Articles Posted in Procedure

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.

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-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.

Although Covid has dramatically affected how the Courts operate day to day divorce cases are still moving forward efficiently. Most matters are proceeding with e-filing of pleadings and motions while appearances are being hosted on Zoom as well as several other internet platforms.

The court buildings are also open to attorneys and litigants specifically involved in a matter on a limited basis. Through a combination of internet and limited physical appearance, matters are

moving through the courts efficiently.

covid19-300x200Co-parenting children when parents are separated or divorced can be challenging in normal circumstances.  One would agree, however, that times are not normal.  The country is in the midst of a pandemic due to the COVID-19 virus.  Governor Murphy has closed schools and many business, and he has directed that we engage in “social distancing” and stay at home for the indefinite future.

Families all over the State are concerned about their children’s health and well-being, not to mention family finances due to the number of people who have lost jobs, been furloughed or suffered from cuts in pay or hours.  Existing arrangements for custody and parenting time were designed for normal circumstances, not necessarily for unprecedented times such as these.

Questions may arise as to how  separated parents address custody, parenting time and child support issues.  To what extent do existing orders have to be followed? Generally, many existing agreements or orders for parenting time can and should be followed.  However, can a parent withhold or refuse parenting time?  What happens if a parent or child is exposed to the coronavirus or is at heightened risk of exposure?  What if a parent, child or family member begins to exhibit symptoms?  How should parents accommodate a household that has an elderly family member or a family member with a health condition which makes COVID-19 particularly deadly?  What if one of the parents lives out of state and the child has to travel some extended distance?  What if the households do not have the same social distancing practices?   Can both parents’ homes accommodate educating the children while school is closed?  Should parenting time be modified to reflect that both parents are home more either due to having lost their jobs or they are working from home?

In my last blog post I noted that, effective September 1, 2019, a number of Court Rules directly court-rules-225x300impacting upon Family Part practice had been amended. In this blog post, I will continue this discussion, summarizing some additional court rule amendments, including those which were in response to, or in clarification of, statutory changes which went into effect over the last few years.

Domestic Violence

Rule 5:7A was adopted for the purpose of implementing the provisions of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., and provided a procedure by which a victim of domestic violence may obtain both temporary and long-term relief to the extent afforded under the statute. There were six (6) subparagraphs to this Rule, designated (a) through (f). However, as part of the 2019 Amendments, these subparagraphs were reorganized “to better reflect the flow of a case through the court process”. Notwithstanding this reorganization, most of the language of these Rule provisions remained unchanged, except for three (3) specific modifications/clarifications.

Ascertaining whether a supported spouse is cohabiting with a romantic partner in such a way that it 3e728f0b3d0e026b62a8cb4b38918e95-300x200constitutes a changed circumstance warranting a modification of alimony is often an issue that family courts have address.  In 2014, the New Jersey Legislature modified the alimony statute, N.J.S.A. 2A:34-23(n), to codify factors to determine whether a former spouse is cohabiting with a romantic partner such that an alimony award may be modified.  Those factors are:

(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

(2) Sharing or joint responsibility for living expenses;

The calendar turning to September signifies different things to different people. For some it signals the court-rules-225x300end of heat and humidity, cooler temperatures and changing leaves. For others, it’s the kids finally going back to school. To still others, it signals the start of the football season, the excitement of baseball pennant races and playoffs, or the opening of basketball or hockey training camps. However, for lawyers such as myself, the holidays come early as each September brings with it special gifts, namely the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey.

Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part practice, many being in response to, or in clarification of, statutory changes that went into effect over the last few years. I will summarize and discuss these Amendments over the course of several blog posts.

Arbitration

While not limited to family law matters, at the conclusion of a case a client may often have an outstanding balance due for legal fees in regards to services rendered by the attorney in the a615c5170cfbe42ac3ed71065bce6f12-300x199underlying action. Most of the time payment arrangements end up getting worked out. Sometimes they are not. In those instances most attorneys are reluctant to initiate legal proceedings against their former client to collect the outstanding fees, viewing it as a matter of last resort. However, even before being able to pursue same, an attorney is obligated to advise the client of his/her opportunity to request fee arbitration, a program implemented by the New Jersey Supreme Court as a means to resolve fee disputes between an attorney and client under R.1:20A-1 et. seq. Sometimes clients choose not to proceed with fee arbitration. Other times, a fee arbitration request may be declined as being beyond the jurisdictional limits of the program. In those instances, an attorney may feel he/she is left with no alternative but to file a civil action complaint against his/her former client to collect its outstanding fee.

In certain of these instances, a former client may express dissatisfaction with the legal services rendered by the attorney on their behalf. Perhaps the client is displeased with what he/she views to be an unfavorable result, and blames the lawyer for this outcome. Perhaps the client questions the specific services rendered or fees charged. However, there may be times where the client believes that the attorney did not represent them properly or was somehow negligent, alleges that they sustained some sort of damage or loss, and which they assert gives rise to a claim for legal malpractice.

When must a claim for legal malpractice be brought? If an attorney has already filed a collection action, would this impact how and when such claims must be filed? Are there circumstances where a legal malpractice claim may be barred? In the recent case of Dimitrakopoulos v. Borrus et als 2019 N.J. LEXIS 272, 2019 WL 1065049, the New Jersey Supreme Court attempted to address and clarify these questions, specifically in the context of what is known as the Entire Controversy Doctrine.