Divorce & Family Law Significant Cases - Szaferman Lakind
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Divorce & Family Law Significant Cases

The Szaferman Lakind family law department has proven itself to be a leader in the domestic relations arena. We have successfully litigated and negotiated divorce actions involving assets ranging from $100,000 to $300,000,000. The following is a sampling of some of our more interesting and significant cases:

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In a precedent setting decision, Fawzy v. Fawzy, 199 N.J. 456 (2009), Brian Paul successfully convinced the New Jersey Supreme Court that parents in New Jersey should be permitted to utilize binding, non-appealable arbitration, with a decision maker of their choice, as a means of resolving custody and parenting time disputes. Arbitration is a process where litigants choose a mutually acceptable individual (it does not have to be a lawyer or retired judge), to render a binding decision resolving their dispute. The public policy goals of arbitration are to provide litigants with a speedier, less expensive, more private, final alternative to traditional litigation through the judicial system. The Appellate Division had previously ruled that an arbitrator’s binding, non-reviewable custody and parenting time award was void as against public policy on the basis that it usurped the Trial Court of its obligation to insure that the children are being protected from harm. Brian argued that a per se bar on the use of arbitration to resolve custody and parenting time disputes violated parents’ constitutional right to raise their children without interference from the State.

The New Jersey Supreme Court agreed with Brian that parents have a fundamental constitutional right to make decisions involving their children, and that a Court could only interfere with the parents’ decision if there was evidence that it would place the children at risk of harm. Included within the constitutionally protected right of parental autonomy is rights of parents to choose the forum, and individual, who will resolve their custody and parenting disputes. Accordingly, the New Jersey Supreme Court agreed with Brian that the Appellate Division was wrong in holding that an agreement to arbitrate custody and parenting time was void as against public policy, and instead set forth procedural safeguards so that parents could knowingly utilize arbitration as an alternative to litigating through the judicial decision. In so doing, the New Jersey Supreme Court adopted Brian’s proposed test requiring a parent seeking to set aside an arbitrator’s decision to overcome the difficult task of demonstrating that the arbitrator’s ruling places the child at a threat of harm. Such a test properly balances the parents’ right to have an individual of their choice resolve their dispute in an alternate forum than the formal court system with the need to insure that children are protected from harm.



Hughes v. Hughes
In the landmark case of Hughes v. Hughes, 311 N.J.Super. 15 (App. Div. 1998), the firm changed the standard for setting alimony in the State of New Jersey. It successfully argued before the Appellate Division that a marriage of 10 years is not a short term marriage under today’s standards, and that the wife in that case was therefore entitled to permanent alimony.
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Weaver v. Weaver

In Weaver v. Weaver, Brian G. Paul successfully convinced the Appellate Division that in an intermediate length marriage, such as the 10 year marriage in Hughes v. Hughes and the 12 year marriage in Weaver, the Trial Court must be required to analyze what actually occurred to both spouses during their marriage in order to determine whether the public policy reasons behind the creation of a permanent alimony award actually exists in the present case. One of the primary purposes behind the creation of the concept of permanent alimony is to compensate a dependent spouse who has sacrificed their career or educational goals in order to perform the non-economic tasks associated with the marital partnership, such as child rearing and homemaking. Therefore, permanent alimony is meant to compensate the dependent spouse for the “transfer of earning power” that often occurs during a traditional marriage in which the homemaker spouse’s non-economic efforts increased the other’s earning capacity by freeing them to concentrate on their career at the expense of her own. Because the Appellate Division agreed with Brian that the Weaver case lacked the characteristics for which a permanent alimony award is normally granted, it reversed the Trial Court’s decision and remanded the case with instructions to consider a limited duration alimony award instead.

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Jackson V Jackson

Brian G. Paul recently convinced the Appellate Division to affirm a trial court judge’s decision that rejected a permanently disabled wife’s request for permanent alimony after twelve years of marriage. In Jackson v. Jackson, the wife, who suffers from mental illness, was receiving social security disability benefits before the parties married. She continued to receive them at the time of trial.

Relying upon a New Jersey Supreme Court case, Lynn v. Lynn, Mrs. Jackson argued that her permanent disability entitled her to an award of permanent alimony. By way of background, in Lynn v. Lynn, the New Jersey Supreme Court had previously held that a wife, who became disabled during a short term marriage of seven years, was nevertheless entitled to permanent alimony as a result of her being economically dependent on her husband for support. Mrs. Jackson argued that her circumstance was the same as Mrs. Lynn, in that she would never be self-supportive, and that Mr. Jackson should therefore have to pay her permanent alimony.

Brian argued in the Appellate Division that the Jackson case was distinguishable from Lynn v. Lynn. He emphasized that Mrs. Lynn had become permanently disabled during her marriage, meaning her economic dependency was a misfortune of the marital partnership. In contrast, Mrs. Jackson’s economic dependency was not created by virtue of anything that had happened to her during the parties’ marriage. Rather, she found herself at the end of the marriage with the same psychiatric difficulties as she did in the beginning of the marriage.

The Appellate Division agreed with Brian that, if anything, the Trial Court’s 11 year alimony award was generous to Mrs. Jackson, and affirmed the decision in its entirety.

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Normally, when a paying spouse provides evidence demonstrating that their former spouse may be cohabiting in a marriage- like relationship, the Trial Court schedules a trial in order to determine whether there is in fact cohabitation; and, if so, whether the economic benefit from the cohabitation eliminates or reduces the former spouse’s need for alimony. However, Brian G. Paul recently convinced the Appellate Division that a Trial Court Judge was correct when she deviated from normal course and terminated our client’s alimony obligation on the basis of his former wife’s cohabitation, without first requiring the parties to participate in a trial.

In Proctor v. Proctor, the parties were divorced in 1998. At the time of the divorce, the Wife was earning $13,900, and was awarded alimony of $100 per week. The marital lifestyle consisted of the family of four (4) living on $69,000 per year of income. In support of his motion to terminate alimony, our client provided evidence demonstrating that his former spouse had been engaged in a marriage-like relationship since at least 2005. Specifically, he provided copies of public records showing that she and her paramour jointly owned, with rights of survivorship, a condominium in Florida that they purchased for $460,000 without a mortgage. He further provided evidence showing the couple had several joint bank accounts; took expensive vacations together; and lived together in a second residence in New Jersey. On the basis of this evidence, our client argued that given the economic benefit associated with the cohabitation, his former Wife no longer had a need for alimony from him in order to live reasonably comparable to the marital lifesty

In response to the motion, the former Wife admitted that she had been cohabiting since 1999, but claimed she still had a need for alimony in order to live reasonably comparable to the marital lifestyle. Despite that claim, however, the former’ wife’s case information statement showed that she now earned $30,000 per year (versus the $13,900 at the time of the divorce), and that she was receiving an additional $10,800 of annual pension income from our client’s defined benefit pension that was in pay status. Besides the $33,100 per year increase in income, the former’ Wife’s case information statement further showed that she now had the use of two residences (one in Florida and one in New Jersey), whereas she only had one residence at the time of the divorce. Finally, her case information statement claimed that she only contributed $600 per year towards the parties’ vacations, leading to the ineluctable conclusion that her paramour was financing all of the extravagant vacations that our client alleged she had been enjoying

Because the former wife admitted to the cohabitation, the sole issue in dispute was whether the cohabitation had eliminated her need for alimony. The Appellate Division agreed with Brian that the former wife had failed to demonstrate, even on a prima facie basis, that she still had a need for alimony, and therefore there was no need to subject the parties to an expensive and time consuming trial. Accordingly, the Trial Court’s decision was affirmed in its entirety.

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Marshak v. Weser

Brian G. Paul recently won a reversal in the Appellate Division on a precedent-setting case which centered on whether New Jersey or Pennsylvania law would determine the date of a child’s emancipation. Under Pennsylvania law, a child becomes emancipated on the latter of their 18th birthday or their graduation from high school, meaning there is no obligation for parents to contribute to college expenses. In contrast, New Jersey courts have the authority to delay emancipation until after a child graduates from college, and to require parents to contribute to the cost of their child’s college education.

The parties in Marshak v. Weser were divorced in the State of Pennsylvania. The oldest child was emancipated under Pennsylvania law upon her graduation from high school. Subsequently, at different times, both parties and their children relocated to New Jersey. Upon the youngest child’s graduating from school, Mr. Weser filed a motion to have the child declared emancipated under Pennsylvania law. Because all parties had moved from Pennsylvania to New Jersey, both parties agreed that New Jersey had obtained jurisdiction over the case under the Uniform Interstate Family Support Act (UIFSA). UIFSA is a model act that the federal government required all 50 states to enact in order to help insure that different states do not enter conflicting orders when dealing with interstate child support cases. While the parties agreed New Jersey had jurisdiction to decide the case, the parties disagreed on whether New Jersey law or Pennsylvania law controlled the issue of emancipation. The Trial Court concluded that New Jersey law applied, and ordered the father to continue paying child support and to contribute to the cost of college. Brian filed an appeal on the father’s behalf.

In reaching its decision, the Appellate Division noted that the drafters of the UIFSA model Act, when amending it in 2001, had included an official comment clarifying that it has always been their intention that the law of the state that enters the initial child support order would govern the issue of emancipation. Although New Jersey had not yet enacted the 2001 amendment, the Appellate Division agreed with Brian’s argument that official comment to the amendment was instructive of the legislative intent when enacting the prior version of the statute. The Appellate Division further agreed with Brian’s argument that it was incumbent upon the Trial Court to consider other state court decisions on the issue, so that the overall legislative goal of maintaining consistent results in the administration of interstate child support cases was met. Brian pointed out that other state appellate courts, including Pennsylvania’s, had previously concluded that the issue of emancipation must always be determined in accordance with the law of the state that enters the initial child support order. The Appellate Division proceeded to vacate the Trial Court’s order requiring our client to provide continued support for his younger son, and ordered that our client’s motion for emancipation be granted in accordance with Pennsylvania law.

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Levine v. Bacon

In Levine v. Bacon, 152 N.J. 436 (1998), the firm successfully argued before the New Jersey Supreme Court that a custodial father’s attempt to relocate from New Jersey to Florida with his minor child would be contrary to the best interest of the child, inasmuch as the move would substantially interfere with the mother’s relationship with her daughter.


Cyr v. Cyr

Brian G. Paul, a partner in the firm’s matrimonial department, recently reversed a Trial Court judge’s denial of a former husband’s motion to reopen his Final Judgment of Divorce so that $330,000 of net proceeds stemming from the sale of marital stock options that he claimed were not disclosed at the time of the divorce could be equitably distributed. In Cyr v. Cyr, the husband and wife negotiated a Property Settlement Agreement between themselves without the assistance of counsel. In the agreement, both parties expressly stated that the they had fully disclosed and listed all of their assets on the attached Appendix A. During the marriage, the Wife served as Chief Financial Officer for a publicly traded bank. Three (3) years after the divorce, while surfing the internet in an effort to determine his former wife’s income for purposes of calculating child support, the husband shockingly discovered in SEC filings that the Wife had received $330,000 of after-tax proceeds when liquidating stock options the prior year. The SEC filing further indicated that the wife had been granted 30,500 of stock options during the parties’ marriage, and that all of the options had become fully vested by the time they were negotiating their agreement. Nevertheless, the stock options were not mentioned anywhere in the parties’ agreement.

Upon the husband’s discovering the stock options, the firm immediately proceeded to file a motion pursuant to R. 4:50-1, alleging that the wife’s failure to disclose the stock options at the time of the divorce had led to an unfair and inequitable result necessitating the reopening of the Final Judgment of Divorce, so that the husband could receive his fair share of what turned out to be the most valuable asset of the marital estate. In opposition, the wife asserted that the husband new about the stock options at the time of the divorce, but that he had orally waived his interest in them. The wife further claimed that husband’s motion was time barred on the basis that a motion to reopen for non-disclosure or fraud must be evaluated under the terms of R. 4:50-1 (c), and that claims under subsection (c) must be brought within one year of the entry of the judgment. In reply, the husband strenuously maintained that he did not learn about the stock options until three years after the divorce, and pointed out that the options were not mentioned anywhere in the parties’ Property Settlement Agreement, or anywhere on the Wife’s Case Information Statement, despite the fact that she certified in both documents that she had made a full disclosure of all her assets. Brian further argued on the husband’s behalf that for public policy reasons a motion to reopen a judgment to equitably distribute assets for non-disclosure must always be analyzed under the “catch all” provision of R. 4:50-1(f), which permits the reopening of a judgment for exceptional and compelling circumstances provided it is brought within a reasonable time, otherwise it would encourage spouse’s to conceal marital assets in hope that the non-disclosure would not be discovered until more than 1 year after the divorce. Without conducting a trial to resolve the conflicting claims, the Trial Court judge denied the husband’s motion, finding that it stemmed in fraud and was time barred on the basis it was brought three (3) years after the entry of judgment.

Brian G. Paul then filed an appeal on the husband’s behalf. The Appellate Division agreed with Brian that an alleged failure to disclose marital assets should be analyzed under R. 4:50-1(f), not (c), and that the husband’s motion had been brought within a reasonable time. The Appellate Division then went on to reverse the Trial Court’s decision, and ordered the matter remanded for a trial in order to resolve the conflicting certifications on the issue of whether the stock options had been disclosed at the time of the divorce.

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Britton Thomas

In 1999, the firm attained national recognition when Brian G. Paul successfully suspended a professional boxer’s license for his failure to pay child support. This is believed to be the first case in the United States where a professional athlete’s sporting license was suspended for child support enforcement purposes.



McConnell v. McConnell

In McConnell v. McConnell, the firm successfully vacated $54,400 in alleged child support arrears that a Wife has erroneously convinced the Probation Department to apply to a Husband’s probation account. In that case, the Wife alleged for the first time in the year 2000 that the Husband had paid virtually no child support since 1987 when the Order was entered. Without providing the Husband a hearing, the Probation Department applied the arrears against the Husband’s account. After a trial, Brian G. Paul, Esq. of the firm successfully convinced the Trial Court that the arrears had erroneously been placed against the account, and that the Husband had paid the Wife all monies owed, despite the fact that there was no record of the vast majority of payments that were made in cash. The Court agreed with Brian that even if the Husband was not able to prove that all payments were made, the claim was barred by the doctrines of laches, inasmuch as records had been lost or destroyed over the 12 year period that the Wife waited to bring the action. Laches is an equitable doctrine that prevents stale claims from being enforced by denying relief where there has been an unexplainable and inexcusable delay by a litigant in enforcing a known right, and the delay has resulted in prejudice to the other party.


Antoniotti v. Antoniotti

In 2004, the firm won an emergent appeal summarily reversing the entry of a Final Restraining Order prohibiting a father from having any contact with his ex-wife and 17 year old son. In that case, the parties had been divorced for 8 years, and shared joint physical custody of their 17 year old son under a 50/50 parenting arrangement. After the son had been performing poorly in school, the father went to his ex-wife’s residence and left a note in her bedroom stapled to the child’s school records indicating that they needed to talk about their son’s scholastic problems. The mother, who was not home at the time the father left the note, charged the husband with trespass, and obtained a temporary domestic violence restraining order prohibiting him from having any contact with her or their son. The father elected to represent himself at the final restraining order hearing. During the trial, the mother did not testify, call any witnesses or produce the note as evidence. The father was not given an opportunity to fully testify, and was only permitted to answer the Judge’s questions. After questioning the father, the Judge entered a Final Restraining Order prohibiting him from having any contact with his ex-wife or the parties’ son. The ex-wife then filed a motion to increase child support based upon the fact that she now had full custody of the parties’ son.

After retaining the firm, Brian G. Paul, Esq. filed an emergent appeal on the father’s behalf arguing that the trial court had unlawfully violated the father’s constitutional right to custody of his son without due process of law. The granting of an emergent appeal is extraordinary relief that is rarely awarded except in situations where a party successfully demonstrates that they may be irreparably harmed. Normally, the appellate process takes over a year to complete, whereas an emergent appeal may be decided in as little as a few days. Brian argued that the Trial Court violated the father’s due process rights by not providing the father an opportunity to cross-examine his accuser, testify in detail or call any witnesses. He further argued that the restricting of the father’s right to see his son constituted irreparable harm, because the potentially irreversibly damage could not be satisfied with monetary damages. The Appellate Division agreed with Brian’s arguments, and summarily reversed the Final Restraining Order with instructions that a new trial be conducted immediately. After the alleged victim testified at the new trial, the Trial Court granted Brian’s motion to dismiss the complaint, agreeing that the ex-wife had failed to demonstrate that the father had committed an act of domestic violence warranting the entry of a final restraining order.

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Reversed Child Support Verdicts

In the year 2000, the firm won two unreported Appellate Division child support cases, Simmonds v. Simmonds and Wiedaseck v. Immesberger. In each of those cases, Brian G. Paul successfully convinced the Appellate Division that the Trial Court Judges had improperly calculated child support. Both cases were reversed and remanded back to the Trial Court so that child support could be recalculated properly.

In 2001, the firm won the Appellate Division case of White v. Bates. There, a divorced mother of three was awarded just $24 per week in child support by the Trial Court. The father in the case had custody of the parties’ son who was attending college, while the mother had custody of the parties’ 15 year old daughter and a younger child from another relationship. The firm argued that the trial court improperly included the older child’s college tuition as a court approved extraordinary expense on the child support worksheet, and failed to give primary consideration to the minor children when calculating child support. The Appellate Division agreed, and reversed and remanded the matter for a plenary hearing so that child support could be properly calculated.



Relocation

In 2003, the firm successfully convinced a Trial Court Judge that a custodial father should be permitted to relocate to the State of Florida with the parties’ 15 year old son and 13 year old daughter. The mother of the children objected to the move, claiming that the father was moving in order to circumvent her parenting time with the children. After a trial, the Court agreed with Brian G. Paul’s argument that the father had a good faith motive for the proposed relocation, inasmuch as he presented evidence demonstrating that his business’ productivity and profits would most likely increase significantly with his relocating to Florida. Moreover, the Trial Court Judge also agreed that the move was not inimical to the children’s best interests, inasmuch as they would receive educational opportunities, leisure activities and an overall lifestyle that was at least equal to those they currently enjoyed. Finally, the Court agreed with Brian that because of the advance age of the children, email and video conferencing were viable alternatives for helping to preserve the mother’s relationship with the children in between face to face visits.



Marital Coverture Fraction

In two separate Appellate Division cases in 2002, Brian G. Paul argued that the Husband’s proposed method of limiting their ex-wife’s portion of the husbands’ pensions to their values several years earlier at the time of the divorce was unfair and inequitable. Our attorneys argued that the Husband’s method would unfairly pay the wives, many years later at the time of the Husband’s eventual retirement, in the value of past dollars calculated at the time of the divorce. The firm successfully convinced the Appellate Division that a “marital coverture fraction” should be applied to the monthly pension payment at the time it was actually received. The coverture fraction is a fraction in which the numerator is the number of years of employment that took place during the marriage, while the denominator is the total number of years of employment that it took to earn the pension. The Appellate Division agreed with our attorneys that the coverture fraction more equitably recognizes the efforts of a non-working spouse during the marriage, while at the same time protecting the post-divorce efforts of the working spouse.



Pizi v. Bolam

Brian G. Paul of the firm’s family law department recently successfully defended an ex-husband’s appeal of a Family Part Judge’s denial of his request to reduce alimony and child support. At the time of the divorce, the husband was earning $450,000 per year as a Vice-President at Merrill Lynch. Post-Divorce, the ex-husband left Merrill Lynch, and received a severance package that provided him with substantial deferred compensation in the form of restricted Merrill Lynch stock. The restricted shares were not eligible for release to the ex-husband until several years later.

A few years after leaving Merrill Lynch, the ex-husband filed a motion to reduce alimony and child support, claiming that his income had dropped to $200,000 per year. The $200,000 represented ex-husband’s salary from his new employment. In contrast, Brian asserted that the ex-husband’s income was actually in excess of $700,000 per year, because $500,000 of Merrill Lynch restricted stock stemming from his severance package had been released to him that same year. Therefore, the issue on appeal was whether the restricted shares of Merrill Lynch stock should be included when determining whether the ex-husband had demonstrated a substantial change in circumstances warranting a reduction in the alimony and child support.

The Appellate Division agreed with Brian’s argument that the restricted shares represented a form of deferred compensation, and that the ex-husband realized income for child support and alimony purposes in the year that the restricted shares were released. Therefore, the Appellate Division agreed with Brian’s argument that the husband had failed to demonstrate a substantial change in circumstances warranting a reduction in alimony and child support, and the Trial Court’s decision was affirmed.

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Hunter v. Humphrey

Default was recently entered against a husband who had attempted to represent himself in a divorce action after he failed to file his Answer and Counterclaim on a timely basis. The husband filed a motion to vacate the default so that he would have an opportunity to participate in the divorce action, but the Family Part Judge denied his motion. As a result of the default, the husband was precluded from participating in the final divorce hearing, and the wife obtained a Final Judgment of Divorce which adopted her unfavorable proposals for resolving the issues of alimony, child support, equitable distribution and counsel fees.

On appeal, Brian G. Paul filed a motion for summary disposition arguing that in the interest of justice the husband should be given his day in court. Normally, an appeal takes between 12 and 16 months to complete. In contrast, the summary disposition process is reserved for those appeals whose outcome is so clear that they should be decided on an abbreviated record, and normally get resolved in as little as 2 months. Although motions for summary disposition are scarcely granted, the Appellate Division agreed with Brian’s argument that the end result of this appeal could not be any clearer – the interests of justice necessitated the husband’s being given his day in court. As a result, the Appellate Division summarily reversed several portions of the Final Judgment of Divorce with instructions that the husband be given the opportunity to litigate those issues on rema

This case once again demonstrates the importance of retaining an experienced attorney anytime you are required to appear in court.

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J.C. v. J.M.

In J.C. v. J.M., Brian G. Paul successfully represented a victim of domestic violence in the Appellate Division after her former boyfriend filed an appeal of the Trial Court’s entry of a Final Restraining Order in her favor. There, our client and her former boyfriend had a five year dating relationship. After our client ended the relationship, the former boyfriend continued to leave numerous voicemail and email messages to which she did not respond. Subsequently, the former boyfriend appeared twice uninvited at our client’s place of employment. The first time, he handed her a written note. The second time he persuaded her to talk to him at a local diner down the street where she proceeded to tell him that she read the note, and she still wanted nothing to do with him.

The conversation did not deter the boyfriend who again appeared, uninvited, at her place of employment. When our client saw Plaintiff she immediately sped away, only to be pursued by the former boyfriend in a car chase from her place of employment in Princeton all the way to Bordentown. The boyfriend’s pursuit was only interrupted when a police officer intervened. The next day, the former boyfriend left a note on our client’s car consisting of name calling and vulgar language. Our client then sought, and obtained, a temporary restraining order prohibiting the former boyfriend from having any contact with her. After a trial, the Judge found that Plaintiff had harassed our client in violation of the domestic violence statute, and entered a Final Restraining Order. The former boyfriend appealed, and the Appellate Division affirmed. In so doing, the Appellate Division agreed with Brian’s arguments that the Trial Court’s determination that the former boyfriend had harassed our client through his course of conduct was based upon substantial credible evidence and should not be disturbed on appeal. The former boyfriend was also required to pay Brian’s legal fees associated with his successfully defending the appeal for our client.

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Morse v. Morse

Brian G. Paul recently reversed a Trial Court’s denial of a multi-millionaire Wife’s request for alimony. The parties in this case were married for nearly 26 years in which the wife served in the traditional role of homemaker and primary caretaker to the parties’ three (3) children, while Defendant concentrated his marital efforts on advancing his career and increasing his employment earnings to more than $800,000 per year. Post-separation, both of the wife’s parents died leaving her a substantial inheritance. After a trial in which our firm did not represent the Wife, the Trial Court concluded that the Wife did not have a need for alimony. The Trial Court found that she had $12,000 per month of after-tax dollars available to meet the $11,500 per month of expenses it believed she required in order to live reasonably comparable to the marital lifestyle post-divorce. When calculating the Wife’s $12,000 per month of income, however, the Trial Court imputed hypothetical investment income to the equity in the marital residence she was retaining, as well as retirement assets she had received in equitable distribution. In addition, the Court determined, on the basis of the Husband’s expert witness’ testimony, that the Wife would receive $6,000 per month of income prospectively in the form of shareholder distributions from a company in which she had an ownership interest, even though the expert had only reviewed one-half year’s worth of the company’s financial data.. The Appellate Division agreed with Brian that the Trial Court had failed to follow controlling legal principles and abused its discretion when denying the wife alimony, and remanded the matter back to the Trial Court for a proper determination. The Husband, unhappy with the Appellate Division’s decision, filed a petition seeking to have the New Jersey Supreme Court review the case, but the Supreme Court denied his application.

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Brian G. Paul recently successfully represented a father in his quest to obtain a post-divorce transfer of custody of his then 15 and 10 year old children. At the time of the divorce several years earlier, the parties were granted joint legal custody of the children, with the mother designated as the children’s primary caretaker. The husband was provided parenting time on alternating weekends, as well as two dinner visits each week. In January of 2006, the children’s physician contacted the father and advised him that she saw a bite mark on his then 13 year old daughter’s knee while conducting a routine examination. The daughter indicated that the mother had bitten her during a domestic dispute. Further questioning uncovered that the mother had, amongst other things, been hitting the children with a wooden spoon, withholding food and using corporal punishment to discipline them. Brian filed an emergent application on the father’s behalf, and the Court entered an order transferring temporary custody of the children to the father, limiting the mother to supervised visits and ordering the mother to undergo a psychiatric examination.

After a DYFS investigation substantiated the abuse and the court ordered the parties to undergo updated custody evaluations, Brian represented the father during a 3 day custody trial that was conducted in order to determine whether the temporary change of custody should be made permanent. The Trial Court agreed with Brian’s argument that the father should be awarded sole legal custody to make all decisions involving the children, inasmuch as the mother’s past actions had demonstrated that she was difficult to deal with on such issues. The Trial Court further awarded the father primary physical custody of the children, and provided the mother every other weekend parenting time. However, when so doing, the Trial Court agreed with Brian’s argument that, given the 15 year old daughter’s advanced age and tumultuous relationship with her mother, the child should be given the option of deciding which of her scheduled parenting time sessions she wished to attend. The mother appealed, and the Appellate Division affirmed the decision in its entirety. In so doing, the Appellate Division expressly noted that the Trial Court’s decision to permit the 15 year old to decide whether she wished to attend parenting time was a valid exercise of the court’s discretion in light of the credible evidence presented at trial. This is one of the first instances where the Appellate Division has affirmed a child’s right to decide whether they wish to participate in parenting time.

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