The New Year’s Resolution Divorce

For many divorce attorneys, the busy season starts after the first of the year. For the last several years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again, updated slightly for the new year.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Before writing this article for the first time, out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. There are even more results when you do the same search now. While not all of the search results are on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. In some recent years, the calls started in November at a pace more robust than in prior years. Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse.

Those who divorced in 2019 were the first to test the new tax laws eliminating the deductibility of alimony.  That created new support paradigms that attorneys and divorcing parties are working with.  Those who divorce in 2020 may still enjoy a booming economy and not the  slowing economy that many predicted for 2019 and some still predict for 2020.  Bad economies historically mean more divorces, either because of the stress it creates or because one or both parties is being opportunistic.  On the other hand, someone who might be a support recipient might be opportunistic on the other end of the spectrum – getting out while incomes and asset values are high.

Whatever the reason, we await those who see 2020 as a chance for happiness or a fresh start. Happy New Year?!?!

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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 is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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Garden State Slated to Grow Hemp

In June 2019, the Legislature passed the New Jersey Hemp Farming Act (the “HFA”). This is great news for the “Garden State.” New Jersey has hundreds of thousands of acres in farmland and hemp cultivation may prove to be a lucrative business.

Previously, hemp cultivation in New Jersey was limited to non-germinating seeds and stalks of the hemp plant and confined to individuals who were approved to collaborate with educational institutions to research the plant. Because the HFA now legalizes the sale of products originating from any part of the plant, there should be an expected increase in the sale of both raw hemp and hemp products.[1]

Increases in sales may also drive production and manufacturing costs down as well. State Senate President Stephen Sweeney stated that New Jersey’s propensity for agricultural production “has the capacity and ability to capitalize on new opportunities for hemp products that will create and expand economic opportunities.[2] Recently, one Canadian cannabis firm spent hundreds of millions of dollars to enter the United States hemp market.[3] Hemp is increasingly viewed as a strategical investment and growth opportunity. Now the Garden State can join a dozen other states who have already created procedures for hemp production.

The industrial hemp craze that has been sweeping the United States is now taking root in New Jersey. However, it is important to note that individuals and entities must still apply for the requisite licenses and approval to work with hemp and to comply with reporting requirements after permission to work with hemp has been authorized. Otherwise, they may be subject to the same penalties as those related to illegal marijuana production and sales.

 

 

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[1]           See https://ift.tt/2EpF8g9

[2]           See https://ift.tt/2KxV4zy

[3]           See https://ift.tt/2YFvZHY

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End of the Year Bonuses – Do They Have to Be Shared with My Ex?

The end of the year is coming, and for many employees that means end of the year bonuses will be included in their paychecks this month. Many question whether their bonus should be included as “income” for the purpose of support obligations, as well as equitable distribution in the context of a divorce.

A baseball manager from Arizona, Anthony DeFrancesco, recently faced issues surrounding his year-end bonus and how it related to his support obligations. Mr. DeFrancesco, the manager of the Houston Astros AAA minor league team, was given a $28,000 bonus in 2017 when the Astros won the World Series. The Arizona Appeals Court recently found that the bonus was considered a gift, as opposed to earnings, and he did not have to provide a portion of the bonus to his now ex-wife.

This result is not typically what happens in New Jersey when courts consider whether bonuses are a part of income. In the vast majority of cases, bonuses are awarded to employees for their exemplary work during the preceding year, often resulting from meeting specific targets, going above and beyond the work of a typical employee, and sharing in the success of the company without which the company would have not have otherwise reached. While employees are not legally entitled to bonuses in most cases, bonuses are most often the result of the employee’s hard work. Thus, in the eyes of most courts, the bonus was earned. Any earned income is considered by courts when setting support obligations.

In connection with equitable distribution, money that is earned during the marriage is considered an asset of the marital estate. Therefore, even if the complaint for divorce has already been filed, an end-of-year bonus may be considered a part of the marital estate. For example, if a complaint for divorce is filed on July 1, and an employee receives a bonus of $50,000 at the end of the year for work performed during the previous calendar year, half of that bonus would be attributable to time spent during the marriage.

New Jersey is a court of equity. Arguments can be made that bonuses, or portions of bonuses, should or should not be considered for support and equitable distribution purposes.

Several years ago there was a case in New Jersey in which a private company had been working for many years to go public. One of the company officers had been a long-time employee and, in fact, his dedication to the company to the exclusion of all else contributed to the failure of his marriage. Two years after the divorce complaint was filed, the company went public. The SEC filings noted that the employee received a bonus in excess of $1 million for his dedication to the company and work over the last five years. His wife was successful in her application to reopen the divorce and obtain a portion of that payout due to the evidence that it was for work conducted during the course of their marriage. While this case may be unique, it speaks to why each case has to be evaluated on its own merits, and why each case may have a different result.

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International Child Abduction and the Hague Convention

The world is increasingly becoming a smaller and more accessible place. Globalization and international employment opportunities have made it common for people to move or be transferred to foreign countries. The increased possibility of living abroad combined with marriage and/or children may result in complex issues. Which country’s laws apply if one parent takes a child out of the United States? What if an international custody dispute materializes?

There has been an increase in the number of cases where a parent unilaterally removes a child from the child’s place of residence to another country in an attempt to become the child’s sole custodian.

Take for example this hypothetical. Wife is born and raised in France, but relocates to New Jersey for employment. While here, she meets and marries Husband and they have two children together. Marital strife sets in and while Husband is away on a business trip, Wife takes the children and their passports and returns to France with the children to live with her family.

A second hypothetical: Wife is born and raised in France. Husband originates from New Jersey. Husband relocates to France for employment, and while there, he meets and marries Wife, and they have two children together. One day, without notice to Wife, Husband suddenly leaves with the children and returns to New Jersey.

In either of these scenarios, which countries laws apply when determining custody and whether the children need to be returned to the spouse that was left behind? The answer depends on the particular facts and circumstances with each family and their application to the Hague Convention.

The Hague Convention on the Civil Aspects of Child Abduction, a multilateral treaty ratified by 98 countries as of May 2018, provides an expeditious protocol for the adjudication and return of a child (or children) unilaterally removed by a parent from one member country to another. Article 3 of the Hague Convention requires member countries to promptly return children to their country of “habitual residence” when they are wrongfully removed or retained in another country in breach of the custody rights of the left-behind parent.

Importantly, the Hague Convention provides that the law of the country from which the child was removed determines custody rights, assuming it was the child’s habitual residence, which is itself a fact-specific inquiry and determination. Note that additional complexities in the custody analysis are common if the foreign country’s law applies. Some countries, for example, do not provide any custodian rights to unwed fathers. Therefore, unmarried parents (especially fathers) must be extremely careful when it comes to international child custody disputes.

Remedies are likely even less certain if the country your child has been removed to is not a member of the Hague Convention.

Regardless of the country at issue, if you have an international child custody dispute, timing is everything. It is essential for you to seek legal counsel, determine if the Hague Convention protections apply, and assert your rights as soon as practical. Custody and access to your children may depend on how and how quickly you proceed.

If you find yourself in this situation and require assistance, or require legal advice pertaining to any other issues related to child custody, please feel free to reach out to the author, Louis Ragone, Esquire.

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NJ’s New Drunk Driving Law Can Help Ease Concerns of Divorced Parents

Alcohol and substance abuse by one parent are always concerning to the other parent, but when those parents are separated or divorced, there is an increased level of anxiety. A new law, which took effect on December 1, 2019, can help ease the concerns of a parent whose former partner has been convicted of Driving While Intoxicated in New Jersey.

Under the new law, anyone who is convicted of DWI will have to have an ignition locking device installed on their vehicle. An ignition locking devices acts as a breathalyzer test, with the would-be driver required to blow into a tube to provide a blood-alcohol reading. The car will not start if the blood alcohol level registers above .05 percent, which is slightly below the legal limit of .08. After the car begins moving, the technology periodically requires the driver to blow into the tube to insure it is actually testing the driver of the car.

The law requires first time offenders with a blood alcohol limit of 0.08 percent to 0.10 percent to have an interlock device installed in their vehicle for three months. An offender with a BAC above 0.10 percent to 0.15 percent would be required to have a device installed for seven to twelve months.

This law is a step forward for easing the concerns of a parents whose child will be with a parent who has been convicted of DWI. Moreover, it is a tool to make sure that a parent’s relationship with his or her child is not negatively impacted as a result of something that may not be indicative of that person’s ability to be a regular and positive presence in a child’s life.

To be sure, critics will suggest that there will be individuals who will be able to create a “work around” to get behind the wheel, or who will borrow or rent a vehicle. That may be true, but for many instances of custody disputes where alcohol is involved, this may be a step in making sure that a child’s best interests are preserved.

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