HALLOWEEN FAMILY LAW HORROR STORIES

Michael Myers’ favorite day of the year is upon us!  Halloween is here and for New Jersey kids that means trick or treating, trunk or treating (a very Jerseyish-type deviation), mischief night (lock up your eggs, shaving cream and toilet paper), costumes, scary stories, horror movies and more.  For me, it provides the perfect opportunity to share my version of Halloween horror stories, family law style.  A brief frightful list:

1.  Ghosts – The invisible litigant who forces the other party to endure months, if not years of litigation, and incur counsel fees just to get an end game that could have and should have occurred months earlier.  Whether one side entirely buries his or her head in the sand, refuses to respond to discovery requests (or responds with something totally deficient), ignores settlement proposals, does not answer emails or phone calls, and the like, the ghostly litigant can turn what should be a simple matter into something far more contentious and costly for all involved.

2.  Vampires – The “blood sucking” analogy may be a bit too apt here, but the vampire is ultimately the litigant who is willing to dig his teeth into a matter for what seems like forever based on all sorts of reasons (even in daylight hours).  Perhaps that initial financial support order was so good that he is no rush to settle because he knows that the ultimate settlement could be worse than what the order provides.  Maybe the longer the matter draws out, the more time before the custody and parenting time situation will change to her liking.  The possibilities are limitless and, perhaps only counsel fees (aka, garlic) can stop this ageless force from further attack.

3.  Frankenstein – The litigant who is no longer the person they were during the marriage because of the issues raised in the divorce proceeding.  In other words, an entirely new creation who, perhaps, was never around to parent the kids during the marriage, but is now trying to be parent of the year in the midst of an ongoing custody dispute.  Maybe Frankenstein is the financially superior spouse who can suddenly no longer afford to support the household as he or she once did because of a mysterious and ghastly drop in income.  It may not be so simple to stop Frankenstein once the matter moves forward.

4.  Black Cats – When it feels like bad luck just crossed your path and you cannot get out of your own way.  The case where no matter how long it has been going on you cannot get a trial date.  The order that seems completely unfavorable no matter how strong you thought your position to be.  The decision you made that would have been perfectly acceptable during the marriage, but now results in a letter from an opposing attorney, or a motion trying to hold you accountable.  Oftentimes you cannot control when the black cat will strike, and you feel helpless to stop it.

Thankfully these frightful creatures, and so many more, do not rear their ugly heads in every case, but when they do….get your candy ready, hide under the covers, and keep a flashlight on because even though Halloween only comes once per year, these horror stories will keep you awake at night all year long.

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

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*Photo courtesy of google free images.

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Trade Creditors Protect Yourselves: RadioShack Filing Bankruptcy Preference Complaints

In the last few days, hundreds of bankruptcy complaints against trade creditors were filed by bankrupt Chapter 11 debtor RadioShack. The crux of the complaints concern “preferences” requesting the return of money received from bankrupt debtors prior to the bankruptcy filing for goods or services sold. However, before you or your business start writing a check to return hard earned money, you should know that you may have defenses that can be asserted.

What is Preference?

To start, a preference is a payment received from a debtor, made within 90 days of the bankruptcy filing. Bankruptcy Code section 547(b) allows a bankruptcy trustee or debtor-in-possession (in this instance, RadioShack) to avoid these payments if the transfers were to or for the benefit of a creditor on account of an antecedent debt but while the debtor was insolvent (unable to pay the debts owed).

When Congress enacted the Bankruptcy Code, the policy behind preferences was to level the playing field for all creditors by not allowing a creditor to receive more than it would have within the debtor’s bankruptcy case.

Tight Deadline from Service

Once the complaint is served, there is a tight deadline of 30 days to respond. If you’re a trade creditor that did work with RadioShack, it’s advisable that you alert your billing, reception and other departments of this important pleading. You don’t want it sitting on someone’s desk who may be out on vacation and miss the opportunity to defend yourself.

Defenses to the Complaint

Although the Bankruptcy Code gives the debtor-in-possession the power to recover these transfers, your business may still have certain defenses. These defenses include:

• Payments made within the ordinary course of business;
• New value for payments / payments made outside of the 90 day preference period; and
• Settlements during the bankruptcy case and/or payments made via C.O.D.

Information to Gather Immediately

In order to determine if you have any defenses and properly respond, it is critical to analyze your situation with bankruptcy counsel. A thorough review of the full payment history, at least a year before the bankruptcy filing, is essential. This information includes:

• All correspondence, contracts, emails and the like with the debtor;
• A copy of all invoices, showing invoice date, terms and amount of each invoice;
• A copy of the payments received (i.e. checks, wires, cash deposit slip) and date posted to your bank account;
• Number of days elapsed between date of invoice and date payment was received; and
• Personnel involved with the debtor’s account so they can advise how payments were made, applied and any unique issues with the debtor.

It is critical to properly analyze this information and formulate a corresponding defense.

For more information on defending a preference action, or other bankruptcy issues, please feel free to contact Stark & Stark’s Bankruptcy & Creditor’s Rights Group to discuss your situation.

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Warrantless Vehicle Searches

Getting your vehicle searched can be lengthy, and in some cases unwarranted. A previous court ruling put into place that officers had to have probable cause to call in for a telephonic warrant to search a person’s vehicle. This was said to be a process that should take only 30 mins, but it was becoming apparent that it was taking much longer than this, leaving the police officer and vehicle occupants in serious danger from the passing vehicles on the roadway. To avoid these situations, officers would use a form requesting the driver of the vehicle to sign consenting to a search; this form was used significantly more with minority motorists. Police officers present this document in such a way that motorists feel they have no option but to consent to a search. It is the motorists right to refuse to sign the form and request a warrant be presented in order to search the vehicle, but as of September 24, 2015 this is no longer the case. A new ruling was put into place deeming it allowable for police officers to do warrantless searches as long as the officer feels there is probable cause to consider the vehicle to be containing contraband or evidence of crime. This new ruling rejects the standard in place from the previous ruling which is not in line with the U.S. Supreme Court Standards, based on the Fourth Amendment, because the State of New Jersey feels it is inconsistent with the state constitution.

Mobile Phones and Evidence

Rarely are legal processes ahead of technological innovations. Nowhere is this more apparent than in domestic violence trials where text messages, emails, social media messages and audio/visual information are often important to the outcome. However, most of this information is typically contained on a mobile phone or tablet. How does such information make its way from the device to the court record?

In an important decision for lawyers and litigants, the Hon. Lawrence Jones of the Superior Court of New Jersey in Ocean County recently issued a comprehensive opinion on this topic. In E.C v. R.H. Judge Jones explored the history of electronic communications over the past decade, referring to such information as “a component of routine everyday life” and “pocket-size file cabinets.” Judge Jones noted, however, that the New Jersey Rules of Evidence have struggled to keep pace with technological developments and that “Courtroom rules, procedures and protocols were simply not initially drafted with cell phone technology in mind.” The case before Judge Jones involved allegations of domestic violence in the form of cyber-harassment through email, text message, photograph, etc. All of this essential information was stored on a mobile device. This is the crossroads where technology and evidence law met.

When a litigant attempts to offer into evidence images on a mobile phone, it is impossible to preserve a specific image for the record. The problem is that only small portions of documents may be visible at one time which makes it very difficult to consider the totality of the document, to view and compare messages when the screen has no room for such a feature. Due to the layout of most courtrooms, it is impractical to view such information at the same time thus leading to the cumbersome passing around of the device and the risk of deletion. With regard to audio recordings, is often difficult to hear the exact words after one review. At the conclusion of the case, how does the Judge even review such information as part of his or her deliberative process?

Judge Jones’ decision in E.C v. R.H. is a well-reasoned effort to overcome these difficulties by requiring that if one intends to introduce cell phone evidence at trial, such evidence should also be made available to the Judge and the other party in “tangible and organized, duplicate hard copy form” in advance. Thus, emails, text messages and photographs must be duplicated on paper, and audio and video recordings must be duplicated on CD or DVD. These items should be pre-marked for identification and preserved as part of the record. This process would avoid confusion and provide the other party with an opportunity to review the information in advance, as in the case of more traditional evidence.

In E.C v. R.H. Judge Jones adjourned the trial for one week so that such copies could be made, distributed and available at trial. His decision is a sound, practical solution to a vexing issue and should be applauded by lawyers and litigants alike.

If you or your family is experiencing a domestic violence situation, it is recommended that you consult experienced legal counsel.

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Another Attempt to Compel Arbitration Based on Inadequate and Unclear Documents Fails

Barr v. Bishop Rosen & Co., Inc., ___ N.J. Super. ___ (App. Div. 2015).  Both before and after Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), cert. denied, 135 S.Ct. 2804 (2015), New Jersey’s appellate courts have insisted that agreements under which a party gives up the right to sue and instead […]

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James v. Ruiz Leads to an Amended Model Civil Jury Charge

In James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015), discussed here, Judge Sabatino, who (in addition to his judicial duties) teaches evidence law at Rutgers-Camden Law School, addressed the admissibility of the opinions of non-testifying treating physicians contained in the plaintiff’s medical records.  In response to that opinion, the Supreme Court announced today […]

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A Controversial Height Variance Falls

Jacoby v. Englewood Cliffs Bd. of Adj., ___ N.J. Super. ___ (App. Div. 2015).  At least since North Bergen Action Group v. North Bergen Tp. Planning Bd., 122 N.J. 567 (1991), height variances have been a source of some puzzlement.  [Disclosure:  I argued the North Bergen Action Group case for the plaintiffs].  This most recent […]

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Stark & Stark to Host CLE Seminar with the Mercer County Bar Association & the IWIRC

On Thursday, October 29, 2015, Stark & Stark will be both sponsoring and hosting the seminar “New Local Rules of the United States Bankruptcy Court for the District of New Jersey,” which will be presented by the Mercer County Bar Association in conjunction with the IWIRC – Connecting Women Worldwide. This seminar will take place from 8:30 to 10:00 am in the Stark & Stark Lawrenceville office. Breakfast will be provided for attendees.

The seminar will also offer 1.5 Ban NJ/PA/NY CLE Credits for attendance. Presenters for the panel will include the Honorable Kathryn C. Ferguson, Chief Judge of the U.S. Bankruptcy Court District of New Jersey; Christy E. McDonaldd, esq., of the U.S. Bankruptcy Court District of New Jersey; Andrea Dobin, esq., of Trenk, DiPasquale, Della Fera & Sodono P.C.; and William Mackin, esq., of Sherman, Silverstein, Kohl, Rose & Podolsky, P.A.

For MCBA members and non-member attorneys, there will be a $10.00 charge for NJ credits, $15.00 charge for PA credits and $10.00 for NY credits. To make a reservation and payment for this seminar, contact the Mercer County Bar Association by phone (609)585-6200, fax (609)585-5537 or email mmurkli@mercerbar.com.

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Difficult and sometimes perplexing International Custody issues in the news- Again!

Actress Kelly Rutherford is back in the news as the more than six year international custody battle for her children continues its latest chapter.  The case is presently in Monaco where her children are currently residing with their father, German businessman, Daniel Giersch. From a family law perspective, this case addresses almost every issue which judges struggle with on a daily basis. It also shines a bright light on the problematic issues associated with our ever mobile society.

Copyright: olegdudko / 123RF Stock Photo

For the uninitiated, Kelly Rutherford is an actress who starred on the television show, “Gossip Girl.” In 2006, she became pregnant with her first child, Hermes and married Giersch. In 2008, she became pregnant with her daughter, Helena, and later that year she filed for divorce from Giersch. Both parties sought sole custody of the children in California where the case was initially filed. New York became involved because Rutherford wanted to take the children to New York where Gossip Girl is filmed. Giersch objected to any move to New York on several grounds. In 2009, Rutherford made significant allegations of stalking and other behaviors against Giersch. In 2011, her lawyers contacted the State Department urging that he be arrested. Ultimately, in 2012 his business visa was revoked and he was barred from entering the US. In the custody case, Giersch seeks permission to take the children to France. A full hearing with witnesses was conducted in California. The judge then hearing the case made the determination that, “the best interest of the children will be served because the relocation plan for France is the only plan that offers the possibility of nearly equal parenting time while Giersch cannot return to the US.” He then takes the children to France in 2012 and ultimately moves to Monaco.  In the summer of 2014, Rutherford has the children for summer vacation in the United States and refuses to return the children at the end of her prescribed parenting time. The children were returned to France in August of that year. In 2015, a California court (where the case initially began) granted Rutherford temporary sole custody of the two children, and then shortly thereafter, a different California court ruled that California did not have jurisdiction over the case anymore noting that by that time the children had only spent approximately a week in California in the previous two-year period and that if there was any remaining connection to California it was tenuous. In late summer 2015, a New York judge gave custody back to Giersch and the children were returned to France where the case is currently being heard. Rutherford is now heading there in the latest chapter seeking to gain custody of the children.

A question that has been asked repeatedly in connection with the Rutherford case is why a foreign court has jurisdiction, or the ability to make the decisions with regard to the children, when the case initially started here in the United States. Generally, the state in which the children have resided for the previous six months is determined to be their “home state,” and thus the state where decisions will be made. California, where the parties initially resided did in fact hear the matter. However, when Rutherford’s husband was unable to return to the United States, the judge allowed the children to relocate to France. Absent extreme circumstances, the trend in many states, and in New Jersey, is to give children access to both parents. This is what the judge did when he allowed the children to go to France. The overarching goal in any custody dispute is to have the case heard in the geographical location that can best provide the court with relevant and accurate information about the children. Where are the children’s doctors? Where are the children’s teachers? Where are the witnesses who have access to the children and are in the best position to provide a judge with relevant facts and observations in connection with the children? Typically, this will be in the location that the children have resided for a period of time. As a result, the location which is initially the “home state” of the children may not be the location of where subsequent custody issues are heard. This is precisely what has happened in the case of Rutherford’s children. When a foreign nation is involved, most states treat a foreign country as if it were the state of the United States for purposes of applying the law as to custody of children. This is true in New Jersey which has adopted the Uniform Child Custody Jurisdiction and Enforcement Act.

There are certainly circumstances in which a state can assume jurisdiction to hear custody matter even though it may not be the state where the children have resided recently. The court may take temporary emergency jurisdiction if the child is present in the state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or sibling or parent of a child subjected to or threatened with mistreatment or abuse. New Jersey has interpreted this to mean that if there is a bona fide concern that children will be mistreated and irreparably harmed if they are returned to the nonresident parent, New Jersey has and should exercise jurisdiction in order to protect the best interest of the children.

Without question, these cases are extremely complex. Depending on the laws of the country to which a parent is seeking to bring the children, one parent or the other could be placed at an extreme disadvantage. It is important to seek advice and engage in careful planning when entering into relationships in which the circumstances may result in international custody disputes. These situations involve not only situations in which the two people in a relationship come from different countries, but also when couples live in foreign countries as a result of business obligations. Knowing whether the foreign country which is involved is one which will recognize American law is particularly important.  In fact, the California judge who allowed Rutherford’s children to go to France particularly noted that the French court would, to the greatest extent possible, ensure that the order of the California court would be followed once the children were in France.

 

Jennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state in trial and Appellate courts. Jennifer is trained in collaborative law as well.Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

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Contingent Notices of Appeal and Other Appellate Jurisdiction Puzzles

Witasick v. Minnesota Mutual Life Ins. Co., ___ F.3d ___ (3d Cir. 2015).  This was an insurance coverage case.  It had a lengthy procedural history, one that implicated criminal as well as civil proceedings.  The District Court had granted a motion to dismiss the case, on the grounds that a prior settlement agreement between the […]

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Stark & Stark Shareholder Gary S. Forshner Quoted in Asbury Park Press Article

Shareholder Gary S. Forshner, member of the Real Estate, Zoning & Land Use Group, was quoted in Howell Residents Protest Apartment Complex, which was published in the Asbury Park Press on October 19, 2015.

The article explains the recent controversy that has occurred with a proposed affordable housing complex in Howell, NJ. Currently, there is a petition with over 500 signatures being circulated in the area, and residents are concerned with project’s transparency and location. In spite of this, the project is expected to fulfill approximately 20 percent of the mandated affordable housing units.

“(Affordable housing) isn’t going to happen overnight,” Mr. Forshner was quoted as saying. “What the Supreme Court has done is develop a process where municipalities and developers know their obligations and opportunities now.” Additionally, he explained that the Howell judges will decide by December 8^th whether or not the proposal is viable—if not, the towns will be open to “builders’ remedy” lawsuits. If any of these developer’s suits were to win, this means they could build in the town with very little oversight.

You can read the full article by clicking here.

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Stark & Stark Attorney David A. Beaver Quoted in Divorcing Advice Article

David A. Beaver, member of the Family Law Group, was quoted in the article Mediation for Divorce: 10 Experts Share Tips for Success, which was published in Divorcing Advice on October 22, 2015.

The article discusses the benefits of seeking out mediation during a divorce instead of opting for the more traditional court case. Mediations are often more amicable, as the couple needs to work together along with their counsel and the mediator to reach a plan for asset division. The mediator in this situation is the person who will guide this negotiation from start to finish, working with the couple as they work to divide all of their assets, which can include the house, business and retirement accounts.

The article also interviews 10 different legal experts on their experience with utilizing mediation in a divorce. Mr. Beaver said, “I strongly recommend that divorcing couples identify their priorities with the selected mediator at the outset of the process. As a mediator, I find this to be a highly effective (and cost saving) approach. It is common for divorcing parties to be closer on issues than they believe and if mutual goals are identified early in the process, it leads the parties to a common understanding.”

You can read the full article by clicking here.

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Proper Admission of Cell Phone Evidence: Judge Jones Weighs In

Accordingly to a Pew Internet Project research study, as of 2014:

• 90% of American adults own a cell phone
• 32% of American adults own an e-reader
• 42% of American adults own a tablet computer
• 64% of American adults own a smartphone

As with all advances in technology however, we take the good with the bad.  For example:

The good: You can see cute pictures of your kids every day while you’re at work.

The bad: You distract yourself all day with cute pictures of your kids while you’re at work.

The good: You can communicate with that special someone day and night.

The bad: That special someone turns out to be not-so-special and communicates with you day and night.

Cell phones enable us to access information rapidly, and to communicate with loved ones around the world instantaneously.  But that instantaneous communication comes at a price.

In the recent decision of E.C. v. R.H., Judge Jones in Ocean County examined the proper use of cell phone evidence when communications potentially cross the line from wanted to unwanted; from mild annoyance, to harassment.

E.C. involved a situation where one party alleged that she was being harassed via text messages, voicemails and social media evidence. She wanted the defendant to leave her alone, and asked the Court to enter a final restraining order against him. In support of her claim, E.C. sought to introduce evidence directly from her cell phone.

In examining the question of how to appropriate accept evidence from E.C.’s cell phone into the record, Judge Jones delineated a litany of issues with utilizing evidence that comes directly from the cell phone:

1. When a litigant attempts to offer images on a cell phone screen, it becomes difficult to preserve the image for the record unless there is a hard copy printout of the image as well.
2. The small screen on a cell phone makes it impossible to see an entire document at one time, which create reading challenges even after on-screen enlargement.  Scrolling can become time consuming and cumbersome.
3. It is impractical for the judge and both of the parties to view the evidence on the cell phone at the same time.  This would require the litigants to pass around the cell phone, which is even more complicated when there is a temporary restraining order in place and the parties cannot physically sit or stand next to each other to view the cell phone evidence at the same time.
4. If a party orally reads the text or email in to the record, without a hard copy in front of each party, there is no guarantee that the oral recitation will be accurate.  It can also be time consuming and confusing if there are multiple lengthy text messages.
5. With voicemails stored directly on cell phones, it is difficult to hear the exact words.  The Court suggested that a CD or transcript may be useful to assist in deciphering the recording.
6. The evidence cannot be preserved so that the Court can review it as part of the deliberation process before rending a decision.

In light of the above issues, the Court suggested that the following rules of thumb should be followed for litigants wishing to introduce evidence stored on cell phones:

    Cell Phone Evidence                      Hardcopy form

A) e-mails and texts                          printed on paper

B) Social media messages                printed on paper

C) Photographs                                  printed on paper

D) Audio Recording                          duplicated on C.D. or cassette

E) Video Recording                           duplicated on DVD

 With evidence rules struggling to keep up with rapidly changing technology, Judge Jones’ decision again provides a practical solution to a very prevalent and difficult problem faced by pro se litigants and attorneys alike.  Indeed, the goal of the prevention of domestic violence act is to provide victims of domestic violence with protection from harm.  The last thing that should happen is for a victim to be denied that protection simply because they were unable to introduce relevant and compelling evidence because it was stored in an unusable format.

So what should you do if you have evidence stored on your phone?  Here are just a few tips I’ve picked up along the way from my own experience:

Electronic Messages (emails, text messages, social media messages, etc.):

The best thing to do is to take screenshots of electronic messages and send them to your attorney for review.  There are also paid services available that can do a “dump” of your phone into a PDF document that may be more helpful if there are a large volume of messages you wish to preserve and introduce as evidence. Make sure they are clear such that a third party could decipher the sender of the text message and the receiver of the text message.

Also, be sure to bring the cell phone to Court just in case there is an allegation that the text messages were somehow altered. I once encountered a situation where one party had deleted individual text messages before sending them to her attorney and my client was able to take out his phone and demonstrate that the messages were tampered with.  It ruined the other side’s credibility and demonstrated that the whole text message exchange was rather innocuous, and in fact, demonstrated that my client was in the right.

Audio Recordings:

For audio recordings, while a CD should certainly be made so that the Court can preserve the evidence and listen back to it during deliberations, you should also make sure that there is a place to play the recording in the courtroom.  A laptop usually cannot give you the kind of audio reach for all parties, and the court to hear the message.  You should opt for an audio system with either a CD slot or an auxiliary jack so that you can connect your cell phone to the speakers.

Video Recordings:

Again, make sure there is a place to play video recordings in the courtroom. Again, there are issues with using a laptop, both because it’s too small for everyone to see, and because the audio is insufficient.

Just in case you need to authenticate video, make sure to preserve the original recording on your cell phone so that the Court can verify that the duplicate has not been altered.

Clients should be counseled early on regarding the necessity of preserving information. Similarly, when litigants are pro se they should be advised when they obtain a temporary restraining order that cell phone evidence will not be admitted unless it is in a usable format.

In fact, Judge Jones suggested the following language be added to temporary restraining orders:

If either party is seeking to introduce information stored on his/her cell phone (emails/texts/Facebook posts, etc.), such information should be printed out in triplicate in organized fashion with page numbers on the bottom right hand corner for easy reference. Additionally, if either party is seeking to introduce evidence from their cell phone relating to voice mails, video streams or photographs, same should be duplicated onto a CD or DVD as applicable so that same may be marked for identification in a tangible form.

In the end, Judge Jones allowed for a brief adjournment so that the parties could make hard copies of any cell phone evidence.

It will be interesting to see if judges around the state begin to adopt Judge Jones’ temporary restraining orders.

_____________________________________________________________________________

 Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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Qualified Immunity for Funeral Directors

Gately v. Hamilton Memorial Home, Inc., ___ N.J. Super. ___ (App. Div. 2015).  Apart from funeral directors, their attorneys, and a small number of  judges, it’s likely that few people know that funeral directors are given qualified immunity from certain civil lawsuits by N.J.S.A. 45:27-22D, the Cemetery Act, and N.J.S.A. 45:7-95, the Mortuary Science Act.  […]

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In Divorce, Patience is a Virtue

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

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

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

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

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

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

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

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

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

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

____________________________________________________

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

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How to Be Financially Prepared for a Divorce

A divorce can be a very emotionally draining process. Because of the emotions involved, few people consider that a divorce can also be taxing on one’s financial security. Financial mistakes that were made years ago, even prior to marriage, can come back and be a major factor in one’s divorce. Therefore, it is important to have a clear picture of one’s finances before, during, and after a divorce.

A recent article by the Huffington Post outlined some of the basic steps that can be taken, financially, before beginning the divorce process.

Have Your Documents Together. All documents regarding one’s personal assets and liabilities should be gathered early on in the divorce process or before the divorce begins. These documents include your tax returns, copies of your paystubs, year-end reports from your credit card companies, bank statements, stock or investment statement and anything that will accurately show what assets and liabilities you have. It is important to get these documents together early on. The last thing anyone wants during a divorce is to have to track down certain documents.

Know Your Credit Score. Knowing your credit score is important for a variety of reasons. You can’t buy a car, get an apartment or qualify for a mortgage unless you have good credit. During marriage, a couple may have joint credit cards. By having joint credit cards, the poor credit of a spouse may affect the credit of the other spouse, even though the other spouse is not at fault. Furthermore, it is important to have strong credit in order to move on after a divorce. Having joint accounts or credit cards during a marriage that led to bad credit can have negative implications when you are on your own once the divorce is over.

Have Your Own Accounts. As with the issue of joint credit cards affecting one’s credit score, it is important to have your own accounts, even prior to a divorce. Joint accounts can make the divorce process very complicated. This is because, with joint accounts, it is difficult to determine who contributed what to the account and, therefore, dividing the account appropriately is complicated. With separate accounts, it is evident which assets belong to which spouse, and diving the accounts is simplified because the accounts were never comingled.

Have a Financial Planner. Throughout the divorce process and at its conclusion, there are a variety of financial implications that can seem overwhelming. Financial planners can simplify some of the most complex issues for the divorcing couple at a time when simplicity is necessary.

The finances of every couple are different, and that is why every divorce is different. It is always advised that you consult with an experienced family law attorney to review your assets prior to and throughout the divorce process to ensure that the financial outcome of the divorce is equitable.

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When Should Child Support Start?

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

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

Just How Far Back Can Child Support Go?

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

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

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

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

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

 What about Alimony?

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

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

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

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APPELLATE DIVISION HOLDS AMENDED ALIMONY LAW DOES NOT APPLY TO POST-JUDGMENT ORDERS FINALIZED BEFORE LAW’S EFFECTIVE DATE

With New Jersey’s amended alimony statute becoming effective on September 10, 2014, many questions have arisen as to how the statute will apply and the meaning of many of the new terms contained therein.  The Appellate Division’s newly reported (precedential) decision in Spangenberg v. Kolakowski provides some insight from the judiciary that we have been waiting for, specifically holding that the new cohabitation provision of the amended statute does not apply to post-Judgment orders finalized before the statute’s effective date.  As detailed below, the decision makes logical and legal sense when considered with a review of the legislature’s intentions as to when the amendments apply.

Here are the key facts you need to know:

• The parties were divorced in June, 2012, 20 years after they married and more than 2 years before the statute was amended.
• A settlement agreement was executed wherein the husband agreed to pay $2,200 in monthly alimony based on the wife earning $45,000 in gross annual income and the husband earning $125,000.  The agreement also provided that alimony would be reviewed “on or about June 7, 2014″ based on the “expectation that the [wife’s] income will have increased by that time as a result of additional training or other factors.”
• Wife was also required to inform husband when she was cohabiting with another, which would trigger a review of alimony “consistent with the Gayet case and evolving caselaw.”  Gayet v. Gayet is one of the seminal cases on the issue of cohabitation and its impact upon alimony in the State of New Jersey.
• Husband moved to modify his alimony obligation, alleging that wife was cohabiting.  Wife admitted to moving into her boyfriend’s residence in August, 2013.

In an Order dated December 18, 2013, the trial judge found wife to be receiving an economic benefit from the cohabitation, thereby warranting an alimony modification.  Husband subsequently filed a motion for reconsideration of the order, seeking therein a review of wife’s need for alimony.  The motion was deemed premature, with a review to take place in June, 2014, as called for in the settlement agreement.

On July 21, 2014, husband moved to modify or terminate alimony per the settlement agreement’s 2-year review provision.  Without oral argument, the trial judge denied a further reduction in alimony, in part, because he had already reduced alimony based on the wife’s cohabitation, and because husband failed to properly and completely divulge his financial documentation/information.  Husband again filed for reconsideration, but was denied.

On appeal, husband argued, in part, that the trial court improperly ignored the adopted amendments to the alimony statute regarding cohabitation.  The Appellate Court cited to the applicable provisions of the amended statute:

l. When a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, then that party’s application for relief must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.

m. When assessing a temporary remedy, the court may temporarily suspend support, or reduce support on terms; direct that support be paid in some amount from assets pending further proceedings; direct a periodic review; or enter any other order the court finds appropriate to assure fairness and equity to both parties.

n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

[N.J.S.A. 2A:34-23(l)-(n).]

The Appellate Court limited its review to whether the legislature intended the cohabitation portion of the amendment to apply to the subject situation.  As a potentially important aside, in so limiting, the Court stated, “Accordingly, our review is limited to whether the statute’s cohabitation amendments, requiring alimony to be terminated or suspended, apply.”  The statute’s cohabitation language, however, only provides that alimony “may” be suspended or terminated in the event of cohabitation.  Whether this was intentional is uncertain, but it is consistent with the payor-friendly nature of the amendments and, perhaps, answers one primary question as to whether the previously existing “economic benefits” test still applies (as provided in the above-referenced Gayet matter).

Back to the actual issue before the Court, it then quoted that part of the bill adopting the amendments addressing whether same would apply retroactively, or only prospectively.  Such language provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a. a final judgment of divorce or dissolution;

b. a final order that has concluded post-judgment litigation; or

c. any enforceable written agreement between the parties.

The Court found that such language “signals the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments.”  It also noted how courts generally enforce newly enacted substantive statutes on a prospective basis, “unless the laws clearly expresses a contrary intent.”

Since the trial court conducted a review and issued a final order as to the economic effect of the wife’s cohabitation prior to the enacted amendments, and alimony was reduced at such time based on the prior legal standard applicable in such matters, the new cohabitation provisions of the amended statute did not apply.

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

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Emancipation of Children for the Purposes of Child Support Obligations

Emancipation is the process by which a minor is legally freed from control by their parents or guardians, and the parents or guardians are legally freed from any and all responsibility toward the child. In family law, emancipation most often occurs in the context of child support obligations. A child who is emancipated does not receive child support. Therefore, a supporting spouse (the one making the child support payments) is likely to seek emancipation of a child, while a dependent spouse (the one receiving the child support payments) will likely oppose emancipation. Typically, emancipation is sought when the child reaches the age of majority, but it can also occur before or after this date.

As established by numerous court opinions in New Jersey, emancipation can occur upon the child’s marriage, the child’s introduction into military service, by a court order based on the child’s best interests or by the attainment of an appropriate age. Regarding what is the “appropriate age,” emancipation does not automatically occur upon a minor reaching the age of majority. In Alford v. Somerset County Welfare Board, a New Jersey Appellate Court stated that, “while the age of majority has been established in New Jersey by law, there is no age fixed in law when a child becomes emancipated.” Subsequent cases affirmed this idea. Furthermore, in Newburgh v. Arrigo and Filippone v. Lee, it was determined that reaching the age of majority establishes only a prima facie case but not conclusive proof of emancipation, and can be rebuttable based upon the circumstances of each case.

Newburgh and Filippone are the leading cases in New Jersey regarding emancipation. They not only state that reaching the age of majority simply establishes a prima facie case for emancipation that can be rebutted, but also elaborate on what factors can be used to rebut this presumption. Together, they affirm the fact that the issue of whether a child is emancipated at age eighteen, with correlative termination of the right to parental support, if fact-intensive, and can easily vary based upon the specific circumstances of each case. Together, they also establish the fundamental question asked when determining if a child should be emancipated or not – has the child moved beyond the “sphere of influence” exercised by the parent and obtained an independent status of his or her own?

A child who has moved beyond their parents “sphere of influence” is likely to be emancipated. There are many factors that may be considered by a court to determine whether or not the potentially emancipated child has moved beyond this “sphere of influence.” These factors include the child’s needs, interests and independent resources, the family’s reasonable expectations and the parties’ financial ability, among other things.

As apparent from the list of factors, they are very broad and can encompass a wide variety of instances.

A basic example, applying the “sphere of influence” analysis, would be a child who is over the age of eighteen (the age of majority), but attends college or another higher-education institution full-time. This child does not have a full-time job, as they are attending school full-time, and may reside with a parent during winter and summer breaks from school. As such, the child is still within the parents’ “sphere of influence.”

Applying the factors mentioned above, the child has no independent resources of their own. The family likely expected the child to attend a college, and it is likely in the child’s best interest to attend college to better their future, rather than be emancipated and have to work and possibly leave school. Applying these factors, the child in question will likely not be emancipated.

As the list of factors in determining whether a child is inside or outside their parents’ “sphere of influence,” is very broad, determining whether or not a child should be emancipated for the purposes of child support obligations is very fact-intensive. Considering the nature of this fact-intensive inquiry required, it is suggested that anyone looking to have their child emancipated or to argue against the emancipation of their child should consult an experienced family law attorney.

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An Easy Statutory Interpretation Ruling, With Bonus Analysis of Declaratory Judgment and Joinder Issues

Williams v. Borough of Clayton, ___ N.J. Super. ___ (App. Div. 2015).  N.J.S.A. 40A:14-129 and -130 mandate that an officer seeking promotions to “superior position[s]”in police departments in smaller municipalities (that is, those not designated as “first class” or “second class” municipalities) that are not civil service jurisdictions “shall not be promoted until he has […]

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The Fifth Anniversary of New Jersey Appellate Law Blog

Today is the fifth anniversary of this blog.  It has been another interesting year of covering the Supreme Court of New Jersey, the Appellate Division, and the Third Circuit, with occasional forays elsewhere. As in the past, I’m very grateful to the blog’s many readers, including jurists in the state courts at all levels, practitioners, […]

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The Third Circuit Grants En Banc Review in the New Jersey Sports Gambling Law Case

As discussed here, a panel of the Third Circuit, by a 2-1 vote, had affirmed a decision of the District Court that had blocked New Jersey’s Sports Wagering Act, N.J.S.A. 5:12A-17, from going into effect.  New Jersey sought en banc review, and the Third Circuit has now granted that petition.  The order granting that petition […]

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Stark & Stark Welcomes Three New Associates

Stark & Stark is pleased to announce that attorneys Kevin A. Falkenstein, Robert C. Sanfilippo and Jonathon C. Wargo have joined the firm.

Mr. Falkenstein is a member of the Family Law Group, and he concentrates his practice in divorce, custody, parenting time, child support, alimony, equitable distribution and pre-nuptial planning. He also is experienced with related post-judgment issues, including emancipation, support enforcement and implementation of settlement agreements. Mr. Falkenstein will be located in the Marlton, NJ office. Prior to this, he worked as an Associate for a South Jersey-based law firm.

Mr. Sanfilippo is a member of the Accident & Personal Injury and Medical Malpractice Groups. He concentrates his practice in the area of personal injury, automobile accidents and medical malpractice. He will also be located in the Marlton, NJ office. Prior to this, Mr. Sanfilippo worked for a North Jersey-based law firm.

Mr. Wargo is a member of the Business & Corporate Group, and concentrates his practice on the formation, financing, purchase, sale and governance of closely held businesses. He will be located in the Lawrenceville, NJ office. Prior to this, Mr. Wargo served as a Judicial Law Clerk to the Chambers of the Honorable Katie A. Gummer, J.S.C, of the Civil Division.

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A Landmark Civil Rights Opinion by Judge Ambro

Hassan v. City of New York, ___ F.3d ___ (3d Cir. 2015).  This opinion by Judge Ambro yesterday is one of the most important decisions that the Third Circuit has made in some time.  The case involves New York City Police Department’s program of surveillance of Muslims, including, allegedly, “every mosque within a 250-mile radius […]

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Creative Tax Strategies for Businesses Seminar

Join Rachel Stark, Esq. and Dolores Kelley, Esq. of Stark & Stark and James Bartolomei, CPA of HBK CPAs and Consultants as they present the FREE educational seminar Creative Tax Strategies for Businesses on November 19, 2015 from 8:30 – 10:00am. The event will be held at Greenacres Country Club (2170 Lawrenceville Rd, Lawrencville, NJ 08648)

Gain insight on methods to increase your bottom line through tax saving business structures and tactics. This seminar will discuss the various creative tax strategies for businesses, including:

• Real Estate Tax Issues like Farmland Assessment, Like-kind exchanges and Tax Appeals
• S corp. vs. LLC’s for consulting companies
• Formation for Digital or Multi-state businesses with a focus on state tax issues and strategies for choosing state of formation

Breakfast will be served. Space is limited and pre-registration is required.

Please register by November 14, 2015.

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Stark & Stark Associate Authored U.S. 1 Article

Attorney Marshal T. Kizner, member of the Bankruptcy & Creditors’ Rights Group, authored the article Property Tax Revaluations and Your Tax Assessment, which was published in U.S. 1 on September 16, 2015.

The article describes the process several municipalities in New Jersey are going through with local property tax revaluations. “The purpose of a revaluation program is for the municipality to update all tax assessments in order to spread the tax burden equitably within a municipality.” Hamilton Township in Mercer County is one such municipality going through the process, and the new completed assessment will then serve as the foundation for a property owner’s real estate tax bill for the coming year.

Mr. Kizner also provides a list of examples to better understand how the level ratio applies to the revaluation program, whether it be for over, under or fairly assessed property. “A revaluation attempts to correct the unfairness shown in the three examples by bringing each property in a municipality to 100 percent of true value.”

Furthermore, “[i]f a tax payer is upset with the assessed value imposed on the property, he or she has the right to attempt to negotiate a reduction; file an appeal with the County Board of Taxation or file an appeal directly with the Tax Court under certain circumstances.”

You can read the full article my clicking here.

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What is a “Building”?

Cashin v. Bello, ___ N.J. ___ (2015).  The cardinal principle of statutory interpretation is that plain language controls and ends the need for any further inquiry.  In this opinion by Justice Fernandez-Vina, speaking for a unanimous Supreme Court, the issue was whether the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., which allows an “owner of a […]

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Emancipation of College Students and College Contributions

In a previous blog, the process of emancipation in New Jersey was discussed, which included the various factors a court considers when determining whether or not a child should be emancipated. A common issue is the emancipation of college-age children, because children in college are likely to be over the age of majority, but still dependent on their parents as full-time students.

Several cases in New Jersey have addressed this specific instance. Newburgh v. Arrigo, the leading case in the area of emancipation, states that “the privilege of parenthood carries with it the duty to assure a necessary education for children.” Several other cases, including Gac v. Gac, Patetta v. Patetta, Limbert v. Limbert and Moehring v. Moehring have all stated that a child’s full-time attendance in postsecondary education may be a basis to delay emancipation, because, even though parents are not generally required to support a child over eighteen, the child’s enrollment in a full-time educational program has been held to require continued support.

Therefore, a child attending college on a full-time basis is not likely to be emancipated from their parents due to their dependent status while still in school.

Now, because a child that is attending college is unlikely to be emancipated, what are the expectations of divorced parents in supporting their child through college?

Fortunately, in Newburgh v. Arrigo, Justice Pollock set out a list of twelve factors that a court should consider in evaluating a claim for contribution toward the cost of higher education. These factors are as follows:

1. Whether the parent, if he/she was still living with the child, would have contributed toward the costs of the requested higher education;
2. The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
3. The amount of the contribution sought by the child for the cost of higher education;
4. The ability of the parent to pay that cost;
5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
6. The financial resources of both parents;
7. The commitment to and aptitude of the child for the requested education;
8. The financial resources of the child, including assets owned individually or held in custodianship or trust;
9. The ability of the child to earn income during the school year or on vacation;
10. The availability of financial aid in the form of college grants and loans;
11. The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and,
12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

There are no published cases in New Jersey that have applied each one of these factors in a single case, but many published cases have referred to these factors as the criteria for determining college contribution. There are, however, more recent unpublished cases that have applied the factors.

For example, in a May 2015 unpublished case, Iraldi v. Iraldi, the Plaintiff father appealed a variety of issues following the final judgment of divorce, including college and graduate school costs. Addressing the college issue, the Appellate Court referred back to the Newburgh factors, specifically stating that because Plaintiff and Defendant clearly anticipated that their child would attend college, and because Plaintiff did not provide any evidence that he was financially incapable of supporting his child through college, Plaintiff was required by the court to pay for his child’s higher educational costs.

The Newburgh factors listed require a fact-intensive inquiry, and can be applied differently based upon each case. Therefore, anyone pursuing a college contribution action following a divorce should consult with an experienced family law attorney.

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New York Focus – The Exclusive Use and Occupancy of the Marital Residence, Pendente Lite

While our blog has focused exclusively on New Jersey family law since its inception almost 8 years ago (yes, it has been that long), we also focus our practice on New York family law.  We do not (yet) have a Fox New York-specific family law blog, so this blog will serve as a testing ground and forum, of sorts. Rather than start off with a light and feel-good topic (how many of those are there in family law anyway), this blog will delve right into a spouse’s request to have exclusive possession and occupancy of the marital home during the divorce proceeding (pendente lite).

By contrast to family courts in New Jersey, family courts in New York, pursuant to existing statute and case law, are more willing to grant one party exclusive possession of a marital residence during the divorce proceeding in the absence of domestic violence.  Parties, perhaps as a result, also more frequently make such request for relief in New York matters as compared to litigants in New Jersey matters. For starters, New York Domestic Relations Law 234 – Title to or Occupancy and Possession of Property, provides the fundamental authority for this type of pendente lite request:

In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.  Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment.

More simply, the statute provides that the family court judge can render a determination as to the possession of real property before final judgment, at the time of final judgment, after final judgment, or all of the above.  The request in each case will be analyzed based on the specific set of facts and circumstances at issue.  The nature of ownership of the real property in which sole occupancy is sought should have no bearing on the decision.

While such relief can be based on a need to protect the person seeking exclusive occupancy and/or the subject children, if any, it can also be based on a far more general standard that such occupancy is necessary to avoid marital/domestic strife.  The strife can be alleged to have an impact on the daily emotional well-being of the person(s) seeking relief.  The court will also consider alternative housing options for the moving party and non-moving party, as well as either party’s willingness to voluntarily pursue such alternative housing options. For example, exclusive occupancy may be appropriate if a non-movant spouse has voluntarily established an alternative residence and his or her return to the marital residence would cause the above-referenced “marital or domestic strife.”

Since the relief is requested in the midst of a divorce proceeding, there does have to be a greater basis for the request than simply unsubstantiated assertions of the parties’ inability to get along, or one party acting unreasonably towards the other.  The more specific the assertions, the better the chance of the request being granted.

Generally, a plenary hearing (ideally to occur in short order) with testimony should be held to render a determination on a pendente lite request for exclusive occupancy, resolving at such time competing affidavits and allegations between the parties.

Requesting exclusive possession and occupancy of the marital home, pendente lite, is not something that should be taken lightly.  While it is often requested, whether because the relief is actually appropriate or simply as a strategic maneuver in a custody dispute or to color the court’s view of the matter, it is something that should be carefully considered and discussed with legal counsel.

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

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