I recently came across an article written by Gordon Gibb for lawyersandsettlements.com and could not help but print it out and post it near my desk. I’ve posted it here in its entirety.

Los Angeles, CA: If there ever was a more important role for lawyers and litigation professionals, it is in family law. Corporate law, environmental law, even real estate law has nuthin’ on the complexities and the drama that explodes from divorce petitions, custody battles—even who gets to keep the family dog.

And you know those ads you see, that advertise divorces for a couple of hundred bucks? Don’t go there. You get what you pay for—and unless you’re willing to serve up your life and your future on a silver platter, you’ll need some qualified legal representation to make sure your interests are protected.

Let’s face it, relationships don’t seem to last like they once did. Many factors are behind this. The ‘me generation’ that got its feet wet in the liberated 1960s, then passed on their views and values to their kids, don’t tend to stick it out like previous generations. ‘Till death do us part’ borders on a fairytale now. People just aren’t so willing to stick with a relationship that is loveless, lacks fun or substance, or just doesn’t work for a variety of other reasons.

What’s more, dual-income households where both husband and wife have full-time careers mean that it’s easier to split. Translated, there’s more money in the pot, and the woman (who usually is awarded primary custody of the kids) will still enjoy child support from her spouse, but with her own career does not have to rely solely on the support payments to live. She has her own life, her own friends and her own income. In many cases, she makes more than he does. Why not bale, if the relationship just isn’t working?

Another factor: the baby boomers have advanced to middle age, and have arrived at mid-life with all the crises that go along with it. Suddenly the fact that you’ve been married 25 years to the same person, perhaps working at the same job and living in the same house doesn’t seem to do it for you any longer. You’ve arrived at that point in your life where you need to take a leap of faith and fulfill some dreams—even if it means trading in your life in the process.

Regardless of the motivation, the process is complex and fraught with risk for both sides.

And the stories are legion. Take the fellow who writes on lawyersandsettlemets.com about the end of his relationship with his former wife. He claims she did not work but led a life of leisure, taking the opportunity to see other men and women on the side. When her husband confronted her, she allegedly fled to her wealthy father to arrange for a divorce.

And despite the fact her family has money, she allegedly won the house that her spouse brought into the relationship, his car, and even his pet dog that predated his ex by five years. He also lost his job, yet is required to pay support payments to his former spouse, in spite of the obvious wealth of her family.

The upshot is that she now lives in her father’s mansion, while her ex has been forced to live with his cousin and his family while he tries to cobble another life together for himself.

The bottom line is the fairness that so often escapes a family law case that is mishandled, at least by one of the sides, due to a lack of proper representation. Of course you want to be fair, and you like to think that the fairness factor will guide the process. But that is not always the case, especially when there is anger involved.

Experts suggest that if your relationship looks as though it is coming apart and you’re considering divorce, the best couple of hundred bucks you’ll ever spend is by sitting down with a reputable family law firm for a consultation. In an hour, their family attorneys can give you a pretty good idea of what you might be in for, what the dynamic, the payout and the cost, the likely custody arrangement, and in a nutshell what kind of life you’re going to have at the end of it all. It may not be pretty, and after hearing the hard facts you might think twice about dissolving your relationship, and try to patch it up instead.

However if you feel you have to proceed, or you have an inkling that your spouse is—and it isn’t possible to work it out amicably, then for heaven’s sake get yourself a lawyer, and get a good one.

You owe it to your kids, yourself and your future.

Posted by Jason Medina,
Medina, Martinez & Castroll, LLC

Chances are, most times people will go to 4 or 5 different attorneys for those things and not come back to their own personal family lawyer to assist them along the way. Our law firm is doing things different. Our goal is to be your lawyer for life. Whether you come to us in a crisis, or as part of your proactive planning in life, we will be here for you for the long haul. You won’t have to worry about looking for references or taking a chance on a lawyer you hardly know. If we’ve been doing our job correctly, we’ll be with you every step of your life and as the needs arises, we’ll be by your side to help you when you need a lawyer.

This blog is primarily about family law, and we’ll get back to that subject in a minute, but I thought it was important to discuss this firm’s guiding principles. One of them is being your lawyer for life.

If you have a need to see an attorney, whether for a real estate purchase, family wealth planning, or some other matter, schedule your appointment today to meet with your Personal Family Lawyer and begin the relationship of a lifetime.

We only have 10 spots open every month for new clients and we’re already booking into August - don’t let this month go by without starting that lifetime relationship.

Visit the Medina, Martinez & Castroll, LLC Website and call our Client Services Director Tiffany Lauritsen to reserve your spot.

Posted by Victor J. Medina,
Medina, Martinez & Castroll, LLC

Legal Custody

Legal custody is defined as a parent’s decision-making responsibilities and can be arranged into two kinds, joint legal custody or sole custody. Joint legal custody arrangements require both parents to discuss and agree on major decisions concerning the child or children, such as medical, education, safety, and general welfare. Conversely, sole legal custody grants one parent the exclusive authority over the decision-making process without input from the other parent.

Physical Custody

Physical custody is defined as the right and obligation of a parent to have his or her child or children live with them. In many instances, one parent is awarded the primary residential custody of the child or children. This parent is referred to as the “primary residential custodian” and is responsible for the daily supervision, lodging and decision-making. The other party or the “non-physical custodial parent,” is conferred rights of visitation or rights of physical custody in accordance with an agreed-upon schedule or court order.

Types of Custody Arrangements

There are many variations of custody arrangements recognized by the courts. Parents are afforded broad discretion to create visitation or “parenting time” schedules aimed at continuing parental contact with the child or children, after the parents have separated or dissolved the marriage. In many cases, parents share physical custody whereby the child or children spend equal amounts of time with both parents throughout the year. The parties may also request that the court order any type of physical custody that serves the best interest of the children.

Factors Considered by the Courts

In making an award of custody, courts will consider several factors, including, but not limited to, (a) the parents’ ability to agree, communicate and cooperate in matters relating to the child or children; (b) the parents’ willingness to accept custody and any history of unwillingness to allow parenting tine not based on substantiated abuse; (c) the interaction and relationship of the child with its parents and siblings; (d) the history of domestic violence, if any; (e) the preference of the child when of sufficient age; (f) the stability of the home environment offered; and (g) the fitness of the parents. Generally, a parent cannot be deemed unfit unless his or her conduct has a substantial adverse effect on the child or children.

Tender Years Doctrine

In New Jersey, courts often employ the “tender years doctrine” when deciding custody matters. The doctrine holds that while the rights of both parents are equal to the custody of children, a child or children of tender years ordinarily is awarded to the mother if she is a fit and proper person. This doctrine, however, is subordinate to both the best interest of the child or children and the equal rights of both parents to the custody of their child or children.

Posted by Jason Medina
Medina, Martinez & Castroll, LLC

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

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

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

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

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

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

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