The explosion of the numerous forms of social media has in many ways created a potentially fundamental alteration of the way in which family law litigation is conducted. I will be addressing social media issues in future blogs as well as in this blog as this recent phenomenon (who ever heard of Facebook seven years ago?) has had a profound impact on the way that issues like custody and even financial issues will be addressed. I will offer an example in this blog of the impact of social media with possible ramifications and will further develop the potential opportunities and dangers to litigants in future blogs and articles. My example of what we see is based on an actual incident that I have witnessed. The details here are not important but the broader issues raised are very significant.
We can start with Facebook and stream of consciousness allegations made by a parent in a custody matter. This particular matter was a bitterly-contested custody dispute that extended many years after the divorce and the original custody determination. The former wife (we will call her “Sally”) made the allegation in her court documents that her former husband (we will call him “George”) had recently attempted to burn her house down by setting fire to her porch. She was obviously attempting to raise to the court concerns over George’s mental stability.
In addition, Sally was simultaneously posting entries on Facebook as to her beliefs of George’s alleged arson and her fears of him. Multiple posting by Sally and her “friends” on Facebook ensued, with many postings, decrying the alleged mental instability of George. These postings were viewed by George’s personal acquaintances, business referral sources and even the parties’ daughter, who was a “friend” of Sally’s on Facebook. George finally learned about this from a “friend” who advised him of the exchange.
A copy of the postings were forwarded to George, which George read with disgust, knowing that the allegations were untrue and realizing that his reputation was being sullied with him powerless to prevent it. However, George was even more astounded when he read the final postings that contained Sally’s admission that she was wrong; that the fire was as a result of a frayed electrical cord. The court eventually learned of the misrepresentation. Sally never issued an apology to George, either personally or on Facebook.
Look at all the possible issues that were created by Sally’s postings. She disseminated false allegations to possibly hundreds of people, many of who know both parents. Does George have a possible tort action against Sally? Sally may have admitted to falsely certifying to the court serious allegations about George affecting perceptions about him. Was Sally attempting to alienate the child against George, knowing the child would be reading her posts and her other friends’ posts?
It is clear that use, or more accurately, misuse of a social media can have significant impact on a custody matter. This theme will continue to be developed in future entries.
In New Jersey, to prevent a party from dissipating marital assets or incurring unreasonable debt during the divorce, the courts require a party to file an application during the litigation seeking an injunction against the spouse acting in bad faith. The onus is, thus, on the parties themselves to seek the protection of the court.
Not all states agree with this procedure. In 2009, New York amended its laws to incorporate an automatic injunctive order into all matrimonial actions that is binding on both parties. (N.Y. Domestic Relations Law § 236 (B) (2)). Under this framework, the plaintiff must simultaneously serve the defendant with the Complaint for Divorce along with an “automatic order” compliant with the statutory requirements. The order is deemed binding on the plaintiff upon filing and upon the defendant upon receipt of service. The order remains in effect for the duration of the divorce action (unless terminated or amended by subsequent order of the court or written agreement between the parties) and, broadly, prohibits both parties from selling, transfering, encumbering, concealing, assigning, removing or in any way disposing of any marital property without the consent of the other party in writing, or by order of the court.
There is a certain common sense rationale to New York’s law, as it clearly is intended to reduce legal fees by making one of the most commonly requested, and almost always granted, forms of relief the default position of the parties. It also sets an important tone for the discovery process, which can be riddled with gamesmanship and efforts to hide income or assets. While I am generally against the efforts by states to make the divorce process a “canned” event, and where New Jersey is often cited as one of the most progressive and cutting-edge jurisdictions in the country for its efforts to resist the one-size-fits-all mentality of other states, the notion of a mutual automatic restraint on the dissipation of assets is an instance where a less modern sister-state has an interesting idea at least worth considering.
Every well-drafted Matrimonial Settlement Agreement (“MSA”) contains what seems like endless pages of paragraphs that clients often gloss over, called ‘boilerplate language’. I include this in each MSA that I draft. Some attorneys include little of the language. When agreements are verbally placed “on the record” in Court, much of the boilerplate language is actually ignored.
But the boilerplate language should not be ignored and it often has an immense impact down the road. For example, a “Waiver of Discovery” paragraph will generally preclude a person from later claiming that their spouse did not supply the financial data that should have been supplied.
Another example is a paragraph included in which a person representing himself acknowledges that he could have been represented by counsel but is satisfied that he has represented himself. This could preclude him from later arguing that he did not understand his rights or even the MSA language itself.
I mention the above because it has been my frequent experience to consult with someone who complains that he either did not understand the agreement or that he thought he agreed to something other that what is the clear language of the MSA. As the saying goes: the devil is in the details. In an MSA, the details are not merely filler.
Other than modification of previously ordered support, I have not seen any issue litigated more post-judgment (after the divorce) than emancipation of a college-age child. The reason seems obvious – the cost of maintaining a child in college and until graduation can be daunting. Many parents of college students have sought that the Courts adopt a bright-line rule regarding college attendance – either the student is full-time or the student is deemed emancipated.
However, a recent appellate decision has re-emphasized the soft-spot that the Courts have for children who have survived their parents’ divorce. In an unpublished decision, the Court affirmed Bergen County Judge Lisa Perez Friscia’s decision that it would be unfair to ignore the “totality of circumstances” of the child’s college attendance. The child may not have been “full-time” each and every semester, but when including summer classes with the balance of the child’s workload, the child satisfied reasonable expectations of a college workload.
The bottom line is that litigants should not fixate on the individual pieces of the college picture that suit their personal position on emancipation. Before jumping into a motion to have a child declared emancipated, it is important to step back and view the totality of the childs efforts over time.
I have been writing and giving media interviews extensively on this subject. I will shortly be attaching some of the articles and links. The issue of how a business (even one owned prior to the marriage) can be affected by a divorce, is an issue that touches on a sbustantial number of couples going through a divorce.
It is safe to say that the best time to begin protecting your business from a divorce is before you get married. Once the marriage begins, the build-up of “marital assets” begins and can have an increasing affect when it comes time to distribute marital assets as part of equitable distribution.
Preparation of a premarital agreement (which I have previosly discussed) is a popular manner of protecting a premarital business. However, there are other ways of accomplishing the same results, such as shareholder agreements or placing your business in a trust. These, and additional ways to protect your business, will be discussed in my future blogs.
My experience has been that many domestic violence litigants (and unfortunately many attorneys) fail to understand that controlling free speech is not the key goal in New Jersey’s domestic violence laws. Even use of extremely offensive language in a household is not of itself sufficent to create a finding of domestic violence.
Domestic violence is a complex subject and certainly this blog is an insufficent forum to offer more than tidbits of information on the subject. However, a recently published case emphasized that for a finding of harassment to me made, at a minimum the perpetrator of the offensive language must intend to harass the person, or “victim” to whom the statements are made.
Finding intent is not automatic, especially in a typical “he said/ she said” scenario. That the person hearing the statement is offended or insulted may also not be sufficient. Judges are obligated to sift through the testimony and any evidence offered at a hearing to determine whether there really was an act of domestic violence, or whether household squabbling that is short of domestic violence (called “domestic contretemps”) has occured.
When does a parent’s obligation to pay child support end? Contrary to what many people believe, it doesn’t end when the child turns 18 years of age.
Under New Jersey law, parents are responsible for supporting thier children until they are emancipated. Emancipation is defined as when the child “moves beyond the sphere of influence of their parents”. Typical emancipation events include the child’s completion of college, marriage or joining the military.
But emancipation is not always so clear. Even if a child takes off a semester (or two) from school, that child may not be deemed emancipated. This area of law is very fertile for hotly contested litigation. For example, what happens when a child withdraws from half of his classes? What happens if he fails classes? What happens if she is on a seven-year pace to graduate college?
Emancipation issues are very fact-specific; meaning that every case is different. While judges often give the benefit of doubt to the child (a product of a broken household), at a certain point, the judge is likely to say “enough is enough” and declare the child emancipated (thus relieving the parents of a child support obligation).
Often during a divorce, assets purchased by one party during cohabitation prior to marriage are considered marital assets. But this is not always the case. Courts need to review the facts surrounding the parties’ relationship. Questions must be asked, such as: Was the asset purchased as part of a shared enterprise leading to the marriage? Was the asset purchased as a regular part of the purchaser’s lifestyle and had nothing to do with the plans for a shared life (ie., adding to a comic book collection)? Did the non-purchaser then act in reliance of an expectation that [s]he would have an interest in that asset?
While the selection of counsel is a highly personal and subjective decision, there are several common factors each potential litigant should take into consideration. Ultimately however, the most important and critical factor is your level of comfort with the attorney you decide to retain as it will become necessary to share intimate personal details with your counsel. Continue reading “Choosing the Right Attorney”
Litigants may initially forget to consider the division of pension or retirement funds when beginning to negotiate the terms of any settlement agreement, as these funds may have been accruing quietly during the marriage. It is important to think about such distributions early in the negotiation process to avoid upsetting delicate negotiations and causing the parties to go back to the drawing board.