Articles Posted in Family Law

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

With the COVID-19 pandemic raging, I have spent a lot of time thinking about what the holidays will be like this year. Of course, the holidays are supposed to be a time filled with love and joy; a time spent with family and friends. This is true no matter what holiday you celebrate at this time of year. After all, that is what we see in all the holiday movies and hear in all the holiday songs. But, as most grownups know, even in normal times, as special as this time of year is, it is also a time that is inevitably more hectic and more stressful. But this year is different. Many are facing the loss of a loved one, in some cases, more than one loved one. So many people are separated from family members – in hospitals, nursing homes, or just keeping their distance to stay safe. Those who live alone are feeling the solitude even more while those who live with others are feeling the added pressure of the extra time couped up inside because while time together is wonderful, most of us are not accustomed to quite this much “time together.” And then there is the absence of so many of the holiday activities and traditions which we have come to treasure. As an Italian American from Brooklyn, for me, this means foregoing Christmas Eve in Brooklyn with extended family. As the mom of a two-year-old, it means no visit to see Santa this year. But I consider myself lucky. My family is healthy and I have not had to suffer the loss that so many have.pexels-nicole-michalou-5765727-200x300

Yet even as the pandemic drags on, we are striving to make the holidays a time of happiness. These are unusual circumstances, we tell ourselves. It is only one year and next year we will be able to celebrate again like we once did. These feelings of loss, loneliness, sadness, and hopelessness are not usual for this time of year and this too shall pass. But of course, this is not true for everyone. For some, the holidays are not a happy time, even when there is no pandemic. This is true for so many including those who are recently divorced or in the middle of a divorce.

Certainly, it is hard to be happy when the life you knew changes. Suddenly you find yourself dealing with the magnification of loneliness and navigating the stress and the hectic of the holidays alone. Maybe you are struggling with old traditions. Perhaps it is the first year that you will spend the holidays without your children. And added to the normal stress that always comes with the holidays is the need to manage parenting time schedules and feeling like you need to keep everything the same for the kids, while so much has changed.

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.

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:

I’ve gotten a lot of questions lately about how the Divorce process works. This blog is intended to outline the procedural steps usually taken in a Divorce Litigation. It is not tied to any particular complexity and as it is generic in nature and since litigation is not always one size fits all it is neither exhaustive nor is it intended to cover all the nuances in more complicated litigation.Person in White Long Sleeve Shirt and Black Pants

1) A litigation usually starts with a letter to the opposing spouse advising them that  A Complaint for Divorce is about to be filed and they should retain a lawyer and have them contact the writer. The hope is that the lawyers will be able to discuss The matter early on and save the litigants time and money.

2) A Complaint for Divorce is filed and either served on the opposing spouse or  More frequently acknowledged by the spouse’s lawyer.

pexels-ketut-subiyanto-4308054-300x200People are always asking me if they should divorce. My stock answer is that the decision to divorce is personal and that I am not qualified to make that decision for the client or even make a recommendation. Everybody has a different view of what a good marriage should look at and it is not mine to Judge. I do when the reasons for divorce seem like an argument that will blow over or the parties are older ask the client to think about options and give it a week to let things settle down and the realities of Divorce hit home. I am aware that not all marriages are built to last and that happiness like beauty is in the eyes of the beholder. Having said that I do have some views of my own about when a Divorce makes sense and when it does not. I am not a mental health professional. I am a lawyer who has practiced in this field for most of my career after a near-death experience ( from boredom) as a tax lawyer.

Often the decision to Divorce has been made by your spouse and you really have no option but if the choice is yours here are some things to think about. If you are in a destructive relationship and your spouse is physically or mentally abusing you should get out. Abusive people do not change. It is not your fault. If your spouse cheats on you and you will only reconcile if they don’t stop cheating now and forever and you can not live with a spouse who keeps cheating, get a divorce. My experience shows that once a cheater always a cheater.

If your marriage leaves you so unhappy that each day is drudgery or you find yourself wishing you were dead so the marriage can be over get the divorce. There is life on the other side.

I was recently asked by a high net worth client how they could save legal fees during their proceeding. I understood his concern as the matter is complicated and his wife had very little knowledge of family finances. Accordingly. it would be up to her lawyer to verify assets and advise the client. Half the cost of a divorce is the trial if the matter is not settled. One of the best ways to save money in a divorce proceeding is to avoid the trial and make a reasonable settlement. The other half of the cost of a divorce is pretrial preparation. Most of the pretrial action in a divorce deals with issues of child custody, interim support, and discovery. In this case, since the wife knew nothing about finances until discovery was exchanged, there could be no settlement. There were kids involved and my client was an active parent who wanted to stay involved. His wife opposed this may be out of anger or fear or desire to control the one thing that she did control during the marriage. My client liked bullet points and so I e-mailed him the following bullet points which have been sanitized to protect confidentiality:pexels-karolina-grabowska-4386373-1024x683

1) Put together a series of binders with all your bank and brokerage records over the last five years.

2) Do the same for the last five years of credit card statements.

Teaching and advancing the knowledge of the Bar and the Bench has always been part of the mission of our firm. In furtherance of that mission with Appellant Judge Hany A. Mawla I will present our annual seminar on recent cases in family law in the Fall of 2021. That seminar features The Yudes Family Law Citator, a compendium of every reported case in Family Law since 1949.

In January of 2021 at the Family Law Sections Annual Hot Tips Seminar I am presenting a paper in my role as a past Chair of the section entitled, Domestic Violence: Social Media & other Cyber-Activity, technology has given rises to a whole new platform of cyber harassment and this paper explores the issue and available legal protections. In February 2021 I am teaching an Advanced Course in property valuation for the Institute of Continued Legal Education, the educational arm of the New Jersey Bar Association, entitled, The Haunting Trinity of Vexing Valuation in High Asset Litigation; 1) active v Passive, 2) The Double Count, 3) Trusts. This seminar will explore; with a panel of distinguished experts in business and real estate valuation theory focusing on cutting-edge issues dealing with asset valuation and exclusion.

In the Supreme Court decision of, Dugan v Dugan, our firm established the standard for valuing professional practice. Since then we have been involved in various reported decisions dealing with various aspects of family litigation. Through our educational outreach, we try to share our view of how Family Law has and should develop.