Tag Archives: divorce

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.

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)).

Prenuptial Agreement Basics

By Tadd Yearing, Esq.
tyearing@pashmanstein.com

Previously in this blog, we have touched upon the use of a prenuptial agreement to shelter business interests and alternative legal mechanisms to achieve the same, or similar, results (i.e. shareholder agreements and trusts). However, prenuptial agreements, or colloquially “prenups,” may be appropriate even when there is not a business interest to protect. For people entering into a second or third marriage, and who as the primary breadwinner earn significant income, they may wish to limit their exposure to lengthy, and costly, litigation over alimony. In other instances, the prenup may specifically insulate one spouse from substantial debt either brought into the marriage by the other or anticipated to be incurred by the other sometime during the marriage. In any event, parties should have a basic understanding of how a prenup functions to better understand how it may, or may not, be a worthwhile investment.

Initiating the discussion of a prenup with your fiance’ will force you to confront some potentially difficult questions. This can no doubt chill the heat of a romance. However, parties avoid this discussion to their own detriment and true love should be able to survive the reasonable concerns that a prenup is intended to address. Much of the negative reputation comes from a lack of basic knowledge regarding the intent and mechanics of the process. As with many things, knowledge is power and can allow the parties to broach the subject of a prenup as rational adults.

Obviously the purpose of a prenup is to fix and establish the rights of each spouse as to the division of property and/or support upon death or divorce. In New Jersey, the standards of such agreements and their enforcement are governed by statute (N.J.S.A. 37:2-38). To be valid, a prenuptial agreement must be in writing. As it is a contract, it must also be supported by proper consideration. That is, there must be a bargained for exchange of the terms. It must be entered into voluntarily, without coercion, and the parties must represent their competence to enter into such agreements. Importantly, the statute provides that the parties must each make a full and fair disclosure of assets, liabilities and income. Finally, it is critical that the parties consult with independent legal counsel, or else waive their right to do so in writing. Once these requirements are met, it is difficult to set aside the agreement, whether in part or in its entirety, though it is possible per the statute. (See N.J.S.A. 37:2-38 (a) – (c)).

The results of prenuptial agreements when put into effect can be far reaching. But people are marrying later in life after having already established careers and accumulated sometimes significant asset portfolios.  Since it is good planning, and with a desire to limit costs of divorce, there is no reason that prenuptial agreements should become more commonplace and lose some of the negative connotations that it invokes.

Protecting Business Assets From Divorce

By Robert Kornitzer, Esq.
rkornitzer@pashmanstein.com

The issue of how a business (even one owned prior to the marriage) can be affected by a divorce, is an issue that touches on a substantial number of couples going through a divorce.

It is safe to say that the best time to begin protecting your business from a divorce is before you get married.  Once the marriage begins, the build-up of “marital assets”  begins and can have an increasing effect when it comes time to distribute marital assets as part of equitable distribution.

Preparation of a premarital agreement is a popular manner of protecting a premarital business.  However, there are other ways of accomplishing the same results, such as shareholder agreements or placing your business in a trust.  These, and additional ways to protect your business, will be discussed in future posts.

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