In New York, a domestic violence order of protection will last for two years but may be extended for good cause shown by the plaintiff or consent from both parties. (NY Fam Ct. Act §842).
Do violations of FRO’s carry any potential jail time?
New Jersey’s current law gives a lifelong punishment for committing domestic violence. Any violation of an FRO is considered a criminal offense and can result in a jail sentence (N.J.S.A. 2C:29-9). Additionally, if the first violation does not result in a jail sentence, the second violation carries a mandatory 30 days in jail. (N.J.S.A 2C:2-30). Further, any alleged violation, regardless of if said violation actually occurred or not, requires and a mandatory arrest. (N.J.S.A. 2C:25-31).
How does an FRO affect the restrained party’s life and future?
FROs can also impact the defendant’s life in more ways than creating a criminal record. They can prevent the defendant from obtaining certain employment or professional licenses, housing, scholarships, school admission, etc. Under the New Jersey Uniform Enforcement Act, licensing boards can investigate the individuals they grant licenses to. If the board so chooses, they can refuse to admit a person to a licensing exam, refuse to issue a license, suspend or revoke a board issues license if the licensee has been convicted or engaged in acts constituting any crime or offense involving moral turpitude, meaning that the act or behavior being punished gravely violates the accepted standards of the community. (N.J.S.A. 45:1-21). A conviction in this situation can be a guilty plea, a judgment of conviction, or any other judgement of alleged criminal activity.
The New Jersey Uniform Enforcement Act applies to many professional boards, including but not limited to accountancy, architects, dentistry, engineers, marriage and family therapists, medical examiners, nursing, optometrists, pharmacy, real estate commission, court reporting, veterinary medical examiners, and chiropractic examiners. Being the defendant in a case the ends in an FRO being issued can have a significant impact on the defendant’s life and livelihood.
The potential lifetime burdens on the restrained party bound by the FRO can be great. New Jersey may alter their laws in the future, but for now defendants need to be aware of how great an effect a conviction of domestic violence could have on their future. Having experienced representation for the duration of a domestic violence case for the accused can be invaluable to protect interests the defendant may not even know they have.
This case centered around the death of the husband who died before the martial settlement agreement was finalized. When the wife filed for divorce in 2015, the husband executed a new Will that essentially left his estate to his children. In the past, in most cases with similar circumstances, the estate of the deceased would have been allowed by the court to intervene in the divorce to allow the Court to continue the divorce to complete an equal distribution of the marital property. In the Santana case, the estate requested this by motion to intervene, and the wife countered with a motion to shut the estate out. The wife’s motion argued that the state’s equitable distribution statute only allowed for the distribution of martial property in this situation if no exceptional circumstances (mainly fraud) are present in the case. The trial court granted with the wife’s motion, and the appellate court found in favor of the wife as well. The essence of the decision was that if no fraud (such as hiding assets) was present, all marital assets were distributed based on actual legal title (here in the wife’s name or with wife as beneficiary).
Because the appellate court affirmed that decision, that means that in future divorce cases when a death occurs during a New Jersey divorce, assets subject to equitable distribution are inherited in accordance with legal title or beneficiary designation, and the estate cannot be substituted as a party to the divorce to fulfill the dead spouse’s true intentions. In the Santana case, this meant that the divorce court lost jurisdiction and the case was moved to the probate court, the wife received approximately $615,000 more from the estate due to the husband’s death during the divorce than she would have (had the settlement agreement been finalized and the assets distributed equally). This happened largely because the wife was the sole inheritor of the marital home, the husband’s life insurance policy, the husband’s retirement benefits, and all jointly owned accounts.
This leaves the legal arena of what law rules when a party to a divorce case dies to be governed by probate law, and not equitable distribution statutes. The New Jersey Legislature has not yet addressed this issue with any new statutes, the New Jersey Supreme Court declined to hear Santana and has not yet heard any similar cases.What this means for lawyers and parties to divorce cases. Due to this complication of New Jersey divorce law, many questions have risen for estate planning and divorce attorneys of New Jersey as to how to best advise their clients. The answers will depend on the circumstance of each case and the individuals involved. It is important to address the following after the filing of a divorce case:
Until the legislature or the New Jersey Supreme Court fully answers the question of how to address the division of marital assets where a death during the divorce proceedings occurs, it will be very important for divorce attorneys and their clients to be on guard to protect the client’s assets and interests from the possibility of a death during a divorce.
In community property states, the parties equally own all income, assets and debt earned or acquired during the marriage. Alaska (by agreement), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin are community property states.
The Bezos’ divorce will be governed under the rules of their home state of Washington, a community property state.
High Net Worth Divorces Create Unique Situations
Individuals with high net worth often present a unique situation to their respective matrimonial attorneys. There are simply more financial resources to fund support and to share. Substantial business assets are often involved and extensive categories of personal expenses (including nannies, private schools, second and third homes and an affluent lifestyle) must be reckoned with.
Don’t ignore the reality that approximately 50% of all marriages end in divorce.
Marriage is not only an interpersonal relationship but also a financial relationship.
There is a saying that “when you have nothing, you have nothing to lose.” This may hold true with divorcing couples who started with nothing. When the Bezos’ married, Amazon was not in existence. This is not the case now.
As the Bezos are finding out with high wealth individuals, there is a lot to lose if planning is ignored. Nobody wants to disrupt their engagement with talk of planning for a possible divorce. To ignore long-established statistics is unwise, yet that is precisely what many individuals do. Families build a business and plan for business contingencies, yet they ignore interpersonal family crises that may interfere with the long-term viability of the family business. This doesn’t mean that all situations can be addressed through advance planning. As stated above, Amazon did not exist prior to the marriage. But in many cases, businesses are already in existence before “I do” is uttered, and the harm that can befall a business if ownership shares are divided can be anticipated.
Enter a premarital agreement before the marriage
Prenuptial agreements are one of the most effective tools in managing the exposure of one spouse’s significant assets to potential division. While a difficult subject to broach with your intended, a properly drafted premarital agreement can save the parties significant emotional and financial expense. These agreements can address property division, spousal support and virtually every financial issue that may arise during a divorce. High net-worth individuals that have a vested interest in protecting family assets and/or assets remaining from a prior divorce should especially consider a prenuptial agreement.
In fact, senior members of family businesses will often require young family members to enter such agreements before they will be granted full shareholder rights in the family business. If there is no premarital agreement in place, a divorce could expose the family wealth to possible division.
Assess and quantify the financial lifestyle of the marriage; identify and value assets and liabilities
It is critical to any divorce but especially to a high net-worth divorce to have a detailed understanding of the financial lifestyle of the marriage as well as the assets and liabilities of the marriage. For a business owner, someone involved in a family business, or an individual with complex investments, this is even more important. Only with a complete picture and awareness of each asset and liability can your attorney effectively act to limit your exposure to asset division.
As a preliminary step you should immediately schedule a meeting with your financial planner, accountant and attorney, to discuss the exposure of each asset to being divided. You will also need to analyze the tax consequences related to the methods of any distribution. With an understanding of what you have and owe, your attorney will be able to present your complex financial picture to the other party and to the court in a succinct and clear way. Because family courts are generally busy and have limited time to invest in any particular case, it is critical for your professionals to present a cogent plan of asset division to a judge, if the divorce cannot be settled by agreement.
Take appropriate business/asset planning steps
If you are a business owner or have an interest in a closely held business, you need to take steps to protect the business and your interest in the business from the effects of the divorce process. While it can be difficult to avoid involving the business in a messy divorce, it is possible to limit the exposure of the business to the interference of a non-titled spouse’s equitable claim for a piece of the business.
One way to do this is through a shareholder agreement clause that limits the transferability of stock in the event of a court order entered pursuant to a divorce. The shareholder agreement can also delineate business valuation methods, buy/back provisions and other terms designed to allow the titled shareholders to retain possession and/or limit damage caused by being forced to share the value of the company.
An Asset Protection Trust can be used to protect against changes in control of a company that may arise from unexpected family dynamics, such as divorce or the introduction of a new spouse into a business. The trust itself places ownership of the business into a trust with the intent to keep it outside the scope of divorce litigation.
Consult with your financial advisor/ estate planning attorney and hire the right experts including a forensic accountant to assist you in valuing and dividing your assets
The applicability of the above-described asset protection mechanisms should obviously be discussed with your accountant and lawyer together. It would be prudent to involve an attorney specializing in estate planning as well.
If your wealth is related to a business, or other personal assets that must be valued, an expert opinion is often needed. That expert is frequently a forensic accountant who will help to determine the value of a business. Sometimes the expert may be a specialty appraiser (such as a fine art appraiser). The different in achieving a satisfactory result or being led to an unreasonable settlement may come down to a battle of who has retained the most effective expert advisors to value and structure division of assets.
Don’t miss the opportunity to craft a reasonable settlement
High net worth individuals have a distinct divorce advantage over individuals with little net worth; they can afford the divorce. Lower and even middle income and lower net worth individuals struggle to find the funds to maintain two households, fund child support and alimony, provide for college and leave themselves something other than debt. High net worth litigants are able to get beyond subsistence planning during their divorce. They are not forced to incur legal and expert fees to merely survive financially. Therefore, there is almost always an opportunity to bend in settlement negotiations without financially jeopardizing your future or the future of your children.
Beware of Social Media
The immediate cause of the Bezos divorce was reporting on Jeff Bezos’ social media activity.
The explosion of the numerous forms of social media has in many ways created a potentially fundamental alteration of the way in which family law litigation is conducted. I have seen numerous cases where social media figured into a divorce — none it was helpful to the author of the posts.
Simple rule: Assume anything you email, post tweet or blog will be read by opposing counsel and possibly the Court in a divorce proceeding.
All materials in this article have been prepared for general informational purposes only. They are not intended and should not be construed or used as legal advice or legal opinion on any specific facts or circumstances. One should consult an attorney for advice regarding their individual situation since every case is unique. The information contained in this article is not intended to create, and receipt of it does not constitute, a lawyer-client relationship nor is it intended to substitute for the advice of an attorney.
“The cost of a divorce depends on many factors, a key one is the willingness of the parties to work together”
The explosion of the numerous forms of social media has in many ways created a potentially fundamental alteration of the way in which family law litigation is conducted. I will be addressing social media issues in future blogs as well as in this blog as this recent phenomenon (who ever heard of Facebook seven years ago?) has had a profound impact on the way that issues like custody and even financial issues will be addressed. I will offer an example in this blog of the impact of social media with possible ramifications and will further develop the potential opportunities and dangers to litigants in future blogs and articles. My example of what we see is based on an actual incident that I have witnessed. The details here are not important but the broader issues raised are very significant.We can start with Facebook and stream of consciousness allegations made by a parent in a custody matter. This particular matter was a bitterly-contested custody dispute that extended many years after the divorce and the original custody determination. The former wife (we will call her “Sally”) made the allegation in her court documents that her former husband (we will call him “George”) had recently attempted to burn her house down by setting fire to her porch. She was obviously attempting to raise to the court concerns over George’s mental stability.
In addition, Sally was simultaneously posting entries on Facebook as to her beliefs of George’s alleged arson and her fears of him. Multiple posting by Sally and her “friends” on Facebook ensued, with many postings, decrying the alleged mental instability of George. These postings were viewed by George’s personal acquaintances, business referral sources and even the parties’ daughter, who was a “friend” of Sally’s on Facebook. George finally learned about this form a “friend” who advised him of the exchange.
A copy of the postings were forwarded to George, which George read with disgust, knowing that the allegations were untrue and realizing that his reputation was being sullied with him powerless to prevent it. However, George was even more astounded when he read the final postings, which contained Sally’s admission that she was wrong; that the fire was as a result of a frayed electrical cord. The court eventually learned of the misrepresentation. Sally never issued an apology to George, either personally or on Facebook.
Look at all the possible issues that were created by Sally’s postings. She disseminated false allegations to possibly hundreds of people, many of who know both parents. Does George have a possible tort action against Sally? Sally may have admitted to falsely certifying to the court serious allegations about George affecting perceptions about him. Was Sally attempting to alienate the child against George, knowing the child would be reading her posts and her other friends’ posts?
It is clear that use of a social media can have significant impact on a custody matter. This theme will continue to be developed in future entries.
The Reality of “Changed Circumstances” and the new Alimony Reform Act – Robert B. Kornitzer, Esq. and Caitlin DettmerWhen the spouse paying alimony seeks to reduce his support, the New Jersey Supreme Court requires the lower courts to consider (among others) two factors set out in Lepis v. Lepis, 83 N.J. 45, 157 (1980): (1) whether there is an initial of “changed circumstances” and (2) whether the supporting spouse has the ability to pay what he was previously paying. Examples of changed circumstances include unemployment of the supporting spouse, changes in the supporting spouse’s income, illnesses, and changes in the dependent spouse’s living arrangements. Courts will not modify alimony if the change in circumstances is only temporary. Unfortunately, there is no perfect rule by which to measure when a changed circumstance is severe enough and has endured long enough to warrant a modification of support.
While there is no set amount of time that constitutes changed circumstances, recent changes to New Jersey’s alimony law (N.J.S.A. 2A:34-23) establish that an application for modification of alimony may be filed once a party has been “unemployed, or has not been able to return to or attain employment at prior income levels” for 90 days. The law maintains that factors other than the amount of time a party has been involuntarily unemployed or subject to a reduction of income are to be considered, but in theory, the law now recognizes that changed circumstances may exist after only three months of continued unemployment or inability to return to the level of income that existed at the alimony was set. This three-month rule was considered to be a major reduction in the burden carried by the supporting spouse.
However, any celebrating by supporting spouses seeking to reduce support may have been somewhat premature. In the recent unreported (meaning non-binding) case of Beschloss v. Beschloss, the court seemed to place more weight on factors other than length of time being unemployed when considering an application for downward modification of support. In Beschloss, the Appellate Division upheld the denial of the defendant’s request for downward modification even though his income had been reduced by approximately one-third of his former income and despite a period of unemployment.It therefore remains unclear as to how meaningful the impact of the revised alimony statute will be in determining future support modification applications. We can look forward to many new cases continuing to define the issue of what constitutes “changed circumstances.
Religious Divorce, Removal of Barriers Laws and its Impact on Religions in an Ethnically Diverse New JerseyA majority of New Jersey residents identify with a religion. For the religiously devout, a secular divorce can present a problem when an individual wants to thereafter remarry within their faith. Remarriage may not be simply a civil matter, but one with significant religious implications and obstacles. By way of context, many are now familiar with the recent trial in New Jersey of several NY/NJ rabbis who were ultimately convicted on charges of kidnapping and torturing Orthodox Jewish husbands who had refused to sign a Get (religious divorce decree). The rabbis sought to compel these reticent husbands to “voluntarily” give the Get, which would allow their former wives to remarry in the faith. Without the document, the women were deemed “agunah”, which is defined as chained women who are stuck in a dead marriage. The heavy handed tactics used by the rabbis evolved in the wake of a small percentage of Jewish husbands using the lopsided power inherent in the Get process to a) deny the wife the opportunity to move on with her life and b) often extort more favorable financial and custodial divorce settlement terms.
New Jersey courts have most recently found that ordering production of a Get stands in conflict with First Amendment principles, and, thus, cannot be compelled. Other states have found the acquisition of the Get to be a non-religious act, thus avoiding issues of First Amendment violations, and have compelled its production.
New York has enacted legislation that requires litigants filing a complaint for divorce (or those who do not oppose the divorce itself) to sign affidavits that they have “removed all barriers to remarriage.” See DRL §253. Failure to comply with the statute can result in financial sanctions and other punitive effects. However, the statute is not without its shortcomings. Though the statute is written from a religion-neutral position, its effect in application will manifest itself differently based on the particular faith that is at issue. Because requiring the specific performance of a purely religious activity is a clear violation of First Amendment rights, New York cannot actually force either husband or wife to affirmatively take the necessary steps to “remove all barriers to remarriage”. Financial sanctions can legally be ordered, which may effectively persuade many individuals to cooperate with the law, but compliance with the action of cooperation cannot be forced.
Interestingly, in New Jersey’s religiously diverse population, there is not always a conflict between religious secular divorce and religious divorce. Protestant denominations generally (but not always) allow remarriage within the faith and also do not typically require a religious decree to remarry within the faith.
An interesting perspective that would apply to those of the Hindu religion is offered in India, which has implemented religion-specific civil codes that govern religious practitioners. By way of example, Hinduism has no concept of divorce, viewing marriage as a sacred relationship undertaken for life. Nevertheless, Indian law, while recognizing the traditions of Hinduism, also authorizes divorce and nullity to Hindu marriage, in contravention of the religious tenets.
Muslim tradition permits divorce. When the male initiates divorce it is called talaq and is a simple process. When the woman initiates divorce, it is called khula. Khula is a very limited process and often restricts the woman’s child custody rights. This can result in severely limited practical ability of a Muslim woman to religiously divorce her husband.
A Catholic Annulment and a Mormon Temple Sealing Cancellation both require the subjective approval of religious officers. In the Catholic tradition, marriages are a holy sacrament and divorce is prohibited. The only way to remarry within the faith after a civil divorce is to receive a religious annulment, effectively deeming the first marriage void. The annulment can be obtained even after many years of marriage, but there is no guarantee that the church will agree to the annulment. Likewise, a Mormon couple who has been sealed in the temple can be unsealed only under certain conditions (i.e. the woman is ready to be re-sealed to another man, holding temple entrance privileges, etc.). Even then, any cancellation request is subject to approval of the church hierarchy.
In many of the above religious examples, a civil divorce may result in a spouse being left with no religious ability to be remarried in the eyes of their faith. In these situations, there are limits to civil government universally encroaching upon religious practice to guarantee the eradication of agunah-type status in any religion.
Given the protection of religious liberty in this country, there is perhaps no adequate civil solution that can address each religious paradigm as it concerns divorce and to compensate for when a religious tenet unevenly denies individuals the personal liberty of remarriage within their faith. However, the economic sanctions contained in a “removal of barriers to remarriage” statute will likely drastically reduce the problem. Perhaps removal to barriers language may even be included in the application for marriage that all New Jersey couples must submit prior to their civilly-recognized marriage.
Civil remedies to ensure religious remarriage will not likely ever be able to be universally applied to all New Jersey religions. However, implementing appropriate “removal of barrier” legislation containing economic incentive to adhere to the laws may be a step in the right direction.
Individuals with high net worth often present a unique situation to their respective matrimonial attorneys.There are simply more financial resources to fund support and to share.
Substantial business assets are often involved and extensive categories of personal expenses (including nannies, private schools, second and third homes and an affluent lifestyle) must be reckoned with.
The support question in a typical divorce is: how can two households be supported when this intact family could barely survive (financially) when they were together?
In a high net-worth family, the issue is not can support be afforded, but how much support is enough?
This expert advice will answer all of these questions, and make the process far less stressful.
Co-parenting following a divorce (or following the split-up of a non-married couple) presents unique challenges to both parents; but especially to the dad who is now assuming an active parenting role in functions that were previously the sole domain of mom. A good example rests in dad’s interactions with his child’s pediatrician and the child’s health-related needs. Not only is active involvement in the child’s day-to-day medical needs a foreign subject to many newly divorced dads, but there are unique legal issues that I see frequently in my practice as family law attorney that cannot be ignored. For my illustration, I am assuming that dad has joint legal custody (involvement in major decisions involving the health, safety and welfare of the child) and also physical parenting time with the child.Dad must keep in mind that he needs to be pro-active in learning everything about the child’s health-related needs. This means understanding any special problems of the child, researching those problems, joining the child at medical appointments and being part of the child’s medical decision process. A mom who is used to solely handling this role may not take kindly to what she perceives to be an intrusion into her historic parenting role. She may resist and either actively or passively leave dad out of the “loop”.
It is up to the newly active dad to sometimes bite his tongue, be diplomatic, but be persistent and consistent in participating in the child’s medical needs. Dad has the legal and moral right to help care for the child’s needs, but if dad is not consistent and active, he will effectively erode and minimize his role in the future. It is one thing to talk the talk, but dad must walk the walk.
The importance of cooperative consistency plays out in critical custodial issues. For instance, the more active a dad is in being involved with attending pediatric appointments, the more he will be recognized by the child, the mother, the pediatrician and potentially by the courts as a necessary ongoing component of the child’s life.
Keep in mind that even though I am using medical involvement as my example, this extends to all areas of a child’s needs such as education, sports, activities and religious training. Many divorcing dads who fought so hard to have the right to be active in their child’s lives then turn around and effectively give up that right by reverting to an uninvolved status that may have been prevalent during the marriage. This undermines dad’s legal strength in the future if
a) he is seeking additional parenting time or
b) mom is seeking to reduce dad’s parenting time.
Very critically and not understood by most dads is that being a very involved dad may be the most effective method of preventing your former spouse from relocating to a geographically distant location with the child. When it comes to having meaningful rights to be an active parent, “use it or risk losing it” may be the mantra that dad needs to keep repeating to himself.
By Robert B. Kornitzer, Esq.With digital currency like Bitcoin making headlines daily as its value skyrockets, both the existence and value of digital currency, or cryptocurrency is no secret. What may be a secret, however, is how much an estranged spouse has stashed away in cryptocurrency, and exactly where. The rising popularity of cryptocurrency is posing a potential problem for divorce attorneys as they try to arrange equitable settlements between divorcing parties. Throughout the discovery process in divorce litigation, both parties are required to provide proof of all financial assets and transactions to the court to ensure fair distribution of marital assets.
Since cryptocurrency is not backed by any government authority or financial institution it is, in many ways, an online financial free-for-all. Transactions can be conducted privately and anonymously, making them very difficult to regulate and trace. As a result, one can potentially purchase cryptocurrency in small quantities, anonymously, over time, and conceal their very existence. This raises concerns among attorneys on both sides; one may argue that small bank withdrawals cannot be linked to the purchase of digital currencies, while the other side may counter by trying to establish a pattern between withdrawals and online purchases, calling into question what the withdrawn funds were spent on.
Until attorneys have access to better accounting forensics, with the IRS likely leading that charge, cryptocurrency stands as a potentially effective scheme for marital asset concealment.
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