May
2
New Jersey Premarital Agreements
Filed Under Attorney-Client Relationship, Family Law Basics, Marriage & Family, Property & Asset Distribution | Leave a Comment
Premarital agreements, also referred to as prenuptial or antenuptial agreements, can be a difficult topic of discussion among couples getting married, especially if one party is seeking the agreement. A prospective spouse opposed to the idea will typically view such agreements as an affront to the institution of marriage and the relationship as a whole. However, a properly drafted prenuptial agreement can save spouses a great deal of emotional and financial expense in the event of a divorce.
In New Jersey, prenuptial agreements are governed by the Uniform Premarital Agreement Act, which was enacted in 1988. The Act requires that all prenuptial agreements be in writing, with a statement of assets attached to it. Parties are required to sign the agreement, which becomes effective upon the marriage of the parties. The contents of a prenuptial agreement are limited to certain areas. For instance, parties can negotiate the following:
a. the rights and obligations of each of the parties in any property of either or both of them whenever and wherever acquired or located;
b. the rights to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
c. the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
d. the modification or elimination of spousal support;
e. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
f. the ownership rights in and disposition of the death benefit from a life insurance policy; and
g. the choice of law governing the construction of the agreement.
In addition, parties can negotiate any other matter, including their personal rights and obligations, not in violation of public policy. It also cannot adversely affect the right of a child to support or stipulate which party should have custody of any child born of the marriage.
A prenuptial agreement may be amended or revoked after marriage only by a written agreement signed by the parties. The amended agreement or revocation is enforceable without consideration. A party may also seek to set aside a prenuptial agreement as unenforceable. However, the party seeking to set aside an agreement must prove that: (a) the agreement was not entered into voluntarily; (b) the party did not have an opportunity to consult with independent legal counsel; and (c) there was not full disclosure of all assets, liabilities and income. If these three factors can be proven by a party, then the burden to set aside the agreement shifts to the other side and the primary focus will be on whether the agreement was fair and reasonable, which is a determination made by the court.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Apr
8
NEW SERIES: Wiretapping and Divorce Law - Part II
Filed Under Attorney-Client Relationship, Divorce & Separation, Family Law Basics | Leave a Comment
The Internet has revolutionized the way people communicate and share information and ideas. Today, electronic mail (e-mail) is perhaps the most commonly used method of cyber-communication. From offices to homes to libraries and corner cafes, use of cyber-communication and the Internet is a part of everyday life. In the world of matrimonial law, e-mail communications and chat room forums has sparked a growing phenomena known as “cyber-infidelity.” More and more spouses suspecting infidelity in a relationship are accessing home computers and retrieving its electronic files for evidence to validate their suspicions. E-mail communications have become a prime target and for good reason. Not only can a spouse access messages received and sent, but even deleted messages can be retrieved with the proper software or by a computer expert. This invariably raises questions about the legality of retrieving e-mail messages and the consequences of such actions.
Generally, intercepting e-mail communications from a spouse’s workplace computer or private home office will violate several New Jersey civil and criminal laws. The reason for this is because one has a reasonable expectation of privacy in these areas. However, the right to retrieve e-mail communications from an accessible home computer depends on whether the communication is in the transmission stage or in post-transmission storage.
This very issue was addressed by the Superior Court in White v. White, 344 N.J. Super. 211 (2001). In this divorce case, a husband had moved to suppress saved e-mail communications between him and his girlfriend retrieved from the home computer by his wife’s computer expert. The computer was kept in a common area where different family members used it. The wife used the husband’s password to access messages stored in his personal file cabinet. In denying the husband’s motion, the court held that there was no reasonable expectation of privacy in the computer files given the location of the computer and that the wife did not unlawfully access any stored information. The court reasoned that New Jersey’s Wiretap Act only applies to communications that are in transmission and not those that have been previously sent and saved.
The court distinguished between e-mails in transmission and those stored post-transmission. E-mails in post-transmission storage fall outside the purview of the New Jersey’s Wiretap Act because once e-mail messages are downloaded from the e-mail server they are not stored for the purpose of electronic transmissions.
Despite the court’s ruling in White, this area of law remains unsettled and requires careful analysis and legal counsel. The legal ramifications of illegally accessing a spouse’s stored computer files can be devastating.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
31
Pendente Lite Relief: Maintaining the Marital Status Quo
Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment
The need for temporary spousal support during the pendency of a divorce action is very common. All to often, a dependent spouse, who has assumed responsibility for the children and marital home, is left shouldering the financial burden of childcare and household expenses with little or no assistance from the other spouse. In these situations, most courts will award a spouse temporary child support or alimony while the divorce is pending.
The purpose of pendente lite relief is to try to maintain the financial status quo between spouses pending the resolution of a divorce action. The lifestyle maintained during the course of the marriage usually determines the appropriate level of support. A spouse can obtain such relief voluntarily by mutual agreement between his or her spouse or by court application.
An application for pendente lite relief should be made early in the divorce process to ensure that ongoing financial obligations are met and to protect the parties rights during the pendency of the divorce. Most pendente lite applications include the following requests: (1) contribution toward monthly expenses, including childcare, mortgage, utility bills and personal maintenance; (2) continuation of medical and dental insurance and contribution to the payment of unreimbursed health care expenses; (3) continuation of all other insurance, including homeowners, life and automobile policies; (4) reasonable restraints regarding the dissipation, encumbrance or transfer of marital assets; (5) payment of attorneys’ fees and costs; and (6) hiring of expert witnesses.
In considering an application for pendente lite relief, courts generally assess the financial needs of the supported spouse, the means of the supporting spouse, and the standard of living of the parties in providing a spouse with adequate maintenance and support. In some cases, the courts deny pendente lite applications because a spouse either has sufficient assets, financial resources or refuses to work when he or she has the capacity to do so.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
28
NEW SERIES: Wiretapping and Divorce Law
Filed Under Assets & Debts, Divorce & Separation, Family Law Basics | Leave a Comment
Clients often ask me if secretly recording a spouse’s telephone conversations or accessing a spouse’s emails or text messages is against the law. I take a deep breath whenever I hear these questions because there is never a simple answer. The advancements in technology and the ease in which people communicate nowadays have resulted in a dramatic increase in incidents involving interspousal spying. In divorce cases, suspicion of infidelity usually serves as the impetus for clandestine monitoring of a spouse’s telephone calls, Internet activity, email transmissions and text messages. However, the act of intercepting the oral or electronic communications of a spouse may constitute a violation of both federal and state wiretapping statutes; statutes most clients are not aware of.
In New Jersey, a violation of the wiretapping statute gives rise to a cause of action and may result in both criminal and civil penalties. Generally, it is not a violation of federal and state wiretapping laws to record a conversation to which you are a party. However, secretly taping or recording the conversations of others, particularly an unsuspecting spouse, is. All to often, spouses looking for leverage in their divorce cases will resort to wiretapping to prove adultery or other acts of conduct likely to damage a spouse’s credibility at trial. Unfortunately, evidence obtained in violation of the state’s wiretapping statute is not only illegal, but also inadmissible at trial. In fact, clients who present such evidence to me are advised to immediately destroy any and all recordings and are further advised that they may have violated the law.
The issue of whether recording a spouse’s telephone conversations with a third party is a violation of the state’s wiretapping statute was addressed in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991). In M.G., the husband had recorded his wife’s telephone conversations with her paramour within the marital home. The court held that is was a violation of the state’s wiretapping statute for the husband to surreptitiously record the telephone conversations of his wife with a third party. The court reasoned that the “right of privacy extends within the confines of the marital home” and that the act of recording a spouse’s telephone conversations constitutes a “severe invasion of privacy in a most egregious fashion.” The court awarded the wife $10,000.00 in compensatory damages, $50,000.00 in punitive damages, as well as $5,000.00 in attorney fees.
A spouse in a divorce action whose privacy was violated can file a civil action against the offending spouse on the grounds of invasion of privacy, which is a common-law tort in New Jersey. These types of claims, known as Tevis claims, are consolidated with the divorce matter and tried together. If the invasion of privacy claim is substantiated, then the offending spouse could be subject to substantial monetary damages, which could be collected by an offset against the marital assets. Moreover, a violation of the state’s wiretapping statute may also expose an offending spouse to criminal charges.
Up Next: Internet and Email Transmissions
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
7
Alternative Dispute Resolution Options for Divorce in New Jersey-Part IV: Arbitration
Filed Under Alternative Roads in Family Law, Divorce & Separation, Family Law Basics, Mediation & Collaboration in Family Law | 1 Comment
Mediation and arbitration, whether in a divorce context or not, are often confused and for good reason. Both are similar in many ways. Like mediation, arbitration is a confidential, cost-effective and expeditious alternative to traditional divorce litigation and courts of law. It requires spouses to voluntarily submit their divorce matter to a neutral third party, an arbitrator, who ultimately renders a final ruling on settlement. As in mediation, parties, usually agree on the selection of an arbitrator, who may be a matrimonial lawyer or a former judge but, in any case, are experienced and familiar with the many nuances of matrimonial law. In situations where spouses cannot agree on an arbitrator, a judge, if it’s a lawsuit, will often select one from a list submitted by the parties. The cost of arbitration can be shared or divided by the parties. It is often recommended that this issue be resolved prior to arbitration. The similarities between mediation and arbitration, however, end there.
The role of an arbitrator is similar to that of a judge without the formalities and limitations of the courtroom. The arbitration process is usually less formal than a trial in that parties can agree on what rules of evidence are to apply. Unlike a mediator, an arbitrator has power to impose a settlement on the parties over their objections, if the parties so choose. This is why choosing an experienced arbitrator is so important. Generally, the parties agree to be bound by an arbitrator’s ruling prior to arbitration unless they agree that the decision will be non-binding. If the parties agree to be bound by an arbitrator’s ruling, then the arbitration is considered binding and is virtually non-appealable, except in instances where one party can prove that the arbitrator was biased, committed a gross error of law, or exceeded his or her authority. On the other hand, non-binding arbitration may be more appealable. However, if the end result of an appealed arbitration decision is the same as the initial decision or more favorable to the other spouse, then the court may order the party who appealed to pay the other’s legal fees.
Spouses pursuing arbitration are encouraged to retain legal representation because unlike mediation, an arbitrator is not particularly focused on facilitating dialogue between the parties in an effort to resolve their differences. Instead, an arbitrator hears testimony, accepts evidence and renders a decision based on his or her assessment of the parties’ positions. Attorneys are permitted to attend arbitration sessions, sometimes helping to conduct them as quasi-trials, and can ensure that their client’s best interests are advanced before an arbitrator. If binding, once an arbitrator renders a ruling, it is submitted to the court for filing by way of court order. Arbitration can also be used in conjunction with the courts. In some divorce cases, a disagreement over a particular issue can derail the process entirely. In such instances, an arbitrator may be called to help settle the matter in order to move the divorce case along.
For those interested in arbitration, the American Arbitration Association and National Arbitration Forum provide valuable information and other resources.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
5
Alternative Dispute Resolution Options for Divorce in New Jersey-Part III: Mediation
Filed Under Alternative Roads in Family Law, Divorce & Separation, Family Law Basics, Mediation & Collaboration in Family Law | Leave a Comment
Whenever I suggest mediation to my clients as an alternative to traditional divorce litigation, the suggestion is always met with the same response: “What is mediation?”
Well, divorce mediation is not a brand-new idea. It has been around for many years and has increasingly become the preferred alternative to the courts in settling divorce matters. It is important, therefore, for spouses contemplating divorce to become familiar with mediation, as well as other options for alternative dispute resolution.
Private divorce mediation is a voluntary and confidential, and is intended to be a non-adversarial process. It costs substantially less than litigation and affords parties the opportunity and flexibility to ultimately structure their own divorce settlement agreement, rather than permit the courts to impose a settlement on them. The first step in the process is the selection of a mediator, who may or may not be a matrimonial lawyer. Generally, parties agree on the selection of a mediator and often share the cost of mediation. Most mediators charge by the session and unlike attorneys, rarely require a retainer.
The role of the mediator is to serve as a neutral third party who assists in facilitating a dialogue between spouses aimed at helping them reach a resolution they find acceptable. This spirit of cooperation and sense of autonomy often results in the amicable dissolution of marriages and minimizes the conflicts and disputes that typically arise in traditional divorce litigation. The courts have also recognized the efficacy of mediation and have implemented mandatory mediation programs in certain divorce cases. These programs are often mandatory in divorce cases involving difficult child custody and visitation issues.
The duration of private mediation varies based on the complexity of the divorce matter and the exchange of information between the parties. Gathering and preparing all relevant documents and financial statements can be a daunting and tedious process. In recognition of this, mediators often recommend that parties, who have not already done so, retain private counsel to guide them through the mediation process. Generally, attorneys do not sit in on mediation sessions, but rather assist their client in preparing documents, drafting case summaries, providing legal advise on difficult issues and reviewing any agreement drafted by the mediator.
All decisions and stipulations reached by the parties are memorialized in a Memorandum of Understanding (MOU), which explains in detail how the parties reached the agreement. The MOU is not a contract and is not signed by the parties. The parties review the MOU for accuracy and bring it to their respective attorneys for review. If satisfactory, the terms of the MOU eventually form the basis of a Property Settlement Agreement (PSA), which is filed with the court. However, if at any time prior to the filing of the PSA a party is not satisfied with the mediation process or the MOU, he or she may walk away from the table and pursue traditional litigation or arbitration. A mediator, unlike binding arbitration, has no authority to impose a decision on the parties. In some cases, parties decide to mediate some issues and let the court determine the outcome on others.
Mediation is not for every case. It requires patience, understanding and a willingness to compromise with your soon to be ex-wife or husband. And though I have no statistical data on the success rate of mediation, I often read that couples that choose mediation are more likely to be satisfied with the process when compared to couples that pursue traditional divorce litigation. Ultimately, the decision is yours to make.
For those interested in mediation, the New Jersey Association of Professional Mediators and the Academy of Family Mediators provide useful information and resources on how to locate a mediator in your local area.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Jan
15
Finding The Strength To Pick-Up The Phone
Filed Under Divorce & Separation, Family Law Basics, Impact on Children | Leave a Comment
So, January is the month when New Year’s resolutions are made and broken. And with the wind of fresh starts lifting them up, January is also the month when divorce filings skyrocket. In fact, it’s second only to June, when the kids are out of school and living arrangements can be altered before the start of the next school year.
Typically, parties are prompted to reach out to a divorce attorney in January because either they didn’t want to spoil the family celebrations or were hoping that the holidays would help them reconcile.
Either way, our office sees an influx of calls by new prospective clients who are ready to pull the trigger on their divorce in January and usually a couple of weeks after the New Years, once bills and the return to the routine underscore the same marital problems that existed before the holidays.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Nov
29
Alternate Dispute Resolution Options for Divorce in New Jersey - Part II: Early Settlement Panels
Filed Under Alternative Roads in Family Law, Divorce & Separation, Family Law Basics | 1 Comment
Even in the most amicable of divorces, issues often arise which create disagreements between spouses, which invariably result in delays in the divorce process. The most common issue attributable to disputes and delays is the division of property and finances. At some point, usually early on in the process, spouses want to know who gets what and how much of it. These may seem like simple inquires, but settling on a fair and equitable distribution of property and finances can be a long, difficult and costly proposition.
For years, many of the state’s family courts were plagued by the backlog caused by divorce cases with unresolved financial issues. Cases often lingered for years before any resolution was reached. In fact, I read about one divorce case that took five years to resolve. In an attempt to alleviate the backlog of divorce cases, the courts began experimenting with programs aimed at facilitating the resolution of disputed financial issues between spouses. One such program was the Matrimonial Early Settlement Panels, commonly referred to today as Early Settlement Panels or ESPs.
The first Early Settlement Panels began in Morris County, New Jersey in 1977. Today, ESPs exist in every county in New Jersey and is mandatory unless the divorce is uncontested or a settlement is reached. Though there is a lack of procedural uniformity in how ESPs are managed from vicinage to vicinage, the scope and purpose of ESPs has remained the same for three decades. The Panels are a form of settlement conference which is free to litigants and staffed by volunteer, unpaid male and female divorce attorneys. Panel attorneys must have at least five years experience in the practice of matrimonial law, and must be a member of the New Jersey Bar for at least four years. The Panels only assist with resolving financial issues such as child support, alimony, property division and attorney fees, and will not hear issues related to child custody or visitation. There are other court mediation programs in place that deal with custody and visitation.
Divorce cases usually end up before ESPs after the filing of a divorce complaint, answering of pleadings, filing of financial disclosure forms and the completion of discovery by way of interrogatories or depositions. When meeting with a Panel, attorneys and their clients present their respective cases. The Panel will hear arguments, review evidence, and then make a non-binding recommendation of settlement. The recommendation is based on the Panel’s determination as to what is a fair and equitable settlement. The parties can accept, modify or reject the Panel’s recommendation. If the recommendation is rejected, the court may order the parties to Economic Mediation in a further attempt to reconcile unresolved financial issues. If the recommendation is accepted, the parties can settle their divorce at that time. However, if no resolution is reached, then the case will be scheduled for trial.
ESPs are an effective medium in settling divorce matters and are cost-effective alternatives to trial. Every attorney is ethically required to discuss alternative dispute procedures with their clients, including mediation and arbitration.
Posted by Jason Medina -
Medina, Martinez & Castroll, LLC
Nov
28
New Jersey Divorce & Family Law Blog Featured in Local Business Journal.
Filed Under Attorney-Client Relationship, Blogroll, Family Law Basics | Leave a Comment
I was recently featured in an article about blogging and got the opportunity to discuss this blog.
You can read the story here at the Princeton Business Journal.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Nov
16
How Attorneys Choose Clients: My View
Filed Under Attorney-Client Relationship, Divorce & Separation, Family Law Basics | Leave a Comment
My fellow Mac Lawyer, Ben Stevens, of the South Carolina Family Law Blog had a great post of original content on how attorneys choose clients.
I had a few thoughts and some questions for Ben.
First, unless I’m making a conscious decision to accept a matter pro bono, I make it a point to only take on clients where I am sure I’m going to get paid. This could be from funds that the client has (we often represent the “advantaged” spouse) or from funds that we get from the advantaged spouse to even the playing field. This isn’t a cold decision, but I have an obligation to provide for my family and I can’t, literally, afford to expend time and effort where there isn’t a reasonable assurance of getting paid for my effort.
(As a quick aside, I find it insulting the way that clients will regard bills from their attorneys as “optional” to pay. It’s one of the reason that I bill on a flat fee basis for many stages of a divorce proceeding.)
As for other reasons not to take a case, I find that potential clients who have been through a few other attorneys can be potential problem cases. Typically, I’ll know one or two of the prior attorneys, whose opinion and judgment I respect. If they give a client their opinion on a course of action or settlement and the client rejects it, chances are that I won’t be the right attorney or law firm for them.
Finally, I’d be interested in hearing how Ben’s use of flat-fee billing works to either get or drive away certain types of clients.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC