pilot program, does not preclude the appointment of parent coordinators. If courts defer blindly to the recommendations of parent coordinators, without thoroughly reviewing the issues, will New Jersey be next to totally bar their use?

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Just Because An Adult Child Lives at Home, Does Not Mean Child Support Continues

Eliana Baer — Mon, 15 Apr 2013 11:15:01 -0500

The number of college graduates living with their parents has almost doubled since 2007. Currently, over 45% of 26-year-olds live at home with their parents. The figures highlight the difficulty that many young Americans have had in establishing careers following the longest recession this country has faced since the Great Depression. Some children, although employed, simply lack the funds to move out and may remain with their parents, even well into their twenties.

As a Matrimonial Attorney, these staggering statistics present an interesting question as to a non-custodian’s obligation to continue contributing to the support of a child, though a college graduate and/or employed, is still ostensibly supported by his or her parents; at least with regard to shelter expenses.

In New Jersey, a parent is under no duty to contribute to the support of an emancipated child. In deciding whether to emancipate a child, a Court will generally examine whether the child has “moved beyond the sphere of parental influence.” When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated. As mentioned above, a curious situation presents itself where the child should be self-supporting, but the economy prevents him or her from obtaining lucrative employment.

A similar, yet instructive, situation was the topic of a recent (unreported) decision by the Appellate Division in Gall v. Gall. In Gall, the parties’ son, Brian, lived at home and intended to enroll as a full time student in the future. He worked full time, paid for his personal expenses including gasoline, clothes and food outside the home. However, his earnings were insufficient to allow him to move out of his mother’s home.

The trial court declined to emancipate Brian and awarded child support pursuant to the Child Support Guidelines. In addition, the non-custodial father was required to contribute toward Brian’s college expenses. The non-custodial father appealed.

While the Appellate Division “agree[d] in theory that a full-time college student is not emancipated as there is no ‘fixed age’ for emancipation…” it further found that because Brian was employed full-time and was only a part-time student, he should have been deemed emancipated. As a result, the Court reversed the order of child support as to Brian. In doing so, the Appellate Division set forth a bright line (although non-precedential) rule of thumb: “…a child over the age of eighteen, working full-time, and attending school only part-time, absent some unusual circumstances…is emancipated even if residing with a parent because his or her employment income is alleged to be insufficient to allow the child to live independently.”

Will New Jersey Child Support Awards Be Going Down?

Eric S. Solotoff — Fri, 12 Apr 2013 10:33:01 -0500

Child support in New Jersey for parties with combined net (after tax) income of less than $187,200 per year ($3,600 per week), are supposed to be determined based upon the Child Support Guidelines. The Guidelines are based upon economic data of what it costs to raise a child.

That economic data has been reviewed and, as a result, there are proposed changes to the child support guidelines that may actually see the figures going down, especially for multiple children. The Supreme Court has published the proposed changes on the Court's website.

As noted in the New Jersey Law Journal, the state Supreme Court's Family Practice Committee is recommending rule revisions that would allow child-support determinations to be based on a broader and more accurate picture of family spending. Specifically, the committee urges adoption of a new award schedule that "for the first time captures spending in families over a twelve year period," from 2000 through 2011, which "encompasses prosperous years, recession years and the current slow recovery years."

For sake of reference, at the highest level, the weekly amount of child support to be apportioned between both parents based upon their percentage shares of net income is follows:

No. of Children 1 2 3 4 5 6

Current $453 $606 $658 $733 $806 $877

Proposed $571 $589 $731 $803 $884 $973

Interestingly, the proposed weekly support for one child increases by $118 but the support for two child decreases by $17. Moreover, the support only increases by $18 per week from one to two children under the proposed new guidelines when under the current guidelines, it increased by $153 per week. What this suggests is that the marginal cost of a second child, under the current data reviewed, is insignificant. However, the support then increases again for three, four, five and six children over the prior guidelines. The proposed schedule can be found at the above link. You can click here for the current schedule.

The above is just a snapshot of the highest level of guideline support, however, similar changes appear throughout lower levels of the Guidelines. As this is now open for a comment period, it will be interesting to see if there will be any changes before this is implemented. Stay tuned.

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Service of the Complaint: Can You Hear Me Now?

Seth R. Parker — Thu, 04 Apr 2013 15:54:19 -0500

In a movie that I adore and one that should be required viewing for anyone contemplating marriage, Dean reluctantly says to Cindy, “You said for better or for worse. You said that. You said it. It was a promise. Now, this is my worst, okay? This is my worst. But I'm gonna get better.” Blue Valentine concludes with the heightened events that normally precede a client contacting a family law attorney for the first time. This climactic scene also represents the unspoken backstory that normally informs the still amorphous shape of the forthcoming storm known as a divorce proceeding.

Fittingly enough, one of the most scrutinized steps in the divorce process is its origin: the form and fashion of the service of the complaint. I have always been confounded by the level of anxiety associated with this step, as I imagine that anyone despondent enough to file for divorce must have previously manifested such animosity in some other form to their spouse. However, I have learned that many defendants are often too narcissistic, heedless or detached to believe that their spouse possesses the fortitude to follow through with what they previously dismissed as mere idle threats. As a result, receipt of the complaint can illicit reactions that run the gamut from incomprehension to indignation. This spectrum is akin to the bewilderment and disconnect you experience upon seeing your souvenir photo taken midflight during a rollercoaster ride, such that we each deal with stress in unique and unforeseen ways.

It is suffice to say that service of the complaint is a deeply trepidatious occasion to many would be plaintiffs. Perhaps because service can signify a tacit admission that their relationship was a failure or because it is actualization that the mental choreography of that last look may not be entirely on their terms. Either way, putting the defendant on notice of that their spouse believes their marriage is irretrievably broken can become a very involved process. Although New Jersey is a no-fault state, the complaint itself, through counts of adultery and extreme cruelty, can become a vital memoir to your client of their marriage.

Far too often, a divorce serves as the backdrop for the plaintiff’s one chance for their fifteen minutes of fame. Our clients relish the opportunity for an omniscient authority to judge their unfulfilled and inflated sense of needs and wants, that which is normally reserved for tabloid fodder. It is likely their only opportunity to publically document their jejune and malcontented musings, which can ostensibly exonerate them from all responsibility for their own life. These concerns are embodied and heightened by the manner in which our client place the defendant on notice of their intention to separate.

On the occasions when the defendant already has an attorney, service of the complaint is effectuated by a simple correspondence between counsel and the drama is entirely removed from the process. However, when the defendant does not have counsel, there are two primary questions that become agonized over by the plaintiff. Where should the defendant be served and by whom.

The first question is normally a choice between service at work or at home. The former option involves the potential for co-workers to bear witness to the aforementioned souvenir photo. However, plaintiffs often avoid this option because they want to ensure that their spouse’s reaction does not impact their continued employment. The latter involves the parties’ children becoming the first set of bystanders to the defendant’s retaliatory smear campaign to plaintiff’s decision. No matter the number of telltale signs that have existed in perpetuity, receipt of a complaint can be a humiliating moment for a defendant because it is the realization that their relationship is not ending on their own terms.

The second question relates to whether our client should deliver the Complaint directly or through a process server. The divorce process does not formally begin in New Jersey until service is effectuated. Once this is completed, the defendant has thirty-five days to respond or default may enter against them. If the complaint is served directly, there is concern that the defendant will not acknowledge service and be able to delay the initiation of the process. As a result, plaintiffs often enlist a process server such that the defendant merely needs to receive a copy of the complaint rather execute an acknowledgement of service to be formally served. However, this leads to the inevitable question of when to serve the defendant.

Plaintiffs have the option of directing the process server to arrive during a prescribed time based upon a belief that only the defendant will be present during that time. Inevitably, the process server can not locate the defendant as they suddenly go underground during that brief window. In turn, they then are forced to re-serve them, only to ring the doorbell while the entire family is sitting down for dinner. Despite the best laid plans, this leads to service occurring during the most inopportune time and the perfect storm of family crises arises as a result.

The reality is that there is no good time to deliver such bad news. In most instances, if the defendant is remotely perceptive they are already cognizant of the lack of physical intimacy, truncated communication, separate vacations, and discarded wedding bands. As a result, the anticipated belligerent histrionics that plaintiffs imagine defendants will respond with are normally displaced with a reaction of passivity and dejection. It is impossible to control the manner of service or how the defendant will react to receiving the complaint. Moreover, whether your spouse is served in the presence of the children or not, they going to regrettably communicate to the children that you want the marriage to be over. In most cases the children are far more in tune with this reality than the parties’ themselves.

Service of the Complaint and a Judgment of Divorce are worlds apart. In many cases they are far more than 26.2 miles apart. If you know your marriage is over, consternations about the manner of service are merely window dressing used to delay the inevitable. They say that the devil is in the details. However, in the end, concerns about the manner of service will be as relevant to you as the colour and theme of your wedding invitation.

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Seth Parker is an associate in Fox Rothschild LLP's Family Law Practice Group. Seth practices in the firm's Roseland, New Jersey office and can be reached at (973) 994-7538, or srparker@foxrothschild.com.

Random Thoughts Regarding The Proposed Alimony Reform Statute

Eric S. Solotoff — Wed, 03 Apr 2013 04:50:55 -0500

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

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

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

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

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

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

4) Many people already use 30 to 35% of the difference in income to calculate alimony as noted in prior blogs. Of course, we have also blogged on the Appellate Division rejecting such a formula.

5) Are their still going to be fights as to whether the alimony should be 30% of the difference or 35% or somewhere in between? If the point is to get uniformity, why have a 5% range?

6) There will still be a chance to fight the percentages and the amount of alimony because the proposed statute says that the alimony should exceed the recipient's need or the aforementioned percentages. While I would expect in most cases, the percentage will be used, in larger income cases, there may be a greater need than ever to have lifestyle analyses performed to define "need." This probably is making the forensic accountant's giddy!

7) Is "need" the equivalent of "marital lifestyle?" If not, what is it? Is it mere subsistence?

8) If bright lines were really what was wanted, shouldn't cohabitation, in and of itself, require a termination of suspension? Is the proposed statute largely just a codification of the case law that no one really disputed the interpretation of?

9) Like the schedule for the amount, is the schedule for duration not unlike what many people were doing, kind of by feel and/or compromise to avoid trial?

10) Because the durational terms, other than "indefinite", all are "not more than" some amount of months, will there still be fighting to get the actual terms less than the "not more than" figure?

11) While it seems fair to terminate alimony at retirement age if the person retires, if they continue to work full time, is it still fair? What if they made a ton of money after the divorce and can still pay alimony, and the other party would be destitute without it, is termination fair then? Under the current law, it probably would not be fair and alimony would continue.

12) Perhaps most startling about the proposed statute is the curative effect of the statute which would allow people to go back and modify the terms of alimony contained in prior settlements and court decisions. Aside from probably choking the court system to a halt during this two year period with which to do this, how is this possibly fair? As we know, alimony and equitable distribution are often interrelated. Sometimes, even child support and alimony are interrelated in the negotiation. Is it fair to ignore the potential trade offs in Marital Settlement Agreements to cram down the terms of alimony? It hardly seems so.

13) Even if cases were tried and/or the issues were not interrelated in terms of a settlement, is it fair to change the term giving the recipient no time to prepare for perhaps a drastic change. Maybe they would have saved more if they knew alimony would end or end sooner? Maybe they would have bought a less expensive house or less expensive cars, or sent their children to less expensive schools, etc. if they knew that the alimony would be shortened.

Again, these are just some random musings. It does not represent our support or opposition to the statute. Rather, it is just food for thought about the possible, practical effects of the proposed legislation.

Stay tuned.

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RESOLVING ISSUES OF CREDIBILITY WITHOUT A TRIAL - HOW FAR IS TOO FAR?

Robert A. Epstein — Tue, 02 Apr 2013 14:33:59 -0500

Picture this - two spouses in a matrimonial dispute. The husband (or former husband) files a motion to reduce his alimony. In support of that motion, the husband files a certification, under oath, telling his side of the story about how he lost his job, has a disability, or whatever reason it is that has caused his down income. On the flip side, the wife files her response to the husband's motion, with a certification of her own, telling her side of the story about the husband is still living lavishly, is lying to the court, and is simply doing what he has to do to reduce his payment obligation to her. Not surprisingly, the two versions of events could not be more diametrically opposed.

In that scene, what is the trial judge supposed to do? Is he just supposed to take the husband's word for it that he can no longer earn what he did before and that his entire financial picture merits a reduction of his support? Is he supposed to believe the wife's response, about how her former husband is simply just a bad guy who refuses to pay that to which he agreed or was ordered.

Generally - but, of course - not always, a trial judge is not supposed to resolve the question of credibility, or who is telling the truth, simply by reading the papers submitted by each party. When there is a dispute of fact, the judge is supposed to then order a hearing, during which time he will take testimony from the parties and then determine who is credible/truthful. Ordering a hearing, though, does not happen in every case, as almost every case will inevitably involve some dispute of fact, to some degree. If the judge ordered a hearing in each instance, the family part would be even more flooded than they already are.

So at what point has a judge gone "too far" by resolving a dispute of fact on the papers without holding a hearing. The recently decided Appellate Division matter of Scianni v. Scianni presented such a case. Without going into too much detail, former husband sought to reduce his alimony from that set forth in a settlement agreement because he argued that he could no longer earn what he once did. Wife disagreed and espoused on how her ex was still enjoying a lavish lifestyle, complete with a vacation villa in St. Maarten.

In denying the husband's request for a reduction of his alimony, the trial judge made several findings of credibility on the papers alone, providing as follows in his decision:

[W]hen I read this certification of Mr. Scianni I was very moved. However, in reading the certification of Ms. Scianni, there's a completely different picture painted of Mr. Scianni. And I realize that the problem that the [c]ourt is so often faced [with], . . . faced every single time I get one of these motions, is that you got two different certifications . . . at completely different ends of the spectrum.

And it's very difficult to sort truth from fiction, and who's telling the truth. And oftentimes you're probably better off just throwing the certifications out the window and making a decision based on something else. However, in this case, what really rings a bell of credibility to me is the certification of Ms. Scianni. She says that, hey, do not believe Mr. Scianni. This is a divorce which was hotly contested. It was, it lasted for approximately four plus years. And that Mr. Scianni . . . knows no boundaries and will do everything he can to not have to pay his obligation and fight me. I would note that Mr. Scianni has been current up until this time. But Ms. Scianni in her certification provides some proofs which certainly raise red flag[s] with the [c]ourt as to whether or not Mr. Scianni is being sincere and candid with the [c]ourt. And I don't think he is. He's crying poverty yet he is still able to maintain a vacation villa down in St. Martin at the Ritz Carlton, and I would . . . note that according to the certification of Ms. Scianni, that this was a property which was underwater figuratively in that they owed, the parties owed money on this property. Now the property is current, up to date, paid off, and Mr. Scianni claims, well, you know, it's the mortgage on the property is really my cousin, but I have to hire a lawyer down in St. Martin to make some changes.

You know, and Ms. Scianni goes on to further state that you know, he claims he's driving a borrowed car, but he recently was seen driving a Mercedes Benz. If it is a borrowed car, why doesn't he provide any proof as to who the real owner of the borrowed car is. And if he was to do that, then the [c]ourt . . . might be surprised as to who really is the owner of the borrowed car. That certainly raises a red flag as well.

Ms. Scianni also points out that his practice that he's still working, that his practice, I should not go by his recent tax returns, that Mr. Scianni has been known to take cash in the past and not declare that on his tax returns, and that it is certainly not beyond Mr. Scianni to do that. This is a woman that has lived with Mr. Scianni, knows what Mr. Scianni is like. And that certainly has a ring of credibility to it as well.

I have highlighted certain portions of the trial court decision above, each of which causes alarm as to the trial court's findings. The Appellate Division also took issue with several portions of the trial court's comments, indicating that, while a trial court has broad discretion in reviewing a request to modify alimony, and that not every factual dispute merits a plenary hearing, the factual disputes surrounding the husband's ability to generate income merited a trial.

It further noted that the "red flags" uncovered by the trial court in the papers does not escape the need for a hearing to properly resolve the factual dispute with testimony, nor does a reliance by the court upon one spouse's indication that she knows what the other spouse is like. As a result, the Appellate Division not only remanded the matter for further proceedings, but also directed that such proceedings be before a new trial judge in light of the credibility findings already made by the former judge.

This was an interesting decision for a variety of reasons, not the least of which is that not often do we come across cases where an entire decision is overturned on the basis of the credibility findings, or lack thereof. While there is often a gray area as to when a factual dispute between parties merits a hearing with testimony, this case fell beyond that area where the findings of credibility on major facts in dispute was clear and required a reversal.

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Is Alimony Reform On Its Way in New Jersey

Eric S. Solotoff — Tue, 02 Apr 2013 08:19:03 -0500

There has been an alimony reform movement that has been gaining traction throughout the country. Some of the major concerns appear to be this issue of permanent alimony and the lack of uniformity in alimony awards, both in amount and duration, from case to case. In the recent past, alimony laws have been reformed in Florida, Massachusetts and Maryland. Is New Jersey next?

On March 7, 2013, A3909 was introduced in the New Jersey Assembly, which, if passed, would radically change alimony as we know it in New Jersey.

The following are a highlight of the changes:

All references to permanent alimony are deleted from the statute, though, as noted below, for marriages of more than 20 years, an indefinite award of alimony can be be granted

The concept of imputing income to someone that is unemployed or underemployed, which already exists in the case law and child support guidelines, would be codified

The amount of limited duration alimony should not exceed the recipient's need or 30 to 35 percent in the difference between the parties gross incomes at the time of the initial award, though a court would have the discretion to deviate. Some reasons for deviation would be advanced age, chronic illness, unusual health circumstances, whether the payer is providing or ordered to provide health insurance to the recipient, sources and amounts of unearned income not allocated in equitable distribution, the recipient's inability to become self-supporting based upon the abuse of the payer, and others, including a catch all "any other factors that a court deems relevant and material."

The case law regarding cohabitation would essentially be codified. Specifically, alimony could be modified, suspended or terminated if the other party has cohabited for 3 months. Economic dependence would still be considered. In addition, if suspended and the cohabitation ends, alimony could be reinstated, but the original terms cannot be extended.

Rehabilitative alimony cannot be for more than 5 years. The case law regarding extending rehabilitative alimony would seemingly be codified to allow it to be extended if the recipient attempted to become self supporting but was unable to do so because of unforeseen events and, extending it would not constitute an undue burden on the payer.

Presumptive schedules for duration would be established, as follows:
- 0-5 years - not more than half the number of months of the marriage
- Greater than 5 years to 10 years - not more than 60% of the number of months of the marriage
- Greater than 10 years to 15 years - not more than 70% of the number of months of the marriage
- Greater than 15 years to 20 years - not more than 80% of the number of months of the marriage
- More than 20 years - the court has the discretion to award alimony for an indefinite amount of time.

If you think that indefinite means permanent alimony, think again because alimony shall terminate upon the payer obtaining full retirement age which is defined as when the payer is eligible for the old age retirement benefit under the Social Security act. Arrears accrued to that point would still be due and owing. The payer's ability to work or decision to work past the retirement date shall not constitute grounds to extend alimony in most circumstances.

The bill would permit modification of alimony awards existing on the effective date to conform to the provisions of the bill. Limited duration and rehabilitative alimony awards could be modified to conform to the durational guidelines provided in the bill, and permanent alimony awards could be converted to limited duration alimony awards and modified to conform to the durational guidelines for limited duration alimony. A motion for modification could be brought by either party to the award and the moving party would not need to show a change of circumstances to receive a modification. The bill additionally provides that its enactment would not constitute a change of circumstances for the purposes of modifying the amount of an existing alimony award and it would not permit modification of an award that the parties previously agreed could not be modified.

Is this really a radical change, or in many respects, does it simply codify what is often done in practice anyway? Will it really take away advocacy when circumstances so require? More on these questions in a later post.

Stay tuned for that and updates on the progress of this proposed statute.

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Child Support Obligation When the Child Won't Speak to the Parent

Apple Sulit-Peralejo — Fri, 29 Mar 2013 10:37:09 -0500

When there is a hostile relationship or a non-existent relationship between a child and a non-custodial parent, there is a possibility that the non-custodial parent may be relieved of the obligation to contribute towards college expenses. In my prior blog, I discussed the impact of college financial support when the child won't speak with the non-custodial parent.

After the blog was posted, many asked me whether or not a deteriorated relationship between a child and a non-custodial parent could result in the termination of the non-custodial parent's child support obligation. The answer is almost always NO the child support obligation will not be terminated even if the child refuses to have a relationship with the non-custodial parent. (Note, however, where a custodial parent encourages such a circumstance or is the cause of the circumstance, continued custody of the custodial parent may be significantly impacted.)

Strictly for child support purposes, if the child has not moved "beyond the sphere of influence and responsibility" of the custodial parent and has not obtained "an independent status of his or her own", the child would not be emancipated and the non-custodial parent would continue to have a duty of child support. Under this inquiry, unless the child is a celebrity and making their own appreciable amount of income, clearly any child under the age of eighteen and/or still a high school student will have not achieved an independent status. Therefore, if the child and non-custodial parent never see each other, never speak or the relationship is hostile, the non-custodial parent still has a duty to support that child.

When a child does graduate high school and is over the age of eighteen, their is a presumption that the child should be emancipated. It is the burden of the custodial parent to prove that the child is not beyond the parent's sphere of influence and responsibility and that the child has not obtained an independent status. In New Jersey, if the child is attending college on a full-time basis, the custodial parent's burden is easily met and child support would not be terminated.

However, if the child refuses a relationship with the non-custodial parent and refuses to provide ongoing information regarding college, even if the parent is not contributing towards college education costs, child support would likely be terminated.

In a 2010 decision by Judge Jones in Ocean County, Judge Jones found that both the child/student and the custodial parent each have a responsibility and obligation to make certain that the non-custodial parent is provided ongoing proof of the student's college enrollment, course credits and grades and that requiring a child/student to produce such proof to the non-custodial parent does not violate the student's rights of privacy under the Family Educational Rights and Privacy Act. (Van Brunt v. Van Brunt, 419 N.J. Super. 327 (Ch.Div. 2010). Every college institution in the United States prohibit disclosure of a student's college information, even to parents, unless the student provides a written authorization allowing such disclosure.

Notably, the custodial parent in Van Brunt argued that she should not have an obligation to provide the college information because she too was not authorized to obtain such information from the college. In response, Judge Jones found that if a custodial parent who receives child support is unable to convince the child to provide the non-custodial parent information regarding college progress, then that child is "beyond the sphere of influence" of the custodial parent and should be deemed emancipated.

Here is a child support "what-if" to the think about: What if the non-custodial parent is prohibited contact with the child by virtue of a Domestic Violence Restraining Order or some other Court Order entered by the Family Court. How will the Court balance the non-custodial parent's right to confirm the college student's progress with the child's rights under such Orders? For example, if the non-custodial parent is not permitted to know where the child resides pursuant to a Domestic Violence Restraining Order, disclosure of the college information would certainly indicate where the child resides and attends school. I suppose that it would be rare to come across such a set of facts but after seventeen years practicing family law, I have come to learn that many cases presented to the Family Court Judge involve rare and unique circumstances.

Enter the Realm of Reasonableness

Eric S. Solotoff — Fri, 29 Mar 2013 04:31:05 -0500

Yesterday, I blogged about the illusory "final offer", noting that most cases settle. The reason for that is that there is a realm of reason, a range if you will, where cases with similar facts and circumstances, should resolve themselves based upon experience, statutes, case law, Guidelines, etc. In most cases, absent wide valuation disparities, esoteric issues, bona fide custody disputes, including relocation, and/or really unique sets of facts and circumstances, the range is a relatively small one. These are not personal injury cases where a carrier is offering $0 and the plaintiff is seeking millions.

What do you do when you get a settlement proposal that is so out of left field that it borders on , or perhaps is, bad faith? Do you ignore it? Do you respond with an equally outlandish proposal in the other direction? Or do you respond with a proposal in the realm of reason?

Maybe you don't really want to do that. Why? Because, as noted in my last post, you will be going to an Early Settlement Panel (ESP), mediation, and/or an Intensive Settlement Conference (ISC). The risk of negotiating with a reasonable position vs. the other side's unreasonable position is that the impartial may suggest "splitting the difference." Splitting the difference may be fair when both party's proposals are within the reasonable range. It clearly is not fair when one party's proposal is outlandish. Moreover, even if the unreasonable negotiator comes down substantially, perhaps even more than you come up (or vice versa), you will suffer the wrath of their righteous indignation because they "gave more."

Also, I previously posted about a mediator saying that he was creating "settlement anxiety" to try and move parties to get the case settled. While this may be fair if parties are either equally reasonable or equally unreasonable, is it fair to try to push the reasonable one when the other party is unreasonable? I think not.

In a case that I settled this year, the first proposal from the other side was clearly punitive and clearly bad faith. We chose not to respond and I advised the adversary as such. He begged us for a counter proposal. We decided to make one that, while not bad faith, was extremely aggressive in the other direction. What happened next? We started negotiating within the realm of reason and the case got settled.

I am not saying that that strategy will work in every case but it worked in that one, as I suspected it might. Negotiations can be complicated. Great thought should be given as to the strategy to employ based upon who you are dealing with and how they are negotiating. In an advertisement in a recent Super Lawyers publication, a firm stated that they were known for "winning" divorce cases. That is funny since few are tried and seldom is there a clear "winner." You don't want to let the other side "win" a negotiation because they started with an absurd position and you felt compelled to negotiate on their terms.

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This Is My Final Offer, Except When It's Not

Eric S. Solotoff — Thu, 28 Mar 2013 04:50:40 -0500

This is my final offer!!! Don't you just love the ultimatum, the line in the sand, the threat of Armageddon if capitulation is not immediately at hand? I sure do. Is it because I love to go to trial? Don't get me wrong, I enjoy trial but that is not the reason.

Seldom does it mean that a reasonable counter proposal won't be considered it it doesn't materially alter the terms being discussed. Usually it means that your are getting pretty close to a settlement so that the proclamation can alert you and your client that now may be the time to do a deal. In a recent case that I just settled, almost comically, each side probably sent 5 "final offers."

And why is a final offer seldom a final offer? Because 99% of all cases settle. Because the system is geared to promote settlement. Because before you go to trial, you will go likely go to custody and parenting time mediation, an Early Settlement Panel (ESP), mandatory economic mediation (sometimes several sessions), and an Intensive Settlement Conference (ISC) with the judge, or many. Often, your first trial date is not a real trial date, but rather another day to bring the parties (and perhaps experts too) in to try and cajole or finesse and strong arm a settlement. Even on your real trial date, perhaps before and often during the breaks of a trial, the judge will encourage settlement and/or the circumstances of how the trial is going may encourage settlement.

So keep giving us your "final offers." Sometimes, our client will accept them. Other times, we will make a counter offer and await your next final offer until one day, the case will be settled or tried to conclusion.

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Women Can Pay Alimony Too

Eric S. Solotoff — Wed, 27 Mar 2013 10:49:18 -0500

Yesterday's New York Daily News published an article indicating that 28% of wives out-earn their husbands according to an analysis of Census Bureau data by USA Today. The article goes on to state that, despite these advances, women still lag men in the highest levels of their chosen fields

Given the reality of many women earning more than their husbands, the logical corollary is that many more women will have to pay alimony to their husbands. Makes sense right? As we know, the New Jersey alimony statute is gender neutral as is the case law that interprets the statute.

But how does the woman, who for the first time hears that she may have to pay alimony react to that news and how does a man's request for alimony play in the court of public opinion? Usually, not well. Despite the desire for gender equality and the law being gender neutral, many people still believe in the notion that only women get custody and only women get alimony. In fact, some of my most difficult cases have been cases where the husband has made a claim for alimony. These cases were not close calls either. These were cases where if the parties were reversed, it was a no-brainer, slam dunk, unquestionable alimony case. This even happens in cases where the husband was a stay at home parent.

A frequent refrain heard in these cases, usually by the wife who doesn't want to pay or her family and friends is "what kind of man seeks alimony." Do you ever hear similar insults when a woman is seeking alimony? I haven't.

This news story highlights that as women continue to out earn their husband's and traditional gender roles become old news, that more and more women will be called upon to pay alimony, barbs aside.

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Personal Property: From Picayune to Precious, Distributing the Immaterial Possession

Seth R. Parker — Sun, 24 Mar 2013 00:47:12 -0500

The immortal George Carlin once said, “That’s the whole meaning of life, trying to find a place for your stuff. That’s all your house is, just a place for your stuff while you go out and get more stuff.”

In the context of Family Law, the topic of personal property is rarely discussed and consistently dismissed by the court and counsel. It is clear that both view personal property as being simply stuff. In fact, it has been assigned multiple euphemisms to it in order to deflate its relative importance. We have all heard the dismissive terms: chachka; accoutrement; trinket; fixture; knick knack; and of course, whatnot- a word specifically designed to describe all the things the item is actually not. In addition, there is often such contempt for personal property that we have created an amalgamation, personalty, simply in hopes of accelerating the process of distributing it by reducing the length of the term, itself.

However, it is the area that often elicits the strongest amount of vitriol amongst our clients because it is the property that they maintain the strongest emotional connection to, and it is most immediate in their consciousness. No one dreams about their pension, but everyone has a level of intimacy with their bedroom set. The issue of personal property arises initially in most cases when one party vacates the former marital residence, whether it be voluntarily after custody has been resolved or involuntarily as a result of a domestic violence situation.

Either way, the vacating party subsequently and often desperately wants to return to the residence to retrieve their personal property. However, courts are rarely inclined to get involved in the piecemeal distribution of these items until the entirety of the case has been resolved given the volume of substantive issues already on the docket. This leaves the vacating party, often times with minimal notice, without the comforts of home for the first time in years.

To combat this inequality and to ease their transition, we as attorneys become engaged in the negotiation of the retrieval of a limited number of items on a pendente lite basis. This retrieval can take the form of a walk through, which inexorably leads to the police being called as the parties can not agree on who gets the mortar and who gets the pestle. In the alternative, the party with exclusive use of the residence often becomes spiteful and gleefully leaves the agreed upon items in disarray in the street, so their spouse has to suffer the indignity of retrieving their stuff in full view of the neighborhood.

As we fast forward to the conclusion of the matter, we have all witnessed the lassitude and scowl on our adversary’s face as we approach them with a hand-written proposal about personal property. Attorneys regularly leave the issue for last in hopes that it will resolve itself or simply be forgotten, just like working abs at the gym. In fact, I have encountered many adversaries that refuse to even participate in the distribution of personal property as they believe the topic is beneath them. In turn, I have been forced to allay the visceral reaction of my client upon learning that their material possessions are immaterial to the court. This clear disconnect forced me to re-examine this issue.

As family law attorneys, we relish the ability to inform our colleagues that our current case involves erudite issues like utilizing coverture fractions, distributing preretirement survivor annuities and valuing goodwill through capitalization. However, we will avoid at all costs telling our spouses that we put our law degrees to good use by spending our day personally distributing someone else’s spice rack.

In some ways, the request is unduly burdensome for attorneys as we retain appraisers to value the personal property that has maintained substantial value. The remainder of the items are often worth less than the cost of the actual appraisal itself. In those instances, which occurs more often than not, we are left to our own devices to assign them value. However, much to our client’s chagrin, we can not retrieve the balloon that slipped out of their hands during their first date with their current spouse. There is no Kelly Blue Book for their soul, and there is no accounting for the sentimentality and nostalgia that has selectively transformed picayune into precious.

To that end, we have never been in our client’s home and therefore have no way of knowing the current and substantially depreciated values of its contents. Who knows how much the Biedermeier girandole, Thom Browne collar stay or the Givenchy ascot is actually worth. Implicit in that evaluation, is the realization that it is impossible to fairly value the dust that has been unsettled by having to separate comfort from convenience.

In other ways, attorneys do not grasp the relative importance of these items to their clients. Often litigants are forced to pick their favorite piece of personal property in order to facilitate the process of distribution. This is akin to asking Don DeLillo to pick his favorite sentence, or asking someone to pick their favorite breath of air. Inevitably, it will be their next one.

The items themselves may be objectively worthless but they are subjectively priceless to our clients. We must appreciate that nearly all clients want the time back they lost on their marriage and these items tangibly embody that void. These items serve as placeholders of better times, and are the penumbras of what could have been. I have learned that while the items are purely decorative, they have often insulated our clients from dealing with the reality that their relationship was irretrievably broken years before a complaint was actually filed. Notwithstanding, that wound is still raw and their material hemostasis only delayed the inevitable.

When the parties are unable to reach an agreement about personal property, the court reluctantly gets involved. To resolve this issue, I have seen Judges pick randomly out of hat from a list of all the parties’ stuff, flippantly divide homes by assigning the contents of different rooms to each party, or simply let the parties alternate picking items from a global list like they are back in gym class. However in this unique instance, the last pick seems to have as much importance as the first.

However the items are ultimately distributed, we certainly owe it to our clients to treat the distribution of their personal property with the same dignity and empathy as we do the distribution of their real property. Both are far more than just stuff. Perhaps, we now know why guys like you and me know what a duvet is.

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The Discovery Dance

Eric S. Solotoff — Fri, 22 Mar 2013 04:46:32 -0500

Some times, the most basic part of the case, discovery, can often be the most frustrating part. In most cases, some amount of discovery is needed to do the due diligence necessary to bring a matter to its conclusion with some sense of comfort that the issues have been adequately addressed. In complex cases, especially cases where there are businesses and other significant assets to value, the failure to complete discovery often stops a case in its tracks. I have a few cases now where the business owner is simply stonewalling discovery.

In your typical case, you may serve interrogatories (written questions to be answered under oath) and a document request. Though per court rules, the responses are due in 60 and 45 days respectively, the rules are most often honored in the breach. Is it right? No. But most people figure that they can get away with ignoring the rules because the deadlines to answer will be set at the first Case Management Conference. And even when you complain that your discovery is now over due or due shortly, inevitably, the deadline is set for 60 days in the future, give or take.

Then what happens. People ignore the new deadline. When you finally get the discovery, you often get half-hearted, incomplete answers and some but usually not all of the documents requested. While many banks and credit card companies let you go on line and print out a year or several years of past records, and certainly will provide them to you when you ask, most people don't ask and just send an incomplete production which only serves to delay the process and cost both people more money (they don't think about that when the complain that the process takes too long and costs too much). They may offer to sign authorizations so that you can get the documents yourself. More delay - more expense shifted to the other side. In response to the weak answers, sometimes you may serve a request for more specific answers, only to get more drivel, if you get a response at all.

This is the discovery dance. Several months go by and basic information still isn't exchanged. Sometimes it is so late in the game that a judge says you can't do any more discovery. As we have blogged before, where someone has sandbagged a case, that argument shouldn't fly.

So what do you do? Do you make a motion to compel only to anger the judge who is already over burdened? Do you just take a deposition and force the issue on a record? When you do make the motion, the other side will file a knee jerk cross motion concocting things that your client didn't provide. I have a case now where there have been three orders compelling the discovery, some of which has been due for more than a year. Each time we go to court to get the things we have been waiting for for months, the other side makes demands for more and more things - as if there is some equivalency with the demands that have been outstanding for a year vs. theirs that have been outstanding for a few days (typically made knowing that you will be returning to court so better to say that you need information from the other side too. The discovery dance in action again.

To avoid the dance, I often serve subpoenas early in a case to get bank, brokerage, credit card, employment/income/benefit/deferred compensation information directly from the source. While the up front cost may be greater, the ultimate cost in curtailing some of the discovery dance is usually less. But you can't always get everything directly, especially when you want to get the records of the other party's business.

But if you have to make the motion, make sure you clearly set forth what you asked for, when you asked for it, and what was and wasn't produced. If you (or your expert) really need something, don't settle for no. If the other side wont produce it, ask the court to make adverse inference and preclude the other side from offering contrary evidence.

Bottom line, if you are forced to dance, be the better dancer.

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

WOMAN OBTAINS DIVORCE DUE TO HUSBAND'S SMALL MANHOOD

Robert A. Epstein — Tue, 19 Mar 2013 06:36:58 -0500

In a story likely to make men worldwide a bit more insecure about themselves, a Taiwanese woman recently procured a divorce from her husband, in part, because he had a small penis. Making matters worse was the wife's quote that "His penis is so small, like a kid's, only 5 centimeters long. We've never had sex in our entire marriage."

Likely in an effort to keep his parts private, the husband allegedly refused to have sexual intercourse with his wife prior to the marriage, citing religious reasons. It was only on the parties' wedding night when the wife first discovered the "issue." Notably, however, the wife also claimed that the husband was impotent and unable to fulfill his responsibility as a husband (in a response that most men could not argue with, the husband simply preferred to fulfill his duty in the morning, and was too tired when she came calling at around midnight).

This case brought to mind the recent matter, also subject to tabloid fodder, where a man was granted a divorce because he claimed his wife was ugly. His claim was that their child looked nothing like the wife, and it was then that the wife revealed that she had undergone massive plastic surgery to make her more physically attractive.

Are these cases on the far side of bizarre? Absolutely. Do they provide the sort of subject matter that the New York Post, Huffington Post and Daily Mail feast on for readers. Certainly. How then, can they possibly relate to New Jersey law? Well, as we have blogged about in the past, New Jersey is a "no fault" state, where people typically obtain a divorce based on irreconcilable differences without getting into such tawdry claims like a man's package size or a wife's looks.

These types of claims, however, may be a basis for an annulment in New Jersey. As many readers may know from the ongoing Kardashian/Humphries saga, an annulment nullifies the divorce retroactively, as if it never happened. New Jersey's annulment law may be based on several claims including bigamy, duress, lack of age (non-age), incapacity, impotence, incest, and fraud.

Without getting into the details of what each of those options means, for the sake of this post and the husband's dignity, we can focus on the claims of impotence and fraud. Here, aside from the husband's alleged lack of stature, the wife also claimed that the husband was impotent and unable to fulfill his husband-type duties. The wife added that she did not discover this to be the case until the parties' wedding night. In New Jersey, she could, as a result, potentially have a claim for an annulment based on the husband's impotence. Whether such a claim, or that with the so-called "ugly" wife could fall under a claim of fraud is a stretch, but so are the facts of these cases.

While I am not sure what lessons can be learned here, one thing that can be said for sure is that, thankfully, in New Jersey, it is not the size that matters.

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"RESOLVING" A DOMESTIC VIOLENCE MATTER - A CAREFUL BALANCING ACT

Robert A. Epstein — Mon, 18 Mar 2013 20:01:48 -0500

We have written before on the topics of the use and misuse of the Prevention of Domestic Violence Act, and representing a litigant in a domestic violence matter. Within the past few weeks, a few experiences have brought this topic back to the forefront, and I thought that now was a good time to address the issues, especially in the context of "resolving" such matters. As a family law attorneys, we frequently encounter domestic violence as a component of our practice. Whether it happens in the context of an ongoing divorce, entirely independent of a marital relationship, or something different altogether, each case is certainly different from the next, and each case resides on its own motivations, so to speak.

What I mean by that is, the Prevention of Domestic Violence Act is a vital piece of legislation designed to protect actual victims of domestic violence. Countless matters come across our desks involving legitimate, truthful victims in need of the law's immediate protection from an abusive defendant. Some of the most difficult matters involve those where we represent real victims with tragic fears of harm, including those who are immersed in the cycle of violence looking for a way out. Considering the risk to such a victim if a final restraining order is not granted, the import of the litigation is vital.

On the other hand, many cases - typically in the context of an ongoing divorce matter - involve a litigation-minded spouse simply looking to get the proverbial "leg up" over the other spouse in that separate, but related matter. Since the law is liberal in its protection of victims, it is often quite easy to procure a temporary restraining order, where the alleged victim can seemingly state whatever allegation he or she deems appropriate so long as it results in procuring a TRO. There are several well known cases addressing the judiciary's obligation to look out for those litigants who are trying to use the law to his or her advantage, as such an occurrence is unfortunately all too common.

For example, where two parties are engaged in a custody dispute, New Jersey's custody statute and law dictates that a final restraining order against one party results in a presumption that the victim will procure custody of the child. Similarly, two parties often live in the marital home during a divorce, either because neither party wants to leave, neither party can afford to leave, etc. A restraining order against one party will - at least temporarily - force that party to leave the home. From there, the so-called "victim" can use the temporary situation as leverage to keep the other spouse out of the marital home. It is because of such potential incidents that Eric Solotoff, in the "use and misuse" blog entry referenced above, suggests the use of a recording device to document the truth of what transpired.

What do I mean by leverage, especially since such a term seems completely incongruous with domestic violence? As a threshold matter, it is important to understand that a domestic violence matter cannot be settled or resolved, which is why I used quotations around "resolving" in the title to this entry. The law, however, does allow for an interesting device by which the victim may voluntarily withdraw his or her domestic violence and enter into a consent order with the other party that incorporates into the order what are commonly referred to as "civil restraints."

Essentially, all of the restraints and protections contained in the restraining order can be transferred to an order - mutually agreed upon by both parties - and entered by the trial judge in the divorce or custody/support matter, rather than the domestic violence judge. Defendants generally prefer this type of arrangement because it removes the risk associated with having a final restraining order entered against them, with all of the penalties/negatives associated with such entry. It is this preference, however, upon which alleged victims will often rely to procure additional relief under the threat of a final hearing against the significant other.

This form of order cannot be entered into the domestic violence matter, especially since a component of this type of arrangement involves the voluntarily withdrawal and dismissal of that matter. The differences between a final restraining order and the consent order include, but are not limited to, enforcement (a violation of the final restraining order can result in a criminal charge, while a violation of the consent order is addressed by a way of a motion for enforcement, with potential monetary relief), and the ability to include a wide range of terms in the consent order that would not otherwise be found in the restraining order. For instance, where an incident of domestic violence is alleged at or near the outset of a matter, the alleged victim will often attempt to procure all sorts of interim financial or custodial relief that would otherwise have to be sought by way of a motion for pendente lite relief.

Negotiating with a cloud of domestic violence allegations hanging overhead is not your typical negotiation, for sure. At any time, negotiations can break down and the matter will proceed to the final hearing on the domestic violence complaint that everyone was trying to avoid. Considering the issues at hand, one party reneging on the terms of an agreement can typically do so without consequence - simply put, it is highly unlikely that a trial court would ever enforce the terms of a settlement agreement against either party when allegations of domestic violence are involved.

Even worse, a strong set of allegations against a defendant really pushes that party's back up against the wall - i.e., proceed to a final hearing with the risk of the final restraining order in view, or concede to all sorts of language in a consent order that the other party would likely never have procured without the existing allegations of domestic violence. At the end of the day, it is an emotionally charged and difficult high wire act where the wrong statement, step, or proposal can result in the breakdown of the negotiating process and commencement of the final restraining order hearing.

Thus, while a domestic violence matter can be "resolved," the settlement picture is often a lot more crowded, complicated, and even potentially strategic than one would think. Having experienced legal counsel to guide you through this process, whether you are the victim or the defendant in a domestic violence matter, is critical. The stakes are too high not to know and understand your rights in this area of family law.

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Child Abduction: Capital Anonymity. A True Story about the Hague Convention

Seth R. Parker — Sat, 16 Mar 2013 21:59:10 -0500

During the early stages of my legal career, I had the opportunity to work on a tragic case, Khan v. Rajput, which resulted in the unpublished appellate decision, which can be located here, http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2010/a3122-08-opn.html

The case centered around my efforts to facilitate the return of two young children to their father, Mr. Khan, after their mother removed them from New Jersey to Pakistan, without his consent. Ms. Rajput, then a medical student in the US, escorted the children back to her homeland to live with her family. After several months, she returned to the US without the children in order to complete her schooling. Upon arrival, she was arrested at the airport but patently refused to return the children to their father. She was subsequently released from custody, and we instituted trial court proceedings to ensure the children’s swift return. However, Pakistan’s unwillingness to be a party to Hague Convention meant that unless the case became a national story that it would be an uphill battle to compel their return.

In the interim, Ms. Rajput located free counsel through Legal Services given her academic pursuits, and proceeded to advance several jurisdictional arguments in order potentially prevent the children’s return to New Jersey. The crux of her argument was, in essence, that the children’s home state under the UCCJEA became Pakistan because they had resided there for more than six months, and that Mr. Khan had waited too long to seek their return. This untenable position was akin to an adverse possession argument such that if one successfully takes possession of real property (a child, in this case) for a long enough period they should be able to keep it for good. Thankfully, after a lengthy plenary hearing, the trial court rejected Ms. Rajput’s jurisdictional artifice and entered an order compelling her to return the children immediately. I believed at the time that I would get the blessing of watching Mr. Khan be reunited with his children for the first time in years.

Over my objection, Ms. Rajput immediately filed an appeal and was granted her request for a stay of the trial court’s order. In the interim, the trial court denied the request to hold Ms. Rajput’s passport and instead suggested that the risk of jeopardizing her medical career was collateral enough to keep her in the US while we awaited the Appellate Division’s decision. Nearly a year later after the issues were briefed, I successfully argued the matter before the Appellate Division.

Upon its remand and after the stay was lifted, we discussed the immediate return of the children with the trial court. In fact, Mr. Khan purchased tickets for the children’s return flight to New Jersey, and then we were alerted that Ms. Rajput had fled the country.

To my knowledge, she has never returned to the US, and Mr. Khan has never seen his children again. Nearly a decade has passed since he saw them last. I do not believe that he even knows what his children now look like.

The horrors of that case motivated me to find some context for it, which was not accomplished by watching Morgan Freeman’s performance in Gone Baby Gone. I soon realized that this fact pattern is all too common in our court system, and something that literally happens every day. According to the statistics tabulated by the Office of Children’s Issues, there were 799 new cases reported to the State Department of child abduction in the United States in 2012. That translated to 1,144 children being abducted from this country during those 366 days, or more than three a day.

A few years ago, we all watched intently as Sean Goldman was finally reunited with his father after a five year separation. This, of course, was preceded by the creation of bringseanhome.org, David Goldman testifying before Congress about his son in Brazil and Hillary Clinton talking about Sean on the Today Show. What goes without saying is that Mr. Goldman had the resources to make his story one that you heard. Mr. Khan and the majority of the parents of the nameless 1,144 children abducted in 2012 did not, and that is why their stories have remained untold.

Nelson Mandela once said, “There can be no keener revelation of a society's soul than the way in which it treats its children.” I echo those sentiments and only add that, we should not wait for one of these children to become tabloid fodder or to be championed by one of our elected officials for their names and stories to become newsworthy to us.

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