Sometimes the end of your divorce case is just the beginning of a long road of dealing with your ex-spouse. Maybe you have small children and will be co-parenting for many years, you have a home or retirement assets that you have to work together to divide or maybe you have support obligations that will have to be adjusted or revisited in the years following your divorce. The emotional and financial cost of continuously litigating with your ex-spouse is great and can dramatically impact your quality of life post-divorce. In my almost twenty years of practicing family law, the following are my most frequently recommended tips for avoiding unnecessary court costs and post-divorce conflict:
One of my daughter’s favorite holiday books is Llama Llama Holiday Drama, about a little llama who gets overwhelmed by the holidays. Unfortunately, getting caught up in “holidrama,” isn’t just for little llamas. Almost everyone experiences some form of their own “holidrama.” This is especially true if you are going through divorce or are sharing the holidays after a divorce. With competing personal, work, family and holiday obligations, the cost of gifts and entertaining as well as our emotional expectations around time with family and holiday traditions- the holidays can be overwhelming. They can also create situations ripe for arguing over parenting time with your spouse or ex-spouse. My best advice is DON’T, if you can avoid it. Not only will it cost you money in attorney’s fees, but it can also ruin your holidays and maybe your children’s holidays as well.
Yes, they can be seen as unromantic and unsexy, but they are SMART and not just for the mega-wealthy either. Pre-nuptial or pre-marital agreements can help couples establish what happens in the event of divorce, death or how they want to handle the payment of expenses or the treatment of assets during their marriage. For example, in a divorce setting these agreements can protect assets from being subject to equitable distribution (including later developed businesses or professional practices), they can establish a pre-determined amount of spousal support that can both limit liability for the partner paying but also offer assurance to the partner entitled to support and most of all they can offer certainty and reduce costs in the event of divorce or death.
This year I realized that I was ready for a new beginning. That new beginning was the creation of my own law practice after many years in private practice. New beginnings can be scary and filled with anxiety. They require us to step into the unknown. What I realize from my personal experience, and in my work as a family lawyer helping others, is that in order to step into a new beginning you have to be ready to face uncertainty and change. Some of us choose to step into a new beginning for ourselves, while others get forced into it by circumstance; tragedy, painful endings, betrayals, or crisis. But either way, we all have to become “ready,” at some point to face a new beginning.
Generally speaking, unless the parties have otherwise agreed, spousal support obligations are always modifiable based upon a showing of a material change in circumstances. (Lepis v. Lepis). Obviously, the loss of employment by the paying spouse can constitute such a material change in circumstance. The issue of modification of spousal support when an obligor loses employment and obtains lesser employment was specifically addressed in the September 10, 2014 amendment to the alimony statute. N.J.S.A. 2A:34-23(k) in order to create uniformity in how courts deal with this issue.
The Appellate Division opinion of A.M.C. v. P.B, released for publication on October 21, 2016 finds that a Trial Court misapplied the two-prong test for determining whether the issuance of Final Restraining Order is necessary (set forth in the landmark domestic violence case Silver v. Silver which requires in its second prong that the Court find that a domestic violence restraining order is necessary to protect a victim from future abuse). The Trial Court had found that the defendant had perpetrated acts of domestic violence, in this case, the assault of the victim on two separate occasions in a three- week period, including a physical assault that took place to prevent the victim from leaving the marital residence. But then determined that a Final Restraining Order was not necessary because it was not necessary to protect the victim from further acts of domestic violence because they believed that the parties’ relationship had ended when the victim left the marital residence because there were no children of the relationship and the fact that the defendant had no violated the TRO (which had not been served upon him) after the victim left the marital residence.
When I was in college I conducted an oral history of the Holocaust. I interviewed women and men who had survived the most unthinkable and unspeakable things. The overwhelming and amazing lesson was not what they had tragically endured, but how they had endured it. How their spirits had survived when maybe others had given up hope. Resilience. Resilience is defined as essentially the ability to get back up when you get knocked down. And in study after study researchers have come to learn that resilience is the single biggest predictor of future success.
On September 26, 2016 the New Jersey Supreme Court heard oral argument in the case of Thieme v. Aucoin-Thieme involving a dispute over whether a $2.25M post-divorce bonus was subject to equitable distribution in a short term marriage of fourteen months, due to the fact that the parties had lived together eight years before the marriage and the bonus had been “earned” during that period. Among the issues to be considered by the Supreme Court is whether an asset acquired during the period of cohabitation should be subject to equitable distribution. Although not presently contemplated under the equitable distribution statute, defendant’s counsel has argued that this is an issue of “equity.” Stay tuned for the outcome of this very interesting case, which may potentially change the nature of equitable distribution in cases involving a period of cohabitation prior to the marriage.
Lately I have talked to more and more clients and people that I consult with about the issue of resolve. An issue that we all grapple with, whether we are going through divorce or not. How do any of us know when we are ready? Ready to leave a job. Get married. Have a child. Buy a house. Make a change. Or end a relationship. In my work I have the blessing of sitting with and helping people at the hardest time of their lives. Oftentimes I deal with victims of domestic violence, who want to leave but are deeply afraid of being physically harmed or of not having enough money to survive on their own. Or Fathers and Mothers who feel they cannot end a marriage because they are afraid that their partner will try to take away custody of their children.
Last year’s change in the Prevention of Domestic Violence Act (“PDVA”) and two recent New Jersey cases are expanding what can be considered an “act of domestic violence,” for purposes of obtaining a Temporary and Final Restraining Order. In 2015 the New Jersey legislature amended the PDVA to include a defendant’s violation of a no contact provision of a restraining order as an act of domestic violence. This provision of the PDVA was intelligently analyzed by Judge L.R. Jones (Ocean County) for the first time in the recent case of DS v. BC (unreported August 2016). In this case, the Court indicated that a “knowing violation of a restraining order,” meets the first prong of Silver v. Silver (whether the victim has “proved by a preponderance of the evidence that one or more acts of domestic violence have taken place”) and then laid out a thoughtful analysis of this new provision of the PDVA.