The Art of Forgiveness in Divorce

By:  Bruce P. Matez, Esquire

I spend most of my days with couples who are divorcing in mediation sessions, clients in the process of divorcing or who are divorced and continue to have ongoing disputes with their former spouses, and with couples who are seeking alternative ways to resolve disputes.  One of the major themes I have found in working with such people over the past almost 30 years has been the astonishing inability to forgive and let go. Sadly, that inability is one of the major reasons why I believe divorce is so expensive and why people spend so much money fighting in divorce and thereafter.

Betrayal in a marriage comes in many forms; some cheat, some overspend, some hide money, some lie about finances, and so on.  There are lots of reasons that trust becomes an issue in a marriage or other relationship; why anger, hurt, and all too often, vengeance rear their ugly heads and create impasse.  Forgiveness may very well be the key to unlocking the gateway to resolution, peace, and a happy life moving forward.

President Clinton once asked Nelson Mandela about inviting his captors and jailors to his inauguration, appointing his persecutors to government position.  He asked “Weren’t you really angry all over again?”  Mandela responded “Yes, I was angry.  And I was a little afraid.  After all, I’d not been free in so long.  But when I felt the anger well up inside of me, I realized that if I hated them after I got outside that gate when they would still have me. But I wanted to be free, and so I let it go.”

If Nelson Mandela was able to forgive his persecutors, jailors and captors and “let it go”, I have to wonder why spouses, parents of children, are unable to forgive each other and “let it go.”  One of the many goals I have in my mediation and litigation practice is to help my clients move on with their lives, to let go of the past and focus on the present and future.  Often that requires forgiveness and that is an extremely difficult thing to achieve in divorce.  I often wonder if divorce would be less expensive, less stressful, less acrimonious and less anxious for people if they were able to find forgiveness in their hearts.

NJ Supreme Court on Awarding Alimony in NJ-Nothing New!

By:  Bruce P. Matez, Esquire

The New Jersey Supreme Court has done nothing more than reiterate that the length of a marriage is only ONE of 13 factors which the court must consider in awarding alimony in NJ.  In Gnall v. Gnall, the Supreme Court reversed the decision of the Appellate Division, which had reversed the decision of the trial court.  The trial court awarded Ms. Gnall alimony for 11 years after a 15 year marriage. She appealed.  The Appellate Division reversed and found that the judge abused his discretion by not granting permanent alimony (pursuant to the prior law), that a 15 year marriage was considered “long term.” That decision was appealed to the Supreme Court.  Justice Fernandez-Vina, writing for a unanimous court, stated that the length of a marriage cannot be the only determining factor and should not weigh more heavily in the court’s determination than the other 12 statutory factors.  “Therefore, we find that the trial court improperly weighed duration over the other statutorily defined factors in determining a long-term marriage must be 25 years or more.”  The case was remanded to the trial court for a more thorough analysis of the statutory factors.  The new alimony law which was passed in September 2015 more specifically sets time frames for limited duration and open durational alimony as well as eliminated “permanent” alimony as an option.  However, the new law does not define the appropriate duration of limited duration alimony other than to say it cannot exceed the length of the marriage for a marriage of 20 years or less. That duration is still left to the discretion of the court.  Therefore, the court will still have to analyze the statutory factors in determining the duration of  limited duration alimony awards under the new law.

Child Support Agreements Not Always Enforceable

By:  Bruce P. Matez, Esquire

In the recent case Cosco v. Cosco the Appellate Division of the Superior Court of New Jersey determined that an agreement between divorced parents to terminate child support when their child attains the age of 18 is not enforceable if the child in question remains un-emancipated (in that case, the child is attending college full-time). The court relied upon case law which holds that child support is the right of the child and may not be waived or abrogated by the parents. Children who attend college on a full time basis after high school after reaching 18 years of age are entitled to the financial support of both of their parents even if their parents agree otherwise. There are six states, D.C., Puerto Rico and the Virgin Islands which require parents to financially support their children beyond reaching the age of majority and graduation from high school; New Jersey, Georgia, Hawaii, Massachusetts, Mississippi and Oregon. All others require the termination of child support at age 18 or upon graduation from high school in general, although there are few exceptions and most do not require any support after the age of 19 (in some states 21 in exceptional circumstances). This case clearly and unequivocally denies divorced or never-married parents the ability to negotiate between them how long they will be obligated to financially support their children, whereas married parents can cut-off support of their children at age 18 at their discretion. Currently, the law in New Jersey also requires that divorced or never-married parents contribute to their children’s college education expenses, a requirement that does not currently exist for married parents.

Save Money And Do It Right The First Time With Comprehensive Agreements!

By:  Bruce P. Matez, Esq.

Often clients neglect comprehensive agreements because they are anxious to get their case resolved, sign agreements, minimize their legal fees.  This can be very dangerous and can cause future costly litigation for the parties.  The attorneys at BorgerMatez  recommend that our clients enter into as comprehensive and detailed agreement as possible, leaving very little for the possibility of future litigation whenever possible.  A recent unpublished case in the Appellate Division  Grella v. Rumer reminds us that it is vitally important to spend the extra time and money to be sure to get it right and specify everyone’s rights and obligations in detail in a marital settlement agreement (also called a property settlement agreement).  In this case the parties agreed that husband was to pay wife her interest in the former marital home in the future.  They did not determine the actual value of her interest at the time of the agreement but their agreement said that wife was entitled to “50% of the equity that was obtained over the period of coverture” which is generally defined as the date of marriage through the date of the filing of a complaint for divorce.  Five years later, when he was required to make this equitable distribution payment to his wife, his appraisal determined that there was no equity in the home at the time, and in fact there was negative equity.  The husband argued that the parties mistakenly determined that there was equity in the home when they got divorced, even though they never quantified the equity. The wife argued that he had increased the debt on the home since the mortgage.  The court determined that the proper determination to be made was the equity in the home when the parties entered into their agreement five years prior, not currently. In hindsight, it would have benefited the parties to have had the property appraised at the time of the agreement/divorce and quantified the wife’s interest. This would likely have avoided the post judgment litigation and saved them both money in the long run.  If you do it right the first time, even though it may seem to cost a bit more, you can often avoid the possibility of spending even more in the future.

A Winning Jurisdictional Argument in Family Court!

By:  Bruce P. Matez, Esq.

Last week, a Superior Court judge agreed with me in dismissing an application filed in an FD (Custody/parenting time and child support matters) in New Jersey seeking enforcement of an order from 1997 based upon lack of jurisdiction.  In 1997, in response to a complaint seeking custody and visitation of the parties then 11 year old son, and in order to protect her son, my client agreed in a consent order not to discuss allegations that her former husband had sexually abused their son other than with her immediate family or therapists treating her or them. In exchange for such language in the consent order, the father withdrew his complaint for custody and parenting time. He had minimal contact with his son since then and did not financially support him. Last year, the father was charged with multiple counts of possession and intent to distribute child pornography in another state.  The son, who is now 29 years old, began speaking out publicly about the sexual abuse inflicted upon him by his father, and my client also began speaking out. The father having found that my client had posted some things online and given interviews about him, mostly relating to her being the victim of domestic violence while married to him, recently filed an application seeking enforcement of the 1997 order, sanctions, and other relief.  After reviewing briefs submitted on behalf of the parties, a Superior Court judge dismissed the father’s application finding that the Family Part of the Superior Court of New Jersey no longer has subject matter jurisdiction over the matter.

Twins from different fathers!

By:  Bruce P. Matez, Esq.

The wonders of nature never cease to amaze me.  In a case of first impression in New Jersey, a father was recently ordered to pay child support for only one of twins after DNA testing confirmed that he is, in fact, the father of only one!  The mother acknowledged that she had sexual intercourse with two different men in the same week during her menstrual cycle. The twins were conceived as a result of two different eggs being fertilized by two different men.  The result… twins with different fathers.  Sadly, I have to wonder how much litigation these twins and their parents are going to be involved in over the next 18 years or so, and there may be a very good likelihood of the twins being separated quite often as each spends time with his/her father, away from each other and their mother.  There are a lot of competing interests and probably a lot of competing studies about this.  Nevertheless, another new and interesting twist on the age old concept of parentage!

Lessons I didn’t learn in law school.

By:  Bruce P. Matez, Esq.

Check out this great article written by Jeena Cho. https://lawyerist.com/80492/10-lessons-werent-taught-law-school/

Jeena’s 10 lessons are very interesting and true.  These are all lessons I did not learn in law school and which I have had to learn in practice, many of which took a long time to truly understand, and many of which I continue to work on as a practitioner.  Two of these have particular relevance to the area of divorce and family law.

Having difficult and uncomfortable conversations with clients and other attorneys (opposing counsel in a case) is often one of the most challenging aspects of being a divorce and family law attorney. It is an art form that takes time, effort, patience and practice.

Handling conflict well is probably the most important attribute of being a good divorce and family law attorney and, even more important, being an effective divorce and family law mediator.  As a litigator, lawyers have long standing relationships with their adversaries.  Often clients do not understand this dynamic.  We have to cultivate and nurture those relationships in each of our cases and remember that when one particular difficult, high conflict, perhaps excessively antagonistic and arduous case is over, we will likely have another case with that attorney.  As a result, we often have to balance our ethical obligations relating to the representation of our clients with the need to maintain a healthy relationship with our legal colleagues.  That is incredibly challenging.  I believe that the BEST divorce and family attorneys are those who strike that balance well.  As a mediator, I have to balance the needs and emotions of my clients, and get a feel for how to manage the conflict.  Each couple present very different challenges related to their particular level of conflict.

One of my favorite stories is about the couple whom I met with just before they were scheduled for trial.  They had been in litigation for over a year. They agreed on nothing and had been ordered into mediation by the court to attempt to resolve their financial issues. I asked them at the beginning of the mediation when was the last time they had spoken to each other about the issues in their divorce.  They told me they had been communicating only through their attorneys for over a year and a half.  They had been married for over 25 years and had older children.  As the mediation started they began arguing, getting louder and louder.  I sat back and let them argue for over an hour.  They screamed at each other and both cried at times.  My staff actually knocked on the door several times to assure that everything was ok in the room. After about an hour, at a lull in their arguing, i quietly asked them “are you done and do you want to continue with the mediation?”  They both said they wanted to continue and both acknowledged that they were done arguing and tired.  45 minutes later, they came to an agreement on all of their disputed issues and resolved their divorce.

Court clarifies rules on reporting child support arrears to credit reporting agencies

by Bruce Matez, Esq.

A Superior Court judge in Ocean County has determined that arrears accrued as a result of a retroactive child support initial order or increase are not subject to reporting as a delinquency of the payor to credit reporting agencies. The law allows a judge to order child support to begin retroactive to the date that an application (complaint or motion) requesting child support is filed.  Often, therefore, when the order is entered there is automatically an arrears amount established.  N.J.S.A. 2A:17-56.21(a)  requires the Probation Department (collection agency for child support in NJ) to report delinquencies to credit reporting bureaus and agencies.  However, sections d and e of the statute require due process be afforded to the delinquent payor before reporting.  A payor cannot be considered “delinquent” because of arrears set solely as a result of the timing of the order.  Judge Jones ruled that the statute applies, therefore, ONLY to arrears accumulated as a result of a current child support order.  Any portion of arrears which resulted from a retroactive order does not constitute the type of delinquency which would require reporting to the credit reporting agencies.  See Cameron v. Cameron, Ch. Div. 

NJ Supreme Court considering changes to Provider-Client Confidentiality.

by Bruce Matez, Esq.

The NJ Supreme Court’s Rules of Evidence committee has proposed  changes to the rule of evidence relating to mental health provider-client confidentiality privileges which are currently provided in the Rules of Evidence.  Currently, the privilege applies to pscyhologists, physicians, marriage and family counselors, victim counselors, social workers, psychoanalysts, alcohol and drug counselors and professional counselors.  There are 13 exceptions to the privilege currently.  The proposed change would eliminate any distinction between the above listed professionals and lump them all into the category of “mental health providers.”  The proposed changes can be found at  www.judiciary.state.nj.us/notices/2014/discussiondraft.pdf and there is an Interim Report, posted at www.judiciary.state.nj.us/notices/2014/interimreport.pdf.  The changes could have an impact on the application of the privilege in family law cases.

For more information and an in depth analysis of the impact of the proposed changes, read the article Proposed Mental Health Confidentiality Privilege by John MacDonald in the March 24, 2015 New Jersey Law Journal.

 

Rabbis’ religious defense disallowed in “GET” criminal trial

by Bruce Matez, Esq.

Four rabbis are being tried in Federal Court in Trenton, having been accused of and indicted for kidnapping, tying up and beating three Orthodox Jewish men who refused to grant their wives religious divorces called a “Get”. During the trial the sought to have the charges dismissed claiming that the government is infringing on their religious freedom pursuant to the Religious Freedoms Restoration Act.  Judge Freda Wolfson denied the motion to dismiss the indictment citing that there were non-violent alternatives available to them to help convince the husbands to grant their wives a Get.  Judge Wolfson accepted rabbinic interpretation provided that Jewish law allows violence as a means of securing a Get from and unwilling husband.

A Get is a religious “divorce” that is required in Judaism.  An observant Jewish divorced person cannot remarry, especially a woman, without having obtained a Get. In the Orthodox and strictly observant Jewish community, it is the obligation of a husband to give his wife a Get; women cannot obtain a Get without their husbands’ cooperation.  The issue of whether the state can require a man to grant his wife a Get, has been the subject of debate and litigation in many states.  Currently, there is case law in New Jersey that requires a husband to grant his wife a Get as an enforcement of the Jewish marriage contract a “ketuba”.