• First, the parents mus t be divorced or legally separated under a written agreement or lived apart continuously for the last six months of the year;
• Second, the child has received more than half his or her support from the non-custodial parent for the year;
• Third,  the child has been in the custody of either or both parents for the greater part of the year; and
• Fourth, the custodial parent releases the claim to the dependency exemption to the non-custodial parent in writing (IRS Form 8332) which must be attached to the non-custodial parent's tax return.

In many divorce cases, a non-custodial parent's right to claim the exemption is established by court order or written Marital Settlement Agreement. In divorce negotiations, this right may be a bargaining chip since the exemption is worth more to the higher income parent. Assuming the non-custodial parent receives the exemption, the next question is whether it should be annually or perennially.  It is not advisable for the custodial parent to waive the exemption for more than one year at a time and agreeing to do so each year should be tied to a provision in the Agreement or Order requiring the non-custodial parent to be current in child support for the year in question.

Since no two cases are alike, a parent going through divorce should always consult with knowledgeable matrimonial counsel to determine what is in their best interests in terms of settlement or trial.

By way of background, J.S. sought protection under the Domestic Violence Act when she began "seeing another man" to which J.F. responded by sending her harassing and threatening text messages. The case serves as fair warning that the commonly-held definition of "dating" is being expanded to satisfy the presumed legislative intent of the Act. As we lawyers like to say, "please be guided accordingly". As others might put it, "buyer beware".

In Houseman v. Dare, the court gave each party five weeks of time with Dexter and alternating holidays, with the party having physical custody responsible for Dexter's veterinary bills including cremation expenses in the event of his death. The court hoped that in such unfortunate circumstances the responsible party would agree to share his ashes.
 

The decision follows up an New Jersey appeals court ruling that pets, unlike furniture, household goods and other types of personal property, have a subjective value that transcends monetary factors. At the same time, it should be noted that the court declined to apply a "best interests of the pet" standard as would apply to child custody cases
 

I have at times  handled so-called "pet custody" as part of a divorce, although the court in Houseman declined to use the word "custody", opting instead for "possession".  Regardless of the language, there is no doubt that pets are often considered  "members of the family" instead of mere objects and that courts are starting to acknowledge their unique and special status.

What's the reason?  One theory is that more folks are opting to live together rather than get married, thus reducing the number or divorce filings.  One the other hand, some opine that the availability of " no fault"divorce is a major contributor to the breakdown of marriage and  increase in divorce rates. Others say that the cost of divorce is too expensive yet increasing numbers of persons are electing mediation or arbitration as alternatives to divorce litigation and even the cost of litigation can be properly managed if a divorce attorney has an associate to assume appropriate responsibilities at a lesser billing rate during the process.

Putting the cold data aside, my experience is that unhappy spouses either need to find their way to a happier place through counseling (assuming both participate in good faith)  or acknowledge that their relationship is unworkable  and harmful to their children.  In the latter case, a person's retention of experienced divorce counsel is essential to maximize a fair and cost-effective outcome depending on the complexity of issues and willingness of the other party to be part of the solution.

1. A Trademark is a name, word, phrase, logo, symbol, design, or image used to identify a product or service.  Also known as a “mark”, trademarks are denoted with the symbol “™”, although trademarks registered with the United States Patent Trademark Office are followed by the symbol ®.
2. A Copyright protects the expression of ideas captured in tangible form, such as drawings, sheet music, photographs, videotapes, computer files/software, books or paintings.  .  Copyright laws provide the creator with exclusive rights to publish and distribute his or her works for a certain time period after which the work belongs to the public.  Copyright owners may also authorize others to reproduce their work or derivative works based on the original work
3. A Patent protects a new or useful invention, such as a process or machine, as well as improvements thereto.  An inventor may assign his or her rights to the patent to another party.  Patent law exists for the purpose of excluding others from making, using or selling an invention for the term of the patent which is usually twenty years.
4. A Trade Secret protects  information which provides an economic benefit to the owner because it is not known to the public.  Unlike other types of IP, the protection of confidential information of a trade secret does not expire as long as the secret is never disclosed.

In a divorce, the first question is whether the IP is subject to equitable distribution.  Generally speaking, all assets acquired by the parties or either of them during the marriage (defined as from the marriage date to the date a divorce complaint  is filed) are marital. Thus, premarital assets, inherited assets or assets gifted from a third party ( and not subsequently “co-mingled”) will not be divided; however,  any increase in value of exempt assets which are the direct result of effort by one or both marital partners will be subject to equitable distribution.   

Thus, in cases involving IP, appropriate areas of inquiry are whether marital funds were expended to market the IP or to defend the owners rights to the IP during the marriage.  If marital funds were utilized, the non-owner spouse can assert that the otherwise exempt IP is subject to equitable distribution.

     
The valuation of IP as a marital asset is complicated by the fact that in many instances such value is based upon the IP’s ability to generate future income.  To the extent that such income will also be a factor in an alimony or child support calculus, the conundrum of a “double dip” exists.  In other words, having valued the IP as a marital asset based upon a future income stream and carried out equitable distribution based on that value, a court may nonetheless take a second look a the future IP income for alimony or child support.  New Jersey courts have determined that such an approach does not constitute a “double dip”, a fact which attorneys, forensic accountants and owners of an IP must recognize from the outset. 

   
Although there is no “bright line” ruling in New Jersey with respect to equitable distribution of intellectual property, guidance can be gleaned from decisions in other states such as a Kansas court’s decision that a disproportionate equitable distribution in favor of a patent holder was equitable since he would be required to expend post-marital efforts to ensure the continued income stream from the patents.

   
In summary, attorneys dealing with IP in divorce cases must be aware of the issues and pitfalls involved by exploring out-of-state cases and New Jersey cases dealing with different but analogous types of marital assets such as stock options and pension plans.

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.

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.

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

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.

Mr. Eory and Mr. Rossine discuss the obstacles people will often face when going through a divorce in relation to their mortgage such as, “Can I afford to keep my home after my divorce?” or “What is the best way to split the equity in my home during my divorce?” Mr. Eory and Mr. Rossine offer several possible solutions to these questions and provide tips on how to deal with your financial situation early on in your divorce case.

Legal Briefs On Divorce With John Eory & Len Rossine from Stark & Stark on Vimeo.

In Houseman v. Dare, decided and approved for publication on March 10, 2009, the court concluded that "There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet on one party's sincere affection for and attachment to it than in resolving competing claims based on one party's sincere attachment for an inanimate object...".

The case included briefs from Animal Legal Defense Fund and Lawyers in Defense of Animals which both urged the court to adopt a rule that requires consideration of the best interests of the dog. In many households, a dog, cat or other pet is  a "member of the family" with whom lasting attachments are made by adults and children. In such circumstances, Houseman points the way to resolve competing claims and  implicitly elevates the legal status of "man's best friend" and his counterparts.

The case is important to divorcing parties because distinguishing between permanent and limited duration alimony is often unclear in mid-length marriages. The ruling provides guidance with respect to a marriage in excess of ten years being considered of "intermediate length", as opposed to what some attorneys and judges have considered to be of sufficient length to warrant permanent alimony. The legal standards are further complicated by the alimony statute which requires judges to specifically find why permanent alimony is not appropriate before awarding another available type, such as rehabilitative or limited duration alimony.

It is important for divorcing parties to be knowledgeable through their attorneys regarding such issues before making important decisions which will impact their economic futures.

Lesson One: Fault Doesn't Matter
The inverse relationship between marital fault and results obtained was dramatically demonstrated as Judge Cassidy found that Ms. Matos McGreevy had advanced unreasonable and ultimately unsupportable arguments based on her husband's extramarital same sex affair. At one point, the Judge referred to Ms. Matos McGreevy's "irresistible urge for retribution" having  "no residual economic consequences". Harsher words from a family court judge are few and far between.
 

Lesson Two: Time is Money
It is enlightening how Judge Cassidy dealt with Ms. Matos McGreevy's alimony claim.  Despite concluding that Mr. McGreevy had an imputed earning capacity of $175,000 per year (an amount far greater than he alleged and a good deal less than Ms.Matos Greevy's expert witness opined), no alimony was awarded. Why? Basically because the court considered it short term marriage (4 ½ years).

          

Lesson Three :  Gamble With Your Own  Money
Ms. Matos McGreevy incurred over $500,000 in legal fees, some of which were to advance two unsuccessful arguments.  First, she hoped the court would agree that she was entitled to maintain a lifestyle in the manner to which she'd become accustomed as first lady of New Jersey. Second, she tried to prove that Mr. McGreevy possessed "celebrity goodwill" which could be quantified; that is, converted into money of which would receive a portion. Both claims were rejected by the court.

Why? Judge Cassidy sensibly found that a public servant's lifestyle only exists during the period of public service and is not transferrable to private life. She also correctly determined that Mr. McGreevy had no "celebrity goodwill" since he had no historical earnings attributable to celebrity status, as did, for example, the comedian Joe Piscopo, whose divorce case set the precedent for such relief in New Jersey.  

Since you (and I) are probably not in high public office and don't have celebrity goodwill to worry about, what's the point? Simply that strained legal claims come at a price. Ms. Matos  McGreevy was aware of her chances for success and took them at considerable financial cost. Essentially, she gambled and lost, as Judge Cassidy awarded no legal fees to either party.

Know your rights and responsibilities with regard to divorce. Discuss them with your lawyer. No less, know your exposure in terms of risk, reward and cost. Ask your lawyer. If she or adequately explains them, trust their professional opinion and make your decisions accordingly.  If he or she can't tell you, ask yourself why not, get another opinion and perhaps another lawyer depending on the stakes involved.

This case demonstrates the need for precise definitions in order to avoid unexpected or unpleasant results. If in doubt, consult an attorney before deciding how to proceed.