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Category: Divorce and Family Law

Should I Discuss the Divorce with My Spouse?

A divorce filing or separation does not mean life suddenly ceases to progress.  There are still bills to be paid, friends to see, children to raise, and yes, soon-to-be exes to deal with.  As a Divorce Attorney I have found that in some instances the former couple communicates more than during their marriage.  Sometimes the communications are not health or productive.  But other times they are.  I have often had clients tell me their spouses opinions about me as an attorney.  I have had cases where the parties have compared billing statements.  I will also admit that there have been times in my career where my client has been able to work out a deal far greater than what any court would provide or that I could likely obtain.

A line I often use with my clients is this: “I know the law, but you know your spouse.”  And so much of family and divorce law is determined by emotion rather than reason.  For that reason, absent risk of physical violence or harm (or the existence of a restraining order), I generally believe it is beneficial if the parties discuss the divorce case amongst themselves.  I would caution any client to not put anything in writing (even if it it unlikely to be binding when represented by counsel) and to not make any guarantees, but generally dialogue between parties as part of a settlement negotiation is confidential under the Court Rules.  I would also caution to not give away trial strategy and to cease communicating if the matter becomes tense.  However, in certain cases where there is not much animosity, clearing the air and attempting to discuss amicable resolutions absent the presence of formal mediators or attorneys may be beneficial.

It may prove beneficial for the simple reason that neither party is paying hundreds of dollars per hour to experts.  It may also be beneficial in that some emotions simply need to run their course.  I have had mediations and settlement conferences with clients that seemed a waste of time until the case suddenly settled a few days later.  In such cases the terms of the deal were secondary to the emotions that had to drain.  The seven stages of grieving discussed by psychologists seems like a true phenomenon from my experience. Although most clients ask me from the start “how long will it take to get divorced” the true answer is generally when the money runs out, the trial day arrives, the emotions are drained, or reason sets in, whichever first occurs. Sometimes the line “do you want to pay for my kid’s college or your own” can be an effective way to nicely advise clients they may be pushing too hard.

One thing I’ve noticed more and more, even amongst attorneys is the attitude or stated expression that divorce is a game to win. In my opinion such an attitude doesn’t serve anyone well.  It’s best to think of divorce as creating a rulebook or a contract.  Getting married is entering into a contract but absent a prenup, it’s one with vague terms.  A good divorce lawyer should be able to guide you to the contract of divorce by creating fair terms, simply stated. It’s perhaps more exciting to play a board game than to write the rules of a board game, but that craft is what let’s the rest of a divorced person’s life move forward in a clear manner.  Just like in a board game, if you have an issue you can examine the rules to determine if the other side is treating you fairly or not.  This cuts down on costs as post-divorce litigation is no less costly than the divorce itself.

To that end, in certain circumstances I believe it is helpful for the parties to have informal discussions about the case.  The ability to communicate is the root of many divorces and will also lead to post-divorce issues if not confronted.  Moreover, divorce is a highly personal endeavor.  No matter how much you communicate with your lawyer, your desires will always be somewhat subconscious.  Such discussions with your ex will allow you both to bring issues into the open and begin the process of determining what you both want out of the divorce.

So, to the question: “Should I discuss my divorce with my spouse,” the simple answer is that in many instances it can be effective provided that certain parameters are in place.  That way, when the attorneys and/or mediators are in the room the parties can hopefully limit the issues and save litigation costs.

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

Utilizing Civil Litigation Techniques in High-Conflict Divorces

Below is my article that recently appeared in the online version of Family Lawyer Magazine, titled: Utilizing Civil Litigation Techniques in High-Conflict Divorces.

hat does representing a County and representing someone in a divorce have in common? As it turns out, more than one might expect. Although my practice has continuously emphasized divorce and family law, for the past several years I also served as Deputy County Counsel for a mid-sized County in New Jersey, practicing primarily in civil courts, both federal and state. As the saying goes, sometimes the best ideas come from outside your industry. For this article, I looked to ideas more common in civil litigation to determine what techniques may prove useful in high-conflict divorces.

Consider Utilizing these 6 Civil Litigation Techniques in High-Conflict Divorce Cases

1. Motions for Summary Judgment

In employment litigation, insurance defense, and most other areas of civil practice cases live and die based upon Motions for Summary Judgment and/or Motions to Dismiss. These venerable motions are much less common in New Jersey family courts, however, but can prove just as effective.

Although family law practitioners may be familiar with filing a Motion to Dismiss when issues of jurisdiction or venue arise, in my experience far fewer family law attorneys consider using a Motion for Summary Judgment or to attempt partial summary judgment in matters such as defending or enforcing prenuptial agreements, reconciliation agreements, or marital torts. In such cases, counsel may consider utilizing a motion for summary judgment to limit the issues at trial or to attempt to trigger a favorable ruling leading to resolution before the commencement of the trial.

In civil cases, Motions for Summary Judgment are often filed after discovery is complete and at least thirty (30) days prior to the trial date. In most jurisdictions there are no rules stating such motions may not be utilized in family courts. In a matter where enforceability of an agreement is an important part of a high-conflict divorce case, it may prove beneficial to utilize depositions, admissions, and other aggressive discovery techniques that may be attached as part of a motion for summary judgment. In most jurisdictions, there are no limits on what types of issues may be pursued via a motion for summary judgment, but it should be noted to be successful all material facts must be uncontroverted.

As facts and issues tend to be more nebulous in divorce cases the key to utilizing this strategy is picking one’s spots and seeking to limit issues. In my New Jersey divorce practice I have, for instance, previously received a ruling for a client invalidating a prenuptial agreement following the filing of a Motion for Partial Summary Judgment on that issue. Although there will often be material facts in dispute, which renders such motions rare in family court, it appears that some practitioners may be discouraged from ever considering such methods. Utilizing such motions – more common in civil courts – presents another arrow in the quiver of a divorce lawyer in high-conflict divorce cases and may bring a party to the negotiation table that would otherwise neglect to do so.

2. Utilize Open Public Records

When I was performing work for the County, I saw many disputes regarding access to open public records. Many states have open public records acts allowing for the release of public records within established time-frames. Such records could also be utilized by a savvy divorce practitioner to obtain verifying information or to expedite the receipt of information when there is a time-sensitive issue, such as when working on a domestic violence restraining order matter. For instance, in a case where a spouse is a public employee, a request can often be made directly to the public body for salary information. Although some information may be redacted to protect confidentiality, a great deal of information is not exempt. This is another creative method family law practitioners may employ to obtain information in a divorce case.

3. Depositions and Requests for Admissions

Outside small claims, almost every significant civil litigation case will involve extensive discovery and discovery motions. Depositions are the norm, not an exception. In family law matters this method is flipped on its head and depositions are rare. Therefore, an attorney that can effectively employ such techniques can gain an advantage for their client. Although depositions may be overkill in low-asset and/or low-conflict cases, the tactical use of depositions when appropriate can help bring a case to a conclusion, uncover additional discovery avenues and information, and help impeach the other side or their witnesses should the matter proceed to trial. The simple act of forwarding a deposition notice to the other side may help bring parties to the negotiation table. It is my opinion that admissions are still somewhat underutilized given their low-cost and the common court rules in many states noting that any admissions not responded to are viewed, as a matter of law, to be answered in the affirmative. The use of discovery motions, collection techniques, motions in limine or to suppress, and related civil litigation strategies may prove beneficial in divorce cases when handled with care.

4. Frivolous Litigation

In many civil court matters, the defense will file a letter to the Plaintiff threatening damages for frivolous litigation.  Such letters are exceedingly rare in family court matters. However, should an improper cause of action be filed (such as a marital tort when there are no facts to establish such a claim), or should a party be improperly named as a co-defendant in an adultery cause of action, then practitioners should at least consider sending a frivolous litigation letter and further consider seeking sanctions should the violative issue(s) not be withdrawn or corrected. Although requests for counsel fees are common in divorce cases, in jurisdictions where frivolous litigation claims may be raised in the family law setting they should be considered as appropriate.

5. Non-Spoliation of Evidence

In civil lawsuits, it is common at the outset of a claim or demand notice to respond with a non-spoliation letter advising that all discoverable materials must be preserved. Although such letters are becoming somewhat more common-place in divorces, it remains somewhat uncommon for an attorney to forward such a letter and rarer still for an attorney to include a spoliation of evidence claim as a divorce complaint count. However, such a claim is allowed in many jurisdictions and appropriate should, for instance, a party remove their social media after a divorce complaint is filed.

Consider these Strategies for Unusual Cases

Utilizing litigation techniques more commonly found in civil courtrooms opens up new avenues of strategy and tactics in the divorce setting. It’s an interesting topic and this article admittedly only skims the surface of the myriad of techniques and potential creative avenues available. Although there are generally reasons why such techniques are underutilized or rare in family law courtrooms, it’s helpful to keep these and other such techniques in mind for the unusual cases where such strategies can help bring a case to completion or allow for better results for your client.


 

Divorce in the Age of Bitcoin

DIVORCE IN THE AGE OF BITCOIN

By Carl Taylor III, Esq.

In full disclosure, for quite some time my general attitude toward “cyrptocurrencies” has been as follows: ignore them and hope they go away. Unfortunately, as divorce lawyers, we can no longer bury our heads in the proverbial sand.

Cryptocurrencies and “block-chain” technology may or may not be the wave of the future, but they are an increasingly commonly held “asset” class—and one that will have to be dealt with in equitable distribution and in divorces in general. As usual, the law tends to lag behind technology, meaning there are few if any published opinions on this subject. This article will attempt to address basic principles that may apply to this volatile and burgeoning class.

OVERVIEW OF “CRYPTOCURRENCIES”

Cryptocurrencies (“cryptos”) are a form of decentralized virtual currency that were created in 2009 and have been increasingly traded, often on virtual currency platforms. They are often anonymously owned and thus pseudonymously traded. They can be stored in various avenues such as a “virtual wallet,” on a smart phone, or in a virtual cloud. These currencies generally utilize novel “blockchain” technology to record permanent, decentralized, and encrypted transactions.

In 2014 Under Notice 2014-21 the IRS defined cyrptocurrencies as follows: “Virtual currency is a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value.” The IRS also noted in 2014-21 that: “The IRS is aware that ‘virtual currency’ may be used to pay for goods or services, or held for investment.”

Security is a great concern regarding these types of currencies. Although Bitcoin is the most well known type of cryptocurrency, there are now various types of these “coins” ranging from Bitcoin down to “penny-stock” type of exchanges. During 2017 the price of one Bitcoin rose from around $900.00 to a high of $20,000. Thus there has been a great deal of volatility in its value. There have also been well-known scams, thefts, and the shutting down of crypto-exchanges. In other words, it’s the “Wild West” of investing.

In a run-up commonly compared to Holland’s 17th Century “Tulipmania” bubble, the investment class has outpaced a hot stock market. You can now hear about cryptocurrency investment tips while getting your hair cut, riding an Uber, or talking to your uncle at the annual family get-together. Their relative anonymity makes it a difficult asset to locate—meaning it may be ripe for inappropriate divorce-planning attempts. That risk coupled with its increasing use amongst the general population means that divorce attorneys must learn the basic principles of cyrptocurrencies to provide clients with necessary guidance.

Cryptocurrencies and Equitable Distribution

The treatment of cyrptocurrencies for equitable distribution purposes is in theory not too dissimilar from any other asset. If at the time of divorce there exists two Bitcoins and no marital exemptions apply (such as non-commingled premarital property, gifts, inheritance, etc.) then each party should generally be entitled one Bitcoin. Likewise, one party could buy the other out provided there is agreement as to the valuation. The more interesting questions arise under protecting against a party attempting to hide these digital assets.

Because cryptocurrencies can be pseudonymously transferred to others, it may be difficult to determine ownership. In an article on the subject of cyrptocurrencies and divorce, the website mensdivorce.com calls the attempt to hide such assets: “The high-tech method of burying a sack of cash in the woods.” As divorce practitioners, what can we do to effectively foreclose such inappropriate actions?

Firstly, it may be prudent to add specific cryptocurrency questions to all initial discovery requests. Although general questions as to currencies, monies, or assets may be sufficient, it may be helpful to ask in interrogatories whether the spouse owns or has ever owned any cyroptocurrencies. Likewise, this issue can be specifically raised in requests for admissions, at depositions, and at trial. By specifically addressing these issues the opposing spouse is more likely to be upfront and also more likely to be sanctioned if it is later discovered they are attempting to hide assets.

If there remains a suspicion of a spouse harboring hidden cryptocurrency, then it should be noted that although Bitcoin and the like are generally pseudonymously held, their purchase and sale do create trails as follows: such currency will generally be purchased using fiat currency (creating a record) and most cryptocurrencies are purchased via an exchange (the largest one at the moment is Coinbase.com), which will charge transaction fees. It is also possible that you could subpoena such exchanges to procure such records.

The IRS has recently issued a summons seeking “a wide variety of records [from Coinbase.com] including…taxpayer identifiers for all of its customers who have bought, sold, sent or received crypto currency worth $20,000 or more in any tax year from 2013 to 2015, transaction logs, and correspondence.” Accordingly, there may be ways to obtain releases and or to subpoena such records to determine the existence of cyrptocurrencies. Tracking such assets on tax forms in future years should make it easier to follow the crypto trail in future years. As always, the option to retain forensic accounting or other such experts may be appropriate when in doubt and if it is believed sufficient hidden assets may exist.

Conclusion

Whether cryptocurrencies will be merely a “flash in the pan” or the start of a new way of global commerce, not even our foremost futurists know for sure. But in the present moment, there will increasingly be cases where a portion of marital wealth will be held in the “blockchain.” Using innovative discovery techniques to locate such assets will be important now and in the future.

Taylor III is the principal of Carl Taylor Law, LLC located in Flemington, New Jersey. His practice emphasizes all facets of family law as well as local government law and litigation.

(This Article was originally published in Family Lawyer Magazine, Spring 2018 “Technology and Family Law” Issue

Should Emotion Fuel a New Jersey Divorce?

The old lawyer joke is criminal lawyers generally deal with bad people acting their best and divorce lawyers generally deal with good people acting their worst. Emotion is an inescapable part of a divorce.  Ultimately, nobody gets married hoping to be divorced and their are many feelings and emotions involved in a divorce, which by its very nature is an ending, and perhaps even an admission of failure.

In my years of practice I have seen lawyers who have (in my opinion) stoked the fires of anger and resentment to make a case more litigious. It’s rare but I’ve seen it.  I’ve also had clients whose emotions likely ruined their chances at a positive outcome.  I’ve tried to limit such situations but we can only help those who wish (or can) help themselves.  I’ve had other clients tell me they were sometimes unhappy with my lack of emotion during the divorce but later thanked me for moving the case forward and that in hindsight they saw the value in a more stoic and rational thought-process.  Most judges tend not to like blowhards.  The goal in most litigation (yes, perhaps even family law) should be to appear the most sane and logical person in the room.  Sometimes this is lost. Many family law attorneys suggest that their clients undergo therapy throughout the process.  This can be a benefit for the client, the lawyer, and the outcome of the case.

Family law itself is fairly simple if severed from the emotions.  Our state is generally going to recommend a near 50%-50% split of marital assets.  Alimony and child support standards are fairly well known amongst family law attorneys. Custody and parenting time are often best worked out between the parties themselves.  What can make family law cases difficult is the need to get 4 people on the same page.  Both parties and their lawyers.  If one or more of those people do not wish to settle the case, wish to drag it out, or wish to make the process overly emotional then the case can stall.  The system is not set up for a fast divorce unless the parties can agree on a resolution.  Otherwise, cases languish and the waves and crests of emotion push the case back and forth across time, costing many thousands of dollars more than perhaps necessary.

Ultimately, a divorce is litigation like any other.  It should be viewed with an analysis of the risks involved.  A cost-benefit analysis should be considered, including the cost of attorney’s fees before any motion is filed, any letter is sent, any cause of action is pursued. In civil litigation this is the process followed, in divorce law and family court in general there can be more of a free-for-all.  But to what benefit? Some call family courts the “Wild West,” for this reason, but to what end?

Anyone considering a New Jersey divorce, considering two wrongs make a right litigation tactics, or otherwise making mountains out of molehills should consider the ultimate costs of their actions. Lawyers are in many respects conduits to out clients desires.  Ultimately, however, it is our clients that make the decisions.  Good communication is the key and many marriages end due to the parties losing the ability to effectively communicate.  As lawyers perhaps it’s our job to help our clients communicate with one another (through counsel) more effectively to smoothly move a case forward to its resolution. With increasing use of collaborative law and mediation there have been some steps made. But in the heat of battle sometimes it’s hard for all parties (I myself not being fully immune from this) to take a step back and survey the carnage, emotional and otherwise.  And to perhaps ask–at least once in a while, was this worth it?

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

 

 

 

 

 

How Can I Pay for my Divorce?

A Necessary Evil? How Can You Pay for Your Divorce…

During almost every initial consultation the biggest elephant in the room is cost.  Clients know that getting divorced can be expensive–sometimes prohibitively so.  They also know that divorce lawyers generally bill by the hour at the rate of hundreds of dollars per hour.  When people say they are concerned they cannot afford their divorce they are often referring to paying their divorce lawyer’s fees just as much as they are expressing concern about carrying two households, paying child support, or paying alimony. 

When I first started practicing law we were in the early stages of the “Great Recession.”  Clients could no longer rely upon equity in their home to take care of legal fees at the end of the divorce. Although unemployment is at near all-time lows and the stock and housing markets have rebounded, most Americans do not have $5,000.00 or more laying around for an initial retainer deposit.  Likewise, a divorce cannot be financed directly by a law firm and interest cannot be charged, so lawyers are loathe to play banker.  This may create tension in the relationship and concerns that a lawyer is:

  • “nickel and diming” their clients (only it’s a lot of nickles);
  • Is dragging out the case and/or “overlawyering”; 
  • Working through the retainer quickly and then withdrawing if the client cannot replenish in accordance with the retainer agreement. 
  • Is charging not just for every tiny expense but also every communication. 

These are all legitimate concerns and both attorney and client should discuss the particulars of what is expected and how the case will be handled. In my own practice I attempt to look to studies and surveys about what clients find most dissatisfying about their lawyers and then attempt to implement policies that address such concerns or take the opposite tact. Regardless, there is sometimes miscommunication on both sides… it cannot be assumed that clients read the retainer agreement or fully understand its terms.

Another potential problem is that the biggest issue in any divorce is often not a legal issue or a complicated financial analysis, but rather the raw emotion that may interfere with settlement.  That means that the cost for the divorce of a modest household may not be all that different than the divorce of those with substantially more assets. In most divorces there is at least one party that does not even want to be getting divorced, which may further complicate the emotions of the situation. 

Ways to Pay for a New Jersey Divorce with Carl Taylor Law, LLC 

Paying for a divorce and particularly the initial retainer is thus sometimes difficult (to say the least).  Although I cannot speak for any other firms, I have attempted to make it easy for clients to meet this obligation.  Accordingly, Carl Taylor Law, LLC accepts payments in the following manner:

  • Check;
  • Cash (with receipt given);
  • Credit Card (links for payment through LawPay are given and clients can also pay at the firm’s Flemington, New Jersey location;
  • Money Order

Like many firms, I expect the retainer amount to be replenished.  I encourage clients to call me if they question any portion of their bill to discuss as I would rather know if a client is dissatisfied.  I also attempt to minimize minor pass-through costs such as for telephone calls, faxes, or the like. Moreover, I attempt not to bill for attorney-client communications in divorce matters such as simple calls or emails as I want to keep the lines of communication open as much as possible. 

In some cases I obtain counsel fees from the other party.  Nevertheless, I expect payment from my clients who must then seek reimbursement from their ex.  This too is standard in most New Jersey divorce retainer agreements. I do not like to extend payment plans as I am not a bank and believe there are more appropriate ways for clients to obtain credit.  Nevertheless, I do attempt to work within the confines of cost as cost-benefit analysis for every action contemplated is important for both attorney and client to understand.  I have some cases where clients appear sick of me telling them to wait or not take further action as the cost associated with the action outweighs the potential gains.   Communication between attorney and client is paramount in limiting counsel fees and ensuring a positive outcome in the case. 

A mentor of mine once said it’s difficult to make a living as a “necessary evil.” Even us divorce lawyers will admit that clients would have much more fun spending money on a cruise, piece of artwork, new car, or home improvements.  Few people want to get divorced and paying for the sometimes “necessary evil” of dueling lawyers can exacerbate an already difficult situation.  The added benefit of fully understanding the process and your risks, responsibilities and obligations is the divorce lawyer’s stock and trade. If you want to retain my firm but are uncertain if you can afford it, I hope this article will assist you in understanding the potential payment methods and some of the philosophy behind the divorce attorney-client relationship. 

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

 

 

 

 

 

The Purpose of a Parenting Coordinator

What is the Purpose of a Parenting Coordinator?

Making day-to-day parenting decisions can be difficult enough in an intact family.  I grew up in a family that allowed me to watch PG or even PG 13 movies at a young age.  My wife recalls not realizing Disney movies had villains until she was much older—her mother would fast-forward through the “scary” seasons. 

With the newest Star Wars out, for instance, there was some discussion about whether my older daughter was too old to accompany me to the theater.  It’s a little issue, but even with two parents in an intact relationship raised much more debate (about appropriate parenting) than anticipated.  The same small issue might arise when your 9 year old son asks to have a soda instead of milk at a party.  One parent might think it is alright while the other might object.  

In a New Jersey divorce, parents are generally given joint legal custody.  This means that the parents should both collaborate together on important wide-ranging (in other words, not day-to-day) decisions such as deciding a child’s religion, educational decisions, and the like. Parents are then generally given wide-latitude in raising their children as they see fit (assuming nothing rising to the level of abuse or illegality occurs) during their own parenting time.

For instance, if the 9 year old son asks for soda while at his mother’s then the answer may be “yes,” and while at his father’s the answer may be no.  While this “two separate homes, two separate sets of rules” may be somewhat confusing to children from divorced families, it is also not wholly untethered from what many children experience (children will instinctively know which parent they can manipulate better in a specific circumstance).    

But what if these smaller, day-to-day issues begin to fester and the divorced or separated parents lack the desire or ability to negotiate such issues together?  In such instances, the parties may agree (or the court may appoint) what is known as a parenting coordinator. 

As defined in the Overview section of the Program Standards for the Parenting Coordinator Guidelines (Pilot Program, 2007), 

A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties,
to facilitate the resolution of day to day parenting issues that frequently arise within the
context of family life when parents are separated. The court may appoint a Parenting
Coordinator at any time during a case involving minor children after a parenting plan has
been established when the parties cannot resolve these issues on their own. The
Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan,
reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and
developing methods of communication that promote collaboration in parenting. The
Parenting Coordinator’s role is to facilitate decision making between the parties or make
such recommendations, as may be appropriate, when the parties are unable to do so. One
primary goal of the Parenting Coordinator is to empower parents to develop and utilize
effective parenting skills so that they can resume the parenting and decision making role
without the need for outside intervention. The Parenting Coordinator should provide
guidance and direction to the parties with the primary focus on the best interests of the
child by reducing conflict and fostering sound decisions that aid positive child
development.

The “Pilot” program for parenting coordinators ended in 2012 in New Jersey (although courts may still appoint them and parties may still agree to utilize them).  In 2013, Pennsylvania family courts essentially barred the use of parenting coordinators.  The use of such coordinators in New Jersey has thus waxed and waned over the years.  Nevertheless, this role (often filled by an individual with mental health, social work, or divorce law background) still remains an option—and at times something foisted upon parties whether they desire the use of such a “referee” or not.

It should also be noted that the primary role of such coordinators is to facilitate communication between the divorced parties regarding parenting issues. The parenting coordinator cannot take the place of a judge and cannot enforce or modify any orders, but rather should attempt to work within the confines and parameters of any active agreements between the parties. 

Conclusion

Parenting coordinators may thus make an expected (or not so expected) cameo in a New Jersey divorce proceeding or respecting post-judgment issues.  It’s important to have an understanding of their purpose should you consider their use or be ordered by the Court to utilize such services. 

So, what do you think, would a parenting coordinator side me with on bringing my nearly 5 year old daughter to see the Last Jedi at the movie theater or not? 

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

 

 

 

 

 

My Fiancee Wants me to Sign a Prenup

My Fiancee Wants me to Sign a Prenup, Should I? 

In my Flemington, New Jersey family law practice, I will occasionally negotiate prenuptial agreements for couples contemplating marriage but looking to set specific parameters in the event of their divorce or the passing of one of the parties. I always refer to prenuptial (also known as a premarital agreement or antenuptial agreement) agreements as the most tricky document to negotiate in the realm of family and divorce law–as certain objectives are sought in the negotiation–but negotiating too much can upset an otherwise happy couple. 

Although prenuptial agreements are more common in second marriages and/or where one or both parties have accumulated substantial wealth, prenuptial agreements are becoming increasingly common among all age groups and asset classes (even millennials).  

That said, there is often one party that is the driver of the prenuptial agreement.  Sometimes, that party isn’t even contemplating marriage.  (I’ve noticed over the years many parents being the driving force behind their son or daughter’s premarital agreement).  

With all that said, what should you do if you’re engaged and your spouse asks you to enter into a prenuptial agreement? 

What is the Purpose of a Prenuptial Agreement?  What is a Prenuptial Agreement? 

To first answer that question, it’s perhaps important to better understand what a prenuptial agreement is, and isn’t.  Prenuptial agreements are a form of contract setting forth an understanding between the parties about their marriage and the end of their marriage.  It is required that this agreement be made prior to the marriage (although reconciliation and postnuptial agreements are sometimes contemplated by New Jersey law).  A prenuptial agreement only becomes enforceable upon the parties actually marrying.  

Prenuptial agreements can be quite simple or very complex. As a form of contract, the parties are given great leeway in drafting the agreement’s specific terms and language. 

 New Jersey Prenuptial Agreement must be in writing in order to be enforceable.  They must also have a “statement of assets” annexed/attached to the Agreement.  Like most contracts, “consideration” must be given, and the Agreement must also be signed by both parties so as to be legally binding.

Under the Uniform Premarital Agreement Act, the parties may contract respecting some of the following types of issues:

  • Rights and obligations relating to real property and the disposition of such property;
  • Choice of Law for a separation/divorce/etc;
  • Spousal support;
  • NOTE: prenuptial agreements cannot waive a child’s right to support from either parent and cannot address custody or parenting time issues. 
To be enforceable a prenuptial agreement cannot be unconscionable (as judged at the time the agreement is entered into and not at the time it is sought to be enforced–as modified by 2013 bill signed by Governor Christie). The agreement cannot be made under duress.  Also, it should generally be made with sufficient time to review and negotiate and both parties should have independent counsel (or waive their right to independent counsel). It should also be noted that the burden of revoking or amending a prenuptial agreement (absent consent) inures to the party that is seeking to invalidate the agreement. 
Finally, it should be noted that certain protections are in place in New Jersey even absent entry into a prenuptial agreement.  For instance, non-commingled pre-marital property generally remains separate property in New Jersey.  So if you own a home in your name and do not commingle that asset (or allow your new spouse to provide labor, equity, or significant seat-equity into the home), then that house should generally remain separate regarding equitable distribution at the time your separate or divorce.  Likewise, inherited property or gifted property (along with portions of most personal injury awards during the marriage) will remain separate property provided they are not commingled. 
Should I Agree to Sign a Prenuptial Agreement?

Now that the basic framework of a New Jersey prenuptial agreement is understood, onto the primary question addressed by this blog post: what should you do if your spouse seeks a prenuptial agreement? 

Firstly, it’s important to not take the suggestion of a prenuptial agreement personally or as an indictment of your relationship or your finacee’s trust in you.  There are many reasons to seek a prenuptial agreement, and not all of them are negative. As noted above, it’s a growing trend and helps provide some control to both parties to determine what would occur in a worst-case scenario outcome.  For risk-adverse people (and with divorce rates still somewhat high), this may simply be a reasonable request. 

If you are concerned, you should discuss your concerns with your fiancee and get a sense of their motivations. It may be that it is not necessary to pursue a prenuptial agreement.  If they persist, make sure you both have an understanding of the process to be utilized and the reasons behind the request so as to not strain the relationship.

If your spouse does insist on negotiating a prenuptial agreement, it’s important that you select your own independent counsel to review the agreement and to help you negotiate it, as necessary.  Do not allow your spouse or their attorney to select your attorney for you.  It may seem ok now but will only lead you to feel cheated and upset by the process later on at the time of enforcement (even if everyone is operating in good faith). 

Make sure your attorney fully explains the process to you along with the specific repercussions of what you are signing.  You should have a firm understanding of what the law would be absent a prenuptial agreement versus the language contemplated, so you can understand what you are gaining (or losing) by entering into the agreement versus the natural status of the law.  For instance, alimony is available to many parties to a divorce in New Jersey.  In general terms, the greater the disparity in income between the parties coupled with the longer the duration of the marriage, the more a party may have alimony exposure to the other. 

A prenuptial agreement may call for a permanent waiver of alimony.  In such a situation it’s important to recognize what your expected exposure (or benefit) from alimony may be.  It may be difficult or impossible to fully understand (as you are negotiating in the present an unknown future), but it’s important that you view the more realistic potentialities and have an understanding of what you will be giving up (or gaining) by that specific language. 

You should review the entire contract through that prism and then view it globally to determine if it is reasonable and fair.  To be enforceable, there is no requirement that the agreement be fair, just that it not be so unfair as to be “unconscionable” at the time the agreement is entered into. 

You should work with your attorney to provide financial documentation (and to review financial documentation from your spouse) as this is a requirement of a prenuptial agreement and will help you determine whether or not proposed prenuptial agreement language is fair. 

In my legal opinion, you should also not be afraid to voice your concerns to your lawyer and to negotiate the matter (even aggressively if so required).  If your fiancee is the one seeking a prenuptial agreement then their feelings should not be hurt if you are seeking to negotiate an agreement that is fair to both of you.

Your fiancee is looking to protect their interests, or they wouldn’t be asking you to sign a prenuptial agreement.  Likewise, you should take this opportunity to likewise ensure that your interests are being protected.  You will only regret it later on if you let the bliss of upcoming nuptials silence valid concerns.  By that point in time it will be too late to wish the agreement away, as it will likely be binding. 

As with most legal documents, you should not sign anything or waive any rights (such as a right to independent legal counsel) without first meeting with your own attorney and having your attorney review the agreement and advise you regarding its pros, cons, and legal meanings. 

Conclusion

By working with experienced family law counsel, you can determine the answer appropriate to your specific set of circumstances, and determine a just and fair resolution to the potential issues created when your spouse asks you to review and sign a prenuptial agreement. 

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

 

 

 

 

My Ex-Spouse is Relapsing

What Steps Can be Taken to Protect Your Children When Your Ex-Spouse is Having a Mental Breakdown or Relapsing 

When children are involved, there are few things more frightening than learning your ex-spouse is using drugs again, relapsing, or having a mental breakdown or psychotic break.  This blog post will discuss some of the legal steps that that may be considered when approaching such situations.

The Impact of Drugs and Mental Health Issues on a Marriage

As a divorce lawyer practicing in Hunterdon County, Somerset County, and Central New Jersey, my clientele tend to reflect the demographics of the surrounding region, which is to say that many of my clients have good jobs and significant resources.  Nevertheless, mental health issues and even drug and alcohol abuse issues tend to present across all demographics.  Addiction and mental health issues for one or both parties to a divorce is a common issue and is often-times the (sometimes unspoken) impetus for the divorce itself.

Provided there are no children and absent domestic violence concerns, such issues may not make much of a difference in the treatment of the case or the entry of a Marital Settlement Agreement (a/k/a the “Divorce Agreement.”) When children are present, however, there may be significant negotiation regarding custody and parenting time issues, particularly with relevant New Jersey law suggesting that you may be found guilty of neglect and/or child endangerment for leaving children with an intoxicated spouse.

The Divorce Agreement in such circumstances will often require certain steps on the part of the spouse that uses drugs and/or has severe mental/emotional health issues, there may be requirements of supervised visitation as well as AA/therapy requirements, and perhaps requirements for drug testing.

What if Such Issues Occur After the Divorce is Finalized? 

In many instances, however, issues will flare up after the divorce has already been finalized. For instance, you may drop off or pick up your children and when you see your spouse you may see the tell-tale signs that something is not right.  It could be a full-borne psychiatric break, slurred speech or red eyes perhaps indicative of drug or alcohol abuse, or other signs that you as the expert on your former spouse may immediately recognize.  In this instance, when the divorce is already finalized, what are the next steps? 

  • Document everything. Many situations involving drug and/or alcohol abuse (and even severe mental heath issues) may be momentary in nature.  Your spouse that is clearly under the influence of drugs and alcohol (or not sufficiently well to care for your children) on the date in question may be the same person that comes to court looking sober and put-together. It’s important to consider recording/taping the behavior, making immediate notes, and/or contacting the police and/or DCPP as appropriate.  
  • Consider filing an Order to Show Cause. Motions generally take a month or longer to be heard.  Conversely, Orders to Show Cause are reserved for when a matter is time-sensitive (such as impacting on immediate the safety and welfare of children) then courts allow for entry of an Order to Show Cause.  Courts generally frown upon “self-help” actions such as withholding your children, so court intervention may be necessary to temporarily (at least at first) suspend parenting time or requiring supervised parenting time. 
  • Pursue Legal Actions While Evidence is at its Strongest.  Much like the “Cycle of Violence,” many relapses from drugs or alcohol and/or psychiatric episodes are cyclical.  By the time you determine it is best to pursue the case, your spouse may be on the straight and narrow again and you’ll be left wondering what to do when the next meltdown inevitably arises.  Taking action when your spouse is committed, is in rehab, or is otherwise at their worst can help courts or agencies understand the severity of the situation and inure towards taking appropriate actions now so that the “next time” does not occur. 
  • Move swiftly to Protect the Children. Even if a court order requires parenting time, looking the other way may be seen by courts or agencies as inappropriate action on your part, if you leave your children in a situation where they are likely to be harmed.  It is important to consider acting quickly if a situation warrants it. 
  • If a crime has been committed or is being committed, contact DCPP and/or the Police. Courts and lawyers will never be able to move as quickly as the police in mobilizing if there is a crime occurring or a risk to your safety or that of your children.  Consider moving quickly to contact the police and/or appropriate agencies such as the DCPP (formerly known as “DYFS”) if you believe abuse, neglect, or the like are occurring by your former spouse/former partner. 

Conclusion 

Many of my clients have used phrases such as “between a rock and a hard place” to describe what it feels like to have an addict or someone with severe mental health issues* as a partner or ex-partner. Such issues are severely compounded when there are children from the relationship. If such issues impact on your divorce or your post-divorce and may cause harm to your children, it’s important to take the appropriate steps to protect your rights and that of your children. 

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

 

 

 

 

*This blog post does not mean to combine or conflate these two separate issues (psychiatric or mental health issues versus drug and alcohol abuse), although statistics show co-morbidity, but rather utilizes same as a shorthand given the limited space to address these issues in this venue.

Should I Leave the Marital Home?

During the Divorce, Should I Leave the Marital Home?

One of the most common questions I receive as a Hunterdon County, New Jersey divorce lawyer is whether or not a party should leave the marital home during the divorce proceedings or prior to filing for divorce.  It’s a simple question but with a somewhat complicate answer.  The purpose of this blog post will be to discuss some of the issues that may impact a decision in this important issue.

In Favor of Not Leaving the Marital Residence

Firstly, the common advice is to generally not leave the marital residence. The idea behind this classic advice is that once you leave the home you are left to take on more expenses, you may hurt your pendente lite (during the divorce proceedings) or even post-divorce custody and parenting time (courts may favor parent that has larger home, home children are familiar with, in children’s school district), and that you also may lose some control over the process of listing the property for sale or possession of certain personal items such as furniture, etc.  There is a lot to be said in favor of such arguments.

Also, given that finances are often strained during a divorce, it is often beneficial to reside in the marital home so as to cut down on the expense of having two separate households. Courts like to favor the status quo during the divorce process, and residing together during the divorce helps maintain that status quo.

However, it should be noted that if there is an active restraining order in place then you cannot reside in the same residence as your spouse/soon to be ex.  In addition, there may be some further qualifications to consider such as whether the house is solely one parties property or not, whether there is a prenuptial agreement addressing such issues, and what would be in the children’s best interests, as applicable.

In Favor of Leaving the Marital Residence

That said, not every situation is the same.  There may be certain variables at play that may inure toward leaving the marital residence.  Although it may be better for you to have your spouse leave, they may not be willing or able to do so.

One of the benefits of leaving the marital residence may simply be peace of mind.  It’s sometimes easy to dismiss the intangible benefits of something, but parties pursuing a divorce often have their issues with one another.  At the very least, one of them is pursuing an action so as to not continue to live with the other.

Although old movies like “The War of the Roses” may present such issues as farce, it may be difficult to continue to reside with a spouse when there is constant bickering or worse. Also–and this is true particularly for men (but could apply to either party); there is some concern if you do not reside about your spouse potentially pursuing an unwarranted restraining order to get you out of the marital residence. There have been occasions where the domestic violence laws have been used (by both sexes) as a “sword” rather than a “shield,” and case-law has warned about such issues.  This may be particularly true if you are in a job such a law enforcement that relies upon being able to legally carry a weapon for your line of work.

In addition, since divorces can take upwards of 1-2 years if they do not settle, moving out of the marital residence can also assist both parties in moving forward with their lives.  Being caught in limbo for a period of years can be detrimental to one or both parties.  Such “limbo” is how several of my clients have defined the process of residing together with a spouse for an extended period of time post-separation.

If you do decide to vacate the marital residence, it is important to take an inventory (video inventory would be best) of all of the marital possessions should your spouse later sell or destroy your property (or joint legal property).  It is also best to make copies of any important documents (either your own or joint documents) prior to vacating.

Again, leaving the marital residence may raise particular issues for you if there are children of the marriage, as a pendente lite order may disfavor you, you may be seen as “abandoning” the family, and it is difficult to regain access once you formally vacate (otherwise if you both own the property there is no legal requirement to vacate absent restraining order or other court order).

All of these considerations, both for or against leaving, should be viewed respecting your own individual factors and how they may impact your case.  Ultimately, you need to discuss these issues with your own attorney.

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

 

 

 

529 Accounts and Divorce

New Jersey Divorce and 529 Accounts: Changes to Law Make Use of 529 Accounts More Flexible

Those that investment money frequently into mutual funds or similar financial services often consider tax implications and how to minimize taxes on asset growth as an important element in investing.

Although there is no state benefit for investing in 529 accounts, these investments have historically allowed tax-free growth when utilized for college/university expenses. This means that when an investment gains value (through growth, dividends, etc), such gains will not be taxed provided it can be demonstrated they were used for college costs. 

According to Investopedia.Com: 

A 529 plan allows a person to grow his or her savings on behalf of a beneficiary, who could be a child or grandchild, a spouse or even yourself. A 529 plan may be established by anyone, including non-relatives, for a designated beneficiary. There is no limit on the number of 529 plans an individual can set up, but contributions should not exceed the cost of education nor the limit as set by the state…The assets of a plan belong to the plan holder, not the beneficiary (although these can be the same person). The beneficiary has no claim on the assets, which can be withdrawn by the holder for any reason at any time, with penalties.

Accordingly, since its creation in 1996, 529 plans have become the most popular formal method of college savings.  Under the recent tax reform changes, however, 529 plans can now also be used (at a rate of $10,000 per year per beneficiary) for private elementary or secondary educations.  Previously such funds could only be used without triggering taxes on gains for post-secondary educations.* 

But How Do These Changes Impact New Jersey Divorces? 

According to the above-linked Wall Street Journal Article, as of 2016 275 billion dollars was invested in 529 plans. Accordingly, there is a very good chance that a divorce where the parties have minor or college aged children may involve 529 plans in the assets column.  Although 529 plans name beneficiaries, they are technically owned by the investor. 

Accordingly, that investor can withdraw that money (at a penalty) at any time and utilize those funds however they wish.  In sum, although a 529 plan will involve investing money in the name of another (generally); that person is under no obligation (such as a will of a pre-deceased individual) to actually continue with that plan of action.  

As such, a 529 plan should be considered an asset of the parties in a divorce.  The parties can agree to divide the 529 plan, or they can agree to maintain the fund to be utilized for their child(ren’s) education.  The parties can also agree in a divorce agreement to continue to invest a certain sum each month (or year, etc.) into their child(ren’s) funds even post-divorce.  There is a great deal of flexibility in the treatment of such funds for purposes of a divorce agreement, but the parties should endeavor to address this asset class and any future obligations or rights moving forward in the divorce agreement. 

Likewise, the parties should also now understand that they have the ability to contribute toward parochial/private schools without triggering tax penalties/additional taxes consistent with the modified 529 plan language under Tax Reform.  This is an additional consideration that attorneys should discuss with clients in New Jersey divorces to determine that such funds are being utilized in a manner consistent with the parties intent.

Given the nuances of 529 plans, it may make more sense to now spend down any monies held in such plans now for private education costs as part of a divorce agreement rather than having one or both parties holding them for many years to be utilized for college funds.  Then, the parties can open their own 529 plans post-divorce and save money for college as they so desire. 

This mechanism may be particularly attractive considering that 529 plans allow only one administrator (and sometimes trust between parties post-divorce is not complete or even non-existent). This would be a new and novel way for divorce parties to utilize such funds consistent with the new tax code changes.

Conclusion

As noted in prior blog posts, there are many changes to New Jersey divorces that should be considered post-tax code changes. Although not an issue largely covered in the news under the heading of divorce, given that most middle and upper middle class families in a divorce with children will utilize such funds, it’s important to understand their treatment given such changes to the tax code. 

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.

 

 

 

 

*There are additional benefits under 529’s (and particularly as revised) such as the ability to pre-pay state tuition or to now transfer certain sums for those with disabilities, but such mechanism exceed the purpose and grasp of this blog posting.