AAML NJ Blog

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

Divorce is expensive. While there is, of course, an emotional toll, there is also a heavy financial toll for which many clients are not prepared. This is a problem not only for clients but also for the divorce lawyers and experts representing them. Even under the best circumstance, divorce is difficult and costly.

Options when you can’t afford a divorce

In a perfect world, both spouses have money set aside, though, in reality, people save for weddings, not divorces. While it would be wonderful if both spouses got along and could agree on how assets should be divided, unfortunately, this is not always the case. It is important for clients to know about options they have to fund their divorce.

Application To The Court

As an alternative to saving, the moneyed spouse could be ordered by the court to pay both sides’ legal fees and expert costs, but even getting to motion practice can be expensive and time-consuming. Not to mention, there are no guarantees the client will be awarded fees. Further, many judges defer a decision on fees to the end of the case.

Credit Cards

Putting the cost of a divorce on a credit card is another option, but for many, the credit card limit would not meet the cost of the legal fees. Additionally, interim payments have to be made which may not be possible for some clients (and please know that low credit scores may prevent a spouse from being eligible for a credit card after the divorce).

Home Mortgage

Clients sometimes look to a bank to refinance the marital home to help pay for their divorce. Litigants may pull equity from a house in order to pay for interim support and legal fees until a divorce is final. Home equity loans can take many months to be approved, and the loss of a home can threaten custody battles. On the other hand, lenders may not approve clients during a divorce, causing a variety of roadblocks to a divorce. Sometimes couples going through a divorce don’t know where to turn.

Divorce Funding

For many couples, one spouse has easier access to their combined wealth. Oftentimes the monied spouse will cut off access to funds by the non-moneyed spouse entirely, a court will freeze assets, or assets are not liquid. Divorce funding provides a cash advance of the client’s potential settlement for legal fees, expert costs, and living expenses. It “levels the playing field,” enabling litigants to afford their attorney and expert fees, while maintaining their standard of living. Repayments are not made until a settlement is reached and cases can be funded in as little as two weeks. Divorce funding provides access to this essential capital.

Clients may not have the liquidity to engage in divorce proceedings and simultaneously afford living expenses, such as mortgage payments, school tuition and other personal costs during the proceedings. These expenses are sometimes used as leverage by the moneyed spouse, forcing clients to agree to an inequitable settlement. With the liquidity of divorce funding, no one is forced into a settlement less than they deserve.

Nicole Noonan, Esq., CEO of New Chapter Capital Inc., specializes in divorce funding. She formerly served as President of Novitas US. She is a nationally recognized divorce expert and pioneer of divorce funding.  Crowned the “Fairy Godmother of Divorce” by the New York Post. Formerly President of National Divorce Capital, prior to which she was Director at BBL Churchill.

Originally published on March 25, 2020. Click here for the original article. 

By Marc Demetriou, SVP of Mortgage Lending/Branch Manager | AAML NJ Gold Sponsor

As a member of the AAML, you know firsthand that your divorce clients face many new challenges as they rebuild their lives. We’re here to help. At Guaranteed Rate, we understand that purchasing a new home could be an overwhelming task. Our 67-page FREE guide has everything your clients need to know about purchasing a home. Written specifically to help first-time homebuyers, this instructional ebook will take your clients through the home purchasing process, step-by-step. Our Ultimate Guide to Buying Your First Home is an essential reference source for any homebuying questions that might crop up along the way and can save your clients time and money on their journey to homeownership. Download this guide today.

Click Here. It's Free.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

Divorce is a difficult process which can be emotionally draining and exhausting for all parties involved. While the divorce process may feel like it consumes your life from the very beginning, there are practical ways that can assist you to work with your attorney to streamline the process as much as possible and make the process feel less overwhelming. In order to ensure that you can resolve your matter as expeditiously as possible follow these seven tips on how to effectively work with your attorney during your divorce.

#1: Read and reread correspondence from your attorney: When you see an email from your attorney that appears lengthy, it can be intimidating and daunting, but sometimes lengthy correspondence from your attorney contains vital information and legal advice that it is important to your case. Even if you discuss the same information with your attorney over the phone, it is in your best interest to actually read all correspondence from your attorney as well. It is often difficult for litigants to retain all of the information about the law that they are given, which is why if legal advice is written, it is easier for litigants to reread the correspondence at a time that they are able to understand and emotionally process the information.

#2: Provide your schedule: Although the divorce process can feel like an all-consuming venture, attorneys understand that you have your own life and responsibilities. We acknowledge that you may have children to care for or an occupation that takes a majority of your time. We also acknowledge that you have holidays, vacation time, and travel plans. It is best to let your attorney know about your schedule, your feelings and your time-table. If you have a huge project at work, upcoming travel plans, business trip for work, your children’s spring break, or really anything that means you cannot concentrate on your divorce, try to make sure your attorney knows that. Sometimes litigants have other ongoing problems in their lives and simply cannot emotionally handle what is occurring in their divorce. If you advise your attorney you will not be available – physically or mentally -for a certain time, your attorney will be respectful. However, if you do not let them know, then they may continue to ask you questions regarding your position, how you want to proceed or follow up on documents they have been seeking. To make sure you and your attorney are on the same page, just make sure your attorney knows when you will not be available.

#3 Be Responsive: During your divorce, if you and your attorney are working to expeditiously resolve your manner, and it is not one of the times you are unavailable discussed above, then try to be as responsive as possible when your attorney or their firm contacts you. In being responsive, it is less about an immediate response and more about providing a complete answer. Often immediate responses do not directly answer the attorney’s question and means the attorney will need to ask more questions to obtain the necessary information. Answering your attorney as completely as possible means that your attorney will not have to continually re-ask and follow up on the same question. This will make the communication between you and your attorney more efficient, which also means less costly.

#4 Be Transparent: While you should be answering your attorney’s questions as completely as possible, you should also make sure you are providing them with all of the pertinent information – the good, the bad and the ugly. Your attorney can only properly advise you of how you should proceed if the attorney knows ALL the facts – even if you believe some information is unfavorable or embarrassing. In order to properly protect you and your interest, the attorney needs to know the potential issues that could arise. Attorneys know how to represent you even if you have had some unflattering past transgressions. Therefore, it is best to be candid and straightforward with your attorney. Your attorney will not think any less of you, but if something you hide from your attorney becomes an issue later, it could cause a strain on your attorney-client relationship.

#5 Keep Your Attorney Informed: During the divorce process, and often during post-judgment litigation (i.e. you are already divorced), there are usually ongoing problems festering between the parties. The problems can sometimes be resolved through a quick letter or a quick conversation between attorneys, but if there is an ongoing problem that needs Court intervention, then it is better if your attorney is already aware of the ongoing issues. If Court intervention is necessary and your attorney is already aware of the issues, then you and your attorney will not need to spend extra time and energy playing “catch-up” on the events that occurred over the past few weeks, months or even years.

#6 Keeping Logs: Regardless of the issues in your case, it is always a good idea to keep a log of what is occurring between you and your spouse or former spouse. While it is suggested to keep your attorney informed of what is going on (see #5), it is easier for you than your attorney to keep a log of events and to compile documentation, such as text messages or emails, that demonstrate what transpired and is outlined in your log. It is your daily life. No one can monitor it as well as you can – especially as the events are occurring. A log of events is often seen in cases where there are parenting time issues such as missed parenting time, interference with parenting time, late pick-ups or drop-offs, missed extracurricular activities, etc. If you keep a log of these events, that log can be used to demonstrate the problems that keep occurring and how often the problems occur. These logs are often utilized as critical exhibits in motions. For financial issues, if there are arguments or conflicts with payment of regular expenses, it is good to keep track of when those incidents occur. (i.e. On March 10th he removed money from the savings account without notifying me. On April 8th she refused to allow me to use our joint account to pay the mortgage.) As previously stated, you should be keeping your attorney aware of these problems as they are occurring to strategize on the best way to handle the issues, but if you have a log of events that log can be helpful to your attorney who is advocating on your behalf.

#7: Listening/Reading Legal Advice: In conjunction with Tip #1 above regarding reading and rereading correspondence that you receive from your attorney, it is important to acknowledge and understand that the advice your attorney provides to you is just that: advice. Your attorney works for you and is there to provide you with insight into the law and how your case could be resolved. The best way for you and your attorney to make strategic decisions about your case is for you to understand their explanations about the current law. When an attorney tells you what the law is and how it could affect your case, try to understand that the attorney did not make the law and may not even agree with how the law is applied. When explaining the law, the attorney is not making personal judgments about you, your marriage or your children, but advising you of your options under the current law. Accept that your attorney is looking out for your best interest and sometimes that means providing you with information that you may not want to hear. Just remember the attorney is there to guide you through this process and to be your advocate.

If you are looking for a matrimonial attorney to advise you on how to proceed with your divorce or post-judgment issues, contact us today to set up a consultation.

Originally published on October 22, 2020. 

By Michelle Barr | Our Family Wizard, AAML NJ Silver Sponsor

Protecting your children through a divorce may look a bit different for every family, but at its heart, it means that both parents are always looking out for their child's emotional and mental health. Children deserve the chance to just be kids without being worried about getting caught in the middle of their parents' conflict. OurFamilyWizard provides families with a lasting solution that can improve parent communication once and for all. Curtail trips back to court to resolve disputes and protect the best interests of children with tools that help parents reach peaceful agreements on their own. Below please find tips and insights on ways clients can improve communication and work as a team to protect their children during a divorce or separation.

Read the full article here.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

As a full-blown crazy cat parent, it’s hard for me to believe that New Jersey courts consider our beloved pets (“fur babies,” if you will) as “chattel” or property.  Although New Jersey courts recognize that pets have a special subjective value, they are not bound to address custodial arrangements as they are in cases involving human children. However, New Jersey courts will honor an agreement between two parties with regards to actual ownership of or time-sharing with a formerly shared pet.

In Houseman v. Dare, the trial court initially found that pets are personal property that lack the unique value essential to an award of specific performance (in this case, actual ownership as opposed to the distribution of the property’s monetary value). Therefore, the trial court denied Plaintiff’s request to enforce an oral agreement between her and her former fiancé, Defendant, in which Plaintiff claimed Defendant had agreed to give her possession of the dog upon their separation.  Instead, the trial court awarded Plaintiff a total of $1,500 for the purchase price of the dog, but denied her request for specific performance of the oral agreement.  

In its review, the Appellate Division remanded the case back to the trial court. The Appellate Division rejected the trial court’s initial ruling that the parties’ oral agreement may not be specifically enforced by the court. In fact, the Appellate Division went to great lengths to liken pets to heirlooms, family treasures, or works of art – all tangible property that induce a strong sentimental attachment from their owners. The Appellate Division noted that money damages cannot compensate the injured party for the special subjective benefits derived from those possessions. Therefore, the request for specific performance as to ownership of a pet is appropriate and can certainly be addressed by the Family Part. The Appellate Division remanded the case back to the trial court and ordered that the trial court to conduct further proceedings on the existence of an oral agreement about ownership and possession of the dog and the propriety of specific performance as a remedy in the matter. After the case was remanded back to the trial court, the trial court reversed their initial decision and ordered that the parties alternate time with the dog every five (5) weeks. However, since custodial arrangements are still reserved solely for human children, the trial court could not award custody and, instead, awarded “alternating possession.”

Because custody is not awarded when it comes to our beloved pets, the courts are not bound by the custody statutes and case law as with human children. New Jersey courts have not caught up to courts in other states such as Alaska wherein pet custodial arrangements are now being treated more like those of human children including joint decision making, shared visitation time, and the consideration of the pet’s best interest. Therefore, the “best interests” of your pet are not part of the court’s analysis – the court will only consider the special subjective value held by the human parties.  So, how do you protect your rights to share your fur baby in the event of a separation or divorce?

Our number one tip is to formulate a written agreement with your partner.  This will ensure that your wishes are enforced by a New Jersey court.  Following the court’s holding in Houseman v. Dare, New Jersey courts will honor an agreement between two parties with regards to what happens with their pets upon separation.  However, absent an agreement, the courts will treat your beloved pet as though he or she were akin to a family heirloom – that means there is a possibility of shared possession, but same is not required.

If you and your partner adopted or purchased your pet prior to marriage, and you both decide you want to enter into a prenuptial agreement before marriage, including your pet in your prenuptial agreement is certainly a good idea.  In the event you did not execute a written agreement prior to entering into your marriage, you can certainly address who retains your pet in settlement discussions.

Originally published on January 19, 2021. Link here.

By Sharon L. Klein, Senior Vice President and Head of National Divorce Advisory Practice | Wilmington Trust, AAML NJ Silver Sponsor

Tax season is intimidating enough for clients without the added burden of navigating it through divorce. In this month’s Family Lawyer Magazine monthly tip, Sharon Klein shares what those maneuvering through divorce need to know before they file.

Link here to monthly tip.

For more information, reach out to Sharon L. Klein, Head of Wilmington Trust’s National Divorce Advisory Practice at 212-415-0531 or sklein@wilmingtontrust.com.

By Chris Beck | Soberlink, AAML NJ Bronze Sponsor

Nearly every day, matrimonial law practitioners work with people whose most intimate relationships have deteriorated to a point where parties’ emotions alternate from disappointment to anger and from sorrow to perhaps fear. This is acutely evident when clients have to navigate matters involving child custody and visitation issues – a course made that much more difficult when one parent struggles with alcohol abuse. 

One of the most difficult hurdles to overcome in any Family Law proceeding is reaching a parenting-time agreement when one of the parties has a history of misusing alcohol. Settling custodial and visitation issues is further complicated when one parent’s distrust of the other is fueled by their fear that alcohol misuse will endanger the child during unsupervised visits.  

Whether you represent the concerned party who is fearful for their child’s safety during a co-parent’s visitation or you represent the parent struggling with alcohol misuse, all hope – of your client experiencing peace of mind or regaining trust – is not lost. Despite what may appear to be the crux of an impasse during settlement negotiations or litigation, a mutually convenient and proven solution that offers streamlined litigation, peace of mind, and improved child safety is available – remote alcohol monitoring.

This article will discuss:

Ensuring the Child Maintains Continued Contact with Both Parents

As outlined by New Jersey law, it is crucial in custody and alcohol cases that children maintain a healthy relationship with both parents: 

“Declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing..." (N.J. Stat. § 9:2-4).

When alcohol abuse is introduced as an issue in a divorce or child custody dispute, the matter is investigated and not easily brushed aside. Family Court Judges, social workers, guardians-ad-litem, and psychologists involved in the case will focus on the alcohol abuse allegations as a genuine concern that will dominate the court’s assessment of what co-parenting arrangement is in the best interest of the child.

The traditional remedy for these situations was a requirement that visitation with a noncustodial parent be supervised. It was thought that only with the oversight of another adult can the child be assured of the visiting parent’s sobriety. However, arranging for a visit to be supervised has proven to cause significant stress on the child’s parents and court’s child welfare support apparatus.

Unless an agency official supervised the visitation, some families had no trusted family member to provide adequate supervision. Therefore, some visits would need to be canceled or rescheduled if the designated observer was unavailable. If a state employee or contracted therapist were assigned to provide visit supervision, the visits were necessarily short, infrequent, and often expensive.

Fortunately, Soberlink, a comprehensive real-time remote alcohol monitoring system, was designed for co-parenting agreements involving alcohol abuse. Providing court-admissible, documented proof of sobriety during parenting time, Soberlink is trusted by Family Law practitioners to promote child safety and help address concerns of alcohol misuse before or during visitation. Family Court Judges and domestic litigation parties across the country use Soberlink’s wireless alcohol testing devices to monitor alcohol abstinence, assuring the children’s continued contact with both parents.

Rebuilding Trust

If your client struggles with alcohol addiction or Alcohol Use Disorder (AUD), the social barriers and stigma attached to the chronic illness can be painfully difficult to overcome. Moreover, concerned parties, family members, opposing counsel, and court personnel may doubt or distrust your client’s alleged sobriety. Soberlink allows your client to demonstrate their abstinence from alcohol while maintaining a relationship with their children and offering peace of mind to loved ones.

As Soberlink supports accountability for sobriety, a client’s willingness to use a Soberlink remote breathalyzer can also be pivotal in helping clients accept responsibility for their actions and make changes in their child’s best interests. 

For parents committed to abstaining from alcohol and rebuilding trust with their co-parent, Soberlink offers two monitoring programs for improved co-parenting agreements. Level 1: Parenting Time Only is designed with flexibility in mind, offering monitoring only during parenting time with schedules managed between both parties. Alternately, Level 2: Daily Testing is consistent monitoring, seven days a week, with schedules managed by Soberlink. 

When trust has been broken, and child safety is in jeopardy, Soberlink is best utilized when a client begins their monitoring journey on Level 2, completely abstaining from alcohol use. Once a Level 2 client who is testing several times a day demonstrates consistent compliance, addiction professionals suggest stepping down to Level 1, where monitoring is only conducted during parenting time.

The Family Court and Legal Community’s New Best Evidence – Remote Alcohol Monitoring

Beyond providing court-admissible evidence and offering relief to concerned parties, Soberlink’s comprehensive alcohol monitoring system, which combines a professional-grade breathalyzer with wireless connectivity to send results in real-time, also incorporates tamper detection, adaptive facial recognition, and Advanced Reporting capabilities to ensure the integrity of each test. The system’s intuitive design has positioned Soberlink as the go-to solution for Family Law professionals looking to improve child safety and prove their client’s sobriety with the highest level of reliability and accuracy.

Before systems like Soberlink revolutionized divorce litigation, witness testimony, or hearsay, was traditionally the only evidence a Family Court Judge could rely on to find facts relating to a party’s history of alcohol use. Rulings issued in a case involving one party’s alleged misuse of alcohol were based on what evidence the judge deemed most credible.

The Family Court Judge no longer must rely on witness testimony or historical records of a party’s past behavior with alcohol. Soberlink provides reliable, real-time results at whatever time intervals the Court or the parties establish, and their Advanced Reporting feature allows courts to review a person’s test results at a glance.

Conclusion

Informed Family Court professionals in New Jersey, Family Law attorneys, and presiding judges may find it constructive to advise litigants of the benefits of Soberlink to eliminate any guesswork or conflicting reports about a parent’s alcohol misuse in an effort to uphold the best interests of a child.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

It is certainly no secret that going through a divorce can be one of the most difficult periods in anyone’s life. Divorces can be emotionally-charged, expensive, and contentious. The family court system still encourages couples to work together, if they can, through divorce disputes. When spouses agree on more things than not, the process is more comfortable and smooth for everyone. It isn’t uncommon for spouses to find help through a mediator or neutral third person who can facilitate a conversation. 

If you can tolerate your spouse enough and are willing to work with them, you may want to consider the benefits of a collaborative divorce.

About Collaborative Divorce

Collaborative divorce is a legal process that enables couples to negotiate the terms of their divorce, without having to fight intensely in court. Couples can use various negotiation and mediation tactics to reach a solution they are both somewhat happy with. Of course, there will be times when a spouse may have to compromise more than they’d like, but at least it guarantees some of their preferences will be considered. As compared to family court, where the judge will ultimately have the final say. Examples of topics the couple will have to discuss include:

Is It Best For Your Divorce?

Not all divorces will benefit from a collaborative divorce, simply because some spouses are just not able to cooperate together. Spouses who are less contentious with one another may want to think about a collaborative divorce, which is often less stress and money overall. 

To learn more about whether a collaborative divorce is right for you, contact a reputable collaborative divorce family law firm, such as The McKinney Law Group. 

Originally published on April 20, 2021.

By Sharon L. Klein, Senior Vice President and Head of National Divorce Advisory Practice | Wilmington Trust, AAML NJ Silver Sponsor

Are your clients’ assets protected from a future potential divorce? In her article just published by WealthCounsel, Sharon Klein outlines the five key components to a well-crafted plan and illustrates how a multi-pronged strategy is often the most powerful approach.

Link to the article: Divorce & Asset Protection

For more information, reach out to Sharon L. Klein, Head of Wilmington Trust’s National Divorce Advisory Practice at 212-415-0531 or sklein@wilmingtontrust.com.

By Soberlink, AAML NJ Bronze Sponsor

Perhaps the most emotionally charged area law is the area of matrimonial and family law. Besides the parties confronting the breakup of what once was a romantically inspired partnership, there are often the issues of the equitable distribution of accumulated assets, alimony (also known as spousal support), child support, childcare, custody, and visitation.

The entire family relationship is in play, and it is not always hyperbole to state it is sometimes under attack by the parties, with the attorneys as the designated fighters in the courtroom ring and the judge as (hopefully) an impartial referee.

While the attorney is presumably licensed and experienced in dealing with domestic legal issues, they are often called upon to play the part of de facto therapist in order to understand the emotional drives of the client and how they can impact not only their expectations of the outcome but the reasonability of the positions they wish to take in light of statutory law and current case holdings.

There are times that a client will openly admit that they wish to use financial and custody/visitation issues as a hammer to punish the other spouse. There are also times where the client is not consciously aware that that is what they are doing.

It is the family law attorney who must be cognizant of these emotional issues, to acknowledge them, to explain to the client that the best possible outcomes legally are those where the parties act both reasonably and responsibly in trying to achieve the best possible outcome in accordance with the rules and precedents to which they will be subject.

The attorney is the client’s guide and protector, but, among the list of New Jersey Client Rights: 

Clients have the right to make the final decision as to whether, when, and how to settle their cases and as to economic and other positions to be taken with respect to issues in the case.

The experienced practitioner knows that sometimes they have to protect themselves by detailing their advice and instructions in writing to a client, having the client acknowledge the receipt of this advice and instructions, maintaining the decision to ignore or deviate from them.

Equally important are the client’s responsibilities: 

Clients shall not take any position in their matter for any improper purpose, such as to delay the proceeding or intentionally to increase the cost to other litigants.

Alcohol Misuse and the Attorney/Client Relationship

When alcohol misuse is involved by either one or both parties, issues can become more difficult to resolve. The attorney must have the experience and the ability to liaison with the requisite addiction professionals and be aware of the tools at their disposal to do justice for both parties, especially keeping in line with the best interests of the child principle.

Alcohol Use Disorder is often weaponized in court, causing a decided conflict between the attorney and opposing counsel. In this instance, family law practitioners should educate clients on systems available to them that can help to empower both parents while maintaining child safety. 

Helping Your Client by Ensuring Their Child's Safety in Cases Involving Alcohol Abuse

As it states in New Jersey Children Juvenile and Domestic Relations Courts section 9-2-4(c) regarding the fitness of parents with respect to custodial and visitation awards: 

A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

Unfortunately, over 10% of children live with a parent that misuses alcohol.  

In custody and alcohol litigation, many times, a parent will falsely accuse the other parent of substance misuse, and that is where technology can play a major part in proving the contrary and making it more likely that the accused party will be vindicated, resulting in a positive impact for them in a custody or visitation dispute.     

As co-parenting often requires a great deal of trust, the attorney representing the party either struggling or accused of alcohol misuse should discuss what technology is available to them to prove their sobriety during parenting time, providing peace of mind to opposing counsel. 

A convenient and discreet option is Soberlink, a comprehensive remote alcohol monitoring system that sends real-time results and helps parents improve accountability. 

Soberlink consists of a wireless remote breathalyzer that uses facial recognition and tamper detection to ensure the integrity of each test. In addition, its Advanced Reporting capabilities provide simplified analysis of test results and court-admissible reports for streamlined litigation. Soberlink is widely trusted by thousands of family law practitioners across the United States, including in the State of New Jersey.

Soberlink’s unique design allows for swift intervention for improved child safety in co-parenting arrangements and, in many cases, helps make visitations possible—especially unsupervised visitation. 

Further, Soberlink can be a tool for managing recovery from alcohol abuse. The system is not just a tool of strategy and tactics in a court proceeding; it offers a way for parents to maintain sobriety so that they can improve their lives and the lives of their children, offering them a safe and stable home environment.

The family lawyer’s role is much more multifaceted than it used to be with respect to establishing client expectations and accomplishing client goals. Today, the family law attorney is the legal advisor, the agent for therapeutic liaison, and the technology-savvy counselor.