NJ Family & Divorce Law Blog

Strategies to handle parental alienation

I came across the following slide presentation from Rajiv Dabhadkar of the National Human Rights Commission in Delhi, India.  Although written for an Indian audience it offers practical advice on how to handle interactions with the alienating parent.

Parental Alienation Syndrome

View more OpenOffice presentations from guestacb4ca.

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Continental pilots "fake" divorce to obtain pension payout

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As reported by ABC news in Houston, Continental is suing nine pilots who allegedly obtained a sham divorce in order to trigger a cash pension payout to their ex-spouse, who they subsequently remarried. 

In a lawsuit filed in Federal Court, the company alleges the pilots obtained uncontested divorces in which the pilot would assign 90-100% of their pension benefit to the other spouse, who was then able to obtain a Domestic Relations Order (DRO) in state court that resulted in the Continental pension play paying out a cash lump sum to them. After receiving the pension payout, almost all of the pilots and their ex-spouses remarried.

Although the money actually belonged to the pilot's pension, Continental alleges that what the pilots were doing was circumventing federal law, and in particular ERISA (Employee Retirement Income Security Act) that requires a Domestic Relations Order to be "Qualified" i.e. a "QDRO".  

To be qualified, any payout has to be within the terms of the plan, and the Continental plan did not allow payouts before retirement.  What the pilots were doing was saying, let's have the money now and keep on flying.  Continental is seeking repayment of the $10-11 million it paid out to the nine individuals.

It is human nature to protect what you have, as many going through a divorce already know.  Apparently the pilots were worried about the turmoil in the airline industry and fearful of losing their accumulated pension benefits. What took place is perhaps just another sign of the difficult times we currently live in.

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Judge Judy on Child Support

I enjoyed watching this video excerpt from the Judge Judy show that features a Trenton, NJ woman and a claim for repayment of child support by a man who turned out not to be the father of her child – it has many important lessons in it:

1. If you are served with court papers about child support – don’t ignore them
2. If you think the baby is not yours – have a paternity test, it’s a lot cheaper than paying child support for 21 years
3. If you pay child support for a child that’s not yours, you may be able to obtain the money back

As always, Judge Judy deals with a real life human problem with her unique blend of wit, compassion and common sense. Well worth watching!

A parent should not benefit from overpayment of child support following death of a child

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It is always a tragedy when a child dies early as a result of illness or an accident. Parents are distraught with grief and the last thing anyone thinks about is child support.  Eventually, if child support is being paid then it has to be addressed.  Intuitively, if the child is no longer in need of support, then the child support should end; death is an emancipating event.

However, where child support is being paid for several children and a motion is made to recalculate it, is the new child support amount effective from the date the motion is filed (i.e. any overpayment till then is lost) or is it backdated to the date the child passed away with the payor receiving a credit or reimbursement for any overpayment ?

The June 8, 2009 published trial court opinion in Centanni v Centanni addressed this issue (this Monmouth county decision has no precedential value and is not binding on any other court, but nonetheless offers legal insight).

In Centanni, the mother argued that the New Jersey Anti-Retroactivity Statute, N.J.S.A. 2A:17-56.23(a) barred the recalculation of child support back to the date of death of one of the parties' two children, but instead any reduction of child support should only be effective from the date the father filed his motion for recalculation, a date several months later.

Citing Mahoney v. Pennell, 285 N.J. Super. 638 (App Div. 1995), the court held that the anti-retroactivity statute does not bar the modification of child support back to the date of an emancipating event.  Judge McGann in his opinion noted that for the mother to keep any overpayment of child support would be inequitable.

"To bar retroactive modification would be to punish financially an obligor who has thoughtfully, and in good faith, allowed an appropriate period of grieving and healing to take place before seeking redress in court.  Consequently, a bar on retroactive modifications would encourage an inopportunely-timed filing while families are still in the midst of coping with the tragedy."

 

Madonna adoption appeal granted but NJ has kids in need of adoption too

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Following on from a previous blog post, it should come as no surprise that Madonna has won her appeal to adopt a young Malawi girl. As the BBC reports, '[t]he southern African state's chief justice, Lovemore Munlo, praised Madonna's interest in helping Malawian orphans and said the child would have a better life with the star."

The media focus on celebrity adoptions ignores the fact that many children living in foster care in the United States do not get adopted, but instead end up "aging out" of foster care and making the transition to adulthood without the support of parents or family. As the Legal Services of NJ web-site points out, many end up "homeless, unemployed and without health care." 

It would be good to see more media publicity about the challenges faced by children in long-term foster care who want to be adopted, but cannot find a prospective parent. There are plenty of children in New Jersey who would equally benefit from the opportunity Madonna has offered two children from Malawi .

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Do you have a constitutional right to parenting time with your children ?

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That is the question that jumped out to me when I read the June 5, 2009 unpublished appellate decision in Cole v. Cole.  In this case, the father of three young children brought a motion for a change of custody following repeated denials of court ordered parenting time, allegations of parental alienation and concern about the welfare of his children living in a home where there was substantial smoking. The trial court judge denied the motion and request for a plenary hearing. 

On appeal, the appellate panel concluded that the father had failed to show sufficient changed circumstances such that a "genuine and substantial issue" regarding custody existed. The opinion went on to say "[i]f indeed, parenting time is being denied, enforcement remedies should be sought." 

What enforcement remedies did the appellate panel have in mind ? Money damages do not compensate for lost parenting time and it is not something that can ever be replaced. The U.S. Supreme Court has stated that being a parent is a fundamental liberty right protected by the U.S. Constitution, so in the case of divorced parents why does a constitutional right to parenting time not follow ?  If you take that line of argument why shouldn't the default standard for parenting time following a divorce be equality i.e. 50/50 unless the situation of the parties or the age of the children dictates otherwise ? 

Child psychologists have shown that children benefit from having two parents in their lives, so in cases where there is a repeated pattern of parenting time being denied to one parent, children are being harmed as a result.  At some point this must raise a "genuine and substantial issue" regarding the health and welfare of the children that justifies a plenary hearing on the issue of custody.   

I hope that at some point the New Jersey Supreme Court will accept a case that addresses this issue. The Court only hears cases that present questions of general public importance.  Whether divorced New Jersey parents have a constitutional right to parenting time and the appropriate remedies for infringement of those rights is a case I would like to see heard.

Don't let your children be casualties of divorce

I read with interest the recent post by Paula Lawhon on her San Francisco mediation blog on how custody litigation damages children. I agree with her comments that:

"Regardless of the status of the intimate relationship between the parents, they will always be parents. While the relationship between the parents changes, it does not change the fact that the children still need both of their parents in their lives. It can be hard to put aside anger and other strong emotions following a difficult separation, but is a task made easier when both parents are committed to putting the best interests of their children first."

Separating child custody and parenting time from resolution of financial issues is something everyone going through a divorce should strive for.  Mediation of child custody and parenting time issues whether done privately with an attorney or through one of the free services provided by the New Jersey Judiciary at each county court house is something that should be considered.  

While it is impossible for children not to be effected by a divorce, they should not become casualties of divorce, as the slideshow below poignantly reminds us:

Casualties Of Divorce

View more presentations from Sam Shamir.

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Judges must tell those convicted of domestic violence contempt about their right to appeal

The New Jersey Judiciary has just issued a directive to judges that requires them to put on the record the fact that they have advised anyone convicted of violating a domestic violence restraining order ("Domestic Violence Contempt") that they have the right to appeal and that this has to be done within 45 days.

The directive also includes a copy of the "Appeal Rights Form" that informs a defendant about their rights.

Violation of a temporary or final domestic violence restraining order is something to be taken seriously. Not only can a conviction lead to six months in prison, but under N.J.S.A 2C:25-30, the court must impose a 30 day sentence for a second conviction.

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See the opportunities in life's setbacks

Steve Jobs in his 2005 Stanford Commencement Address talks about his adoption, love & loss and how he was devastated by being fired from Apple.  He describes how the rejection freed him to create Pixar Animation and ultimately led to the renaissance of Apple when he rejoined the company.

He urges graduates to trust in the future and see the opportunities in life's setbacks - advice that applies to anyone going through a divorce or major life change as you can see in the video below:

 

Each party has the responsibility to provide their own financial information when attorney fees are sought

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The unpublished April 15, 2009 appellate opinion in Bove v. Bove highlights the need to provide the court with financial information when counsel fees are sought in a post-judgment motion. 

N.J.S.A 2A:34-23 requires a court “to consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties and the good or bad faith of either party” when considering whether to award attorney fees.  Chetstone v. Chetsone, 322 N.J. Super. 250, 256 (App. Div. 1999).

In determining the amount of any fee award, New Jersey Court Rule 5:3-5(c) requires the court to consider the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained: (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. An attorney must also file a certification of services. See Rule 4.42-9.

Motions involving issues of custody, support, alimony or equitable distribution automatically require an updated Case Information Statement (CIS) to be filed and so contain the necessary information the court may require to assess financial need and ability to pay.  See Rule 5:5-2.  However, for motions where a CIS is not required, the court has to rely on information in the parties’ certifications.

In Bove, the plaintiff, ex-husband was forced to make a motion to allow him to take his daughter on vacation to Mexico, something the court decided in his favor, finding that his ex-wife had not acted with “honesty in belief and purpose.” He sought counsel fees and noted in his certification that his ex-wife had recently sold an investment property for $202,500 and had the ability to pay out of the profit. In her reply certification the ex-wife did not provide any financial information or refute the claim that she had the ability to pay.

On appeal, the appellate division upheld the motion judge’s award of $5,000 in attorney fees finding that that the “trial court did not abuse its discretion when it ordered defendant to pay” based on “the financial information before it.” The appellate opinion noted that “[t]he trial court cannot be faulted for failing to consider information that a party never provided.” 

Each party has the responsibility of providing their own financial information when counsel fees are sought. 

Brodeur must pay $500,000 a year in alimony until 2020

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I previously wrote a blog post about the divorce of NJ Devils star, Martin Brodeur who in 2007 succeeded on appeal in having a judgment of divorce overturned that required him to pay $500,000 a year in permanent alimony.  The appellate division in Dubois v. Brodeur decided that a seven year marriage was too short for permanent alimony and instead he was ordered to pay limited duration alimony.  The case was remanded back to the Essex county trial court to determine how many years he should pay.

Brodeur sought to tie his alimony obligation to the continuation of his NHL career with an end to payments in 2012.  His ex-wife, Melanie Dubois sought payment until 2024 when the parties' youngest child graduated from college.  The judge decided that payment of $500,000 a year in limited duration alimony should end in 2020 when the youngest child graduated from high school and his ex-wife was no longer a full-time child caretaker.

The parties appealed and in a March 19, 2009 unpublished decision, the appellate division upheld the trial court's decision on the length and amount of limited duration alimony, even though this was longer than any previous reported case in New Jersey.  The appellate opinion noted that "the parties always agreed that plaintiff would serve as the full-time caretaker of the children. In order to do so, she requires financial support and defendant earns sufficient income to effectuate the plan."

On the issue of what happens when Brodeur retires as a hockey player, the appellate opinion commented that "nothing precludes a motion to reduce the amount of alimony once defendant retires and his post-retirement employment and income is known."

This decision breaks new ground as to the possible length of a limited duration alimony award in New Jersey: almost fifteen years from the entry of the judgment of divorce in 2005 to the end of secondary education for the parties' youngest child in 2020.  However, the facts and financial situation in this case are unique, so it is not a decision that is likely to set a precedent for others.

The different types of alimony in New Jersey

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It is beyond the scope of this blog post to go into the merits of alimony, but if you think you may have to pay alimony or should receive alimony as a result of a divorce or dissolution of a civil union, then there are four types of alimony in New Jersey to know about:

Permanent Alimony
This is typically awarded as a result of a long-duration marriage or civil union where one party is economically dependent on the other or has financial need, and the other has an ability to pay support to maintain the level of lifestyle that existed during the marriage or civil union.  Permanent alimony is a misleading title in the sense that it is open to modification by the court e.g. upon retirement, changed circumstances, so there is no guarantee that it will go on forever, only that when it is awarded, there is no time limit set on when it will end. 

In each case where alimony is sought, the court has to review the statutory factors set forth in the New Jersey alimony statute,  N.J.S.A. 2A:34-23(b):

1. The actual need and ability of the parties to pay;
2. The duration of the marriage or civil union;
3. The age, physical and emotional health of the parties;
4. The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;
5. The earning capacities, educational levels, vocational skills, and employability of the parties;
6. The length of absence from the job market of the party seeking maintenance;
7. The parental responsibilities for the children;
8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
9. The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
10. The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
11. The income available to either party through investment of any assets held by that party;
12. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
13. Any other factors which the court may deem relevant.

Rehabilitative Alimony
This is alimony that is typically paid for a short-term to enable a party to obtain economic self-sufficiency as a result of undertaking a training program, finishing education or obtaining necessary work experience.  Rehabilitative alimony is paid for a specific purpose and is not about maintaining the marital lifestyle.  An example of when this might be paid is where one party postponed their education to raise a family or support the other and now requires support to obtain education that will lead to gainful employment. Alimony payments cease when the dependent party has attained the ability to support him/herself.  However, it is possible to have an award of both rehabilitative and permanent alimony e.g. where a party may still have low-earning potential even after a period of rehabilitation and the length of the marriage/civil union, lifestyle and ability to pay supports this.

Limited Duration Alimony
Recognizing that an award of permanent alimony might not be appropriate for short-term marriages, the New Jersey Legislature in 1999 amended the alimony statute to allow the award of limited duration alimony i.e. payment for a defined number of years.  Courts may award limited duration alimony rather than permanent alimony to younger spouses who have good employment prospects and the ability to return to the workforce.  However, if all the statutory factors in N.J.S.A. 2A:34-23(b)(1) – (13) are equal, then the difference between whether permanent or limited duration is awarded comes down to the length of the marriage/civil union. Although it is rare, a court can award permanent alimony for a short-term or a mid-duration marriage/civil union, if appropriate.

Reimbursement Alimony
This is awarded where there is a need for one party to pay back support for advanced education that was made in the expectation that it would generate economic benefits later in the marriage/civil union.  An example of this is where one party supports the other while they undertake a professional degree program (law, medicine) and shortly afterwards the parties’ divorce or dissolve their civil union.  In this situation, an award of reimbursement alimony would compensate the party who helped the other to go through medical school for the fact that they would no longer gain the enhanced standard of living later in the relationship that they might have expected in return for their investment.  Reimbursement alimony ends when its purpose is served i.e. when the amount specified has been paid.  It is also possible for the court to award reimbursement alimony with other forms of alimony.

The concept of alimony is one that continues to evolve and reflects changes in society.  We now live in a world where it is common for both parties to work even while bringing up children.  As the baby boomer generation retires, there are likely to be issues raised concerning the termination and/or reduction of permanent alimony awards.  In the meantime, for those contemplating divorce or a civil union dissolution in New Jersey, each case concerning alimony has to be reviewed on the unique facts and situation it presents; an experienced attorney will be able to advise you on this.

Tailgating is harassment under New Jersey Domestic Violence Law

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In the recent unpublished opinion in Fisher v. Libro, the appellate division upheld the entry of a Final Restraining Order (FRO) against the ex-husband for tailgating his former wife on several occasions.   The trial judge found that this constituted harassment under the New Jersey Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to –35.

Harassment occurs when someone:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

N.J.S.A. 2C:33-4.  For there to be harassment constituting domestic violence there must be a "purpose to harass" by "'a course of alarming conduct' or repeated acts intended to alarm or seriously annoy another." Corrente v. Corrente, 281 N.J. Super 243, 249 (App. Div. 1995) (quoting Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)).

In Fisher, the trial judge found that the repeated tailgating was done with “an explicit purpose to alarm or annoy.”  The appellate division affirmed the entry of a Final Restraining Order.

Can I get a different Judge ?

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The answer is that it is extremely difficult but not impossible and as with many issues in New Jersey family law, depends on the unique facts of each case.  However, without an objectively reasonable belief that a judge cannot be fair or impartial, it is unlikely.

To obtain a different judge, a motion must first be made to the judge you want to disqualify, who then hears the motion and decides whether to transfer the case to a new judge.  A motion to disqualify is "entrusted to the 'sound discretion' of the trial judge whose recusal is sought."  Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)).

New Jersey Court Rule: 1:12-1 describes when a judge should decide not to hear a case and transfer the matter to a different judge, these include when he/she:

(a) is by blood or marriage the second cousin of or is more closely related to any party to the action;

(b) is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits;

(c) has been attorney of record or counsel in the action; or

(d) has given an opinion upon a matter in question in the action; or

(e) is interested in the event of the action; or

(f) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.

An example of giving an opinion might be where the judge has addressed a public event or given an interview and shown they already have an opinion on an issue e.g. gay rights -  it does not refer to a previous judicial opinion or order on a matter.

Indeed, if a judge has previously ruled against you, there is no right to have a different judge in the hope they might see things differently. "An adverse ruling in prior proceedings does not warrant disqualification."  State v. Marshall, 148 N.J. 89, 276, cert. denied, 522 U.S. 850 (1997). In the absence of evidence that the trial judge's continuance might preclude a fair and unbiased hearing or judgment, recusal would be improper. Clawans v. Schakat, 49 N.J. Super. 415, 420 (App. Div.), certif. denied, 27 N.J. 156 (1958).

An example of when a judge should have recused themselves under R. 1:12-1 is, however, described in the recent published appellate opinion in Chandok v. Chandok.

In Chandok, the defendant made a motion the day before a divorce trial was due to start for the judge to recuse himself based on the prior adverse relationship between the judge and defendant’s attorney.  This included allegations made in 1997 of deceit, assault and unethical behavior while the two were law partners.  The judge decided not to recuse himself and proceeded with the trial.  On appeal, the appellate division disagreed and reversed the trial judgment, remanding the case back for a new trial before a different judge.

It was not necessary for the defendant in Chandok to show that the judge had shown actual bias to her during the trial, only to establish an appearance of impropriety or an objectively reasonable belief that the proceedings could have been unfair.   The appellate opinion held that the prior “acrimonious relationship” between defendant’s attorney and the judge “gave rise to more than a reasonable belief by an objectively reasonable litigant that the judge could not be fair and impartial.”

In conclusion, an objectively reasonable belief that a judge cannot be fair or impartial is required before you can get a different judge.

Children do lie and make up stories

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Reading my twitter stream today, @njfamilymag sent the following tweet with a catchy title: “Daddy puts on your bra sometimes," says a 4-year-old. Know the types of lies/untruths kids tell at each stage, and why. 

The article by Juliette Gilbert in New Jersey Family Magazine describes how toddlers tell fibs, preschoolers tell tall tales, schoolkids tell white lies and tweens stretch the truth. 

It highlights the care that needs to be taken in family law practice when children are interviewed e.g. in a custody or removal case. 

If you think your attorney has overcharged you for a family law matter, try fee arbitration

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Many States provide an easy way for the public to dispute the cost of legal services they have been charged.  In New Jersey, the Supreme Court had created seventeen district fee arbitration committees who hear cases where the amount of fees charged is less than $100,000.  As described in New Jersey Court Rule 1:20A in cases involving less than $3000 in fees, one arbitrator will make a decision and over this amount three people will be involved of which two or three will be lawyers.  Further information can be found on the New Jersey Judiciary web-site or by calling the Ethics/Fee Arbitration hotline at 1-800-406-8594.

At the arbitration hearing, documents can be presented, sworn testimony taken and you can even ask them to subpoena witnesses to attend, if appropriate.  The decision of the arbitrators is binding on both parties, but this doesn’t prevent a legal claim for malpractice or the filing of an ethics complaint.   So what are the advantages of fee arbitration:

1. Low cost to the claimant - $50 filing fee
2. If the lawyer does not respond or appear at the hearing, the case will be considered as uncontested
3. Burden of proof is on the attorney to show that the amount they charged for legal services is “reasonable”

In all family law matters, an attorney is required by New Jersey Court Rule 5:3-5 to have a written retainer agreement with the client.  However, even though you have agreed to pay a certain hourly rate or fee for a matter, the amount the attorney charges you for his/her services must be “reasonable” under the New Jersey Rules of Professional Conduct (R.P.C.) that all attorneys are obligated to follow.  

The factors that make a fee “reasonable” are set forth in R.P.C. 1.5 and include:

1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services;
8. whether the fee is fixed or contingent.

One of the classic cases, not from New Jersey, that law school ethics classes use to discuss this area is the case of the DUI where an experienced attorney who did not normally do DUI work took on a case and charged several times the going rate to represent a client, and through a novel legal idea managed to get them acquitted.  Even though the results obtained were spectacular, the attorney was found to have committed an ethical violation in not charging a reasonable fee.

So, if the Fee Arbitration Committee finds in your favor, it is possible that the attorney in question may have violated the Rules of Professional Conduct.  As set forth in New Jersey Court Rule 1:20A-4: “[I]n all cases it shall be the duty of each Fee Committee, after hearing and determination of the fee, to refer any matter that it concludes may involve ethical misconduct that raises a substantial question as to the attorney's honesty, trustworthiness or fitness as a lawyer in other respects (including overreaching) to the Director [of the Office of Attorney Ethics] for investigation.”

Fee Arbitration hearings and the decisions of the committee are confidential, so it is hard to know what type of cases or fact patterns are successful.  This is something that is being challenged by organizations such as HALT, who believe that this enforced confidentiality is a violation of freedom of speech. 

If you have a reasonable belief that your attorney has been unreasonable in the fees charged, then fee arbitration is an alternative dispute resolution mechanism that is worth considering as it allows the dispute with your attorney to be resolved in a timely manner and at low cost to both parties.

Why do bridge partners divorce ?

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For the past year I have been taking bridge lessons at the Essex Bridge Center, and have wondered why bridge players end up dissolving partnerships in order to play with someone else ?

Bridge is a challenging card game that requires desire, discipline and determination for success.  In that respect, it is perhaps no different from marriage.  From my limited observations, the reasons for bridge partner "divorce" mirror those of real life:

Infidelity: preferring to play with another person, rather than your regular partner

Incompatibility: growing apart as a result of a different level of ability, desire to learn or passion for the game over time

Other commitments: pressures of work or family that result in bridge no longer being a priority.

I am sure there are other perfectly valid reasons, but those are the ones that come to mind. 

My conclusion is that bridge partnerships are no different from any other relationship, they require effort to maintain and a desire and willingness to make it work.  Who said life or playing bridge was easy ?

Pet support and visitation post divorce - not anytime soon in New Jersey

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As reported on the New Jersey Divorce Lawyer Blog, the recent published appellate decision in Houseman v. Dare has opened up the doors of family courts in New Jersey to decide disputes about who gets the family pet in a divorce or separation.  No longer will owners of pets be forced to pay for private arbitration to decide this matter. Instead, New Jersey family court judges can now add deciding pet ownership to the long list of duties they perform.

The appellate opinion by Judge Grall in Houseman, likened a pet to a family heirloom, where money cannot replace the sentimental value attached to it:

“There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet based on one party's sincere affection for and attachment to it than in resolving competing claims based on one party's sincere sentiment for an inanimate object based upon a relationship with the donor.”

The opinion goes on to say:

“In those fortunately rare cases when a separating couple is unable to agree about who will keep jointly held property with special subjective value (either because an agreement is in dispute or there is none) and the trial court deems division by forced sale an inappropriate or inadequate remedy given the nature of the property, our courts are equipped to determine whether the assertion of a special interest in possession is sincere.”

In practice, does this mean that New Jersey courts will end up with pet custody hearings, awarding pet support or setting pet visitation in cases where the parties want to keep seeing a pet post-divorce ?  That is unlikely. 

The New Jersey appellate division in Houseman, rejected the adoption of a "best interests of the pet" standard to determine who gets the pet, instead continuing to see pets as property, without any legal rights.  So the prospect of pet custody evaluations, the payment of pet support or an award of post-divorce pet visitation is not likely to happen anytime soon in New Jersey. 

The adoption by Madonna of a Malawi girl should be admired not criticized

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There has been a lot of press condemnation this week of Madonna wanting to adopt a four year old baby girl in Malawi to join her adopted Malawian son, David. 

Yet, thousands of Americans each year go to poorer, underdeveloped countries such as Guatemala, Russia, Vietnam and China to offer children not only love, but the opportunity of an education and a better way of life in the United States.  Why are Madonna's actions any different ?

The critics say that as a celebrity all she wants is a trophy, when in reality what she has done is highlight the poverty of Malawi and the need for others to follow-suit and adopt more children from Africa.

Anyone who wants to adopt a child and has the love and resources to offer should be encouraged not criticized. We should admire Madonna for her actions in wanting to adopt another child from Malawi.

Do New Jersey family lawyers offer value for money ?

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Billable rates for New Jersey family lawyers seem to have been rising like house prices over the past few years, so does paying on average $300-$450 an hour for an experienced lawyer offer value for money ? 

Sam Hasler on his Indiana Divorce & Family Law Blog reports on the Toronto lawyer who gave up her job as a family lawyer, "when $450 an hour isn't worth it", as a result of the stresses involved. It is certainly not a job for everyone.

Yet for all the high billable rates and arguments that lawyers fuel the litigation fires while the parties have money, then want to settle when it runs out, most NJ family lawyers have accounts receivable. One attorney I know, a solo practitioner, wrote off a $1M in unpaid legal fees a few years ago. He said it was costing him more in stamps to send out bills than it was in the amount he was collecting.

I think there is more that attorneys could do to make access to family law expertise and divorces more affordable e.g. by charging a fixed price for services in the same way a dentist or doctor might do.  Do NJ family lawyers offer value for money ?

The Art of Persuasion

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Preparing persuasive motion papers is an art and not something that any lawyer learns at law school. 

However, in thinking about persuasion, three thoughts are worth bearing in mind irrespective of whether you are writing the motion yourself, pro-se or having a lawyer prepare motion papers for you.  When you look at the finished product ask three questions?

1.  Does it tell a story ? 
2.  Is it compelling ?
3.  Is the relief sought fair and reasonable ?

If you can answer "yes" to the above questions then you may have a persuasive motion. 

A motion has to tell the story of what has happened to bring it to life. This has to be done in a way that avoids excess emotion, but comes across as the "voice" of the client, not the attorney.  A client should be able to read a certification a lawyer has drafted and say "that is exactly how I feel".

All stories have a beginning, middle and end.  As an example: we divorced, I lost my job and circumstances have changed, so now I need to lower my child support. The outline story needs to be expanded to describe fully what has happened. Why did the person loose their job ? What have they done to find a new job ? What is their current financial situation ? Is it temporary or permanent ?  In telling the story, you need to anticipate what information the court will want to know in order to fully understand and decide the case.

A compelling motion is one that leaves the reader at the end thinking the issue should be decided the way you want it to be.  The way to do this is to present issues in a logical format and provide supporting documentation as exhibits.  As an example: our settlement agreement states that I should receive X,  the other party did Y, now I need Z in order to compensate me.  If the facts are in your favor, make it easy for the court to grant the relief you want.

Judges have to read two different versions of the same story, so if one party is fair and reasonable in the position taken and the other not, there is more chance that the motion papers from the fair and reasonable party will be persuasive.  As an example: I normally see my kids every other weekend, but I missed my weekend of parenting time due to unavoidable business travel, and now my ex refuses me make up time, so I would like the court to order this.  Fair and reasonable position ?

Writing persuasive motions is an art, but if you send papers to the court that tell a story, are compelling and seek a fair and reasonable outcome, you have a better chance the court will decide in your favor.

Divorce lawyer advertising

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I recently saw a web-site for a NJ lawyer that advertised how the firm had recently won a $6M divorce settlement for a client.  To me such a statement sends the wrong message. Firstly, it misleads potential clients into thinking they can "win" $6M. 

However, a divorce is not like a personal injury law suit where you can "win" anything.  All you can do is obtain is a fair share of the marital assets, something which you are entitled to by law as a matter of right, not anything that you "win".  If there is not $6M worth of assets, you cannot "win" them from nowhere.

Secondly, there are no winners in a divorce. Whatever money is obtained by way of a financial settlement does not replace the lost hopes and dreams upon which a marriage was founded.

Thinking of divorce in terms of winners and losers is the wrong approach for New Jersey family lawyers to follow.

Craigslist ad: ex-husband offers $10K for someone to marry ex-wife & terminate alimony

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Thanks to the Mississipi family law blog for a post about a man who put an ad on Craigslist offering a reward to anyone who would marry his ex and terminate his alimony obligation.

The ad read: "Nice well taken care of ex-wife. Mid 40's. Pretty and loyal. Never smoked and very little drinking. Will make someone a good companion (I know).... Will pay 10K to the man or woman who marries her in a way that stops me from having to pay her alimony."

The advertisement also apparently attached certain conditions:

• 1. This transaction offer only valid if she is not aware of it.


• 2. Must treat her good, no abuse tolerated by me.


• 3. This offer is null and void if it is determined to be illegal in any way -- I am not a lawyer.


• 4. The end result must be that I am no longer liable to her for alimony and you make best effort to be good to her.


• 5. This ad is not in any way intended to demean my ex-wife. She is a nice person and is a fine catch for anyone.

I am not sure that a New Jersey judge would be amused by this approach, so if you are looking to terminate your alimony obligation, advertising on craigslist is not recommended !

NJ Legislature misses the point when it comes to palimony

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As previously commented by this blog, the New Jersey Senate, yesterday approved a bill S-2091 that will require palimony agreements to be in writing to be enforceable.   While such a rational works for pre-nuptial agreements, where parties are required to disclose their assets and have the opportunity to engage lawyers, the legislature misses the point when it comes to palimony, which by its nature has always been about the enforceablility of an oral promise of support.

As reported in today's New Jersey Law Journal daily briefing,"[t]he leading opponents, Sen. Nia Gill, D-Essex, and Sen. Loretta Weinberg, D-Bergen, said the measure would be unfair to older women who stay in non-marital relationships for long periods of time with the understanding that they will be taken care of financially once the relationships end."

Although the case law in New Jersey has evolved to make palimony more attainable, as evidenced by the NJ Supreme Court decision in Devaney v. L'Esperance, which held that cohabitation was no longer a prerequisite for a palimony claim, there is no evidence that the number of palimony cases has increased to the point where the legislature needs to pre-empt the equitable powers of the New Jersey family courts to decide each case on its merits.

Cohabitation with cellmate led to termination of alimony

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In a bizarre case from Florida, the 4th District Court of Appeal, Florida’s equivalent of the New Jersey Appellate Division, in a December 2008 decision in Craissati v Craissati decided to terminate alimony based on the ex-wife living in a jail cell with another person for more than three months.  The court held that this met the definition of cohabitation in the parties’ divorce agreement under which alimony could be terminated.

Perhaps only in Florida could the court interpret the term “living with another person” to mean sharing a cell with another inmate.  Under the flawed legal analysis of this opinion, merely sharing a room in a hospital would constitute cohabitation that would justify termination of alimony.  Sharing a jail cell is just an unfortunate consequence of being incarcerated.

Would such a result happen in New Jersey ? 

The answer is "no".  In Konzelman v. Konzelman, 158 N.J. 185 (1999), the New Jersey Supreme Court upheld an agreement to terminate alimony based on cohabitation alone without regard to economic consequences.  The court clarified what constitutes cohabitation:

“The ordinary understanding of cohabitation is based on those factors that make the relationship close and enduring and requires more than a common residence, although that is an important factor. Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include, but are not limited to, living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle.”  Id. at 202.

Looking at this definition, it is clear that a “common residence” in a jail cell with another person would not meet the New Jersey definition of cohabitation.  

Additionally, New Jersey courts would most likely consider a definition of cohabitation that just said, “living with another person for three months” as too broad and against public policy.  So, even if parties agreed to such a wording in their settlement agreement, as occurred in the Craissati case, then it is unlikely it would be enforced literally in the way the Florida District Court of Appeals did. 

Obama stimulus plan will help divorcing couples with distressed property

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As reported today on the Point of Law web-site, the Obama stimulus plan will allow bankruptcy judges to reduce the principal amount of mortgages to the value of a home, forcing the lender to absorb the loss. Up till now bankruptcy judges have not been able to modify mortgage contracts on primary residences and cram down or reduce the principal amount owed.

An article in the Wall Street Journal discusses the potential for abuse with mortgage cram downs and why this may not be a good idea.

However, for those thinking about divorce who have a mortgage that exceeds their home's value, the ability of bankruptcy judges to cram down home mortgages may make filing for bankruptcy an attractive option prior to divorce. Also, such a measure may unblock divorces that are stalled as a result of excessive home debt.

Beware of child abduction to Brazil

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Brazil and the United States are both signatories to the Hague Convention on the Civil Aspects of Child Abduction, that was set up to facilitate the prompt return of abducted children back to their country of habitual residence.

However, Brazil's compliance with its Hague obligations is open for question, as Richard Diamond in the New Jersey Divorce Law blog points out in connection with the return of Sean Goldman, a boy who was abducted over four years ago from New Jersey by his now-deceased Brazilian mother.  In this case, the father David Goldman filed an application under the Hague Convention in November, 2004 after his wife phoned him to say that she was not returning from Brazil. By the time the Hague Convention case was heard by the court, Sean had been in Brazil for more than a year. 

The Hague Convention does contain exceptions where a child may not be returned e.g. where to do so would present a grave risk or the child is of an age to make their own mind up.  In the case of Sean Goldman, the Brazilian court used an exception in Article 12 of the Hague Convention and did not order Sean's return based on the fact that he was now settled in his new environment, a decision upheld on appeal.   The problem with this legal argument is by delaying the hearing of Hague convention cases, Brazil creates a self-fulfilling situation i.e. it will be impossible for anyone to have their child returned, and parental abduction is rewarded.  An unfair and unjust result and not one within the spirit or intent of the Hague Convention. As an example, courts in the United States are expected to hear a Hague Convention case on an emergent basis and hold a hearing within six weeks.

Jeremy Morley, on his International Family Law blog also questions Brazil's compliance with the Hague Convention in the case of Francois Larivee, who for four years has been battling for the return of his son to Canada.  In fact the U.S. State Department in a 2008 report, labels Brazil as "non-compliant" with its obligations under the Hague Convention.   The report notes that Brazilian courts have treated Convention cases as custody decisions rather than wrongful removal or abduction cases and have refused the return of children to the United States, citing the "best interests of the child." The report also notes that Brazilian courts show bias towards mothers and Brazilian citizens.

So, if you are married to a Brazilian or have children with someone who has ties to Brazil then beware ! You may not be able to obtain the return of your children to the United States if they are taken there.

Top New Jersey Family Law Cases

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It is always a pleasure to find other blogs that provide insightful commentary on New Jersey law and one of these is the blog of Donald Vanarelli.  In a recent post, he reviews the top ten family law cases of 2008 that were discussed on January 31st at the annual family law symposium run by the New Jersey Institute for Continuing Legal Education (ICLE).

I'm just going to mention the top 5 decisions of 2008 which were:

1. Clark. v. Pomponio, 397 N.J. Super. 630 (App. Div.), certif. denied, 195 N.J. 420 (2008)(bankruptcy proceedings temporarily put a stop to any divorce and the court cannot go ahead with a default judgment of divorce and equitable distribution)
2. Devaney v. L’Esperance, 195 N.J. Super. 247 (2008) (cohabitation is no longer an essential requirement for a palimony claim). As reported in a previous post on this blog, this case has prompted the New Jersey legislature to introduce a bill requiring any palimony agreements to be in writing to be enforceable.
3. Connell v. Diehl, 397 N.J. Super. 477 (App. Div.), certif. denied, 195 N.J. 518 (2008) (in a palimony case, the life expectancy of the recipient should have been used in calculating the award amount, not the life expectancy of the payor)
4. Brundage v. Estate of Carambio, 195 N.J. 575 (2008) (a party should not have their settlement agreement overturned as a result of the unethical conduct of their attorney as this penalizes the client and not the attorney.
5. Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div.), certif. denied, 196 N.J. 595 (2008) (an arbritator cannot make a child custody determination, this can only be done by a Superior Court Judge, as to do otherwise offends the court’s parens patriae obligation to protect the best interests of children).

In addition to the legal take home of each case, what they collectively highlight is that New Jersey law is constantly changing and being refined, and that any legal writing whether published in a blog, book or magazine article may be out of date and should not be relied upon for accuracy.

Don’t delay a QDRO or change in pension beneficiary after a divorce, ex-wife gains $400K as a result

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In a case of national significance, the United States Supreme Court recently decided in Kennedy v.  Plan Administrator for DuPont Savings and Investment Plan, 555 U.S.___(2009), that if a person divorces and agrees in their settlement agreement to waive their interest in the others pension, the signed agreement will not be binding on the trustees of the pension.  This case highlights the need, as previously commented on this blog, for the timely filing of Qualified Domestic Relations Orders (QDRO) and/or changes in beneficiary with pension schemes at time of a divorce. 

In Kennedy, as part of their divorce settlement, the wife agreed to waive her interest in her husband’s company pension scheme with DuPont. This waiver was memorialized in a signed settlement agreement. He subsequently died without changing the beneficiary on the plan from his ex-wife, and the company paid out the $400,000 in pension benefits to her rather than to his Estate. The district court agreed with his daughter that the husband’s estate was entitled to the pension benefits as a result of the Wife’s waiver of any pension benefits in their divorce agreement.  However the Fifth Circuit Court of Appeals disagreed finding that the anti-alienation provision in the Employee Retirement Income Security Act (ERISA) prevented this in the absence of a valid qualified domestic relations order (QDRO) or properly executed change in beneficiary by the husband.

The Supreme Court granted certiorari (leave to appeal) to decide whether a divorced spouse can waive pension plan benefits through a non-QDRO divorce agreement.  In Kennedy, the Supreme Court upheld the Fifth Circuit’s decision that the daughter was not entitled to receive the $400,000 in pension benefits from her father’s estate. However, the Supreme Court disagreed with the reasoning of the Fifth Circuit holding that a QDRO was not the only method for one party to waive their interests in the others’ pension, nor was one specifically required.  Instead both parties were required to follow the procedures set forth by the pension plan administrators to change a beneficiary or waive a pension interest.  This did not take place in the Kennedy case.

The take home from this case is that after a divorce parties need to promptly ensure that any waiver or transfer of pension benefits takes place in a way that complies with the plan administrators.  Too often after a divorce, pension transfers slip through the cracks or are not followed-up.  The risk, as highlighted by this case, is that failure to do so could leave a party with more or less pension benefits than were agreed at time of settlement and family lawyers should counsel their clients accordingly.

Court changes custody of children after decade of parental alienation

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In a decision that will give hope to fathers rights groups that some Judges are prepared to tackle parental alienation head on, the Ohio Family Law Blog in a recent blog post reports on an Ontario case where this took place. 

Parental alienation is not in the best interests of children.  As reported in the post by Robert Mues, the court in the Canadian case heard expert testimony that:

"long-term research by Amy Baker on adults who were alienated from a parent as a child suffered depression in 70% of the individuals studied. Two-thirds of the same population became divorced themselves – a quarter of that group more than once. The adults talked to researchers about interpersonal problems, dysfunctional managing of their lives, and difficulties trusting other people. One-third were reported to have substance abuse problems. Fifty percent of this group in this study became alienated from their own children."

I agree with the Ohio Family Law blog's conclusion that "[c]ourts are unlikely to take the drastic step Judge McWatt ordered absent overwhelming evidence of a long-standing pattern of parental alienation and powerful testimony from an expert witness on parental alienation."   Even though not a New Jersey case, such decisions from outside New Jersey generate recognition and awareness of the problem of parental alienation and can be used to show New Jersey judges how other judges have tackled the issue, in the hope they will do likewise.