Articles Posted in Family Law

pexels-karolina-grabowska-5632379-200x300After my last blog post, I am getting a lot of emails… let me say this as clearly as I can, divorce’s are cheaper now due to the fact that most court appearances are virtual. Sitting around the courthouse waiting to be reached usually doubles the time in court on a motion. Trials are notoriously interrupted by a host of administrative and emergencies which routinely eat through the day.

People get caught in traffic, they forget their file… human error causes delay, and as I’ve mentioned before and will again, yes it takes time to get everyone to look at the same exhibit.

Another point to consider is lawyers have more time to do substantive work. Pre- Covid it sometimes became difficult to set up a conference due to the time constraints put on the workday joined with the physical location of everyone in the matter that was in need of attendance. Now with virtual platforms available at the ready, most of us have found more time available for substantive discussion now that we are not focused on more mundane tasks and driving to court. All these innovations are really efficient and enure to the benefit of the litigants. I would encourage you to not be afraid of the courts under these new rules. If your matter is complex and the lawyers agree there are still trials in person with appropriate approval but most of the time a virtual courtroom works just fine.

In 2014, the New Jersey divorce statute, NJSA 2A: 34-23 as it pertains to the issue of spousal support or alimony was substantially modified. One such modification dealt with the vexing question of what the duration or term of the obligation to pay alimony should be. While a prior amendment to the statute had afforded courts the ability to award “limited duration” alimony, the lack of specific standards of under what circumstances this would apply, or for how long, versus an awarding of “permanent” alimony, led to divergent interpretations and applications by the courts. The Legislature sought to bring clarification to this issue when it included the following language to NJSA 2A: 34-23(c):pexels-rodnae-productions-6670068-229x300

“For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.”

Hence, for a marriage of over 20 years, the duration of a possible alimony award was left “open”, and subject to the discretion of the trial court, applying the statutory factors and other legal principles to the facts and circumstances of a given case. Hence the development of what has been come to be known as “open duration alimony” for marriages in excess of 20 years.

I have received many questions as of late regarding Covid-19 and the effect it has had on the divorce process. Those I have spoken to expect to hear that the courts are in shambles unable to handle all of the paperwork and processing that has become necessary in this new socially distant world. In point of fact, my experience with the courts since the shutdown has been quite positive. I have argued several matters in the Appellant Courts since the shutdown most by Zoom or through the phone. The Judges have been attentive and as well prepared as an Appellant Judges always is. Most importantly though, the quality of the discussion has been in no way compromised, in fact in many ways I find this virtual experience better than in-person argument. pexels-ruslan-burlaka-140945-300x200Let’s start by our means of travel or getting there, my office in my home is in the family room. I joke to my wife when descending the stairs that I am ‘driving to work.’ The point being, I do not have to drive to the argument this saves time and furthermore the headache brought on by the annoyance of finding a parking space. My clients save money as well because as a lawyer, I bill for travel time. I also do not have to wait as the Zoom meeting starts promptly when the court is ready to hear our case; a second savings to our clients who are otherwise billed for waiting time. Lastly, I find argument easier as I am able to have all of my documents spread out on my desk (and floor.) When arguing in person the need to drag my files with me and have them all stored at the speaker’s podium which leaves me minimal space to spread out, the ease of finding documents and case law has greatly improved when my appearances have been virtual.

When looking at the trial level, a virtual conference has the same travel and waiting time advantages. When participating in a Zoom trial, the ability to load all of one’s exhibits onto the server and instantly deliver the documents being presented to the judge, the witness, and opposing counsel is very efficient. No more fumbling around for a piece of evidence or waiting for everyone to find the relevant page or section being referred to. Further, when trials were held in person, there were constant interruptions by lawyers seeking emergency relief or other parleys with the Judge. There is more of a flow with uninterrupted trial time on zoom. When first having to cross-examine a witness virtually, I was concerned that it would be harder for the court to capture the demeanor of the witness, this concern I learned is unfounded. Delays in responding and hedging are actually more obvious on zoom. You can literally see the liar sweat.

Motion practice has also been an absolute joy to do via zoom. Usually, on motion days a busy lawyer could be racing from county to county sometimes making three court appearances in three geographically distant locations on any given day. Clients paid for the travel and racing across the state takes a toll on the lawyer. Now I am able to schedule matters in; Bergen, Atlantic, and Sussex County and get them all done in the morning.

Ever since I wrote my past blog on correcting judicial errors, I have gotten a lot of questions from readers and interested clientele alike about how judicial errors can be addressed and amended. When it comes down to it, there are essentially three types of judicial error:1) Clerical, 2) Legal and 3) Matters of Law.pexels-magda-ehlers-1329297-300x211

Clerical errors encompass the indisputable or incontrovertible mistakes that have been made; these can include but are not limited to computation errors or other matters where both parties are in agreement.  These errors can be correct by the court on its own initiative or when called to the attention of the court by either party.  Usually, they can be corrected with something as simple as a letter but if the adverse party contests that an error exists it may require a motion. Computation errors can be corrected at any time, so there is generally no specific time frame in which an application needs to be made; however, it is best to make the application as soon as the error is discovered to avoid claims of estoppel.

Errors of the law or mixed errors of law and fact pertain to situations where the court either misinterprets legal precedents in the former or misapplied the precedents to the facts in the latter.   Legal errors may be corrected through an application to the court within 20 days of the receipt the court’s order if it is a final decision, or if the decision is not final anytime prior to the final decision.  If the decision is final, one also has the option to appeal the court’s decision to the Appellate Division rather than take the matter back to the court. The decision to bring a  motion for reconsideration rather than an appeal is a tactical decision, best discussed with your lawyer.

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)

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

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.

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.

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.

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