Mr. Kleeger conducts digital forensic investigations for divorcing parties in order to gather electronically stored information and put it in a format useful to a divorce case. Mr. Eory and Mr. Kleeger discuss the reasons for digital forensic investigations and what type of information can be gathered for a divorce case.

Legal Briefs On Divorce With John Eory & Rob Kleeger from Stark & Stark on Vimeo.

In order to do so, an application to the Court by the party who wishes to be come the guardian must be made.  Generally, when parties are in the midst of divorce litigation, the competent spouse is prohibited from becoming the guardian as it is usually deemed to be a conflict of interest.  Upon appointment of a guardian by the Court, the guardian may move forward on the incapacitated spouse’s behalf in order to negotiate and finalize the divorce proceedings. This includes, but is not limited to entering a Property Settlement Agreement and Final Judgment of Divorce.  This may even include filing the complaint for divorce on behalf of the incapacitated spouse. 

The laws of New Jersey recognize gay unions, whether marriage, civil unions or domestic partnerships, so long as the rights and privileges under the laws of the state granting such a union are substantially similar to those provided to a married heterosexual couple.  Thus, not only will a same sex marriage or civil union from New Hampshire  be recognized here, but should the marriage or civil union disintegrate, New Jersey will also provide a forum for dissolution by way of divorce if the jurisdictional requirements are met. 

New Jersey is currently considering a new law to allow gay marriage in lieu of civil unions. A competing measure has also been introduced to constitutionally ban gay marriage in the state, which has been met with little support.

Which state is next?  Possibly New York, which passed legislation legalizing gay marriage in the state assembly in April of this year.

Generally, all carriers require notification of divorce within sixty days of entry of the final judgment, if not less.  For insurance purposes, divorce, like marriage and birth, constitutes a life change warranting modification of the persons eligible for benefits.  By failing to notify a health insurance or other insurance carrier of a divorce where the former spouse is no longer entitled to benefits constitutes, insurance fraud.  If you are contemplating divorce, it is important to speak with an attorney regarding your obligations to notify insurance carriers upon entry of the divorce judgment.  In addition, it is advisable to contact all insurance carriers to determine their notification requirements so that you can plan accordingly.

Mr. Eory and Mr. Hoberman discuss the need for forensic financial investigations in your divorce, and Mr. Hoberman discusses his experience in conducting investigations in order to uncover fraud, embezzlement schemes, damages and assess internal control weaknesses.

Legal Briefs On Divorce With John Eory & Tom Hoberman from Stark & Stark on Vimeo.

Why does this designation matter?  Because the New Jersey Child Support Guidelines state that child support is divided into three categories: fixed expenses (representing 38% of the child support obligation), variable expenses (representing 37% of the child support obligation), and controlled expenses (representing 25% of the child support amount).

Fixed expenses are incurred by both parents despite whether the child is residing with the parent at that time.  These costs include housing-related expenses, such as mortgage, rent, utilities, and furnishings.  Variable costs are also incurred by both parents and are only incurred by a parent when the child is with the parent.  These expenses include transportation costs and food. 

The third and last category of a child support award is “controlled expenses.”  These expenses include clothing, entertainment, and personal care.  While the Child Support Guidelines recognize that both parents incur fixed and variable expenses, the guidelines presume that only the Parent of Primary Residence incurs controlled expenses, and apportion controlled expenses between the parties based on their income shares.

In Benisch v. Benisch, the Appellate Division recognized that, in true Shared Parenting Time Arrangements, the New Jersey Child Support Guidelines are unfair because both parties are incurring “controlled costs” for the child, but the Guidelines only give this credit to the Parent of Primary Residence.  The Guidelines therefore result in the payor paying these expenses as child support, and again to the child during their own parenting time.  The Court in Benisch recognized that an adjustment to the payor’s child support obligation was needed to correct this oversight, and remanded the case to the trial court to determine said adjustment.  However, the Court in Benisch failed to set forth a specific formula for making this adjustment. 

Thus, until recently, divorce attorneys have had little guidance from the Court regarding this adjustment.  However, Deffler v. Deffler sets forth a specific formula for adjusting the payor’s child support to take into account that both parents pay controlled expenses.  In a well-written opinion, the trial court judge outlined a three- step formula to make the necessary adjustments.  First, the basic child support amount should be multiplied by the payor’s income share.  Second, that figure should then be multiplied by 25%, which is the amount of the child support obligation attributable to the controlled expenses.  Third, that figure is then subtracted from the payor’s “Adjusted Basic Child Support Amount.” The result of this opinion is that the controlled expenses are “backed out”from the payor’s child support obligation, so they no longer incur these expenses twice.

This opinion clarifies a previously ambigious area of family law, and gives divorce attorneys and courts alike much needed guidance in calculating child support in shared parenting time arrangements.

It is even more dangerous when attorneys fail to give full treatment to the issue and put in language into a final Marital Settlement Agreement, such as; “The parties will divide up their personal property to their joint satisfaction”.  Newsflash - people who are getting divorced, will more than likely not be able to sit down at the dinner table and dibby up the good china!
 

So what do you do to avoid a post-judgment application regarding Aunt Eva’s Forman Grill that was given to your client as an engagement gift? 
 

The best tip I can offer is to begin dealing with the issue of personal property at the outset of the litigation.  I often have my clients develop a list of personal property and have them place a good faith value on said items.  The next step is to develop a roster of items that your client wishes to retain and identify what items the other spouse will more than likely request (sentimental value...etc).  Once I have reviewed the prepared list, I will then send over an initial distribution plan to the other side.  If there are valuation concerns, sending the proposed list early in the case allows plenty of time to work out a proper distribution method with opposing counsel.   
 

If the former marital residence is going to be listed for sale, it is critically important to establish a proper timetable for the parties to remove belongings from the residence so the real estate listing can move forward.  The removal of belongings is often a sensitive issue, as one spouse may not feel comfortable with the other party having access to the former residence.  To ease these concerns, work with your attorney to identify a neutral third party to be present and can take inventory of the retrieved goods when the removed spouse returns to the residence.  The involvement of an agreeable third party, along with an identified time frame/scope for the retrieval of your client’s belongings should help smooth this often turbulent process.
 

Another issue that often arises concerns the disposal of personal property that is unwanted by both parties.  While some clients would like to place their spouse’s belongings in a trash bag and place it on the curb, it is important to realize that there could be some identified value on personal goods that are no longer desired by the parties.  Have your attorney get in touch with opposing counsel and identify a list of goods that both parties wish to mutually dispose.  Consider your options, donating old clothing or furniture may produce a nice tax deduction that will benefit the parties.  Additionally, there are many disposal companies out there that will pay you cash for your “worthless items”.  This money can be split between the parties, or placed in a custodial account for your children.  If a moving company is necessary to dispose of these items, both parties will more than likely be responsible for sharing the cost of these services.
               

While the disposition of personal property may sound trivial, it is often the issue that holds up a final settlement of a case.  Work with your attorney from the outset of your case to get the issue out in the open and try your hardest to think with your head and not with your emotions.  If you follow these simple tips, dividing up the personal possessions acquired during your marriage should fall into place without the need for expense litigation.

Legal Briefs On Divorce With John Eory & Richard Carabelli from Stark & Stark on Vimeo.

It is bad enough that many divorce litigants know that their 401K or other accounts are 50% of last years’ value, even worse if they subsequently learn that event their remaining accounts have been strip of value by  “Madoff type” managers.

If, for example, one of the parties exchanges the house for an account which, subsequent to the divorce, and through no fault of either party, proves to be worthless, is there Post Judgement relief available to the party who, as a result receives nothing of value?

The answer: we don’t know.

A Post Judgment Court may find that the parties should have known of could have obtained pre divorce discovery which would have disclosed the circumstances or could find that it is a”change of circumstances” which justifies a modification of the settlement agreement or judgment.

With regard to the latter, the current status of the law in New Jersey is that a “change of circumstances” does not justify the modification of an equitable distribution agreement or award. Thus, to grant relief to the wronged party a Court may have to “create new law”.

The word of warring is “caution”.

Counsel and the parties must even more carefully than before scrutinize assets and investment accounts.,

Creative Counsel may even develop clauses for their Settlement Agreements which addresses subsequent developments which are beyond the control of the parties, but result in an asset becoming worthless. 

The art form will be “which assets”, how have they failed, why have they failed and for how long is the clause effective?

The New Jersey Child Support Guidelines mandate that the custodial parent cover the first $250 per year for each child’s unreimbursed medical expenses.  With the price of co-pays and prescriptions these days, this $250 does not go very far.  All unreimbursed medical expenses above this amount are to be paid by agreement between the parties, or through a Court Order.

The most common resolution to the issue of what each party’s responsibility is towards these medical expenses is to use an “income shares” approach.  Under this method, each party’s respected income is registered a percentage in direct connection to the total combined income of the litigant.  For example, if Wife earns $100,000 per year and Husband earns $80,000 per year, Wife would have an obligation to pay for 55% (her share of parties’ total income) of the registered unreimbursed medical expense, after the first $250 credit is properly applied.  I have found that this model is the most efficient resolution to the issue.  However, it is important to note that the “income shares” approach is not a mandated or Court ordered resolution to this issue.  It is merely a practical approach that many attorneys utilize.

When drafting a Marital Settlement Agreement or a Post-Judgment Order, parties also have the option of coming up with their own agreed upon payment method of these expenses.  I have seen many litigants agree to a 50/50 split, even when their income percentages are not truly equalized.

Being that a vast majority of litigants share the designation of joint legal custody (joint decision making rights) of their children, if you are the custodial parent and wish to receive reimbursement for the medical expenses that you covered “out of pocket”, I suggest that you develop a system to inform the other spouse of these anticipated cost.  Many litigations focus on whether or not the other party had a chance to approve a medical procedure that will incur some “out of pocket” expenditure before the non-emergency procedure commenced.  Like many other areas of a successful post-divorce relationship with the other parent, effective communication is the key to avoiding a potentially costly litigation.

As always, if you predict that the payment of unreimbursed medical expenses may be an issue in your pending or existing divorce agreement, I suggest that you consult with an experienced family law attorney to fully explore your options.

Acknowledging this as a likely outcome, some legal scholars are already raising questions as to the potential for conflict between such laws and religious liberty. For example, to what extent, if any, should the law protect the rights of "conscientious objectors" to refuse service to married same sex couples in religious-based social service agencies? How far may government  go in requiring religious institutions to accommodate same sex marriage? It is interesting that according to one 2008 survey, when asked if they would favor same sex couples to marry if the law "guaranteed that no church or congregation would be required to perform such marriages", support for same sex marriage jumped from 29% to 43%.

As one commentator put it: "Gay marriage is here to stay. And religious objections to gay marriage are not likely to evaporate anytime soon. Our best option-the one that serves the common good-is to work together to find the right balance between equality and religious freedom, two of our nations most cherished ideals."

Since it is predicted that New Jersey will  have same sex marriage within a year, such issues are the true future of gay marriage.

For over a half century New Jersey has abandoned its former "Heart Balm" statutes which allowed a "wronged" litigant to sue the third party for "alienation of spousal affections". Why? Such claims simply had no relevancy in modern society. But, despite the best efforts of many, some of our citizens seem to have a inexplicable need to be certain that not only the "fault" of their spouse is glaringly exposed, but that the rest of us are inundated with all of the prurient details.

First, our former First Family, the McGreevy's "entertained" us with daily allegations and cross allegations regarding homosexual behavior, multiple sexual partners and group sex. Who, I ask are interested and, if so, why?

Now we are bombarded with allegations concerning the sexual exploits of the "Boss". Is there a person out there who cares, and, if so, why?

Experienced New Jersey divorce attorneys strive to keep cases under control, eliminate unnecessary allegations of "fault" and to refrain from allegations which can only inflame the matter, embarrass the parties, severely damage the children and cause irreparable harm to all concerned. Unfortunately, our task is made much more difficult when political media hounds, show business publicity seekers and attorneys who, apparently feel that such publicity, will benefit their personal careers allow the divorce process to regress into media messes.
 

Why? Certainly for no legally viable reason. Most likely for some distorted emotional reaction, some publicity seeking litigant or attorney or some other distorted reasoning. None of which benefits the system. All of which further, and unnecessarily, burdens an already overworked system. All of which prevents the Court form directing its attention to those litigants who do "play by the rules".

Note to the famous NJ residents --- enough already --- handle your problems like the rest of us, in private and civilly.

Statistics show that almost 60% of the cases submitted to the Early Settlement Panels, do, in fact , settle very consistently with the Panelists’ recommendations. If not accepted, the Panel’s recommendations are confidential and can not be subsequently communicated to the Trial Judge without the mutual consent of the parties.

In a well intended effort to discourage litigants from unreasonably rejecting the Panel’s recommendations., recently proposed amendments to the Court Rules would allow the disclosure of the Panelists’ recommendations relevant only to the issue of Counsel Fees if the recommendations are rejected by one of the parties and, as a result the case proceeds to trial.

A seemingly logical suggestion which will not work and will, in fact, discourage the effective use of Early Settlement Panels.

Why? Because divorce cases have no clear “winner” or ‘loser”. The issues in a divorce case are not easily or clearly defined as to who “won” and who “lost”.

Thus, a Panel may make a recommendation on Issue A which is perfectly sound and should have accepted but for the fact that it was related to Issue B which could not be resolved.

For a Trial Judge to have to go reconstruct the Panel’s recommendations and make a determination as to who reasonably accepted the recommendations and who unreasonably rejected them creates “a trial within a trial”.

The statistically fact is that Early Settlement Panels are highly effective and useful tools of settlement for all divorce litigants.

Do not tamper with them—they work well and effectively—they require candid and confidential exchange of information and changes such as those proposed have only the downside risk of deceasing their effectiveness.

The laws of New Jersey recognize gay unions, whether marriage, civil unions or domestic partnerships, so long as the rights and privileges under the laws of the state granting such a union are substantially similar to those provided to a married heterosexual couple.  Thus, not only will a same sex marriage or civil union from Vermont be recognized here, but should the marriage or civil union disintegrate, New Jersey will also provide a forum for dissolution by way of divorce if the jurisdictional requirements are met. 

New Jersey’s recognition of same-sex unions even reaches beyond the United States.  This issue was recently before the Honorable Mary C. Jacobson, P.J.F.P., of the New Jersey Superior Court in Mercer County, who held that a same-sex couple who were married in British Columbia were entitled to a divorce in New Jersey based upon the principles of comity and ordered that the Plaintiff was entitled to pursue dissolution of her same-sex marriage to the Defendant by seeking a Final Judgment of Divorce.

The laws of New Jersey recognize gay unions, whether marriage, civil unions or domestic partnerships, so long as the rights and privileges under the laws of the state granting such a union are substantially similar to those provided to a married heterosexual couple. Thus, not only will an Iowa gay marriage be recognized here, but should the marriage disintegrate, New Jersey will also provide a forum for these marriages to be dissolved by way of divorce if the jurisdictional requirements are met.

New Jersey’s recognition of same-sex unions even reaches beyond the United States. This issue was recently before the Honorable Mary C. Jacobson, P.J.F.P., of the New Jersey Superior Court in Mercer County, who held that a same-sex couple who were married in British Columbia were entitled to a divorce in New Jersey based upon the principles of comity and ordered that the Plaintiff was entitled to pursue dissolution of her same-sex marriage to the Defendant by seeking a Final Judgment of Divorce.