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This week the media was abuzz with news of the demise of another celebrity marriage, this time with the separation of professional basketball player, Carmelo Anthony, from his wife Lala

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Weddings rings and large bills of money

Anthony. The Anthony’s have been married since 2010 and have a 10 year-old son. Their potential divorce raises questions about what would happen with their assets and who would get custody of their son in their divorce, were such a case to arise in New Jersey. Unlike Angeline Jolie and Brad Pitt, about whom I blogged in “Fight Club: What You Can Learn From Angelina Jolie’s and Brad Pitt’s Long Term Relationship With Short Marriage”, it is reported that the Anthony’s have a prenuptial agreement in place. So if enforced, distribution of marital assets may not be an issue. However, the prenuptial agreement would not resolve issues of custody of and child support for their 10 year-old son.

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image1-232x300On Friday, billions of people around the world observed the Christian Holy Day of Good Friday. It marks the day that the Trial of Jesus of Nazareth occurred and when he was sentenced to death for failing to deny that he believed himself to be the Son of God. Christians believe that Jesus willingly suffered and died by crucifixion as the ultimate sacrifice for the sins of humanity (1 John 1:10). Easter Sunday celebrates Jesus rising from the dead, an event which is referred to as the Resurrection. Set in the springtime every year and often close to the Jewish Holy Day of Passover, Easter symbolizes a time of rebirth and renewal. Holy Thursday, which occurred yesterday, marks the event of the Last Supper of Jesus and his Apostles, during which the group were celebrating a Passover Seder when Jesus informed the group that he would be betrayed by his followers. Jesus is betrayed by one of his most trusted Apostles, Judas Iscariot, and handed over to the authorities while Jesus is praying in the Garden Gethsemane with the other Apostles.  The Bible tells us that although Jesus is betrayed, he does not seek vengeance. He accepts his fate. The trial of Jesus and the events leading up to him being nailed to the cross, depict Jesus being mocked, ridiculed and physically beaten as he is marched through the street.  He is given a crown of thorns and the onlookers are told to hail the “King of the Jews.” Jesus accepts his fate and did not defend himself during his trial, sentencing and execution.

By now you’re probably wondering what all this has to with family law? Well, too often people being abused in domestic relationships accept their current state of affairs as being their cross to bear.  People speak of feeling like they’ve been nailed to the cross. Your partner may have been unfaithful. Your partner may be abusing you or your children. It important for those being abused to know that they don’t have to accept this fate.  One can break out of the cycle of abuse. As late great troubadour David Bowie sang: “You’re not alone.”  Mental health professionals, domestic violence support groups and family lawyers are on the front line helping people to break out of the seemingly unending cycle of abuse. One of the tools at the court’s immediate disposal is for a victim of abuse to bring a Domestic Violence Complaint against the abuser and obtain the immediate issuance of a Temporary Restraining Order.

In the event Temporary Restraining Order is granted by the court, a trial date will be set no later than 10 days from the issuance of the order for protection to determine whether to grant a Final Retraining Order pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. At the conclusion of the hearing, the court must first determine whether the plaintiff has proven by a preponderance of the evidence that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a). Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). N.J.S.A. 2C:25-19(a) states specifically:image2-150x1501

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On March 14, 2017, the Appellate Division issued a published opinion in the matter of R.G. v. R.G. (A-0945-15T3)  in which the Appellate Division addressed the applicability of New Jersey’s file0001931487912-290x300Prevention of Domestic Violence Act to protect a man seeking a domestic violence retraining order against his brother.

The men in this case had a dispute over the appropriate care to provide for their elderly parents.   Defendant had been living in New York for the past 36 years, leaving most of the responsibility for the care for their parents to Plaintiff.  Plaintiff was named attorney-in-fact to handle his parents’ financial affairs, and he was authorized to make decisions as to his parents’ care and treatment.   After their mother became ill in 2015, Plaintiff placed her in a nursing home, away from her home and her husband.  Defendant, however, objected to this decision, wanting his parents to be cared for together at home or for their parents to both be placed in a facility together. He complained that their mother was left in a wheelchair, and not encouraged to be more mobile, and that their father was not told that his wife was never returning home.  He accused Plaintiff of ignoring his calls and of trying to keep him from their father.  Defendant looked in to alternate arrangements for their parents, but Plaintiff was not receptive, telling Defendant that the decision had been made and their mother permanently placed.

Defendant expressed strong disgust over a series of text messages and emails.  He told Plaintiff of his hope that Plaintiff suffered in old age.  Defendant sent messages and emails that were “crude, defensive, and angry”, and used language described as “coarse, bitter language and name calling”.   Plaintiff was called names such as “pompous a**hole” and “a**wipe”.   Defendant wrote: “What do you think that I am not going to take care of him [their father] while he’s with me. Your email sounds like you are lecturing me and telling me how to take care of him. You righteous prick. You and your wife always seem to have a better life chip on your shoulders and that your sh** didn’t stink. Your sh** smells like mine, you a**hole. You are the last one who should be lecturing, you drunk bastard.  Stop the bullsh** . . . “.    Defendant also wrote: “I will tear our family apart. . . . I will break you financially, morally, physically and mentally”.  He wrote “I love to harass you since you cannot speak like a man, stand up to your brother and discuss this. It’ll get worse and worse”.  He wrote” I will come down there real soon”.  He wrote “I feel like coming to you and slapping you silly”.

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I recently attended a seminar where the topic concerned the obtaining, analysis and use of medical records. While the main focus was how medical records were dealt with in civil litigation matters such as medical malpractice and personal injury cases, it was clear that a number of the issues discussed could apply to Family Court matters as well. A spouse may allege that they are unable to work, or may be limited in what type of work they can do, as a result of some sort of medical or psychological condition or disability, thereby impacting a claim for spousal and/or child support. A spouse may allege that they suffered physical and/or emotional injury as a result of an act or course of abuse by the other spouse leading to a claim for damages in an action for domestic tort. A parent’s mental state and any prior treatment with respect thereto may arise in the context of a dispute over custody and parenting time, including as may impact concerns over that parent’s fitness and/or the child’s welfare. These are just some examples of where the procurement, analysis and use of medical or healthcare records may arise in divorce matters. However, it should be noted that the right to obtain a party’s medical and/or mental healthcare records in family law matters is not absolute, as they are generally protected from disclosure by various legal privileges.medical-heart-and-stethoscope-cardiology-and-medicine-icons-300x179 The New Jersey Supreme Court in Kinsella v. Kinsella, 150 N.J. 276 (1997) addressed this matter and established standards for how and when such records may be discoverable and used, including the extent to which a privilege may be waived where a party’s physical and/or mental condition has been placed “in issue”, and balancing tests to be applied in determining whether a privilege should be pierced or not, even in child custody matters. However, the focus of this blog post is not to discuss the Kinsella standards themselves, or whether such medical or healthcare records may be discoverable or not, but rather nature and scope of the “records” themselves given current technology and seismic changes in the law governing same.

When you mention medical records, most people think of notes written by a doctor or nurse in a “chart” reflecting the reasons for the visit or admission, complaints and symptoms, results of any physical exam or test, diagnosis, treatment, and prognosis. If a hospitalization was involved, such records would usually include admission summaries, progress and treatment notes, consultation reports, diagnostic and lab results, and discharge summaries. Whether handwritten or typewritten, these were the types of “paper” charts most healthcare providers maintained and which were generally provided in response to a request for such records. However, as a result of recently enacted federal law, the way healthcare providers are to keep and maintain patient records has dramatically changed. Paper is out. Unless you are a provider that accepts no governmental or private insurance or is willing to risk substantial penalties, as of the year 2015 health records are now required to be electronically and digitally maintained, not just by individual providers, but as part of a shared network of electronic patient records (EPR). The Health Information Technology for Economic and Clinical Health (HITECH) Act was enacted as part of the American Recovery and Reinvestment Act of 2009 along with the Affordable Care Act (Obamacare) with the goals of not only having a shared, accessible record of a patient’s electronically stored health information, but to presumably make a patient’s care more efficient and cost effective. Security and privacy concerns aside, healthcare providers were required to secure and implement this new technology within a given time frame or face stiff penalties. During recent doctor or hospital visits, more likely than not you observed the doctor or nurse with a laptop or tablet, rather than a pad and pen. A patient’s healthcare information is being electronically recorded utilizing one of the approved software applications, input in various forms and formats and entered into a portal which would be accessible by other healthcare providers or others as may be authorized under the law. That being said, how does this affect the obtaining of healthcare records for discovery purposes?

When you send out an authorization and release for healthcare records, you will likely receive in response a “printed” copy of those records. However, what’s printed out would likely be a fraction of patient’s complete electronic health record (EHR) or electronic medical record (EMR) with the provider. Hence, rather than simply requesting a provider’s medical records or chart, a request for medical records should be made for the patient’s complete EHR or EMR, in whatever form or format it is entered and maintained, including in its original digital or electronic format. While medical doctors and hospitals will likely maintain these records electronically, psychologists or other mental healthcare providers may still maintain “paper” records so any request should encompass this possibility. If the providers respond that providing such records in electronic format is a problem, consider making a request that they be made accessible to you for review at the provider’s office itself. One other note of caution. Several months back I wrote a blog post summarizing recent Rule amendments dealing with the discovery of electronic information and documents, including “metadata” related thereto. Metadata is a generic term for embedded information in electronic documents reflecting its entire history, including its author, the date and time same was created or revised, any revisions and comments, among other information. An EHR or EMR in its electronic format would likely contain such metadata, which may be discoverable as well, subject to the provisions of R. 4:10-2 and R. 4:18-1. I submit that the complexities and practical impacts created by this shift from paper to electronic and digital healthcare records, not envisioned twenty years ago, may well necessitate that certain aspects of Kinsella being revisited, including the scope of what may be discoverable, and how it is accessed and reviewed to determine whether or what should be, among other considerations.

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There are some points where federal law intersects with or affects the economic consequences of pending or finalized divorces. Recently one of those point of intersection was the topic Job-Application-SSN-300x225of conversation of a prospective client. Her concern I am sure are shared by many. The question dealt with Social Security and how one computes the 10 year requirement for derivative benefits.

Social Security Ten Year Rule:

Under Sec. 202 [42 U. S. C. sec. 402] The spouse and every divorced spouse (who has been married for 10 or more years) of an individual who is entitled to old age benefits is entitled to share in those based on certain criteria.

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Going through a divorce can be time consuming, expensive, and emotionally draining, among many other things. For this reason and more, many people try to rush the process and enter into an file0001849487704-300x225ill advised settlement agreement  on their own in order to obtain a quick divorce and move on with their lives sooner rather than later.  Conversely, other people prefer to stick their heads in the sand and do nothing when their spouse files a divorce complaint, which can lead to the entry of a default judgment of divorce by the court that is contrary to their best interest.  While taking either of these actions may work for some individuals, if such actions result in an unfavorable outcome, it can be costly and possibly difficult to correct, if they can be corrected at all.

Generally, Rule 4:50, which applies when a litigant is seeking relief from a judgment, states the following:

“On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons:

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The Violence Against Women Act (VAWA), 42 U.S.C. § 13701 et seq., is a United States federal law that was originally passed in 1994 and was reauthorized in 2013 in which the spouses and children and parents of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency in the United States. The Immigration and Nationality Act (INA) is the law that governs immigration in the United States. The VAWA provisions relating to immigration are codified in section 204(a) of the INA. Rules published in the Federal Register explain the eligibility requirements and procedures for filing a self-petition under the VAWA provisions. People who may apply include: (1) a spouse of a U.S. citizen or lawful permanent resident; (2) a child of U.S. citizen or lawful permanent resident; (3) a spouse of U.S. citizen or lawful permanent resident who’s child has been battered or subjected to extreme cruelty for the reason bANGEL-13-144x300eing that a parent files for self-petition based on abuse of the child but both parent and child benefit; and (4) parent of a U.S. citizen . It is important to note that, despite its title, the VAWA is applicable to both men and women although spouses of undocumented foreign nationals cannot self-petition. Continue reading

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Protests have erupted over some of President Donald Trump’s immigration orders and policies. file000863634145-300x225Candidate Trump and President Trump is correct that he has brought immigration issues to the forefront in American politics. Continue reading

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Several weeks ago my colleague, Elsie Gonzalez, Esq., wrote a blog post discussing the recent Appellate Division case of Ricci v. Ricci, A-1832-14T1 decided on February 9, 2017. That matter aroseCollege-Student-Discounts-300x300
as a result of a child bringing an action against her divorced parents seeking contribution from them for her college expenses as well as other relief. Although the circumstances and reasons for same were in dispute, the child had moved out of her mother’s home at age 19 and moved in with her paternal grandparents. The parents filed a Consent Order declaring the child emancipated. The child subsequently filed a motion seeking to intervene in the matrimonial matter, seeking to vacate the emancipation Order and for contribution towards her college educational expenses, initially for the community college she was attending. Continue reading

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Valentines Day was this week, a Hallmark holiday created by the card maker to create a demand for its product. This Hallmark holiday resonates with us because we want to feel good aboutPART_1432489208837-2usa-225x300
our loved ones, and celebrating them and our relationship makes us feel good. Most humans love to love. I suppose that is a funny observation for a divorce lawyer but my profession does not immune me from a human’s fundamental drive to love and be loved. Continue reading