Civil Litigation Tactics for High-Conflict Divorces (Podcast Number 3)

Podcast & Transcript

To listen to our Podcast, click here for episode 3: Utilizing Civil Litigation Tactics in High Conflict Divorces): Embedded in Site EditionDownload Edition.

Below is a transcript of the Podcast.

[0:00:08.3] CT: Hello. Thanks for listening. Welcome to the Carl Taylor Law: New Jersey Divorce and Family Law Podcast. As always, I am Carl Taylor. I’m a Central New Jersey attorney emphasizing divorce and family law in my practice. Today, we’re going to delve into the interesting topic of – interesting to me at least, topic of how to utilize civil litigation techniques in a New Jersey divorce.

Now, many divorces are not knock-down drag-out kinds of events. There’s plenty of uncontested divorces. Many of the cases I work on tend to go fairly smoothly. There’s really no need for emphasizing a great deal of litigation techniques or tactics. Invariably, there are cases that are for whatever reason, whether it’s the emotion of one or more parties, whether it’s the amount of assets, whether it’s the custody issues, there are from time to time cases where there is higher conflict; there are more motions that need to be filed, more techniques that need to be utilized. This is all about what kinds of tactics are out there if you’re contemplating a New Jersey divorce.

Now my background is somewhat interesting in that I’ve always done family law, but for a period of time I also served as deputy county council for a county, and I handled a lot of cases in federal courts and state courts. I had a great deal of exposure during those years to civil litigation. Just like how sometimes reading a book outside of your industry can give you new ideas, or have you view things in a new way, that experience was helpful for my divorce practice.

Actually, the impetus for this podcast is I recently was published in the family lawyer magazine with the article Utilizing Civil Litigation Techniques in high-conflict divorces. Now that was aimed more at other attorneys. That’s a national magazine that was written for other attorneys as the audience. The main takeaway was as divorce attorneys, we have the entire playbook available to us. We have many court rules that apply to not just civil litigation, but to us as well, but we tend not to utilize them for whatever reason, whether it’s custom, whether it’s just the belief system of specific attorneys, but there are. Again, these are ideas that aren’t going to apply to every case, but there’s certain techniques out there that some attorneys are using, but not all.

I wanted to take that experience doing civil litigation practicing in federal and state courts and appellate courts and put forth a manual, or a list of ideas that family law attorneys could utilize. Now the audience of this podcast is not other family law attorneys, so I’m going to try to talk about it in less of a technical manner and more of a workman manner. Nonetheless, these are certain ideas that can give you perhaps a sense of what you could utilize in a New Jersey divorce. One of the issues is what do you do if you have a prenuptial agreement? Plenty of people have prenuptial agreements and then they’re somewhat disappointed when they learn that there’s still some burden on them during the divorce process to prove that the prenup is valid.

There’s also what’s called summary judgment motions. These are motions that are usually utilized by insurance companies or other defense attorneys and civil litigations. The idea is there’s not enough here to go to trial on these issues. As family law attorneys, we tend not to utilize motions for summary judgment, but in instances where there’s a claim of marital tort where you’re saying there’s a personal injury from the marriage, or if somebody’s alleging that against you in instances where you’re trying to prove a prenup is not valid or prove that it is, filing a motion for summary judgment can be a very fascinating way to gain some leverage in the litigation to put certain issues to bed and to make sure that you can focus on the more important issues that are out there.

It’s not a total victory in family law, like it may be in civil litigation where you can prove via a summary judgment matter that perhaps a immunity exists and you can win on that issue and be out the case. In family law, you still have to get divorced, you may still have to address custody issues, which obviously would tend not to be good for summary judgment, because one of the standards of summary judgment is that no uncontroverted fact exists and it’s really more of a legal argument. You can win on the law on issues of whether a prenup is valid, whether a reconciliation agreement is valid. If you utilize those techniques, you can really go far in gaining leverage and bringing the case to a head.

To that end, another thing that family law attorneys don’t do as often as civil litigation attorneys is we don’t depose people. Now in TV shows and in movies, people – lay people watching those types of shows will not see that many depositions. Usually, if somebody’s being questioned by an attorney it’s during an actual trial.

There’s actually the ability to have what’s called a deposition prior to the trial where you put key witnesses or even the parties themselves under oath. Each attorney will be there and the other side’s attorney will have a chance to question you, to cross-examine you under oath. That’s why when they say never ask a question at trial you don’t know the answer to, depositions is where you get some of those answers. It’s also where you can impeach the credibility of somebody if they later change their story during the trial.

Another nice thing about a deposition is it can be utilized to point you towards new discovery. You can ask people certain questions that may open up new lines of discovery beyond the actual discovery requests. For whatever reason, historically family law attorneys do not utilize depositions. That’s an area that in a high-conflict divorce, you can utilize depositions. Is it going to cost a little bit more money than not using them? Sure. Is it for every case? Definitely not.

In these certain types of cases where it’s high-conflict, where there is certain discovery issues you need, or you have a – somebody your trial lock-in to a certain view or a certain truth that you want them to say, it could be very, very useful and it can be the type of thing that can bring a case back from the brink, or bring a case to a logical conclusion earlier than they would otherwise go.

Another discovery technique that has gained some increased use over the years from when I first started practicing but not as much as perhaps it should is requests for admissions. This is the cheaper way to do a deposition. You send statements to the other side and they have to say whether they are true or not true. If they don’t answer them at all, then you can make a motion at trial to state essentially that they have admitted everything in the statements that everything is admitted and therefore, they waive the right to now deny it. You can get a procedural upper-hand using admissions.

It’s the in-between, not all the way up to a deposition, but you can get certain statements made. You can start to carve out what the factual discrepancies may be between the parties and it could be very useful. Another technique that we use a lot in civil litigation but not very much in a New Jersey divorce is a claim of frivolous litigation.

Now this will come up particularly in post-judgment matters, where people will continue to file motion after motion. Then you can file a counter motion with the court asking that the person be barred from filing future motions, or that they may have to pay for counsel fees. You can use frivolous litigation rule 1:4-8. In many other circumstances, you could use if somebody files a marital tort against you and you know that it’s bogus. You could use it if somebody is attempting to file an adultery claim against you and you know it’s not true and you can prove it’s not true, it’s just meant to harass.

What you do is you have your attorney send a letter to the other side threatening damages for frivolous litigation and advising that you’re going to seek all sanctions available under the frivolous litigation law. We’ve talked a lot today about discovery. Another thing that is very common in civil litigation but not as common thus far in family law is non-spoliation of evidence claims. Usually, when a civil litigation case starts out, you’ll send a letter to the other side saying, “Please maintain all discovery or potential discovery pertaining to the case. If you don’t, it’ll be considered a spoliation of evidence.”

In family law, this could be really important for Facebook or social media accounts, for example. You can send a letter to the other side saying, “Please maintain all discovery,” so if the person later takes down a picture of them out partying when they’re fighting for custody, you can say that they spoiled the evidence and you can get an award of damages and positive inferences drawn towards your case, because the other side spoiled that evidence. You could also add that in as a count in your complaint for divorce, or counterclaim for divorce; it’s another way to gain leverage and high-conflict divorces like all litigation, or most litigation, it’s all about leverage. How do you gain that leverage to bring the case to a satisfying conclusion? If you can’t, how can you properly prove your case before a judge?

One last thing I want to talk about is Open Public Records Act. When I served as deputy county counsel for Somerset County for several years, OPRA or the Open Public Records Act was the bane of my existence, in that there’s just so many requests for records and it’s very fact-sensitive, whether a government entity should give those records out or not. Because of that experience handling those types of matters and trial courts all the way up through appellate courts, I have a good familiarity with them and what kinds of requests can be made and what kinds of requests can’t be made.

If you have a spouse who works for a government entity, you might be able to circumvent some of the discovery by requesting their salary information, for example, or their certain employment information; not all of it. Some of it is exempt, but some of it directly from the source, and that can help get you records quicker, it can help get you records that your spouse or his attorney would otherwise object to, and it’s another way that you can gain some leverage, gain information and move the case forward. It’s not something that you see very often, but it’s certainly an area of information and documentation available to us that we could utilize in certain circumstances.

With that, I’m going to wrap up this podcast. I hope it’s been informative. I hope it presents some possibilities beyond what you would normally read about divorce litigation. If you’re interested in learning more, you can go to our firm’s website mynjdivorcelawyer.com. Or if you’d like to call us to schedule a consult, or to meet, our number is 908-237-3096.

Thanks and have a great day. Take care. Bye.

[END]

Podcast Number Two: Divorce for Law Enforcement Officers

Following our recent law enforcement divorce blog post and law enforcement divorce e-book on the subject of law enforcement divorce, our second podcast also addressed how police officers and other law enforcement officers can protect their interests during a New Jersey Divorce. The Podcast takes a deeper dive into the subject matter, so please click here to listen to the Carl Taylor Law Divorce & Family Law Podcast – December 23, 2018 Edition. Below is a transcript of the Podcast for those that prefer text.

Podcast Transcript: Police Officer Divorce

Hello and welcome to the Carl Taylor Law New Jersey Divorce and Family Law Podcast. This is, as always, attorney Carl Taylor. Today we are going to review an interesting topic, one close to my heart, and that is law enforcement divorce. Over the years I have had the pleasure and the privilege of being able to prosecute for a number of towns and to work closely with law enforcement. I know how hard they work, I know how stressful their jobs are, I know how important their jobs are.

I have also, conversely, represented law enforcement officers and at times their spouses during divorces, and in the United States (as the joke goes) we’re not often asked who we are, we’re asked what we do when we first meet people. Your job, your profession, your employment, will impact what kind of a divorce experience you will confront. As will your spouses. If you are a law enforcement officer married to a stay-at-home spouse then there’s going to be issues of alimony you’ll have to confront. There’s going to be a pension that you’re going to have to divide.

There is going to be specifically the police and firefighter’s pension which has certain issues with survivor benefits, so that the other spouse may not get survivor benefits if you predecease them. Conversely, if you’re a lawyer like me the divorce will be different. You may or may not be a W-2 employee as a lawyer, but as a police officer you will be. As a lawyer you may or may not own your own business.

How do you value that business? And the contacts? And the good will of that business (hopefully the good will of that business). So your profession very much impacts your divorce and what makes law enforcement sort of interesting is that there is a higher divorce rate amongst police and firefighters, and military.

Some studies have shown that the expected rate for a police officer is around 75% versus 50% for the general public. Anyone listening to this who is in law enforcement can probably guess why: you work long hours, you don’t get a lot of time with your family, you work a stressful job meaning sometimes you don’t have as much to give to others as you like when you come home. Your hours are sporadic, your always on call, you work a lot of nights, you work a lot of weekends. And it allows the bond in time to unfortunately, to break.

So those are some of the reasons why law enforcement has a higher divorce rate. There is also a higher exposure as a law enforcement officer. If someone files a false domestic, specifically your spouse files a false domestic violence charge against you, it’s a big deal if you lose your weapon. You’ve worked those details in your job, so you know that the first thing you do if there is a temporary restraining order granted is to go to the person’s house and to take away there weapons.

Weapons for the average person may be used for hunting, but for you it’s part of your job. It’s very difficult to maintain your job if a final restraining order is entered against you as you may not be able to carry a weapon again. And not every department is wiling to work with you in that instance. You may have to undergo a fitness for duty evaluation, there’s all kinds of issues that may be confronted.

So one of the first pieces of advice that I give to law enforcement, that would be different from most other professions is: maybe you leave the house. Normally you don’t want to leave the house during a divorce because it gives the other side control, it allows the other side the ability to sort of dictate terms if you have children and custody, it’s harmful. Many people leave the house voluntarily, and then they come to me and I tell them “that was a bad decision.”

But when it comes to law enforcement, if you’re in a contested matter and you don’t fully trust your spouse, maybe you go out and you get an apartment or you find another place to stay because it’s not worth losing your employment or facing those issues if you think your leaving yourself exposed to a false restraining order.

I’ve had matters where I’ve had spouses of police officers so they want to go ahead and they don’t care if it impacts alimony. So there is an instance where you don’t think your spouse would take such a drastic action, but it happens, it happens to police officers like it happens to anyone else. So one of the first pieces of advice for those confronting a contested divorce when your a police officer perhaps you cede the house and fight the battle on other fronts.

Another thing you have to worry about is your pension. Your pension can be very difficult to negotiate in terms of police and firemen. When you have the police and fireman pension there is issues with survivor benefits meaning you may have to provide life insurance in a higher amount to protect the pension, essentially the law saws if you pass away the pension dies with you. So, if your going through a divorce your spouse or their attorney will be very concerned by that and they may try ways to negotiate to make up for it which may increase life insurance costs for you.

You can do what’s called a QDRO–a Qualified Domestic Relations Order–but then the question becomes how do you address the life insurance. And, if you have a savvy divorce lawyer, they should probably insist in there that if you do provide additional life insurance that you both share in that cost equally, because it’s an added cost for you.

Moving on to alimony, I talked about in my first Podcast which has been listened to….probably…..my wife and I, thus far, I talked about how the tax code has changed as 2019 has began and alimony is no longer a taxable event. So that means when you’re divorced you will have to tax-affect it as alimony will no longer be tax-deductible to you.

So if you talk to people in the department and they tell you “well at least you can deduct the alimony” that will be true for them, because they are grandfathered in, but it will not be true for you. After January 1, 2019 so pretty much anyone that gets divorced now or moving forward, unless the law changes or something happens, you’re going to have to probably figure out a way to pay out a lower percentage of alimony, but the total payment out of your pocket when tax affected will likely be the same as always. But you have to make sure you tax affect it. That’s going to be very important and it’s an area that us divorce attorneys are really going to have to confront in the New Year.

Getting to the emotion of divorce, I just wanted to make a note that as a law enforcement officer your used to being in control most likely. You sort of call the shots on the stop, you use your instincts, to work a tough and sometimes dangerous job, and your well trained. But nobody is well trained for a divorce. Even people who have been married many times over there lives can realistically only get divorced a maximum of 5-6 times. So, I always joke that I’ve been divorced hundreds of times, but that’s only because I’m a divorce lawyer.

So the average person they are not going to go through it all that much. So, try not to pay too much attention to the well meaning but likely uninformed comments from your colleagues and friends in the department. Laws are always changing, how to handle divorce is always changing, there is greater complexity all the time, and when you talk to other people it can be a positive or it can get you overly emotional. And you know from your training that emotion is not always the way to be in terms of making good decisions.

You want to make decisions as dispassionately as possible. Now I know you’re not a robot–I have yet to represent a robot–but you try your best to be robotic almost like an insurance company when it comes to negotiating these types of agreements and how to go brick by brick through the procedure to get you to the divorce. You want to do it in a sophisticated manner, negotiations are often not sophisticated. So, when you talk to other people in the department try your best not to get too worked up or to care what they did with what you are going to do, one way or another.

Some of them got good deals, some of them got bad deals. Some of them got quote unquote “screwed” in their divorce. It doesn’t mean you’re going to.

That’s why you’re going to go to an attorney and choose somebody who is going to help you through the process. That doesn’t mean you’re going to be happy with every term, but when you understand the general principles and rights of a divorce in New Jersey, which is not a favorable state for those paying alimony–which you will most likely be doing because police officers are statistically the breadwinners in their family…it’s a break by brick experience.

So the more you can look at it dispassionately, keep your legal costs down, and move forward, the better it will be for you, the better it will be for your children if you have them, and the better it will be for your career.

And that’s the final point I want to talk about when people are going through a divorce they are more likely than ever to lose their jobs. You don’t want your divorce to spiral into your job and lead to some kind of IA complaint you have to deal with or some kind of an issue that might impact your employment.

So, it’s the kind of thing where the more you can keep your emotions in check, whether that is talking to your religious figure, your therapist just to get through it, meditating, going for long jogs, talking to your divorce lawyer, whatever it might be to help you get through the process so it doesn’t impact your job, that’s the most important.

And remember, you have a job where you have a lot of overtime so it’s hard to calculate how much income you should be responsible for regarding alimony. Your income this year may not be the same as next year. You might be working without a contract, or entering into a new one, you might have worked the detail for a private entity that lead to a great deal of money over a short period of time, so you’re going to have to negotiate all that and have your attorney negotiate that as part of your New Jersey divorce. Perhaps taking the last three years or the last five years as an average regarding how much alimony.

And of course this is all contingent upon who you are married to. Perhaps you don’t have to pay alimony if you’re married to somebody that’s making more money than you. Statistically that is not the case but that is certainly in a vacuum going to happen plenty of times.

And how are you going to fight for custody when you have long hours and it’s tough to get a parenting schedule that works with your job because you are on call so much. These are all the types of issues you are going to have to confront as part of a law enforcement divorce.

If you have any further questions, you can view my website, www.mynjdivorcelawyer.com, which has a great deal of resources, some of it specific to law enforcement. If you would like to discuss this matter as part of a divorce consult you can call my law office in Central New Jersey, 908-237-3096, again 908-237-3096.

And I hope that this podcast will be helpful to all those listening. It’s our firms policy we do not charge law enforcement for initial consultations. You help keep us safe so we’re not going to charge you for an initial consultation. So we look forward to potentially working with you and thanks for all that you do and I hope that this podcast has been helpful to anyone in law enforcement or anyone you know in law enforcement that may be confronting a divorce matter.

Before I sign off, obviously prenuptial agreements may be more important to law enforcement or police officers, so if you’re not married yet or you know someone that is not married yet and they are a law enforcement officer and they are considering a marriage, then consider a prenup. And have your spouse waive their interest in alimony or your pension. That’s the best way. So if you can do that can really save a lot of headaches in the future. As they say: ‘An ounce of prevention is worth a pound of cure.’

So anyway, thanks again for listening and have a good holiday season moving into the New Year here, and all the best from us here at Carl Taylor Law, LLC. Thanks so much. Bye for now.

Divorce for Police & Law Enforcement Officers

Click here for our Divorce and Law Enforcement E-Book. For additional tips or if you prefer to learn via audio, click here for the Carl Taylor Law Podcast on the subject of Divorce Tips for Police & Law Enforcement Officers.

Or click here for a transcript of the law enforcement divorce consult.

Finally, call 908-237-3096 to schedule a Consult. We always offer free divorce consults to law enforcement officers.

Over the years I have represented many local law enforcement officers in their divorces. At times I have represented spouses of law enforcement in divorces as well. My experience as a municipal prosecutor has demonstrated to me, although in an admittedly limited way, how stressful a law enforcement job can be. The hardworking men and women I work with often work long hours including nights, are almost always “on call,” deal with a great deal of stressful situations, and are often not compensated or sufficiently thanked for their work and the danger they are in doing such work.

Perhaps it only makes sense then that law enforcement divorce rates among law enforcement are much higher than the national average, with some statistics showing a nearly 75% divorce rate.

Not only that, but New Jersey Law Enforcement divorces can prove to be difficult matters from a legal perspective. Almost invariably the first question my police officer clients ask is whether or not their spouse will be entitled to a share of their pension.

Because of the long hours they work and lack of a set schedule, law enforcement officers often have difficulty obtaining primary custody of their children.

The sporadic nature of law enforcement overtime makes it difficult to calculate child support and alimony and on top of that, law enforcement officers are more likely to have stay-at-home spouses than the general population–which can be a real luxury during an intact marriage but a nightmare in a divorce when alimony and custody are being sought by a soon to be former spouse.

Moreover, the Police and Firemen’s Retirement System (“PFRS”) law enforcement pension has certain unique traits such as a general lack of survivor benefits to the other spouse that negotiating a division of a pension and life insurance can become a complex mathematical exercise.

Regarding law enforcement alimony, the issue becomes only more complex given the recent changes to the tax code whereby effective January 1, 2019 all future alimony will not be taxable to the receiver or tax deductible to the payer. In a majority of instances the law enforcement officer will be paying alimony and a new calculation will have to be determined moving forward to tax-affect this change in the federal tax law.

Tips for Law Enforcement Divorce

Although an initial consultation with this firm or another will be invaluable for determining your rights and responsibilities when confronting a divorce, here are some of my best general tips for police officers or other law enforcement getting divorced:

  • Ok, so technically this is not a tip for those already married, but for those law enforcement officers that are engaged or in a serious relationship, consider obtaining a valid prenuptial agreement before the marriage. Although you won’t be able to negotiate away custody and child support issues, you can address issues of alimony and equitable distribution (such as having your wife waive his or her interest in your pension) provided that the agreement is valid.
  • If your marriage is adrift be particularly sensitive if you are nearing the twenty year anniversary, as that is when “open durational alimony” kicks in, which is essentially a fancier term for permanent alimony.
  • Be open-minded about the divorce. You will likely hear a lot of “locker room” talk from colleagues about how bad it will be, about how you should or shouldn’t do something, but every divorce is different based upon its facts. Although law enforcement divorces have certain similarities, there are still many specific factors. And to that end…
  • Realize that you will not be as in control as you normally are. Divorce can be a messy ride even with experienced counsel. As a police officer, you are used to working within the more clear-cut criminal code and being mostly in control of the legal situation. Family law courts are nebulous and unclear terms such as “best interests of the child” permeate. Although your involvement in the case will be helpful it can be a brick-by-brick process. Keeping your emotions in check during the divorce process will lead to efficient and sophisticated decision making that will serve you well in the long-run.
  • Know that fault is not that important in New Jersey law enforcement divorces. Again, as police officers you address mens rea –intent–in your criminal and traffic law matters. However, even if your spouse is 100% at fault for the divorce, it generally does not matter for purposes of calculating alimony or awarding alimony.
  • Generally I advise clients to not leave the house during the pendency of a divorce. For law enforcement officers in intense situations it may make sense. A false domestic violence charge can take away your gun and maybe your career. While you may believe your spouse would not file such charges (knowing you are likely the “golden goose” I’ve seen it happen plenty of times. Make sure you document everything, try to not engage in any kind of verbal confrontation, and let your spouse take the house and limit all interaction if you think a false domestic violence charge could be utilized against you.

There are many other issues you will need to confront, but the above are some of my best tips for police officers/law enforcement officers confronting a divorce.

Your New Jersey Divorce Lawyer:

If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options.  We will always offer free divorce consults to those who help keep us safe! 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.  

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