Category Archives: Family Law

Holiday Parenting Time: Tips to Survive the Holidays During a Divorce

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

The holiday season brings a mixed bag of emotions. Some people find it to be a time when they can slow down the normally hectic pace of everyday life, take a vacation, spend time with family, make great memories and enjoy traditions. Others find the holidays to be a time when stress is at its peak, as the holiday season often brings unwelcome guests, an exhausting list of demands; including shopping, parties, baking, cleaning and entertaining, to name just a few. No matter which camp you may belong to, going through a divorce will probably put a damper on the holiday season.

In New Jersey, when couples with children decide to divorce, one of the first issues which must be addressed is custody of their children, at least on a temporary basis until the divorce is finalized. After the parents agree or the Court makes a determination on custody of the child(ren), parenting time and visitation will also need to be determined. In some cases, parents reach a suitable agreement without having to battle it out in court. However, in other instances, a Judge must determine parenting time.

– See more at: http://www.njfamilylaw4u.com/2015/11/holiday-parenting-time-tips-to-survive-the-holidays-during-a-divorce/#sthash.uUI8Km6k.dpuf

You Can’t Take It With You, But Can Your Spouse?

Yearing, T.By Tadd Yearing, Esq.
tyearing@pashmanstein.com

 

When a party in a divorce action dies during litigation, the right to equitable distribution disappears. This is because equitable distribution is specifically awarded upon final dissolution of a marriage. The courts, however, have allowed exceptions to this principle; crafting equitable relief to prevent clearly unfair results, such as to prevent one party (or estate) from being unjustly enriched or to prevent fraud by one party upon the other.

In the 1990 case of Carr v. Carr, 120 N.J. 336, our Supreme Court reviewed the equitable distribution claim of a wife following the death of her husband. Despite the couple having been married for seventeen years, the husband’s will left the entirety of his estate to his children from a prior marriage. Because there was also divorce pending, the wife’s rights to at least a spousal share of the estate were in question. Reviewing the probate and equitable distribution statutes, the court concluded, “the principle that animates both statutes is that a spouse may acquire an interest in marital property by virtue of the mutuality of efforts during the marriage.” It thus held that, “if warranted by the evidence,” a court can act to prevent unjust enrichment where equitable distribution becomes unavailable because of the death of one party prior to the entry of a Judgment of Divorce.

Twenty years later, the Supreme Court revisited these principles in the case of Kay v. Kay, 200 N.J. 551 (2010). In that case, the roles were reversed somewhat, as the deceased spouse’s estate was seeking relief from the surviving spouse, who was accused of having improperly diverted assets. Once again, the court authorized equitable relief to promote fair dealing and to ensure that, “marital property justly belonging to the decedent will be retained by the estate for the benefit of the deceased spouse’s rightful heirs.”

This brings us to the Appellate Division’s recent unreported decision in Beltra v. Beltra, 2014 WL 8096146, decided just last month. In this case, plaintiff-wife filed for divorce after a thirty-four year marriage. She was subsequently diagnosed with a terminal illness and tragically died six months into litigation, and prior to a final hearing. The estate was permitted to substitute in and the parties had a five-day trial to determine equitable distribution. The trial court’s written opinion was scathing in its assessment of defendant’s behaviors. It noted that defendant’s, “non-verbal actions were extraordinary in demonstrating his lack of candor with the court.” It noted he was “evasive” and that his testimony was “inconsistent.” More still, the trial court found he had made substantial deposits of cash generated from his business into foreign banks, purchased foreign assets with cash payments, and had interests in a number of spin-off businesses – much of which remained undisclosed to the wife/estate even after multiple contempt orders for his failure to disclose.

The trial court entered an award of assets and husband appealed. The appellate division vacated the order and remanded the matter for further findings. Following additional argument from the parties, the trial court specifically noted that exceptional circumstances warranting equitable relief existed and reinstated the original order for distribution. The judge further imposed a constructive trust on defendant’s assets.

Defendant again appealed, this time challenging the trial court’s imposition of a constructive trust, and arguing that because the estate failed to demonstrate “the nature or value of the subject assets,” it was error for the trial court to order distribution.

Unmoved by defendant’s arguments, the Appellate Division noted that, “[t]he facts were so flagrant and defendant’s offered explanation so unbelievable, the [trial] judge reported the apparent unreported income to regulatory and law enforcement agencies.” Moreover, the appellate court called out defendant’s extreme bad faith in arguing wife’s inability to ascertain the value of the assets. It highlighted the fact that because of defendant’s efforts to hide assets, plaintiff provided what information she could obtain. Thus, it was unreasonable to place a burden of proof on the party not having access to evidence to support that burden. Finally, the Appellate Division affirmed the use of a constructive trust to remedy the inequity caused by defendant’s clandestine efforts, and to “protect the right to claim marital assets in a matrimonial action.”

This case is an extreme reminder of the complexities that can arise in matrimonial litigation. The conflicting intersection of estate and divorce law clearly shows the potential for clients to be left in a legal “black hole” of sorts. To the extent that case law has developed to limit the possibility of parties being left without recourse, it is instructive that the Appellate Division first remanded the matter back to the trial court for specific findings in support of its imposition of equitable relief. That is, the ability to avoid this possible black hole is not guaranteed. As a practical matter, then, it is important that the right to relief is not simply assumed because of one party’s untimely death.

While death itself may seem to beg the question of inequity, this is clearly not the case. It is, therefore, critical that the court be presented with an explicit basis on which to find that equitable remedies are necessary to avoid injustice. There are a myriad of scenarios where the interests of justice might suggest leaving the parties “as is,” such as insolvency, or where a surviving spouse must continue to care for an unemancipated child, or where the parties each have substantial independent wealth, to name but a few. On the other hand, where one party acts to obstruct discovery, the Beltra court’s understanding with regard to burdens of proof counsels that the other party should not be penalized for being unable to present proofs beyond that to which they had reasonable access.

As is so often the circumstance in matrimonial matters, the specific facts of any given case matter. While Beltra reinforces important guiding principles for a serious, yet infrequently occurring, situation, more than anything it highlights that ensuring fairness between the parties is what matters most.

 

 

 

The Value of Information in Divorce Litigation

By Robert Kornitzer, Esq.
rkornitzer@pashmanstein.com

Every consultation with a prospective family law client begins with a very similar request from the prospective client “Please tell me what results I can expect, both financial and custodial”.  The financial questions include (but are not limited to) those pertaining to expected results as to payment/receipt of spousal and child support, division of liquid and investment assets, division of retirement assets, division of personal property and the necessity of carrying insurance to secure various obligations.  The custodial questions include (but are not limited to) those pertaining to legal custody, physical custody, relocation of one parent with the children, parenting schedules and parenting dispute resolution.

It is not a difficult task for a family law attorney to spout endlessly as to the statutory and case law pertaining to the above-referenced subjects. In fact, once you get many of us started, like many other professionals, it may be difficult to get us to stop discussing the nuances of our fields of expertise.  But the general knowledge that we can impart upon first meeting a prospective client is relatively meaningless to that client.  Why? Because each client is a unique individual with a unique set of circumstances.  Those unique circumstances create almost a limitless set of possible settlement/trial scenarios that must be explored prior to devising a final strategy.

I am a firm believer that no two sets of litigants (spouses, partners, non-married parents) are alike.  In a divorce, a client and her spouse bring to the litigation an extensive number of variables.  For instance, as to alimony alone, we must explore the ages of each party, the number of years married, the education of each spouse, the earnings of each spouse, the numbers of years in the workforce, the parental responsibilities of each spouse, the health of each spouse, and much more.  As to division of the value of a family business, we must explore the business tax returns, the total benefits derived from the business, the source of funds used to create the business, the involvement of each party in the business, the stability of the business, and on and on.

For each issue to be properly explored it is essential for the attorney to request specific information from the client and it is essential for the client to provide that information to the attorney. The specific information will allow the attorney to tailor advice and create a strategy that is tailored to the client.  Divorce is not “one size fits all”, even though many attorneys do attempt to take a simplistic cookie-cutter approach to divorce litigation.

During the course of litigation, gathering the necessary information takes on an important role towards optimizing the final settlement/trial terms for that client.  But it is also just as important for each attorney and client to understand that not only are each client’s “facts” different, the client’s “wants” are different as well.  It is the combination of maximizing wants based on what the facts have revealed that allows a client to achieve optimal results.

The Case of Rachel Canning and A Parents’ Obligations to Pay Support and Tuition

By Tadd Yearing, Esq.
tyearing@pashmanstein.com

It seems as if last week all the news outlets, local and national, were abuzz with the case of Rachel Canning, who filed a lawsuit against her parents here in New Jersey demanding support as well as private high school and college tuition payments – all despite the fact that she has for the last five months been living with another family. The case has all the right ingredients to make it a headliner: the attractive school-girl who is alleged on one hand to be an honors student and athlete, yet on the other an entitled party-girl brought home drunk mid-week by her boyfriend’s parents. There are her parents, who continue to profess their love for their daughter, and desire to see her home, but also admit their frustration at parenting a disobedient child who they feel engages in dangerous behavior. And there is also the weird involvement of a best friend and her local politician/lawyer father, who has candidly acknowledged his bank-rolling the litigation (but is asking for reimbursement).

Since gaining a national audience, the brashness of the suit has in some respects overshadowed the serious legal issues at play, as well as the sad reality that a family’s most private affairs have been forced into the open for critique and judgment. More than anything, it is a reminder that family law deals often with some of the most emotionally raw and culturally difficult issues. It also concerns rights often viewed as fundamental to our notions of “family.” At its core, the case pits the constitutional rights of parents to parent their child as they deem fit, without interference (and judgment) from outsiders, against the parens patriae role of the state to ensure a child’s well-being.

Moreover, mixed up in this, as a delimiting factor, is whether the child is emancipated such that she even has grounds to bring her case. (I have written previously about the standards involved in emancipating a child here). Thus, the parents and the child have vastly different views on how she came to leave the parents’ home. Rachel says that she was effectively thrown out of her parents’ house while mom and dad say she voluntarily left because she was unwilling to follow certain rules and help with chores. Her emancipation status is critical to whether the case proceeds to a hearing on what, if any, support and/or college costs the parent’s might be obligated to pay.

At the hearing this past March 5, 2014, the Court denied Rachel’s emergent application, urged the parties to try to work out a settlement, and yet scheduled a return date for April 22nd. Should the parties return without a mutually agreeable resolution, the Court will likely move to schedule a hearing on the issue of emancipation as a predicate question to the larger dispute of financial obligation.

The court acknowledged the difficulty of Rachel’s position, noting, “[d]o we want to establish a precedent where parents live in basic fear of establishing the rules of the house?” Moreover, the court suggested, “[allowing the emergent order] would represent essentially a new law or a new way of interpreting an existing law … A kid could move out and then sue for an Xbox, an iPhone or a 60-in television … We should be mindful of a potentially slippery slope.”

Further highlighting the implications of Rachel’s request, the parents’ attorney suggested  that allowing the application would embolden other children to say to their parents, “I am going to live with my [significant other] no matter what you say, but you’ll still have to pay for my college.”

The choice of college as the attorney’s example is prescient. As other commentators on this matter have noted, were the issue of college costs to come up in the context of a divorce between Rachel’s parents, the court would most certainly hold them liable for contribution toward that cost. But intact families enjoy a functionally higher level of privacy and autonomy than divorced families and the decision to fund college has historically been deemed a “family” decision. Thus, if married parents decide they won’t contribute to college, their decision is typically free from questioning by third-parties.

Finally, in a likely foreshadowing that this matter may end not in a bang but a whimper, recent news sources are now reporting that Rachel has reunited with her family and siblings, though the lawsuit itself remains pending.

Child Support Arrears and the Right of a Deceased Parent’s Estate to Collect

By Tadd Yearing, Esq.
tyearing@pashmanstein.com

It is a well-known principle in family law that, generally, child support is a right belonging to the child. Thus, in the course of negotiating a settlement, it is acknowledged that one parent cannot waive a child’s right to receive support from the other in exchange for, say, the coffee table or sofa, or even increased share of financial accounts.

This well-worn concept was at the heart of the recent case of Roder v. Roder, 2013 N.J. Super. Unpub. LEXIS 3055. In the case, the child’s right to support was analyzed in the context of a deceased parent’s estate’s efforts to recoup unpaid child support. Following a convoluted and messy procedural history, the pertinent facts are as follows: the parties were married in 1987, wherein the husband adopted wife’s son from a previous relationship. The couple divorced in 1997 and wife remained parent of primary residence for the child following the divorce. The child was deemed emancipated in 2008. In January 2011, wife unexpectedly died. At the time of her death, husband owed child support arrears in excess of $40,000.00. Litigation ensued wherein wife’s estate sought to enforce the support obligation and to collect the outstanding debt. Husband objected to the estate’s claim, though not to the debt itself, and sought a court order to make his arrears payments directly to the child. For his part, the child sided with Husband and sought direct payment of the arrears, noting that though he continued to reside with his mother (wife) for approximately six months after graduation his graduation from college, she did not contribute to his college expenses, which he certified he had paid himself.

The trial court denied the estate’s request and ordered that the support arrears be paid directly to the child.  On appeal, the appellate division reversed. It recognized the authority of the trial court to enforce its orders either for or against the estate of a decedent, but noted that in determining distribution it had gone beyond this authority. That issue, because of multiple beneficiaries to the estate (the child’s siblings), should be left to the Probate court, the appellate court stated.

Explaining this rationale, the court noted that, at the time of wife’s death, husband had no ongoing obligation of support to the child, as the child had been emancipated several years earlier. Further, commenting on the principle that child support is functionally a right belonging to the child, the appellate court distinguished that tenet and found that such a right had, “no relevance to payment of a child support debt owed to a custodial parent at the time of that parent’s death, especially where the child is emancipated and has no claim for ongoing support from either parent.” Id. at 13. The appellate division also found irrelevant the child’s claim that he had paid his own college expenses, noting that the arrears in question were for child support and not college costs. Id. Ultimately the appellate division held that the arrears amounted to a debt owed by husband to decedent-wife and that husband had no legal interest in how his support payments were to be distributed.

It is tempting to view this situation as deeply unfair to the child. On its face, it appears he loses out on collecting unpaid child support from his father, and which he did not receive the benefit of while un-emancipated. But, it is important to remember that child support represents a specific contribution toward the child’s use of certain fixed and variable expenses incurred by the custodial parent (heat, water, food, clothing, etc.), all of which wife incurred and effectively “covered” husband’s contribution toward, since he did not timely pay support and one assumes that wife kept her son sheltered, clothed, fed, etc.

The payment of support arrears in this matter are thus most akin to enforcing repayment of a loan, which wife theoretically “lent” to husband. The child received the benefit of being provided for by his mother and the arrears, such as they would reimburse wife for previously covering husband’s share, are a debt owed to wife, and now her estate.

Finally, it is worth noting that to the extent the estate is solvent, as an heir to his mother’s estate, the emancipated child will receive a portion of the arrears, albeit shared in part with any other qualified beneficiaries. As the subject child may receive some or all of these monies as a beneficiary after having already enjoyed what such monies were supposed to pay for (shelter, food, clothing, etc.), is it fair to suggest that it is the child who, upon receipt of any inheritance from his mother, will enjoy a double “payment” of the same support?

Out of State Relocation with Minor Children

By Tadd Yearing, Esq.
tyearing@pashmanstein.com

As society has become increasingly more mobile, more than ever people are moving to take advantage of work or education opportunities, for lifestyle, or because they have remarried, among a host of other reasons. Not uncommonly, these moves are often to a new state. When the individual wishing to move is divorced with children, and where they are the primary parent or custodian, this desire takes on a special importance as one generally cannot up and move without consent from the other parent or court approval.

Custodial parents have long had a right to relocate, however. But the difficulty has always been balancing the needs and desires of the parent wanting to relocate with those of the other parent, as well as accounting for the best interests of the subject children. Baures v. Lewis, 167 N.J. 91, 115 (2001) (noting that the conflict can be viewed as between the parties’ needs and desires as intertwined with the child’s interests) (emphasis added).

Critically, in Baures, supra., the New Jersey Supreme Court declared that, “social science research has uniformly confirmed the simple principle that what is good for the custodial parent is good for the child” and that “[w]hat it does not confirm is that there is any connection between the duration and frequency of visits and the quality of the relationship of the child and the non-custodial parent.”  Id. at 106-107.

With that as a backdrop, it is important to understand that the custodial parent seeking to relocate out-of-state bears the initial two-pronged burden of 1.) presenting a sufficient initial showing of evidence to establish that a good faith reason for the move exists and 2.) that the move will not be inimical to the child’s interests.

In assessing the above threshold questions, the courts have delineated the following factors for consideration:

(1)  the reasons given for the move;

(2)  the reasons given for the opposition;

(3)  the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;

(4)  whether the child will receive educational, health and leisure opportunities at least equal to what is available here;

(5)  any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

(6)  whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

(7)  the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;

(8)  the effect of the move on extended family relationships here and in the new location;

(9)  if the child is of age, his or her preference;

(10)       whether the child is entering his or her senior year in high school, at which point he or she should generally not be moved until graduation without his or her consent;

(11)       whether the noncustodial parent has the ability to relocate;

(12)       any other factor bearing on the child’s interest.

Baures, supra., at 118.

Once a sufficient showing has been made, the burden shifts to the noncustodial parent, who, in order to defeat the relocation request, must produce evidence opposing the move as either not in good faith or inimical to the best interests of the child.  After the noncustodial parent has gone forward, the moving party may rest or adduce additional evidence regarding the noncustodial parent’s motives, the visitation scheme, or any other matter bearing on the application.

As with most areas of family law, such determinations are highly fact sensitive. The cases often will include the reports of custody experts to opine on the move’s potential impact on the children. This can be financially burdensome to the parties, as well as stressful for the children involved. Nevertheless, as the case law makes clear, “[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.” Id. at 110 (citing Cooper v. Cooper, 99 N.J. 42, 55 (1984)).