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The Sound of Silence: Cohabitation is a Foreseeable Event Required to be Included as Alimony Terminating Language in a Marital Settlement Agreement Banner Image

The Sound of Silence: Cohabitation is a Foreseeable Event Required to be Included as Alimony Terminating Language in a Marital Settlement Agreement

Month: January 2017

The Sound of Silence: Cohabitation is a Foreseeable Event Required to be Included as Alimony Terminating Language in a Marital Settlement Agreement

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In 2014, the New Jersey State Legislature amended the alimony statute, N.J.S.A 2A:34-23, which better addressed the issue of cohabitation.  The amended statute now states as follows:

Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

When assessing whether cohabitation is occurring, the court shall consider the following:

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

(2) Sharing or joint responsibility for living expenses;

(3) Recognition of the relationship in the couple's social and family circle;

(4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;

(5) Sharing household chores;

(6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and

(7) All other relevant evidence.

In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

Although it has been addressed in other cases, the Appellate Division in Frick v. Frick, 2016 WL 7030475, (App.Div. 2016) a recent unpublished opinion, held that the cohabitation amendments in the alimony statute will not be applied retroactively to marital settlement agreements that were entered into prior to the 2014 amendments.   The preclusion of retroactive application of the statutory amendments is now nearly self-evident.  It has been addressed in several cases regarding most of the statutory amendments including cohabitation.

While the gravamen of the Frick case centers on the disposition of the retroactive application of the statutory amendments, the fringe of the decision interpreting the parties’ Property Settlement Agreement (“PSA”)(a/k/a marital settlement agreement), and the absence of a provision specifically addressing cohabitation is more interesting. 

In Frick, the parties entered into a PSA in 2009 that provided for a ten year alimony term to be paid from Husband to Wife in the amount of $1,425 per week.  Four years after the divorce, Wife began living exclusively with a man and his two children as a family.   A motion to terminate alimony was filed accordingly.   The parties’ PSA regarding the termination of alimony read as follows:

B. The parties have agreed and intended that alimony shall irrevocably terminate on September [30], 2019, or upon the death of either party, or upon the remarriage of the Wife, whichever is sooner. With regard to said termination, the parties have envisioned and considered any and all foreseeable and unforeseeable events occurring to either of them. The parties have specifically considered increases or decreases in the cost of living, increases or decreases in their incomes, their loss or inability to secure employment, any prospective change of employment, the subsequent acquisition or loss of assets by either of them, the dissipation, whether negligent or not, of the assets received by each of them as and for equitable distribution in this matter, and any other event or events which may or do change the quality of their economic life and have agreed to the unconditional termination of the alimony as set forth herein.

C. The parties acknowledge that the rationale in the cases of Lepis v. Lepis and Crews v. Crews have been explained to them in the sense that a substantial change of circumstances would permit either party to make an application to a court of competent jurisdiction to modify the alimony/spousal support provisions of this Agreement. It is the intention of the parties hereto, that the rationale of the Lepis and Crews cases shall not apply to the extension of the alimony term as set forth herein, for they intend, and they acknowledge that the mutual waivers of alimony/spousal support beyond that period in this Agreement shall express their rights and obligations for now and for all time, despite substantial changes in their monetary circumstances at that time.

The PSA, however, did not specifically address cohabitation or how it would affect spousal support.  The Appellate Division in Frick determined that since the PSA was entered into in 2009, and the amended cohabitation language for suspension or termination of alimony was not enacted until 2014, the statute did not apply retroactively as amended. 

The decision in Frick, however, went much further, indicating that “cohabitation is a foreseeable event.  The court specifically pointed out that the parties’ silence on this foreseeable triggering event to terminate alimony was an implicit waiver.  The court stated:

Insofar as the PSA, we disagree with the Family Part judge. We find cohabitation was waived as a change of circumstances triggering event. The language in the ‘Term Alimony’ section of the PSA, Sections A, C, and D, focuses solely on protecting plaintiff from potential claims that might be made by defendant at the end of the ten-year limited duration alimony term.

Cohabitation is a foreseeable event. By its terms, the agreement excluded it as an event which would trigger early termination of this limited duration alimony. The parties outlined the events which would trigger early termination, and cohabitation was not one of them.

Although an unpublished opinion, the decision has the potential to loudly and profoundly impact existing marital settlement agreements that do not specifically address cohabitation.  One can envision the words “cohabitation is a foreseeable event” becoming a colloquial refrain from bench and bar in future cohabitation cases where the parties’ agreement is ambiguous or silent as to cohabitation as a triggering event, regardless of when the agreement was executed or the context in which the magic word “cohabitation” is excluded.   It is without question that the absence of the specific word  “cohabitation” in an agreement will now become a rallying cry from practitioners defending cohabitation and termination of alimony cases regardless of the context of the agreement. 

It remains to be seen whether old and new marital settlement agreements that do not specifically reference cohabitation as a foreseeable triggering termination provision contain an implicit waiver.  If, however, the Frick requirement that foreseeable triggering events to alimony termination be specifically written in the agreements or lost forever, the sound of silence may become deafening.

Allen J. Scazafabo, Jr. Esq., is a contributor to the Riker Danzig Family Legal Blog and is Board Certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.  As a member of the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP,  Allen practices in Riker Danzig’s Morristown, New Jersey office and focuses his practice on representing clients on issues relating to divorce, equitable distribution, support, custody, domestic violence, premarital agreements and appellate matters. You can reach Allen at 973-451-8428 or ascazafabo@riker.com.

What is a Case Information Statement and Why Does It Matter?

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In New Jersey, each litigant in a divorce must complete a Case Information Statement, (commonly referred to as a CIS) and file it with the court.  The Case Information Statements are arguably the most important documents in an entire divorce so, though time consuming and tedious, it is important that divorcing parties fully understand what it requires.

A CIS is typically filed with the court by each party after all pleadings (Complaint and Answer) have been filed.  Generally, it provides your financial profile to the court and your adversary.  The CIS is important because it: (1) tells your lawyer most things they need to know about your financial status; and (2) facilitates disclosure of the same information to your spouse and his/her attorney, which they will require before proceeding with litigation or meaningful talks of settlement.  Without the information contained in the CIS, neither party will be able to make informed decisions about the significant financial issues (for example, alimony) in your case.  Even if neither party has filed a Complaint with the court, they may still exchange Case Information Statements because the information contained therein is so crucial in a divorce.

Part A of the CIS elicits basic information about each party and details related to your case, such as if/when a Complaint was filed. It identifies the issues in dispute, such as custody, alimony, equitable distribution and counsel fees.  It also seeks information related to any children the parties may have, whether from the instant relationship or otherwise.

Part B seeks miscellaneous information related to your employment and insurance coverage.  Specifically, you must set forth whether insurance is available through your employer and, if so, what types of coverage you have obtained through work.

Part C requires information related to your and your spouse’s income.  It provides a breakdown of the last year’s gross and net income for both parties.  It will also require information related to present earned and unearned income for both parties.  The section regarding present and year-to-date earned income will be calculated in part based on your three most recent paystubs, which must be attached to the CIS (as well as the most recent tax return).  This will include information related to deductions taken from your paycheck and will ultimately require a calculation of net average weekly and monthly pay.  Though tedious, these figures help narrow issues related to alimony and child support, if either are applicable.

Part C further asks a series of questions related to income, including information related to salary, raises, bonuses, commissions, supplemental income or income not otherwise accounted for in the CIS.  You must set forth whether you receive unemployment, disability, social security, alimony or child support.  You must also state whether you pay alimony, child support or claim any dependents.

Part D contains a detailed breakdown of your monthly expenses (calculated at 4.3 weeks/month).  It includes monthly expenses for your joint lifestyle (spouse and children included) and your current lifestyle, if that is different from joint.  For example, divorcing spouses that still live together would likely only fill out the joint lifestyle expenses.  Part D delves into the tedium of your lifestyle and is broken down by schedules.

Schedule A seeks information related to shelter expenses.  If you are a tenant, this includes rent payments, insurance, utilities and parking.  If you are a homeowner, this includes mortgage payments, real estate taxes, utilities, maintenance and other homeowner fees, like condominium dues.  Regardless of your residential status, this section further seeks an expense breakdown for cable, telephone, internet, security and furnishings.

Schedule B elicits information regarding transportation.  This section itemizes car payments, car insurance, registration and license fees, fuel, maintenance and commuting expenses.

Schedule C covers personal expenses.  These include, but are not limited to, food, clothing, medication, personal care, laundry, hobbies, vacations, gifts,  education costs, child care, savings, life insurance premiums, pet care and professional expenses.  While the Schedule C expenses are itemized in great detail, there is a catch-all line item to incorporate any other expense that is otherwise unaccounted for in the CIS.

Part E creates a balance sheet of assets and liabilities.  Because many of these items are subject to appraisal or require estimates, it is common for a filed CIS to include estimated or to-be-determined values in Part E.  Even if you cannot value your assets and liabilities at the time you file your CIS, this section facilities full disclosure of everything you and your spouse may own or owe.

For assets, the CIS identifies real property, bank accounts, vehicles, tangible personal property, stocks, bonds and securities, retirement plans like IRAs, 401ks and pensions, businesses, life insurance and loans receivable.  The form allows you to denote to whom the asset is titled, a date of acquisition, a value and date of valuation.  There is an option to indicate whether the asset is exempt from distribution and a basis for the exemption, for example, if it was acquired prior to the marriage.  You may also include footnotes to further explain your breakdown of assets.

For liabilities, the CIS identifies mortgages, long and short term debts, revolving charges and contingent liabilities.  You may designate a responsible party and also indicate whether you contend that liability should not be shared.

Part F enables a party to provide a brief narrative statement of any special problems that may exist in the case.  For example, a closely held business may be difficult to value or special medical problems of a family member may warrant a notation in Part F.

Part G lists required attachments such as W-2s, paystubs and child support guidelines, if applicable.  These are submitted along with your CIS.

While the form may feel like a one-size-fits-all template, there is ample opportunity to customize your CIS to accurately reflect your financial picture.  You can include footnotes to further explain an expense breakdown, note whether a calculation is an estimate or indicate that your spouse may have the information required to populate certain fields of the form.  Furthermore, you can denote whether an item is exempt from distribution or make a notation of when or how an asset was acquired or a liability incurred.

The CIS requires the filing party’s signature and is a sworn statement submitted to the court under penalty of perjury.  Therefore, thoroughness and accuracy are of paramount importance.  Although filling out the CIS can be burdensome and require combing through your financial history with frustrating diligence, its completion will mark the first step towards narrowing and resolving the financial issues implicated by your divorce.  A great divorce attorney can walk you through the process of completing the CIS, explain its relevance to your case and astutely review your spouse’s CIS to ensure informed, zealous advocacy of your interests throughout your divorce.

Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.

The Equitable End Run-around Equitable Distribution: Dividing Your Premarital Bonus

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The New Jersey Supreme Court has shed light on the limited circumstances in which principles of equity may supplant the equitable distribution statute for purposes of dividing a spouse’s bonus for work performed before and during the marriage.  In Thieme v. Aucoin-Thieme, the ex-husband (Thieme) held a demanding position with a biometrics consulting firm prior to the marriage, since 1999.  The parties met in 2000/2001 and began to cohabitate in 2002 upon learning that the ex-wife (Aucoin-Thieme) was pregnant.  They had one child together, born in 2003.

Although Thieme was not an owner of his firm, the firm’s principals offered to compensate him for his contributions to the firm’s success in the event that they sold the firm.  Due to Thieme’s demanding work schedule, the parties agreed that Aucoin-Thieme would not work, but would be a stay-at-home mother and property manager for their home and rental properties.

The parties did not marry until 2010 and divorced just fourteen months later.  On several occasions, Thieme acknowledged that Aucoin-Thieme had given up her career so that he could pursue his and noted that “it is appropriate that I support you fully in recognition of this sacrifice.”  While negotiating the terms of their divorce, Thieme reiterated his view that Aucoin-Thieme would be entitled to a portion of any bonus he received upon the sale of the firm.

In April 2012, Thieme and Aucoin-Thieme executed a Property Settlement Agreement, which did not address any anticipated deferred compensation. Merely three months after the entry of their judgment of divorce, Thieme’s firm sold and he received a one-time closing bonus of $2,250,000.  Thieme did not inform Aucoin-Thieme of the bonus but deposited $200,000 of the bonus into a bank account that, unbeknownst to Thieme, remained a joint account despite the divorce.  Aucoin-Thieme then withdrew the funds and Thieme filed a Complaint.

The trial court determined that Thieme earned the bonus over his entire employment with the firm and that Aucoin-Thieme was entitled to 30% of the post-tax portion of the bonus earned during their fourteen-month marriage.  The court awarded $30,288, to Aucoin-Thieme and ordered her to return the remaining amount that she had withdrawn from the joint account, totaling $169,712, to Thieme.  Aucoin-Thieme appealed, alleging that she was entitled to a portion of the bonus accrued during their period of cohabitation under both the equitable distribution statute and equitable principles.  The Appellate Division affirmed and the New Jersey Supreme Court granted Aucoin-Thieme’s petition for certification.

The Court read the equitable distribution statute as limited to property acquired during the marriage or civil union.  The Court noted that from a plain reading of the statute, “it is evident that the Legislature did not intend to treat property acquired during a period of cohabitation prior to a marriage or civil union as the equivalent of property acquired during that marriage or civil union, for purposes of equitable distribution.”  Accordingly, any ruling that a portion of Thieme’s bonus earned prior to the marriage was subject to equitable distribution would directly contradict the plain language of the statute.

However, the court did not end the inquiry there, highlighting that the Family Part is a court of equity and that equitable principles could entitle Aucoin-Thieme to a portion of the premarital bonus.  Specifically, the court found that Aucoin-Thieme’s claim for unjust enrichment had merit, given the specific facts of this case.

The NJ Supreme Court held that equitable principles warranted the imposition of a constructive trust governing a portion of Thieme’s bonus, noting that the prospect that Thieme would be generously compensated was a significant factor in the parties’ personal and financial planning from the early stages of their relationship.  Moreover, the Court found that Thieme and Aucoin-Thieme each relied on the expectation of deferred compensation if the firm was sold as they made important decisions for themselves and their family.  The Court seemed heavily persuaded by Thieme’s own admissions that Aucoin-Thieme was entitled to generous support based on her “great sacrifice” for Thieme’s career.  Even further, it was undisputed that Thieme’s professional success both prior to and during the marriage was in part due to Aucoin-Thieme’s domestic contributions to their family.

Based on the above, the Court found that Aucoin-Thieme had sufficiently demonstrated that she relied upon the anticipated deferred compensation to her detriment and that allowing Thieme to retain the entire premarital portion of his bonus would unjustly enrich him.  The Court remanded the case to the Family Part for a determination of the specifics of the constructive trust to be imposed on some part of the premarital portion of Thieme’s bonus.

At first blush, this decision opens a Pandora’s Box of equitable remedies available in determining the allocation of premarital assets.  However, a closer examination of the case demonstrates that the Court’s application of an equitable remedy would only be warranted in limited, similar scenarios. Here, the length of cohabitation (ten years) compared to the length of marriage (fourteen months) is illustrative.  Moreover, Thieme admitted that Aucoin-Thieme was entitled to share in the fruits of his professional labor and did not dispute that the bonus began to accrue prior to their marriage. The Court maintained that Aucoin-Thieme’s requested relief is not available under the equitable distribution statute, but that rare and unique circumstances could require that equity come to the rescue to correct a fundamental unfairness. Litigants and practitioners should be aware that raising equitable arguments in such a scenario are not necessarily meritless, but will likely prove unsuccessful absent extraordinary circumstances.

 Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.

Decision making tug-of-war: How is the decision made?

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In a recent decision, a New Jersey family court resolved the question of what happens when two divorced parents with joint custody of a minor child are unable to reach an agreement regarding important decisions related to the child’s health.

In M.T. v. D.T., the parties were divorced in 2015 following a 23-year marriage, from which three children were born.  As part of their divorce settlement agreement, the parties agreed to joint and equal custody, with neither parent being designated as the parent of primary residence (“PPR”).  Following their settlement, the parties entered into a consent order reflecting their shared-custody arrangement, which required the parties to advise one another of the children’s health-related issues and medical appointments

The dispute before the court related to the parties’ 16-year-old son, who hurt his arm and elbow in a sports-related injury.  The first orthopedic surgeon consulted recommended non-emergent surgery to relieve the teenager’s pain.  The child’s father scheduled the surgery without obtaining mother’s consent.  Mother filed an emergent application with the court ten days before the surgery on the grounds that her ex-husband scheduled the surgery without informing her or obtaining her consent.  In making her application, mother alleged that she had insufficient information related to the injury and wanted to seek a second opinion.

When heard by the court, father represented that the parties’ son spent a majority of time with him and that he had accompanied the teenager to his medical appointments since the divorce. The court entered an order directing that the parties have the opportunity to reach a consensus regarding their son’s medical treatment.  Mother met with the surgeon and voiced concerns over the procedure, which resulted in the surgeon cancelling the surgery.  Concurrently, mother consulted with a second surgeon without her ex-husband’s participation.

While the second surgeon agreed that the surgery should take place, there were differences between the two proffered surgical approaches.  The first surgeon consulted proposed a more conservative, limited approach than the surgeon consulted by mother.  The parties each agreed with the surgical approach proffered by the surgeons with whom they had individually consulted, and thus could not come to an agreement on which surgery their son should receive.

Shortly thereafter, father filed an emergent application, alleging that his ex-wife was delaying the teenager’s treatment by preventing the surgery proposed by the first surgeon from taking place.  In making this application, father sought full legal custody of their son, including the right to make medical decisions on his behalf.  Each surgeon participated in a telephonic conference to set forth their respective surgical techniques.  Neither surgeon objected to the reasonableness of the other surgeon’s approach.  Therefore, the court found that either surgical option was medically acceptable and no more prudent than the other.  Because the parties remained at legal loggerheads, the court was required to break the impasse and decide the matter so that the child could receive timely medical treatment.

The court noted that under New Jersey’s custody statute, in any proceeding involving the custody of a minor child, the rights of both parents are equal and there is no gender-based presumption that a mother or father has any greater or less ability to oversee the health and medical needs of their mutual children.  Any distinction between each parent’s comparative ability to tend to the medical needs of a child must be based, the court held, on the unique, fact-sensitive circumstances of a given case.

The statute provides three options for resolving custody disputes.  The court could award joint custody or sole custody (plus visitation to the noncustodial parent).  A third but less exercised option permits the court to enter any other custody arrangement which may be in the best interests of the child.  The court noted the state’s general public policy preferring joint custody, so favored because it encourages divorced parents to share in the rights and responsibilities of child rearing.  Under joint legal custody, decision-making authority for a child’s welfare belongs to both parents, irrespective of the actual living arrangements.  However, for joint legal custody to serve the best interests of the child, the court opined, parents must have the ability to cooperate with one another.  The court found that in scenarios where the parents cannot come to agreements regarding the child’s welfare, an alternate legal custody arrangement may be appropriate.

Noting its duty to consider the needs of the child in making a custody determination, the court acknowledged that the child has two important needs implicated in the scenario: the need for physical health and the need for functional parents to cooperate with one another and serve as positive role models.  Furthermore, the court stated that when parents’ rights and the child’s rights are both at issue, the child’s best interests must prevail.

To resolve this dispute, the court invoked the rarely used third option for legal custody set forth above , which allows the court to enter any custody arrangement which may be in the best interests of the child.  Here, the court retained the general status of the parents as joint legal custodians, but afforded father temporary authority to serve as medical custodian, for the limited purpose of arranging for the child’s surgery and care relative to his arm and elbow.

Acknowledging that both parents were fit for the role of temporary medical custodian, the court highlighted the fact that the child’s medical care was primarily directed by father prior to this dispute and that the teenager spent significantly more time with father than mother.  The court reasoned that any medical needs related to the surgery would most likely take place while the child was residing and/or convalescing with his father. 

While affording father the status of temporary medical custodian, the court warned that this did not give father the right to keep his ex-wife “in the dark” as to the child’s medical status. As temporary medical custodian, father had a duty to keep the child’s mother apprised of all scheduled appointments and information related to the child’s injury, surgery and medical care. The court further cautioned that this solution was limited in scope and duration and should not affect the parties’ existing statuses as joint custodians. The fashioned remedy,  meant to break a stalemate on a discrete issue related to the child’s welfare, sounds in equity and was therefore uniquely tailored to the specific facts of the case.

This case provides insight to divorced parties with joint legal custody who may face difficult decisions related to the welfare of their children.  Importantly, this case shows that legal custody is not an all or nothing right. One instance of parental deadlock may not necessarily put one parent’s status as legal custodian at risk – there are short-term, hybrid solutions available to the courts to shape a remedy to the specific circumstances of a given case. Rather than taking an aggressive approach and requesting sole legal custody as father did, an applicant seeking judicial intervention may seek a temporary remedy which would give one parent final authority on a specific, significant event in the child’s life, such as a decision related to a surgery. However, courts will remain reluctant to play tiebreaker for minor disagreements – it is always better to make a good faith effort to cooperate and come to a consensus before seeking relief from the court.

Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.

Considering a Divorce? Top 10 Tips to Be Prepared

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1. Get Informed.

Knowledge is power. Many people go through life without a full understanding of their finances. Sometimes it’s trivial, like not knowing exactly how much money is in your 401(k), while other times, people are unaware of exactly how much money their spouse makes. Being in the dark about your combined financial situation is more likely when one spouse is the sole or primary earner or where one spouse is exclusively responsible for managing the couple’s finances. Prior to getting a divorce, it is important to get informed about your combined income, assets and debts. Make lists and contact professionals you already work with (such as your accountant or financial advisor) to get information and access regarding your joint finances. Compile information related to any properties or businesses that either of you may own and make a list of people who may have the information you need. Whether it be from inadvertence or intentional withholding of information, your spouse will be less likely to cooperate once you announce you want a divorce, so make life easier by gathering as much information as you can as early as possible.

2. Create a Paper Trail.

If knowledge is power, documentation is leverage. It is important to have concrete evidence of the information amassed related to your (and your spouse’s) financial position. This documentation will be harder to get once a divorce is in motion. Gather information related to income, assets, debts and businesses.  If you don’t have access to online statements, call your bank, credit card company or financial advisor to get login information for any accounts in your name. Compile your tax returns and supporting documentation for the last few years and, if possible, the years of and immediately prior to your marriage. Make copies of everything and keep them in a safe place (preferably somewhere to which your spouse does not have access). Utilizing your own investigative skills will save you time and money later on.

3. Budget...

If you haven’t already done so, it’s time to start recording your monthly expenses. Bills on auto-pay that you don’t give much thought to? Jot them down. Never stopped to think about how much money you actually spend on dining out each month or what your teenager spends at the mall? Now’s the time to crunch those numbers. When you get divorced in New Jersey, you have to file a Case Information Statement with the court which itemizes your monthly expenses in painstaking detail. The sooner you start keeping track of your expenses, the easier it will be to estimate and/or average them later on. Since you’ve already put together your bank and credit card statements (see Tip #2!) this process should be slightly less painful.

4. ...Then Save.

Many people underestimate the cost of getting divorced. While there are ways to reduce the overall expenses, such as following this checklist, your overall finances will take a hit as a result of a divorce. First, assuming you don’t want your ex-spouse for a roommate, your joint income will have to sustain two households instead of one. Second, assuming you’ll utilize the services of a lawyer, you’ll incur counsel fees in getting divorced. These expenses are unavoidable, but you can alleviate the financial strain by planning ahead.

5. Craft your Credit.

Preparing for a divorce means preparing for a new chapter in your life of singlehood. In part, this means that, going forward, you’ll no longer be helped or hindered by your spouse’s credit score. If you have no credit or poor credit, now is the time to start building it up. Run a free credit report to get an idea of where you stand. Next, consider the steps it may take to improve your credit score. That may mean opening a credit card solely in your name to build credit. Many people find bogus “dings” on their credit score from debts mistakenly assigned to them. A simple phone call to the debt collection agency can help alleviate this problem. Improving your credit is just one of the important steps on the important journey from “we” to “me.”

6. Time It Wisely.

They say timing is everything and the same is true for getting a divorce. If divorce is something you’ve been considering for a long time or if you don’t have a specific deadline by which you want to get divorced, it may be wise to divorce in a year where you have lower income than years prior. For example, a year in which you expect to receive an unusually large bonus may not be the most advantageous time to get divorced. While a court will typically look at your income over several years to determine income for purposes of support, reduced income at the time of the divorce may work to your advantage. Timing is also a critical factor for purposes of tax planning. If you wish to file your return as married filing jointly, you must be married on December 31st of that year. Therefore, you cannot file jointly the year in which you get divorced. Strategic planning of timing of your divorce may save you money.

7. Consider the Kids.

If there are children born of the marriage, they will likely be the most important issue in your case. Custody and child support issues can significantly impact the progress of your divorce and frequently become tangled with the financial issues like equitable distribution and support. For example, whichever spouse maintains primary custody of the children may desire to keep the marital home so the children have stability and can continue attending the same school. It is important to consider your ideal custody and parenting time schedule and to set realistic expectations for how your marital status will affect raising and supporting your children. If custody will likely be a contested issue, it is a good idea to begin documenting your respective roles and responsibilities in the children’s lives. When kids are involved, your dealings with your spouse will not cease upon entry of a divorce judgment. You will continue to co-parent with this person for years (sometimes decades) to come. Therefore, you should consider how your divorce strategy (will it be amicable or will you go for the jugular?) may affect your relationship as co-parents and how it may affect your children.

8. Make an Exit Strategy.

Planning a divorce means beginning a transition back to single life. You should give careful consideration to how you will approach the subject with your spouse and how you will live once you break the news that you are seeking a divorce. Will you try to discuss the issues with your spouse before mentioning the D-word? Will you suggest counseling or make an attempt at reconciliation? Has your relationship soured so much that you wish to blindside your spouse with divorce papers instead of giving them a warning that you want to divorce and/or that the legal process may be forthcoming? There is no one way to get a divorce and the strategy you choose will reflect your relationship as it was and how it has changed over time. If there are issues with domestic violence or you have reason to believe that living under one roof will no longer be feasible, an exit strategy is of the utmost importance. Consider your resources (both financially and strategically) to be sure you have a safe place to stay once you notify your spouse of your intentions. Even if you don’t feel unsafe, but simply uncomfortable maintaining a joint household, contemplate where you will go in advance. Having an apartment lined up or confirmation that you can stay with a relative may give you the confidence to move forward with your decision.

9. Dream Up the Future.

​Remember that a divorce is a chance to start over and to be free from whatever gives you dissatisfaction in your marriage. Think about your dreams, goals and aspirations for the future, as they may inform your strategy for dissolving your marriage. If you have been out of the workforce to raise children, would you like to go back to work? Are you interested in pursuing a new career which requires going back to school? Such considerations might affect your needs regarding support. Have you always had a desire to travel and see your divorce as an opportunity to move somewhere new? Clearly, getting the marital home in your divorce would not be a priority then. Understanding what you want moving forward will help you strategize to get what you need in the divorce to make your dreams a reality.

10. Arm Yourself with Allies.

​While divorce can be a painful experience for many people, you do not have to go through it alone. Arm yourself with allies in contemplation of the difficult times which lie ahead. Divorces can be lengthy and emotionally draining. A support system of family and friends will help reduce the burden. In addition to surrounding yourself with family and friends, speaking to a therapist and/or others who have been through a divorce may help you cope. You’ll also need a team of professionals to help you navigate the difficult process and achieve your desired outcome. Hiring a divorce lawyer is the best place to start. Depending on the nature of your case, you may also need financial experts, such as a financial advisor and/or forensic accountants, or custody experts, such as forensic psychologists, to assist you with your case. A great divorce lawyer will have an arsenal of professionals to refer you to who can help with your specific needs.

Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.

Grandparent Visitation Rights: Can they be altered once they have been established?

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In a recently published Appellate decision, a court considered this question.  In Slawinski v. Nicholas, the court set forth the appropriate standard for reviewing a motion to modify a Consent Order granting grandparent visitation and which party has the burden of proof.  The court also stated that this standard would be the same whether it was by agreement (i.e. a consent order) or by adjudication.

The court in Slawinski ruled that once a parent enters into a consent order allowing grandparent visitation, a request to modify must be considered in accordance with the framework established in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980), and applied to custody and visitation disputes.  That is, the parent must make a prima facie showing of changed circumstances that would warrant relief.  Once made, the court should allow reasonable discovery if warranted and conduct a plenary hearing if genuine issues of material fact remain.  The moving parent, not the non-moving grandparent, would bear the burden to prove that there has been (1) a change of circumstances, and that (2) modifying the order would not cause harm to the child.

While Slawinski involved a previously entered Consent Order between the parent and grandparents, the court ruled that even though it was a Consent Order, it did not give the parent the unilateral right to modify the Order or withhold the visitation.  Generally, a parent's fundamental right to raise a child as he or she sees fit encompasses the authority to determine visitation by third parties, including grandparents.  Yet, that autonomy gives way to the need to protect the child from harm.  Thus, the standard for grandparents initially seeking visitation is that they “must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child."  "If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome."

Proof of harm involves a greater showing than simply the best interests of the child. It is a heavy burden.   Our courts have dictated that the harm to the grandchild must be a particular identifiable harm, specific to the child.  It generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent's death.  Only after the grandparent vaults the proof-of-harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details.

But according to Slawinski nothing about a parent's right to autonomy warrants allowing a parent to unilaterally modify or terminate a Consent Order on grandparent visitation.  In Slawinski, the parent effectively waived that autonomy by entering into the Order, just as a parent waives rights when entering into any other Consent Order governing custody or visitation.  Given courts’ respect for the consensual resolution of family-related disputes and the stability such agreements achieve, the Slawinski court ruled that modification of a Consent Order governing grandparent visitation must be considered the same whether the prior arrangement was forged through adjudication or agreement.

The moving party's burden within this procedural framework is to prove that there has been a change of circumstances and that this change warrants revision of the original resolution of the matter based on the factors and standards that otherwise govern. 

Consistent with this approach, the court will apply the standard governing grandparent visitation if the movant-parent also succeeds in establishing changed circumstances.  That is to say, the court must consider whether or not the modification of a grandparent's visitation will cause harm to the child, as distinct from considering the best interests of the child.  If the modification will not cause harm, the court must grant the modification even if the grandparent could show doing so was contrary to the child's best interests.

In grandparent visitation cases, the parent seeking modification bears the burden to prove changed circumstances and that the child would not suffer a particular, identifiable, child-specific harm.  Given that a grandparent's burden to prove harm is more onerous than satisfying a best interests test, the parent's burden to prove the absence of harm is less onerous than the best interests test.  Once a parent establishes changed circumstances and the absence of harm, the court must grant the parent's requested modification.

New Jersey Divorce: Division of Assets is Equitable, not Equal

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When spouses divorce, one of the things most often fought over is the division of their marital property, which is also referred to as equitable distribution.  Different states have different laws on what is considered marital property and how the marital property is divided between spouses.  In New Jersey, a court will divide the marital property “equitably” between divorcing spouses, which should not be confused with “equally.”  In all cases of equitable distribution, the joint efforts of the parties are considered to be contributing to marital earnings and the accumulation of assets, and each should receive his/her proper share upon divorce.  

As a prerequisite to dividing marital assets, a court must first determine what assets are subject to equitable distribution – i.e., what is marital property?   New Jersey's equitable distribution law gives courts the power to distribute equitably upon divorce all eligible property that spouses legally and beneficially acquire during marriage, regardless of how title to such property is held. N.J.S.A. 2A:34-23.  This means that even though property may be in the name of one spouse only (e.g., a car’s title, a home, an investment account, etc.), both spouses have an equitable right to the property if it was acquired during the marriage. 

But what happens if the property was acquired before the marriage? Or was inherited during the marriage? Or was acquired in anticipation of the marriage? Or was premarital, but then grew during the pendency of the marriage (e.g., retirement accounts)?  How is this property divided?  The general rule is that premarital assets, gifts, devises, or intestate succession are not subject to equitable distribution.  But the real answer is - it depends.  

There are arguments to be made on both sides regarding what is and what is not an asset that should be subject to equitable distribution.  And the longer the marriage, the more difficult it can be to make that determination.  Was the premarital asset comingled with marital assets? Was the premarital asset used to support the marital lifestyle?  Did the premarital asset triple in value during the pendency of the marriage? Was the premarital asset an active investment (i.e., a small business) or passive investment (i.e., a stock position) that simply grew in value? These are all issues that must be considered when determining whether an asset is marital property. I could write a blog post (or have written a brief) on each of the above situations, as each situation will certainly be determined based on the specific facts of the specific case. 

But once an asset is determined to be a marital asset, it is then subject to equitable distribution – again, not equal.  In making the determination of the distribution of the assets, pursuant to N.J.S.A. 2A:34-23.1, a court shall consider, but not be limited to, the following factors:

a.            The duration of the marriage or civil union;

b.            The age and physical and emotional health of the parties;

c.            The income or property brought to the marriage or civil union by each party;

d.            The standard of living established during the marriage or civil union;

e.            Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;

f.            The economic circumstances of each party at the time the division of property becomes effective;

g.            The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;

h.            The contribution by each party to the education, training or earning power of the other;

i.             The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;

j.             The tax consequences of the proposed distribution to each party;

k.            The present value of the property;

l.             The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union, and to use or own the household effects;

m.          The debts and liabilities of the parties;

n.            The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union or children;

o.           The extent to which a party deferred achieving their career goals; and

p.            Any other factors which the court may deem relevant.

As you can see, given the number of factors listed above, there are many arguments that can be made for property to be divided in ways that may not be “equal,” but under the law would be equitable.  That is why it is so important to have a knowledgeable, experienced attorney when a divorce involves the distribution of assets.  Careful analysis of each factor and the specific facts surrounding the accumulation and maintenance of the asset can impact an argument as to how it should be distributed in the event of a divorce. Sometimes the "devil is in the details."

Inherently Physical Violent Offenses and Non-Physically Violent Offenses in Domestic Violence

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There has always been an undercurrent in domestic violence cases that, while not all domestic violence allegations involve acts of physical violence, the cases that do require slightly different treatment.  The courts have tip-toed around the notion that cases involving harassment and stalking specifically require courts to find the existence of a previous history of domestic violence, while findings of the existence of physical violence alone suffices to issue a final restraining order. The courts have strained to treat all complaints of domestic violence equally, regardless of the basis of the complaint, and apply the statutory factors equally, without noting the distinction between physically non-violent acts and acts of physical violence.  In  Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006), the court intimated a distinction between acts of domestic violence that do not involve a finding of physical violence and those that do, but stopped short of creating a separate analysis and instead created a two-prong test to be applied in all domestic violence cases regardless of the type.  

In a recent Appellate Division case, A.M.C. v. P.B., --- A 3d --- 2016 WL 6134923 (App.Div. October 21, 2016), the Appellate Division went further and seemingly held that a finding of one physical act of violence alone is a prima facie basis for the issuance of a final restraining order.  In A.M.C., the Appellate Division re-visited the Silver decision and the second prong of the Silver test, requiring a finding of whether a final restraining order is necessary to prevent further harm.  Where the predicate act is an offense that inherently involves the use of physical force and violence, the Appellate Court focused primarily on the language of the opinion that drew the distinction and indicated that the decision to issue a final restraining order “is most often perfunctory and self-evident.”  While noting that a finding of domestic violence does not require actual violence, the Appellate Division in A.M.C. states, “Physical assault falls within the category of predicate offenses listed in N.J.S.A. 2C:25–19a that inherently and unambiguously involve the use of physical violence against a victim.”

Is A.M.C. a bellwether case for the notion that where there is a finding of an act of physical violence the second prong of Silver and the application of the statutory factors are unnecessary?  

In 1991, the New Jersey Legislature enacted the Prevention of Domestic Violence Act (“PDVA”) or (“the Act”).  A victim protected under the Act may seek a final restraining order by alleging the occurrence of one or more of the following 18 criminal offenses as a “predicate act”: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, stalking, criminal coercion, robbery, contempt of a domestic violence order and any crime involving risk of death or serious bodily injury.  Although these are criminal offenses, for the purposes of establishing that a predicate act occurred under the PDVA, the victim need only utilize the civil burden of proof.

Some of the 18 enumerated criminal offenses that may form the basis for an allegation by a victim pursuant to the PDVA, set forth above, inherently include physical violence or force.  For instance, robbery, assault, criminal restraint, sexual assault and criminal sexual contact all incorporate physical violence.  At the same time, offenses such as harassment, terroristic threats and stalking do not inherently involve physical violence.

In deciding whether to grant a final restraining order, the Act further provides:

The court shall consider but not be limited to the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and visitation the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

The second prong of Silver requires the court to apply the above six factors to determine if a final restraining order is needed.   Since the enactment of the PDVA, New Jersey courts have routinely hinted that acts involving physical violence, once established, may command less scrutiny than offenses such as harassment, regarding the application of the above factors.  Or put another way, some offenses are egregious enough that, when established, require less contextualization to determine the need for a final restraining order, despite the fact that the PDVA requires the court to consider the “previous history of domestic violence” and “the existence of immediate danger.”

A.M.C. focused almost entirely on the fact that the trial judge made a finding that an assault occurred. “The trial court's order denying plaintiff a final restraining order under the PDVA, despite finding defendant physically assaulted plaintiff on two separate occasions within a three-week period, is reversed. Applying the two-prong standard we first articulated in Silver, we hold that under the uncontested material facts of this case, plaintiff was entitled to a final restraining order as a matter of law.”

The Appellate Division went back to Silver and dug up Judge Falls’ one-line statement that, where there is a finding of violence, the issuance of a final restraining order is “most often perfunctory and self-evident.” The Court throughout the opinion noted that assault is “inherently violent” and acts that are inherently violent make the determination of the issuance of a final restraining order obvious, “self-evident” and “perfunctory.” The Court strained to stick with the Silver framework but, in a de facto manner, created a separate analysis for acts of domestic violence that incorporate acts of physical violence.  

A critical reading of A.M.C. requires the conclusion that a domestic violence case where there is an actual finding of harassment as the predicate act is to be treated much differently than a case where there is a finding of assault and no prior history.  One could argue that it would be a stretch to say that “a single finding of assault according to A.M.C. requires the issuance of a final restraining order,” but it may not be a good argument to make if your client is seeking protection and a final restraining order.

 Allen J. Scazafabo, Jr. Esq., is a contributor to the Riker Danzig Family Legal Blog and is Board Certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.  As a member of the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP,  Allen practices in Riker Danzig’s Morristown, New Jersey office and focuses his practice on representing clients on issues relating to divorce, equitable distribution, support, custody, domestic violence, premarital agreements and appellate matters. You can reach Allen at 973-451-8428 or ascazafabo@riker.com.

What is an Order to Show Cause?

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Chicago Cubs fans around the world rejoiced this month when the team took their first World Series Championship in 108 years.  Thanks to the decision of an Illinois family court last month, however, there may be one disgruntled Chicago Cubs fan this year – a husband who was forced to provide his soon-to-be-ex-wife with a ticket to Game Four of last month’s World Series game between the Chicago Cubs and the Cleveland Indians.  The husband purchased Cubs season tickets with friends prior to when the divorce proceedings began this April and obtained tickets to Game Four of the World Series.  His wife filed an “Emergency Petition for World Series Tickets” with the court presiding over their divorce, claiming that because the Cubs had not made it to the World Series in 71 years, they might not make it to the World Series again in her lifetime, thus creating an emergency issue within the divorce.  Presumably, the wife argued that the tickets were marital property because the season ticket package was purchased prior to the commencement of divorce proceedings and that she had an equitable interest in the tickets.

The judge ordered that the husband could keep the tickets and take the parties’ twelve-year-old son to the game, but ordered that the husband purchase a “comparable” ticket for his wife.  At the time, the cheapest available tickets were being sold for approximately $3,000.  By entertaining the petition within a week’s time, the family court heard the petition on an emergent basis.  In New Jersey, emergent applications, if granted, are heard in a similarly expedited fashion.

The emergent application in New Jersey courts is called an Order to Show Cause.  Taking a literal reading of its name, it requires the other party to “show cause” why an order should not be entered granting the relief requested by the applicant.  Instead of being heard on a regular motion schedule, through which it can take several weeks to be decided by a court, an Order to Show Cause is heard on an expedited basis – as quickly as possible and often the same day if not within a few days.  The Order to Show Cause proceedings move so quickly because it is intended for use in only true emergencies.

An Order to Show Cause often seeks a preliminary injunction, prohibiting the other party from taking some action which, if performed, would result in irreparable harm to the applicant.  For example, if a similar scenario as the Cubs World Series tickets dispute would arise in New Jersey, an arguable basis for an Order to Show Cause would be that if the husband were not ordered to give his wife a ticket to the baseball game scheduled for that week, she would be irreparably harmed because she could not have an adequate remedy once the game takes place.  If she did not attend the game, she could never get that once-in-a-lifetime experience back. Because the harm to the wife would be immediate and irreversible, a court might consider an emergent adjudication to be appropriate in such a scenario.

The standard of  irreparable harm is necessary to avoid frivolous Orders to Show Cause from being filed in court with regularity.  The Order to Show Cause is an attractive option for many litigants eager to have their issues resolved by the court.  However, the Order to Show Cause is intended to be an extraordinary remedy, warranted in very limited circumstances.  Litigants should be careful to avoid abusing the Order to Show Cause process, especially if the same judge is presiding throughout the duration of your divorce proceedings.  A misuse of the Order to Show Cause procedure may result in disfavor or a decrease in credibility before a court.  Judges have many cases on their docket and a motion calendar with set deadlines keeps them organized and on schedule.  The Order to Show Cause is a deviation from that schedule, disrupts the judge’s calendar and requires the judge to drop everything and resolve a dispute.  For that reason, litigants are wise to exercise their option to file an Order to Show Cause only in true emergencies.

So what counts as a true emergency justifying an Order to Show Cause?  Disputes that cannot be undone once a certain party takes action are often ripe for preliminary injunctions.  For example, issues related to children are sometimes appropriate for Orders to Show Cause.  If one spouse intends to “kidnap” a child and leave the country in contravention of a custody agreement, a court may be inclined to intervene immediately.  However, timeliness is a critical factor in these matters.  If the spouse intends to take the child on an international vacation in three months’ time, a court would be less likely to hear the matter as an Order to Show Cause and would encourage the parties to convert the matter to a regular motion.

The Order to Show Cause can be an effective tool for resolving issues of pressing importance, especially when they cannot be “undone” at a later date.  However, courts disfavor the Order to Show Cause when it is misused by litigants to get an expedited adjudication of a dispute which could be heard in the ordinary course.  Therefore, litigants should use the Order to Show Cause sparingly and only in the case of a true emergency.

Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.

Does the fighting ever end?

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I recently read an article on Huffington Post that provided an interesting perspective on the emotional turmoil that many divorcing couples go through.  What made it interesting is that it was provided by a third party - a friend of one of the spouses- providing his insights and opinions on what his friend had been going through.

Many, but not all, divorcing couples go through at least some period of acrimony during the uncoupling process.  It truly is a natural part of the process.  Separating oneself from the person who perhaps knows you better than anyone else is difficult enough.  Layer onto that the social stigma of divorce, self-esteem issues, financial pressures, fear of the unknown, the natural emotional cycle of loss and the struggles and hardships your children will also likely face.  To say it's a lot is the understatement of the century.

I have worked with many clients over the years.  Many different types of personalities and feelings have evolved during the uncoupling process - some for the better, others the worse.  As a lawyer, I try to take a moment to sit back and listen and observe what my clients are going through; I think this adds immeasurable value not only for my clients but for my practice.

So, does the fighting ever end?  The answer truly is - it depends.  I have worked with clients who start off viciously angry, so deeply hurt and upset that they only see red.  With the passage of time, some quicker than others, red fades to pink, then white and an evolution occurs.  Others are in denial about their anger until a seemingly minuscule event triggers an explosion.  They may recover quickly or that explosion may lead to Pandora's box.  Still others come to the process accepting and even eager for the uncoupling to happen. That may last or may turn into anger or frustration over any multitude of issues.

The key is, if you want the fighting to stop - then stop.  Self-control and decision-making must rank at the top of your priority list to make this happen.  I'm not a psychologist or psychiatrist and don't pretend to be, but it seems like the application of some common sense would be well served in these situations.  Pause, take a deep breath and reassess what it is you're fighting about.  Fast forward that issue and argument to determine if it’s really worth pursuing.  Maybe try bouncing the issue off a trusted friend, family member, advisor or therapist.  The decision to stop the fighting or to pick and choose your arguments is truly a liberating and empowering one.  It will not only save you peace of mind but time and money in the uncoupling process.  At the very least, it's worth a try.

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