AAML NJ Blog

By: Beth C. Manes, Esq., Manes & Weinberg, LLC

Our practice areas frequently overlap. Parents of special needs children face many challenges, not just during their marriage, but also upon its dissolution. In addition to the added financial stress of specialized activities and services, parents also find themselves juggling schoolwork assistance, driving to and from appointments with specialists, managing difficult and oftentimes aggressive behaviors, all underscored by chronic worry about their child’s medical, academic and social progress, and potential future.  Parents very often do not agree on educational, medical, and other decisions impacting their child. We have assisted many family law practitioners navigate this complex situation by providing the following services:

1. IEP Review/Mediator: Many children have IEPs (Individualized Education Programs) and 504 Plans, to provide special education and related services, as well as modifications and accommodations to help them learn. Frequently, parents do not agree with each other about what is best for the child educationally. We can review the documentation, provide an opinion, try to get the parents on the same page, and help advocate with the school district if necessary.  Alternatively, we can conduct mediation between the parents to help them overcome an impasse that is preventing their child from moving forward with a meaningful education plan.
   
   
2. Special Needs Consultant: Our firm has provided guidance to many family law practitioners who have a client with a special needs child in terms of issues that may be relevant to custody, and/or explaining the child’s school programming and needs. We have also referred practitioners to educational experts when parents are unable to agree upon a school placement for their child. Finally, we have reviewed Family Court motions to ensure the appropriate legal terminology is being utilized. 
   
   
3. Guardianships and Contested Guardianships of Children: When children turn 18, they are considered adults in the eyes of the law. This means they can make their own educational, medical, and financial decisions, unless a guardian is appointed. The process should be fairly simple, and we can sometimes coach a client through the forms and court procedures so that they do not need to hire a lawyer. However, sometimes, it turns into another custody battle, this time in Surrogate’s Court. We often serve as co-counsel with family lawyers to manage these cases.
   
   
4. Guardianships of Litigants: As you know, given S.T. v. 1515 Broad Street, LLC, a Family Court judge cannot simply appoint a GAL to act on behalf of an alleged incapacitated litigant, but rather the parties must utilize the R. 4:86 guardianship process. Family lawyers often turn to us to explain the process to their clients, and then file a guardianship complaint.  
   
   
5. Court Appointed Attorneys/GALs: We can be a great resource when the Family Court is asked to appoint a GAL for a child with special needs. We work with many educational and health (including mental health) providers for children around the state. We have advocated in school districts in almost every county. 
   
   
6. Special Needs Trusts: When a child turns 18, child support is deemed income to him/her. If that child will need to qualify for public benefits (i.e., SSI, Medicaid, Division of Developmental Disabilities Services), there is an asset and income limit that must be maintained in order to ensure eligibility. We often consult with both parents, and are retained jointly, to draft Special Needs Trusts in order to protect the child’s eligibility. 

If you have any special needs related questions, we are happy to answer them, and brainstorm your options. Sometimes a few minutes on the phone with us can save you a significant amount of time, and help you navigate unfamiliar areas of the law into which your matrimonial matter has veered.

By Alana Gibson, Chief Operating Officer, DGR Legal

Prior to the introduction of the Uniform Interstate Depositions and Discovery Act (UIDDA) in 2007 and its adoption in 2014 by New Jersey, deposing individuals or conducting discovery outside of the state a case originated in was a daunting task. 

The UIDDA created a streamlined way to domesticate a subpoena across state lines without needing to retain counsel there.

For family law attorneys, this means that soliciting testimony or gathering evidence from an out-of-state party is a significantly simpler process. This is particularly helpful for divorce cases, which frequently require requests for financial documentation and records related to asset valuation and ownership.

While not every state has adopted the UIDDA, it’s a useful method for requesting discoverable evidence in family law matters and scheduling depositions where permitted.

Resolution of Difficulty in Serving 

The UIDDA was created due to the many variances in state rules and cumbersome procedures required to serve a subpoena in another jurisdiction. Out-of-state discovery involved complicated procedures that differed from state to state and often required retaining local counsel. Every state had its own laws, and it was necessary for family law attorneys to be familiar with each state’s particular requirements in order to conduct discovery.

Some states also required that a notice of deposition be shown to the judge or clerk in the discovery state, where a subpoena would then be automatically issued. Others required a notice of deposition to be filed in the trial state and the witness to then be served a subpoena according to the rules of the trial state. There were also states that required letters rogatory requesting the reissuing of the subpoena in the trial state, with other states requiring the attorney in the discovery state to file an action to establish jurisdiction over the witness.

The process through the UIDDA is much more efficient and removes the need for local counsel or for a family law attorney to maintain knowledge of the varying rules and requirements of each state. It also eliminates the need for letters rogatory or a commission from the discovery state. 

Most importantly, it saves judicial resources, as it takes significant time for the courts to handle domesticating a subpoena. This is particularly critical for family law attorneys, who often deal with high-stakes and emotionally charged cases like divorce and child custody matters.

How the UIDDA Works

To serve a subpoena through the UIDDA, a draft subpoena that complies with the rules of the other state must be created. 

It’s important to remember any motion to quash or modify is governed by the rules of the state where the subpoena will be domesticated. Applying for the reissued subpoena can be done by mail to the clerk in the state where it needs to be domesticated. If there is any kind of deadline in place, this could cause a significant problem due to delays in both receiving and sending back the subpoena via mail once reissued.

The reissuing of the subpoena is handled by the clerk or prothonotary depending on the state. In most commonwealth states, the prothonotary will handle this. Once the subpoena is reissued it will either receive a new index number or be signed by the clerk.

If scheduling a deposition, this must happen in the same county where the document is being served. The domestication of the subpoena must take place in that county in order for it to be enforceable.

After the subpoena is domesticated, it can then be served according to the rules and laws of that state. There are particular requirements for what documents must be served along with the reissued subpoena. Be sure these are included or else the service will be not be considered valid.

The State of New Jersey Law Revision Commission’s final report relating to the UIDDA provides an example as to how the new process works:

“A witness in Florida needs to be deposed in preparation for a Kansas trial. Under the UIDDA, a lawyer of record for the plaintiff in the Kansas action issues a subpoena in Kansas as the lawyer routinely would issue in pending actions. That lawyer then obtains a copy of a form of subpoena from the clerk’s office in the Florida county where the witness to be deposed lives. Using the Florida subpoena form, the lawyer prepares a Florida subpoena that incorporates the terms and conditions of the Kansas subpoena. The lawyer then arranges for the executed Kansas subpoena, along with the completed by not yet executed Florida subpoena, to be delivered to the clerk’s office in Florida. The transmittal letter advises the clerk that the Florida subpoena is being sought pursuant to the Florida statute (citing the appropriate statute or rule quoting the UIDDA). The clerk of the court issues a Florida subpoena incorporating the terms and conditions of the Kansas subpoena and a process server, in accordance with Florida law, then serves the Florida subpoena on the deponent. Appropriate filing and service fees are paid as required by Florida law.”

A Process Server's Role in the UIDDA

Even though the process has been simplified, it doesn’t mean that the documents can be served as they are within a state other than the original jurisdiction. The UIDDA process requires dealing with the clerk of the court in the jurisdiction where discovery is being pursued. 

While a family law attorney doesn’t need to file a motion, this subpoena does still need to be reissued in the new jurisdiction. Additionally, using a process server ensures your subpoena is brought to the court clerk in person, cutting down significantly on the time need for domestication and avoiding the possibility of missed deadlines. It should be noted, however, that with the impact of COVID, turn-around time can vary based on the court and staffing. In some instances, extensions it has been necessary to request an extension. 

Given the variances in state rules and policies, using a process server can be extremely beneficial in expediting the timeline and accuracy of domesticating a foreign subpoena. 

Process servers who regularly serve UIDDA subpoenas become familiar with every court clerk and can hand-deliver documents anywhere in the country. As a result, family law attorneys save time and money on the research involved in locating the correct court clerk and local process, while ensuring accuracy and speed of completion.

States that Are Part of the UIDDA

While not every state has adopted the UIDDA, many have.

Please note: the states listed below are subject to change at any time. For a complete list of states that have adopted the UIDDA, please visit the Uniform Law Commission’s website.

States which are part of the UIDDA:

• Alabama
• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Delaware
• District of Columbia
• Florida
• Georgia
• Hawaii
• Idaho
• Illinois
• Indiana
• Iowa
• Kansas
• Kentucky
• Louisiana
• Maine
• Maryland
• Michigan
• Minnesota
• Mississippi
• Missouri*
• Montana
• Nebraska
• Nevada
• New Jersey
• New Mexico
• New York
• North Carolina
• North Dakota
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• U.S. Virgin Islands
• Utah
• Vermont
• Virginia
• Washington
• West Virginia
• Wisconsin

* Missouri has adopted the UIDDA, but as of the time of this article, they are still operating under their previous rules.

Looking Forward 

Family law attorneys should take advantage of the UIDDA to gain a more efficient and cost-effective discovery process by limiting judicial oversight and eliminating the need to obtain local counsel in the discovery state. 

A process server can cut down on costs even further by removing the burden of researching state-specific information and expedite timelines by personally handling the reissuing and domesticating of the subpoena with the court clerk. In states where the UIDDA has been adopted, expect a significantly improved experience when dealing with subpoenas for depositions or the production of documents for family law matters.

By LEAP, AAML NJ Silver Sponsor

Legal professionals often follow manual processes of managing cases from beginning to end. This often makes matter management a tedious task. Consider what this looks like for many New Jersey law firms today:

1. Referrals from previous clients come to your firm looking for legal help.

2. Initial intake is written down on a piece of paper, to be manually checked for any conflicts.

3. You reach out to this new client, via email or phone, to begin the case and have notes in different places.

4. Legal assistants manually write up notices and motions based on templates downloaded from your court years ago.

5. You meet with your client to print, mark up, revise, finalize, and sign documents whenever you both are available.

6. Documents are submitted via the NJ courts’ websites, potentially not being saved back to your files.

7. The recorded billable time is estimated based on your memory and the invoice for this client is created manually.

8. You have no client reminders for this outstanding payment so it takes longer to get paid.

9. You assume that you need to hire additional firm staff because there has to be a more efficient way to get work done, only accruing an overwhelming amount of administrative tasks and overhead costs.

This scenario is far too common for New Jersey law firms. Every step in this process causes inefficient workflows for you and your clients. Any combination of these points can be detrimental to your business’ bottom line, ultimately leaving you feeling exhausted. 

There is a solution. Legal practice management technology is being adopted by New Jersey law firms, making matter management, document creation, time recording, billing, and trust accounting a more profitable and efficient workflow. 

Changing the above habits and using automation techniques via legal software will make matter management look more like this:

1. Clients and prospective clients are all managed within an online web portal; they complete online intake forms and submit case information 24/7, and schedule appointments based on your set availability.

2. Cases are automatically created in a software database from the online intake form.

3. Client communications are initiated through this software, and saved to a centralized location, so all your phone and email communications are updated in the matter at all times.

4. The details of this matter are automatically pre-filled into the updated court form for this New Jersey-specific matter type.

5. All client collaborations on the document are managed through the same software and e-signatures are requested to notify all parties of completed documents without hassle.

6. The latest court details, case parties, and documents are synchronized back to your central database. 

7. You have instantly recorded your time on each of these steps so you can get accurate invoices to your clients quickly.

8. Your online web portal allows you to send payment reminders to your clients, provide links to pay via credit card, and accept online payments so you get paid faster.

9. Your legal automation software is taking care of all the tedious administrative tasks that you would have otherwise hired for. You also generate automatic reports that provide you with insights for productivity, fees earned, and profits and losses so you can improve your law firm.

Generally, you need multiple software programs to cover all of these steps. But, legal practice management solutions like LEAP Legal Software provide New Jersey attorneys with everything they need to automate their firm and make more money. 

“With LEAP, my practice is streamlined and efficient. The automated document production feature and the ability to bill my clients on the go is life changing! The use of this product has allowed everyone in my office to have the ability to be more effective and we now have the capability to invoice for time that we never did before." The Law Offices of Ma'Isha Aziz, New Jersey Law Firm

Learn more about LEAP Legal Software by visiting www.leap.us and get everything you need to run your firm. 

By Ryan Magath, CPA, CFE, Financial Research Associates

Over the last year and a half, a lot has changed in our post-pandemic world. Some changes have been positive, some changes have been negative; however, it is inevitable that many changes are here to stay as the “new normal”.  

During the pandemic, many companies implemented changes to their executives’ compensation in order to address liquidity concerns, align company and executive incentives, and to better position companies for the unknown that lies ahead. Understanding the changes to a spouse’s compensation that may have occurred during the pandemic and how the changes will affect compensation going forward as well as the related assets is imperative for a matrimonial matter.  

Discovery

The first step to understanding any changes that may have occurred to a spouse’s compensation package starts with discovery. The following documents include examples of items that should be requested in order to analyze a spouse’s compensation and identify changes that may have occurred to a spouse’s compensation. It should be noted that the following list is not all inclusive and should be tailored based on the specific facts and circumstances of the case. 

1. Employee’s annual compensation statements / summaries.
2. Grant award letters.
3. Settlement / vesting letters.
4. W-2 statement.
5. Annual earnings statement and paystubs.
6. Personal tax returns.
7. Schedule K-1’s.
8. Employment agreement.
9. Deferred compensation annual statements / summaries.
10. Brokerage or other investment account statements.
11. Employee handbook.
12. Plan documents (retirement, deferred compensation, stock option, other).

In addition to the documents listed above, it is best practice to request any personal financial statements and debt applications that may exist. These documents may help identify streams of income or other assets received as compensation (e.g. stock options, restricted stock units, stock appreciation awards, etc.). 

A few examples of areas to look out for are discussed below.

Pay Reductions and Compensation Deferrals 

When Covid-19 first shut down the United States in March of 2020, many companies were panicking. The panic and fear of the unknown resulted in pay reductions for some individuals, including executives. The reductions to an individual’s pay may appear to be their “new normal”; however, such reductions may be temporary or otherwise subsidized. For example, many executives agreed to pay reductions when the pandemic first hit in exchange for additional deferred compensation. The restructuring of compensation packages from cash payments to deferred compensation allowed companies to maintain liquidity, while keeping their executives incentivized.  

Deferred compensation can be awarded in various forms such as stock option plans, restricted stock units, stock appreciation awards, phantom stock plan awards, carried interest or other forms. Deferred compensation awards often have a vesting schedule; therefore, it is important to understand when the deferred compensation was earned. Just because some awards may be worth “zero” at the cut-off date or not yet vested as of the cut-off date, does not mean that they should be ignored.

Stock Option Re-Pricing

Further, companies that were negatively impacted during Covid-19 often have seen a large decrease in their stock price. Due to this large decrease in stock price, executives were holding equity awards (generally stock options) with no value because the price to exercise the equity award was greater than the current market value of the underlying stock. Consequently, these “underwater” equity awards may no longer incentivize the individual. To address this issue, some companies implemented stock option repricing, option for option exchanges, or grant refresh options in order to provide value to the equity award and incentivize their executives.  Therefore, these equity awards that previously had “zero” value may now hold significant value.

Summary

All of the various changes that have occurred and continue to occur to executives’ compensation packages need to be identified and evaluated.  Simply reviewing an individual’s year-end paystub or Form W-2 from 2020 likely will not identify the complete picture of an individual’s income. Some changes to executives’ compensation have been positive, some changes have been negative; however, it is inevitable that we need to analyze all of the necessary documents and be on the lookout for pandemic-related changes that might have occurred in order to determine what the “new normal” level of compensation for our clients looks like.  

Ryan Magath is a senior financial analyst at Financial Research Associates. He is a licensed Certified Public Accountant in New Jersey and a holder of the Certified Fraud Examiner credential. He is also a member of the American Institute of Certified Public Accountants and the New Jersey Society of Certified Public Accountants. He provides forensic accounting services, valuation services, and other litigation-related services.

By Marc Demetriou, CLU, ChFC, CDLP, SVP of Mortgage Lending/Branch, Manager at Guaranteed Rate

In the 1980s, the mainstream media shockingly reported that half of American marriages ended in divorce. Now forty years later, there’s some good news and bad news regarding divorce stats. The good news is divorce rates are down, from approximately 50 percent to 39 percent in 2020.¹ The bad news is the divorce rate in America is still too darn high. Which means that there’s still a lot of heartache and a lot of broken homes, literally and figurately. So, how do divorcing families deal with a divided house while also trying to sell it?

Each state makes its own rules

As anyone who has ever been through a divorce knows: there are no “typical” divorces. For example, if you live in a “community property” state, assets that were accumulated during the marriage are split fifty-fifty. But as they say: “the devil’s in the details.” If your spouse moved into a home that you already owned and the spouse’s name was never added to the house’s title, things could get complicated in a divorce. Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and sometimes Alaska.² 

In the remaining 40 states, marital assets are distributed in a relatively fair manner. But sometimes “fair” is not the same as “equitable.” Judges are human, with human frailties and biases. And let’s not even talk about prenups. If a spouse signed a pre-nuptial before saying “I do”, most judges will treat that agreement as a legal document. Judges love documentation. It’s less work for them.

The three main options for selling the marital home

Many real estate and financial experts say that there are three main ways³ to divide property in a divorce:

1. Sell the properties and split the equity – If a couple chooses to go their own way, it would make sense to hire an appraiser who can generate a document that can be taken to a real estate agent or attorney who can then prepare a preliminary closing statement that tells both parties what home assets are available to be divvied up and what outstanding costs (such as title insurance and HOA transfer fees) will have to be paid at closing time. As they say, “the best surprise is no surprise.” From a tax perspective⁴, when you sell the martial home could be very important. If you sell it jointly before the divorce is final (assuming that the family has lived in the house for over two years), both spouses qualify for tax exclusion of $250,000 per person and $500,000 per couple. However, if the home is sold after the divorce is finalized, there could be some capital gains tax issues to settle. A tax attorney can break down the tax obligations in each scenario in the state you are filing in. 
   
   
2. One spouse buys out the other – If one spouse wants to keep the house, typically that spouse buys out the other and refinances the original mortgage loan under that buying spouse’s name.  The new loan will pay off the prior loan and give the other spouse a cash payout for half of the home’s value. Speaking with a mortgage lender or real estate agent can answer many questions regarding how to execute this option successfully.
   
   
3. Both parties agree to defer selling to a later date – Sometimes certain factors come into play that make selling the marital home not feasible or too disruptive at the time of the actual divorce. If both parties agree to postpone – and sign an agreement to that effect – selling the family home for whatever reason (i.e. the children are still in school and moving might be a big disruption for the kids), this scenario happens occasionally. The obvious point to be made here is one that the mortgage payments still have to be paid on time – by somebody. Also, whichever spouse leaves the home, that spouse can no longer claim the home as their primary residence, thus possibly losing whatever capital gains tax exclusion that spouse qualified for when the house was finally sold. Consult a tax attorney with expertise in divorce cases to get more clarity on this issue.

Other joint decisions are crucial as well

There are other decisions⁵ that need to be resolved jointly that will directly affect the sale of the marital home as well, such as:

• What home improvements should be made before the home goes on the market?
• Which real estate agent does both parties mutually trust?
• What price does both spouses agree the house should be listed for?
• How will the mortgage payments by divvied up until the sale and for how much?
• How will the profits from the home’s sale be divided up?

Divorce can be a painfully emotional process for all concerned. But keeping a level head, being pragmatic, and maintaining reasonable expectations can help ensure that neither spouse loses their shirt when the martial home is finally sold. Again, consulting a tax attorney (especially one who has experience working with divorced couples) can help both parties move forward with open eyes.

1. https://www.businessinsider.com/alarming-facts-about-divorce-in-the-us
2. https://www.zillow.com/sellers-guide/divorce-selling-house/
3. https://www.homelight.com/blog/dividing-real-estate-in-a-divorce/
4. https://www.zillow.com/sellers-guide/divorce-selling-house/
5. https://www.zillow.com/sellers-guide/divorce-selling-house/

Marc Demetriou “The Divorce Lending Expert” is an SVP of Mortgage Lending & Branch Manager at Guaranteed Rate and is currently licensed in all 50 states successfully serving his clients in traditional and reverse mortgages. He consistently ranks in the top 1 percent of mortgage originators in the U.S., according to leading industry sources Origination News, Mortgage Executive and Scotsman Guide. In his home state of New Jersey, Marc has been featured in NJBIZ's "40 Under 40" and is called upon frequently by the real estate, finance, accounting and legal communities as a trusted expert and speaker.

DISCLAIMER:

All information provided in this publication is for informational and educational purposes only, and in no way is any of the content contained herein to be construed as financial, investment, or legal advice or instruction. Guaranteed Rate, Inc. does not guarantee the quality, accuracy, completeness or timelines of the information in this publication. While efforts are made to verify the information provided, the information should not be assumed to be error free. Some information in the publication may have been provided by third parties and has not necessarily been verified by Guaranteed Rate, Inc. Guaranteed Rate, Inc. its affiliates and subsidiaries do not assume any liability for the information contained herein, be it direct, indirect, consequential, special, or exemplary, or other damages whatsoever and howsoever caused, arising out of or in connection with the use of this publication or in reliance on the information, including any personal or pecuniary loss, whether the action is in contract, tort (including negligence) or other tortious action.

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By Smolin Lupin, AAML NJ Gold Sponsor

An attorney advocates for their client. Part of that is choosing a trusted valuation partner who can give a fair valuation, uncovering all the details and information to create an accurate big picture analysis. Another part of that is knowing what the valuation process looks like. 

Below, we delve into what matrimonial attorneys should know about valuations.

Not all assets are obvious

Each spouse’s income and cash flow may not be obvious from tax forms alone. An experienced forensic accountant knows to cast a wide net. While this may mean looking for a Form 3520-A to identify any offshore foreign trust accounts or review of the Report of Foreign Bank and Financial Accounts (FBAR) on Fincen Form #114, it may also mean a streamlined document request, such as reviewing the wills of relatives, like parents, grandparents, or other family members. 

Expect thorough document requests

Some clients may be surprised by extensive document requests, yet it’s a crucial part of the process. Forensic accountants are adept at looking for clues to discover hidden assets, such as whether or not reported income can support the family’s current standard of living.

Expect document requests for income and assets, as well as everything where a client is either a fiduciary or beneficiary of any trust assets.

Cash-intensive businesses will be scrutinized

In any business that conducts a lot of cash transactions, owners are susceptible to underreporting income. Valuation accountants may examine the books with an eye toward whether or not the business’s numbers match up to other, similar businesses. 

If they suspect not all the cash is being accounted for, they may use surveillance to monitor the level of business to see if it matches up with reported numbers.

Valuations must be independent

A client may sometimes assume that because you recommended someone, they can produce results favorable to the client. Since this isn’t the case, it can be helpful to emphasize their independence upfront.

Stay tuned to professional standards, statutes, and case law

When valuation accountants don’t follow the objective standards set out by their profession, they may be barred from testifying in court. Needless to say, this does your client more harm than good.

If your client understands that having an impartial valuation is in their best interest, that recognition can make the process proceed more smoothly.

Calculations aren’t valuations

Your client may want to save money by paying for a calculation of value as opposed to a more costly valuation. While calculations typically cost less, they are limited in scope. They aren’t subject to the same complex process that attempts to determine, say, the market value of a business. Calculations are like trying to get a sense of a house by looking through the window. They gather information, but they aren’t the same as actually walking around inside. 

Frequently, the valuation provider will even include a disclaimer in their final report which says that if a valuation had been done instead of a calculation, the results might have been different.

In short, divorce can be a costly process, but clients trying to cut costs by getting a calculation will ultimately do themselves more harm than good. The same can hold true for using a joint service provider.

Seek providers who understand simplicity

If you’re recommending a list of service partners to clients, make sure those partners understand the value of simplicity when presenting in court. It will make your life much easier if they can use everyday language instead of accounting jargon or an overwhelming amount of data. Instead, encourage your client to seek someone who can succinctly convey information and use visual supports, such as pictures and graphs, to effectively communicate their point.

Stay on top of tax changes

While the Biden administration has not yet passed any tax changes through Congress, President Biden has repeatedly communicated his desire to do so, including by releasing the Green Book breakdown of what he would like to see happen. 

If new tax laws are passed, valuation providers will need to move quickly to have their analysis processes reflect the new reality. Matrimonial attorneys should keep an eye on the news—and make sure the valuation providers they work with are doing the same.

Have further questions about valuations? We’d love to help—contact our experienced CPAs at any time.

By Carolyn Daly, Esq., Founder and Managing Partner of Daly & Associates, LLC

It happens all the time: a parent makes an accusation against the other parent and the court has to make a quick decision, based on limited information, on what to do with parenting time for the accused parent.  It should be unsurprising that courts faced with this situation will claim they lean toward protecting the child, even if it means a parent’s right to parent their child will be curtailed.  Most often, the court’s solution is to restrict parenting time with the accused by either suspending that parent’s parenting time, or instituting supervised parenting time pending a hearing.  But does this actually protect the child?  

Our custody statute, N.J.S.A. 9:2-4, “declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents” and “it is in the public interest to encourage parents to share the rights and responsibilities of child rearing.”  So when is restricting a child’s contact with a parent actually in the best interests of that child?

Our courts do not appear to have really addressed this issue head-on, as there are very few cases that address supervised parenting.  So what, exactly, is the basis to implement supervised parenting time?  Pursuant to N.J.S.A. 2A:12-7, “in the area of child visitation a court often orders supervised vitiation where there has been a history of child abuse, medical disabilities, psychiatric problems or other situations where the safety and welfare of the child may be jeopardized.”  If you think that’s pretty broad language…well, it is.  Thankfully, a recent case in the Appellate Division may have given lawyers and their clients better guidance for future cases.  In P.T. v. A.T., 2021 N.J. Super. Unpub. LEXIS 789 (App. Div. 2021), a father had his parenting time suspended after his child’s mother accused him of watching pornography in front of his daughter.  The father repeatedly did everything the court asked of him to get his parenting time back, including multiple evaluations, but the trial court kept ‘moving the goalposts,’ and as a result the father was not allowed to see his child for over four years.

The Appellate Division reversed the trial court orders noting at the outset that the trial court never found that the father posed a danger to the child.  The appellate court reiterated that our laws protect against the thwarting of parenting time.  Thus, a court may exercise its authority to restrict parenting time “only when credible evidence clearly and convincingly establishes parental unfitness or harm to the child.”  The trial court “had not determined the child needed protection from [father]” and thus the suspension of his parenting time was unreasonable.  The Appellate Division thus sent the case back to the trial court to hold a hearing.  At that hearing, it was the mother’s burden to prove (1) that the father watched pornography in front of the child, and (2) if proven, that this rendered the father unfit or put the child in danger.  Only then could the court consider restricting father’s parenting time.

Although P.T. dealt with a case of suspended parenting time, the standard enunciated by the Appellate Division can clearly apply to supervised parenting time as well.  No longer should courts simply err on the side of restricting parenting time, either through supervision or suspension, when an accusation is made.  Doing so has the effect of placing the burden on the accused to prove himself or herself innocent of the accusation.  The court was clear in P.T. that the burden is on the accuser to prove by clear and convincing evidence that the accusation is true and that the accusation, if proven, either renders the accused parent unfit to exercise normal parenting time, or would place the child in harm’s way.  It is only then that the court should act to restrict the accused’s parenting time.

While placing the burden on the accuser is significant in itself, the amount of proof required is also significant.  In most family matters, the party who has the burden of proof simply needs to prove their position is “more likely than not;” they need only a scintilla more evidence to learn toward their side.  That is not the case here.  Now it is clear that accusers must prove by clear and convincing evidence, a high standard to meet, that the accusation is true and renders the other parent unfit.

Unfortunately, P.T. is still not perfect.  As just one example: how long should the supervision be in place?  Most experts agree supervision should only be kept in place long enough to get past the harm and should not be used more permanently.  The hope remains that one day  the court can more clearly delineate standards for trial courts to follow, for example, period reviews every few months to determine whether supervision should continue or cease.  Until then, parents will simply have to stress to the courts that supervision should not be a long term solution.

The safety and well-being of a child is arguably any parent’s primary duty.  If you have had your parenting time restricted, or if you believe you have evidence that the other parent of your child should have his or her time supervised, call Daly & Associates today to set up a consultation with one of our attorneys.  We’re working “Daly” for you and your children.

By Peter C. Paras, Esq.

Children of all ages will be returning to school in the next few weeks. Many high school students will soon be taking the PSAT, SAT, or even submitting college applications. In New Jersey, divorced or separated parents can be required to contribute to their children’s post-high school educational expenses. That not only applies to four-year college programs, but to junior colleges, trade schools, and vocational schools.  

Each case is fact specific, taking into account the unique circumstances of each family. Among them is the child’s aptitude. Is he a serious student? Are her grades and test scores high enough for admittance by the schools of her choice?  

Also important are the family’s finances. Does the divorce, which usually spawns two households with the expenses that go along with each, have enough family income to contribute to college? And, in what proportions?  Are there savings that were earmarked for college? Are there savings that were not, but can be used for college?  

Is financial aid available – scholarships, grants, and loans – and have the student and the parents cooperated in applying for it and submitting all required financial documents (e.g., income tax returns)? If loans are available, are they taken in the parents’ or the student’s name and who will repay those loans, regardless of whose name they’re in? 

These are some of the factors to consider when the time comes to think about college. There are many more. This is one area divorced parents have in common with parents who aren’t divorced. 

Post-high school education is expensive. It is almost always an extraordinary expense that goes well beyond the monthly family budget. Prudent parents plan for these expenditures well in advance. Often divorced parents are at odds. They have competing interests, each trying to safeguard as much of the available income for himself or herself as possible.  

Cooperation is never more important than when a child’s future is at stake. College costs are high. There is no denying that. But what better to spend your money on than your child’s education? To give your child the tools to see the world with a wide lens and to begin a productive and prosperous life are among the best things parents can do for their children.  

Think about (and talk about) these issues early. Don’t avoid them until the last minute. They won’t go away. By sharing information and ideas, and by being willing to sacrifice a little, you can ensure your child has the opportunities you want him or her to have for a bright future. 

Peter C. Paras is a shareholder in the Family Law Firm of Paras, Apy & Reiss, P.C. For more information please see the firm’s website at www.par-law.com. 

The information in this article is not intended as legal advice.  For legal advice you should consult your attorney.

By Randall M. Paulikens, CPA, ABV, CFF, CITP of Friedman LLP

Do AAML fellows really need to hear another person talk about what has happened in the last 18 months?  All of us, as family members, business owners, employees and employers, buyers and sellers - know what has happened.

What we need to think about is - what will happen.  Some ramifications of COVID may not be as obvious as we would like/hope them to be.

Most professionals in the family law arena normally rely on the fact that the recent past is indicative of the near-term future. That is the family spending, income, etc. will largely continue into the future and the recent past allows us the opportunity to predict and advise clients, draft agreements, and settle cases that implicitly assume past is prolog.  

For valuation purposes, in most cases, the privately owned business was/is expected to continue in a similar manner as historically occurred.  When the expectations are vastly different (positive or negative), additional thought, creativity, and investigation is necessary.  We have all heard the terms “passive vs active”, “marital momentum”, “Goldman vs Goldman”, “change of circumstances”, “earnouts”, etc. etc.

Will the December 31, 2019 economy return? When will it return? How do you know? How can your clients make educated financial decisions post pandemic?

The economic news reports discuss emerging issues that affect businesses and could affect your clients’ finances. Therefore, all of us should discuss these issues and discuss the potential of any potential, future, changes. These issues include industry, worker, and geography specific.

Oversimplifying completely – business that were operating in 2015 to 2019 – now in 2021 basically fall into three categories. 

• Businesses that have failed.
• Businesses that have muddled through.
• Businesses that have had banner years.

The first is straight forward – or is it? Did the business fail only to be reopened in a new incarnation?  Is the demand for the service still there and did the business fail due to the lockdown itself?

Businesses that had banner years – can the business and/or industry sustain their recent trend? Are the 2020/2021 levels of revenue, profit, backlog realistically expected to continue?  In 2020, when vacation travel was severely limited, people spent significant amounts of money on their homes. At some point, this will slow down or end, as competition for a family’s cash flow will increase as travel and leisure venues open.

Here is the hard one – companies that have muddled through. What does their recovery look like – recovery of revenue, recovery of profit – or some other measure?

Most will not argue that a restaurant that is/was limited to 25% or 50% capacity is not fully open.  Now that the capacity constraints imposed by various governments are lifted – does this mean that these restaurants are able to run at 100% capacity? With continual staffing problems, I am aware that some amusement parks are only open five days a week since they can’t staff entirely. I have seen many Starbucks close early for the same reason. From the valuation and income perspective, if these issues affect your case, how should you handle it? Is this a temporary issue, a permanent issue, or do we treat is as a hybrid?

Continuing with the restaurant example – did they ever really run at 100% capacity? Can we define 100% - does that mean a line for tables every night - or seven of ten tables being occupied for dinner?

Pre-pandemic, we might assume that the business was running at its effective capacity if its operations were consistent prior to marital discord. Don’t let the pandemic create an excuse to lower expectations and perhaps settle for less. Also don’t let the pent-up demand lead you to believe that the current situation is sustainable either.

I suggest that you use all of you own life/finance experiences, to create flexibility where possible as the long-term ramifications and adjustments we all make resulting from the last 18 or so months are yet to be known and measurable.

By John P. Paone, Jr., Esq. and John P. Paone, III, Esq.*

When attempting to settle issues in a divorce case, parties frequently employ the services of a mediator. In many cases, mediation works as a successful alternate dispute resolution tool allowing parties to settle their matters without the necessity and costs of a trial. However, often times parties attend mediation without having independent counsel. This is usually a mistake, as the mediator (even if he or she is an attorney) does not and cannot represent either party. Therefore, it is important that parties understand the consequences of their actions when going into mediation without an attorney.

If the parties come to an understanding in mediation, the mediator will usually draft a document known as a “Memorandum of Understanding” or otherwise called a “MOU.”  While a MOU lacks the detail and specificity of a full-blown, formal settlement agreement, it is recognized as a binding agreement if and only if it is signed by the parties. If parties want the benefit of independent advice of counsel before entering a binding and enforceable agreement, they must be careful not to sign a MOU.

Recently, the New Jersey Appellate Division weighed in on this very subject in the case of Glowzenski v. Glowzenski.  In Glowzenski, the parties attended mediation which resulted in the mediator preparing a MOU. The parties, with counsel present, signed the MOU. Although the Husband believed that the matter was resolved, the Wife did not. As a result, the Husband filed an application with the trial court to enforce the terms of the MOU.

After a three-day plenary hearing regarding the enforceability of the terms of the MOU, the trial court ruled that the MOU was a binding and enforceable contract between the parties. The Wife appealed to the Appellate Division and argued that the term sheet's lack of a title and the absence of the parties' attorneys' signature on the term sheet evidenced that no agreement was reached between the parties. These arguments were rejected by the Appellate Division, which determined that “a contract does not need to be labeled a contract to be a contract” and that the fact that the attorneys did not sign the MOU was immaterial as “it is the client's assent that is relevant.” 

The lesson to be learned from Glowzenski is that once a MOU is signed by the parties, the document becomes a binding agreement. An MOU is not enforceable, however, if only the mediator signs the MOU. 

It goes without saying that negotiating a divorce settlement can be a difficult, stressful, and tedious process. Each party must make compromises and concessions on issues that may be extremely emotional and personal to them. There are also many relevant issues which arise in the course of divorce litigation which could be swept under the rug if spouses sign a hastily drafted agreement without taking the time to contemplate all potential issues. Or, as the adage goes, settle in haste – repent in leisure. If you are attempting to negotiate a settlement agreement at mediation as part of a divorce action, remember the age old adage: “don’t sign anything” without first consulting an experienced family law practitioner who can review your agreement to ensure that it is fair and complete.

*John P. Paone, Jr., Esq. and John P. Paone, III, Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.