Articles Posted in Divorce

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In many divorce cases, obligations for the payment of alimony and/or child support are established. Whether the result of an agreement between the parties or an order of the Court, such support obligations are generally determined based upon the relative financial circumstances of the parties at the time the agreement was made or the order was entered. However, as has clearly been reinforced by the pandemic, the financial circumstances of either party can substantially or dramatically change. Incomes can increase or decrease. People can lose their jobs or obtain new ones. Someone can suffer from a disabling illness or injury. Needs and expenses may increase or decrease. A recipient of support may enter into a new relationship. Generically referred to as “changed circumstances” they can be many and varied. The issue is whether they are significant enough that it would render continued enforcement of an existing support obligation to no longer be fair and equitable, and in some instances, perhaps even unconscionable. As a divorce lawyer, a significant percentage of our practice are litigants looking to either modify existing support obligations or defending against requests for same. When someone meets with me and believes they have a basis upon which to modify support, whether they are seeking an increase in the amount they are receiving or a decrease in the amount that they are paying, the first hurdle to determine is whether the circumstances which they allege have changed are sufficient, either factually or legally, to support a possible modification. While in some instances the changes proffered may be convincing and irrefutable, the real test is whether the changes claimed, and the proofs substantiating same, would at least rise to the level of making out a threshold showing of changed circumstances. Often when parties come in to discuss these issues they focus less on what their circumstances are and focus more on what they believe the other party’s financial circumstances may be, and feel a right and entitlement to obtain information from them regarding same. When that occurs, I need to explain to the party that before you may have the ability to obtain financial information from the other side they must first establish to a Court’s satisfaction that they have met their own threshold, what the law refers to as a “prima facie” showing of changed circumstances. What does “prima facie” mean?

Black’s Law Dictionary defines a prima facie case as either (1) the establishment of a legally required rebuttable presumption or (2) a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor. The New Jersey Supreme Court has defined prima facie evidence as that which, “if unrebutted, would sustain a judgment in the proponent’s favor” Baures v. Lewis, 167 NJ 91, 96 (2001). Similarly, the United States Supreme Court has previously defined prima facie evidence as “such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.” Bailey v. Alabama, 219 US 219, 234 (1911) (quoting Kelly v. Jackson, 6 Peters, 632)

In establishing a prima facie case, the “evidentiary burden is modest” and the Court should evaluate the prima facie case “solely on the basis of the evidence presented by the plaintiff, regardless of the defendant’s efforts to dispute that evidence”. Zive v. Stanley Roberts, Inc., 182 NJ 436, 441 (2005) “As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim”. State v. Preciose, 129 NJ 451, 462 (1992) A movant seeking to establish a prima facie case should further be given the benefit of all reasonable inferences that can be drawn from the evidence presented. See Kant v. Seton Hall Univ., 210 NJ Super. Unpub. LEXIS 2469, *7(App. Div. 2010); Teilhaber v. Greene, 320 NJ Super. 453, 464 (App. Div. 1999)

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pexels-football-wife-1618200-300x200Pretty much everyone has watched at least a portion of the Super Bowl and it is likely that more people know Tom Brady than the Chairperson of the Fed. The Super Bowl was lackluster this year a fitting companion to 2020-2021, which has for most of us been a dud. Some will argue that the game proved that experience wills out over youth; or that the players and not their coaches are the ultimate determining factor in the game and perhaps life in general. These two teams clashed, they both wanted what only one of them could have and both fought to the end. even when it was clear that The Chief’s had no plausible shot.

The point I am making is that both teams came to the field determined to win. Everybody wanted the coveted Super Bowl Ring and Title. The players, were at times contentious and at these times you could see words being exchanged on the field, however, you also saw the players towards the end congratulate each other and Mahomes embrace Brady in a congratulatory huddle. These are big men with high expectations for themselves savoring the combat and the conclusion.

Why would I use up ink even if it is only metaphorical on something that can be seen as quite trivial on a Divorce Lawyers blog? Because what we saw on the field was, for the most part, civility, though there were momentary laps that can be easily attributed to human imperfection. The point I am trying to make is that in litigation lawyers often become enmeshed in the angst and hostility that their clients hold. Often both lawyer and client act out their frustration from bad

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One of the most common questions I get asked by both friends and clients who are considering filing for divorce or who have already started the process is, “What is this going to cost me?” It makes sense of course. People want to know what they are going to get and what they are going to lose. What will they get to keep and what will they have to share, or conversely, what will their spouse get to keep and what will their spouse have to share with them? Unfortunately, as simple as this question may sound, the answer is never that simple. There are many variables that can affect the answer.file000142175851-300x230

The law and attorneys use a term many people have probably heard – Equitable Distribution. What I have come to learn over the years is that there are some common misperceptions where equitable distribution is concerned. Most common is the belief that equitable distribution means equal distribution – the idea that every asset, every debt, everything, is split in half. But equitable distribution does not mean equal, it means equitable or fair. Another common misperception related to the first one is the belief that if an asset predates the marriage, it absolutely is not eligible for equitable distribution. As simple and clean as this may seem, the reality of equitable distribution is almost never that simple.

What is fair is dependent on many factors including the financial position of each party and the types of assets and debts that are involved. There are many considerations that go into determining which assets will be subject to equitable distribution and how those assets will be valued and divided. For example, are there investment and retirement accounts (e.g., brokerage accounts, pensions, IRAs, etc)? If so, were those accounts opened prior to or during the marriage? And if they were acquired prior to the marriage, did the holder of the account continue to invest money into the account even after they were married, thereby contributing marital funds into a previously premarital account? Although such accounts are generally passive assets in that they change the value without any action on the part of the holder, they can also have an active element if a holder continues to put money into the account. And if the holder does continue to put money into an investment account after marrying, then part, but not all, of that asset has become marital.

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I recently argued a case via Zoom in the appellate division that could have far-reaching implications in this new pandemic world. The issue dealt with an agreement that resolved marital rights in divorce entered into while the parties were happily married. We know that prior to getting married, engaged couples can enter into a prenuptial agreement resolving certain marital issues. The ability for couples to enter into such an agreement has existed since 1988 when it was codified into a Uniform Statutory Law.

Divorcing couples must face and resolve a myriad of issues involving support, property distributions, and, where applicable, the care and custody of children. What ability then do parties have after they are married to contract for and away marital rights and obligations? Before yesterday the law was pretty clear. Mid-Marriage agreements were suspect. Two separate courts have found these types of Mid-Marriage agreements are inherently coercive and as such held that they needed to be seriously scrutinized. Since happily married people are not adverse to each other as they are when they are divorcing and, unlike people contemplating marriage, have already committed to the marriage, it was generally held that the courts needed to examine such mid-marriage agreements to determine if they are fair and fairly entered into. The burden to overcome the presumption of compulsion by circumstance was, these cases opined, monumental. The maxim that to obtain equity one must do equity, rings loudly when questioning such agreements.

In my recent appeal, my adversary argued that the Mid-Marriage agreement should be governed by simple contract law. A deal is a deal he would argue. The protections of those two cases where divorce is threatened should not apply to happily married people. These people, he argued, should be free to contract without restriction. In fact, he argued the dominant financial spouse had no duty of fair dealing or full disclosure. If the subservient spouse did not ask the right questions or seek more information, that person is an adult and should suffer the consequences of the bad deal they chose to make. Spouses should be free Mid-Marriage to give away their rights so long as they have a lawyer, even if that lawyer was hand-selected by the dominant spouse.

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We all know about the political civil war which has been taking place in Washington D.C. However, that is a mere skirmish when considering the thermonuclear battle which is about to engulf the Earth – the impending divorce between Kanye West and Kim Kardashian! There is nothing better than a good old fashioned celebrity divorce to take people’s minds off of their mundane troubles of the day. We can see it now. Banners blasting across the internet. Headlines across the covers of People Magazine or the National Enquirer (does it still exist?) Page Six in the New York Post. Whole episodes of TMZ or Access Hollywood. Who should get custody of the children? Is Kim unfit? Is Kanye crackers? Was there a prenup, and if not, how will they divide the millions each are worth? However, there was one recent story about this once loving couple posted on the internet which actually piqued my interest. Apparently, Kim and Kanye live in a mega-mansion located in Calabasas, California. While many divorcing couples share a home which may need to be disposed of in some fashion during the divorce, it was the headline of this article that I found most fascinating – “Kim owns the land and Kanye owns the house?”.

The discussion that followed focused on how this could be, and what the impact may be in the disposition of this property upon their divorce. Assuming this is true, how might this be possible? Could it be a land lease situation – think a trailer park on steroids – where someone owns the physical residence structure who then pays rent or dues to the owner of the land itself for the privilege of placing your residence on it? Does Kanye own the track of land upon which the residence is situated but Kim owns all of the adjoining properties? Did Kim pay for the land and Kanye pay for the construction of the house itself? Perhaps as is common in most celebrity situations, some type of trusts were created to hold certain property or assets, and which afford different rights or entitlements to the holders or beneficiaries thereof. Regardless of how Kim and Kanye’s Calabasas home is held, the real question is whether it truly makes a difference when it comes to the disposition of the property in a divorce.

When it comes to California, anything is possible. California is what is known as a “community property” state. As such, it has its own set of standards as to what would constitute property divisible upon divorce, and who would be entitled to what. Who may “own” or have title to a given property, or to the form in which it may be held, might make a difference in how that property is disposed of in the event of divorce under California law. However, things may be considerably different if Kim and Kanye were getting a divorce in New Jersey. When it comes to the division of assets in a divorce, New Jersey operates by what is referred to as “equitable distribution”. If an asset or property is acquired during the course of a marriage, usually defined as being between the date of marriage and the date a complaint for divorce is filed, that property is generally considered to be a marital asset and thereby subject to equitable distribution in the event of divorce. Exceptions would include gifts or inheritances a party may receive from a third party, or assets acquired in the name of one party using “premarital” funds of that party. Assuming these exceptions don’t apply, the name under which the property is held, nor in what form, generally does not matter. Nor does it matter who paid for it. The inquiry is rather simple. Was it acquired during the marriage? Were marital assets or funds used to acquire it? If in Kim and Kanye’s case, the answer was yes, then under New Jersey law their Calabasas mega-mansion would be deemed a marital asset. It would be subject to equitable distribution. Please note that I use the term “equitable”, and not “equal”. This is not mere semantics. Once it has been established what property and assets constitute the marital estate, there are a myriad of factors under NJSA 2A:34-23.1 which a court must consider in order to effectuate “equitable” distribution of marital property. Who paid for what. Custodial obligations. Relative contributions. Prior agreements. These and many other factors may impact what distribution of marital assets would be “equitable”.

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When does it make sense to hire your own expert and when does it make sense to use a joint expert with your spouse? Using a joint expert saves money, obviously, but is the saving worth the lack of control and flexibility? It depends. The more sophisticated the issue related to the asset the more important it is to have your own expert. For example, under our law, a premarital asset is exempt from equitable distribution unless it appreciated by an active effort of a spouse during the course of the marriage. So if you started pexels-maitree-rimthong-1602726-300x200a business before the marriage the question is what part of any appreciation of the asset is related to market forces and what percentage is related to your efforts. This is a complex issue with many nuances if you have a joint expert they may not feel that all such nuances should be investigated without an agreement. You will not have the same freedom to speak to the expert and your lawyer will certainly be limited in his/her ability to instruct the expert and to discuss concepts. Market forces and the time value of money may play a role in the increased value of your business and the savings if you do not have to share a portion of your businesses’ appreciated value can far exceed the cost of an independent expert.

Inherited assets are also exempt from distribution however once again active appreciation in that asset is distributable. You may have inherited an office building during your marriage. The value of that building when inherited is exempt however if it has appreciated in value during your marriage you will need to prove that the appreciation is not due to your effort but due to market forces. Having your own expert to navigate the appreciation and to explain how the property appreciated could have a critical impact on how much you will need to pay your spouse. In February I will be giving a seminar for the New Jersey Institute of Continuing Legal Education dealing with valuation issues including identifying how to distinguish active from passive appreciation. Joining me will be a Real Estate Appraiser, a Forensic Accountant, and an Appellant Division Judge. This is a complex issue in matrimonial litigation and the outcome can have a tremendous impact on the outcome of your case. Money is a commodity and we use it to value other commodities such as Real Estate and Business Ventures. Money can change in value because of inflation or depression or simply over time. World opinion may also have an impact on the relative value of a dollar. If you use the dollar to value assets without further insight into the factors that affect the value of the dollar you could be economically harmed. If you are looking for a real appreciation you need to stabilize the dollar in the year of valuation relating it to the value of the dollar in the year of acquisition.

Not all appreciation is active distributable appreciation. World or local economic changes may affect value wholly unrelated to owner effort. For example, real estate may appreciate because of zoning changes unrelated to any owner effort or because of market factors that might inflate value; a perfect example is the appreciation in the value of residential real estate in New Jersey caused by the exodus of high-income people from New York City as a reaction to Covid and taxes. This spike in value is clearly due to market reaction to the demand for none urban housing.

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pexels-tairon-fernandez-450301-300x179To say that 2020 was a challenging year would be an understatement. While it started off with a sense of optimism and relative economic prosperity, the coronavirus, racial unrest, and political rancor gave this world, and this country, in particular, a set of punches to the gut. And while it may have always been under the surface, the events of this year brought into the open an unprecedented level of anger. The devastating impact of the coronavirus upon the economy, i.e. loss of jobs, reduction in incomes, shuddering of businesses, etc. resulted in feelings of anger towards the economic system. The George Floyd tragedy led to calls for racial and social justice which unfortunately turned violent fueled by anger over the police and views that our country as a whole was systemically racist. Add to all of that the 2020 election – politically charged, to say the least. Feelings of anger if not outright hatred dominated the campaign. Whether justified or not, anger was the emotional thread that seemed to have run throughout the year 2020. While anger, as an emotion, may have its place in the human psyche, when that anger becomes one’s primary feeling, it ends up overwhelming and clouding everything else. Reason and rationality. Common sense. Communication and dialogue. They all end up getting lost. That was clearly on display throughout 2020.

As the calendar changes from 2020 to 2021, there are a great many things that we can wish for. Back in the good old days, we might wish for things like a better job, finally getting that bigger house or a fancier car, losing weight or getting in shape, traveling more, or crossing things off your bucket list. However, most people’s wish lists are probably dramatically different this year. Obviously, the top on just about everyone’s list is that there be an end to this coronavirus pandemic and a return to some level of normalcy. This hope is fueled by the rollout of the coronavirus vaccine which our scientific and pharmaceutical community developed in “warp-speed”. Obviously, the end of the coronavirus pandemic is at the top of my wish list as well. However, right below that is another wish for 2021 – the creation of an anger vaccine. I know I am a dreamer but think how much nicer the world would be if the level of anger could somehow be controlled, reduced, or tempered. I know this would be the case when it comes to the handling of divorce matters.

In the almost four decades I have been handling divorce matters, some level of anger permeates many of them. Indeed, some feelings of anger are fully understandable. Your relationship with someone you loved and thought you would spend the rest of your life with has fallen apart. Perhaps that person has been abusive. Perhaps that person has betrayed you. Perhaps that person has somehow changed and it is no longer the person that you had fallen in love with. Maybe you are the one who has changed and want to find a way out of that relationship. You would not be human if you did not feel hurt, guilt, a sense of loss, maybe even a little anger. However, it is when parties to a divorce allow their feelings of anger toward the other person to totally dominate everything else that it becomes a major problem. The level of anger can range from mere loathing to out-and-out hatred. Those feelings of anger can be there the first time I meet a client or they may gradually boil over onto the surface as the strain of the marital litigation takes its toll. How is this manifested? They want to “bury” the other person. They want to “rake them over the coals”. They want them to “pay” for all the suffering and pain that they have caused. They want you as their lawyer to make that happen. They want to get all the money. They want to give no money. They want him or her to have nothing to do with “my” children. They want to win. They want the other person to lose. While sometimes these feelings are made by someone who is simply evil, most of the time it is a product of anger.

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President-Elect Biden has stated that he would undo President Trump’s tax reforms if he is elected. From an individual’s viewpoint, those reforms included placing limits on mortgage deductions as well as state and local taxes such as real estate taxes. The 2017 tax cuts nearly double the standard deduction and eliminated the personal and dependent deduction but allowed the child tax credit to remain. The act is scheduled to expire in 2025 but there is little doubt the in a Biden presidency there will be some tinkering with taxes. Certainly, there will be an increase in personal taxes for the “wealthy” which the Democrats seem to define as those earning over four hundred thousand dollars ( $400,000) a year. Coupled with a rise in taxes for upper-income individuals is a concern of what happens to alimony in the Biden Presidency. The 2017 Tax Cuts and Jobs Act eliminated the deductibility of alimony for new awards dated after January 1, 2019. Subsequent to January 1 new alimony awards are no longer deductible by the payor or taxable to the payee. Current federal tax rates for single and married filers (married filing jointly) are as follows :

Tax Rate Taxable income single Taxable income joint return

10% Up to $9,875 Up to $19 ,750

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Dear Santa:pexels-cottonbro-6140236-200x300

I know I wrote to you in October asking you for just a few things for Christmas. I know you are busy and that kids all over the world need you more than ever. I was looking forward to Christmas when Uncle Harry always come dress like you and my sister plays carols on the piano. I just want to let you know that I would like to change my Christmas list. It’s not that I do not like Transformers or Batman. I love them! It’s just that things have changed around here. Mom and Dad’s fighting has gotten a lot worse. I know they think they are keeping it from me but I hear them fighting and I see the way they look at each other. I heard Dad say he wants a Divorce and mom said she did too. I know what Divorce is My friend Tom’s parents got divorced last year. Tom did not see his Dad for a long time until he was asked a lot of questions by some Doctors. He was scared. I don’t mind if Mom and Dad divorce. If they Divorce like my friend June. Her parents divorced but did not fight over her and were nice to each other. June sees her mom and dad all the time and they even go to her soccer games. She says nothing is that different she sees her mom and dad and she likes that there is no more fighting in the house. So here is what I would like. I want mom and Dad to stop fighting. I want them to be happy. I do not want them to fight over me and I want to see both of them Dad was sick this year and Dad said mom was the best nurse and told me what a great mother I had. Mom said that Dad was a hard worker and I should appreciate all the things he did to make our family better. Could you please remind them about that? I know that usually, you give kids like me toys and that you have a magical workshop. It’s

really the magic I am looking for this year. So what I really want for Christmas is for my mom and dad to calm down. When I get upset my Dad always says calm down buddy and my mom gives me a hug. That really works. Maybe you could give my mom a magic hug and tell my dad to calm down. I figure they would listen to you. I told my sister who is really big that I was going to write to you. She said it was a great idea and she would get it to you or your elves. She said she would like mom and dad to calm down too. I see her cry sometimes so I know she is sad. We are usually happy this time of year even mom and dad. We didn’t decorate the tree together we did it with mom and dad sat in the room by himself. I could see mom was being brave like she tells me to be when I get a shot. Every year we drive around the neighborhood looking for tacky lights this year mom had a headache and didn’t go. It wasn’t as much fun cause mom laughs through her nose when things get funny. I know things will be different now. But it could be nice different that would be best. And if you think I should have the transformers and batman too that would be great. I have been very good.

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You know the feeling. Like clockwork a favorite relative sends you a birthday card year after year, often days if not weeks before your actual birthday. Then one year your birthday comes and goes and no card was received from that relative. You are filled with feelings of surprise and disappointment. What happened? Did the relative forget? Is the relative upset with me? For whatever the reason, you feel a sense of loss. For those of you who are regular readers of my blog posts, you know that in the Fall of each year, like clockwork, I write a series of posts summarizing recently promulgated amendments to the New Jersey Court Rules that would directly or indirectly impact Family Court matters. Like the expected birthday card that was not received, I am sure you are surprised and disappointed that I have yet to do so. However, like the belated birthday card that arrives weeks later, this blog post is just what you are waiting for. Candidly, however, it is more like getting a card without the expected check inside. Why? Whether due to the COVID pandemic or other reasons, there were an unusually small number of changes or amendments made to the Court Rules for this year, none relating to the Part V Family Part Rules, and few even indirectly impacting Family Court practice. However, there was one new Rule which was adopted, which although procedural in nature, could directly impact how Family Court matters are handled, particularly those unresolved matters for which a trial may be necessary. What you may ask? We finally have a Rule dealing with in limine motions.

I know. I know. You are asking what in the world is an in limine motion, and why does it deserve its own Rule? Over the years, in limine motions have come to resemble the “Wild Wild West” of motion practice. Generally speaking such in limine motions were made on the eve of and/or at the outset of a trial. Often they sought to address various evidence-related issues, such as whether certain evidence should be allowed and/or excluded from consideration during the trial. However, motions labeled as “in limine” were also being filed for the purpose of having a court make a determination on certain substantive matters such as whether a certain claim or issue would be granted or excluded from a case. For example in the Family Court context, a party may make a motion in limine as to whether or not a certain asset should be deemed exempt from equitable distribution in the hopes of “limiting” the issues to be addressed at trial. Often such in limine motions were made within days of, if not on the day of trial itself, leaving the opposing party with nominal opportunity to prepare and respond to same. How such motions were handled were largely left to the discretion of the trial court. While less so in the Family Court context, such in limine motions were being filed, the disposition of which could actually result in the dismissal of a complaint or claim, or of a defense thereto. Ultimately, several court decisions were rendered making clear that one should not be able to disguise what was in effect a “summary judgment” motion as a motion in limine, and that such motions must utilize the timing and notice requirements for summary judgment motions under R.4:46. Unfortunately, notwithstanding these admonitions against the misuse of the in limine motion practice, these abuses continued.

In the case of Seoung Ouk Cho v. Trinitas Regional Medical Center, 443 NJ Super 461 (App. Div. 2015); cert. denied, 224 NJ 529 (2016) the Appellate Division appeared to reach a breaking point when it came to this use and abuse of in limine motion practice and the lack of any rules or guidelines respecting same. In this medical malpractice case, the defendant doctor made a motion “in limine” on the day before jury selection was to begin to dismiss the claims against him. Although initially questioning whether this was a proper “in limine” motion, the trial court ultimately granted that motion. The Appellate Division reversed. In so doing it noted:

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