Articles Posted in Judiciary

In a previous blog, I promised that the Appellant Division was going to revisit the proof required to be presented before one could obtain discovery of a dependent former spouse’s social and financial circumstances; as of today June 17th, 2021, the case has been decided although not yet approved for publication.

Temple v. Temple ( A-0293-20) is an important decision for anyone seeking to terminate their alimony obligations based on their former spouse’s cohabitation. In Landau v. Landau, the appellant court indicated that before one was entitled to discovery or a hearing, regarding issues of cohabitation the proponent of this change in circumstance needed to prove evidence of said change. The problem with Landau was that it did not address what proofs were needed in order to meet the requirement and move forward with the discovery phase.

The Trial Judge on Temple found that to be successful on an application one needed to prove all six factors set forth in the statute as things to evaluate when determining if a prima facia case was established. The Appellant Court accepted our argument that one needed not to prove all six statutory factors to establish a prima facia case but must only establish sufficient evidence so that the trier of fact may conclude that the parties have “ undertaken duties and privileges that are commonly associated with marriage or civil unions.”

pexels-august-de-richelieu-4427541-200x300This happens with regularity. A new and sometimes even an existing client will tell me about a divorce case involving a friend, relative, or acquaintance that had issues “similar” to theirs’s, and that the judge, in that case, had decided those issues this way or that. They expressed a belief that how the judge decided those issues “must be the law”, and therefore, they would expect to have a similar result in their case. Why I certainly thank them for the information, they are then surprised and disappointed when I tell them that every divorce case is different and that how one judge may have decided the issues is not necessarily determinative on what will or shall happen in their case, and/or that the decisions of a judge in a different case are in no way binding upon the judge handling their case. The other judge’s decision may be the “law” in their friend, relative, or acquaintance’s case, but is not necessarily the law in theirs.

Before discussing the “legal” reasons for this, there are some very practical reasons why it is unwise to compare what may have happened in one divorce case with any other. The first reason is very simple. Just like no two people are exactly the same, neither are any two marriages nor the issues arising from the dissolution thereof. A primary breadwinner may “earn” the same amount of money, but one is a W-2 employee with a long-standing steady job and the other a small business owner whose income is based on many variables and creates a whole different set of considerations. The parties may be married for the same number of years but in one both parties have been gainfully employed, while in the other a party may have given up or deferred a career to raise children. In another, the parties may each have had two children, but in one the children are relatively healthy and doing well academically, but in the other, a child may have special needs or behavioral or educational deficits. The parties may have enjoyed the same family income, but one lived frugally and the other beyond their means. You get the point. As much as one may see similarities, no two marriages are alike. No two life stories are the same.

When a divorce case comes before a judge, there are certain legal authorities that the judge is to apply in deciding the issues in that case. There are statutes which have been enacted by the Legislature. There are Court Rules which have been promulgated by our Supreme Court. There are published decisions, which have been rendered by the courts in which they have interpreted, implemented, and/or applied those statutes and rules to a given case. A judge applies that legal authority to what it finds to be the facts and evidence in the case and renders a decision. However, since the facts and evidence are never exactly the same and vary from case to case, the resulting decision, even applying the exact same law, will vary as well. That, plus the fact that much of the law governing divorce matters is not based upon any sort of simple “formula”, but upon a multitude of factors a court is to consider, and which afford the court with a great level of discretion in determining. This ability to exercise discretion necessarily leads to different results depending not only upon the facts and circumstances of the case, but the weight of the evidence, the credibility of the testimony, and the “feel” of the case itself, so the judge can make a decision which is fair and equitable.

The care and feeding of the lawyer you hire is an important aspect of divorce husbandry. Too often I hear a litigant complain that their lawyer made a deal or a concession without consultation of the client. Some divorce lawyers take a paternalistic role in the responsibilities of their client, which can be a good thing when not taken to the extreme. The extreme occurs during non-emergent situations when the lawyer makes an agreement that affects a substantive right.  Unless you have given the lawyer authority in advance, they should never do something that impacts yourpexels-anthony-shkraba-5816300-200x300 economic or custodial rights without your permission.  Often in conferences with the court concessions can be strongly suggested by a judge or pushed by an adversary, because of this a lawyer can feel cornered.  A good lawyer will always back off reminding the participants that they themselves (the lawyer) can not make such a concession without first discussing it with their client. I have never been in this position when that simple reminder did not cause the court to immediately back off. Judges want cases to move and they want the parties to settle but they are aware that litigants, not lawyers make deals and that lawyers should not make concessions without their client’s authority. The problem that arises, is that lawyers have what is called “apparent authority” meaning if the lawyer agrees to something the law assumes they had the authority to do it.  If your lawyer has made a substantive concession without consulting you document it.  Send the lawyer a letter or an email indicating the date you were advised of the concession and that you were not consulted and do not agree. Insist they reverse the agreement and that they admit they made a mistake.  If they refuse… run.  Get another lawyer quickly and fix it. Waiting could be viewed as agreeing to the terms.

Note that I have been talking about substantive issues.  Substantive issues, for example,  deal with; parenting time, the level of alimony or child support, the payment of fees, and the sale or distribution of property.  Lawyers usually do not seek their client’s consent when dealing with calendar issues unless the issue involves the client.  If you are being deposed or if the deposition of a witness is being scheduled you have a right to be consulted about your availability however if the calendar does not concern you, the lawyer may rightfully resolve the timing of things.

I often analogize my role as a family law attorney to that of a captain of a ship.  When on the high seas and an emergency occurs that requires an immediate decision that is up to me as well as direction and strategy. But ultimate decisions are made by the shipowner ( the client). The relationship between a lawyer and his client is interactive and symbiotic. The need to work cooperatively should be a consideration when choosing your lawyer. Objectives should be discussed and parameters established to reach those objectives. The lawyer develops the strategy to accomplish those goals.  During the process, open communication is important looking at the objectives but always with the understanding that the ultimate decision is always the clients, although that decision may be informed by the lawyer.

 

 

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.

pexels-sora-shimazaki-5668882-200x300In the Supreme Court decision, Roman Catholic Diocese of Brooklyn v. Cuomo, the limits placed on houses of worship in certain “orange areas” in New York City were struck

down on constitutional grounds based on religious freedom and equal protection.

Fundamentally the Supreme Court found that there was no rational basis that allowed the Governor by Executive Order to treat religious houses of worship differently from nonessential manufacturing facilities, certain classes of categorized “essential services” and pubic transportation. The Court was split 5- 4 with Chief Justice Roberts voting with the minority.

Earlier this month, the New Jersey Appellate Division took up the issue of whether or not a litigant living as a fugitive outside the United States has standing to challenge a default judgment entered by the trial relating to custody and support. The case of Yvietta Matison v. Mark Lisantary, involved an appeal by the father from the trial court’s June 20, 2014 order denying his motion to vacate a May 1, 2013 default judgment, which awarded the mother palimony and custody of the couple’s twin children, who were born in 2004. The court based its ruling on the facts submitted by the mother because the father did not participate in the litigation. According to the mother, “Before she came to the United States in March 2006, the father purchased a home valued at approximately $1.9 million in Franklin Lakes and paid for substantial renovations to the home. He also provided a nanny, interior decorator and secretary. During this time, [ the father] returned to Europe to conduct business and [the mothejudger] remained in the Franklin Lakes home with the children and the nanny. He subsequently sold the property, and plaintiff and the children moved to Tenafly where the children were enrolled in private school. [The father] continued to provide support to plaintiff from abroad. Continue reading ›

contract2More and more litigants today are agreeing to arbitrate matters outside of the public sphere of the courthouse and hire a private arbitrator to resolve their dispute in lieu of a judge in the court doing so.  In the context of a business  or contract dispute, the aggrieved parties might be more inclined to consider having an arbitrator decide their case. Continue reading ›

One hundred and fifty two years ago, over the course of July 1-3rd 1863, the armies of the Union and Confederacy met in the sleepy town of Gettysburg, Pennsylvania and engaged in the largest military battle ever fought on the United States soil.  The Union’s victory at the Battle of Gettysburg and General Robert E. Lee’s retreat of the Army of Northern Virginia back south, under cover darkness on the evening of July 4, 1863 is often referred to as the turning point of the Civil War and the beginning of the end for the Confederate States of America.   Continue reading ›