Articles Posted in coronavirus

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On June 8th, I argued a case of significant importance in the Appellant Division. Although I have not received a decision as of yet, I am still of the belief I was heard. The case involved an application from the supporting spouse to terminate alimony based on the cohabitation of his former spouse. Although I did not represent my client at the trial level I believe that my predecessor made the necessary arguments allowing me to present the important issues to the higher court. The Trial Judge had misread the recently decided, Landau decision, believing that the fact in Landau created a litmus test as to what constituted a Prima Facia case allowing discovery and a plenary hearing as to the issue of cohabitation. In fact, Landau provides that before one is entitled to discovery and a plenary hearing one must establish a prima facia case.

A prima facia case is one where the court is to consider the issues presented by the proponent of a proposition in the light most favorable to said, petitioner. In considering the assertions of the petitioner the defenses offered by the opposition are not to be given weight. Since the opposition is not required to give evidence, their election to give selected evidence is should not be considered as the issue is not ultimately a success on the merits but rather the sufficiency of the assertion to justify a full examination of the issue.  

The idea of a prima facia case as an entry ticket is based on the privacy right of the dependent spouse who ought not to be forced to divulge intimate details absent the presentation of more than innuendo. In my case, there was significant proof including a private investigator’s report, statements by the paramour of the closeness of the relationship, and some economic proof. The initial problem was that the Trial Court had misread the law, this error of the law was compounded by the trial courts weighing the defenses of the dependent’s former spouse and finding her explanations more credible. 

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I have received many questions as of late regarding Covid-19 and the effect it has had on the divorce process. Those I have spoken to expect to hear that the courts are in shambles unable to handle all of the paperwork and processing that has become necessary in this new socially distant world. In point of fact, my experience with the courts since the shutdown has been quite positive. I have argued several matters in the Appellant Courts since the shutdown most by Zoom or through the phone. The Judges have been attentive and as well prepared as an Appellant Judges always is. Most importantly though, the quality of the discussion has been in no way compromised, in fact in many ways I find this virtual experience better than in-person argument. pexels-ruslan-burlaka-140945-300x200Let’s start by our means of travel or getting there, my office in my home is in the family room. I joke to my wife when descending the stairs that I am ‘driving to work.’ The point being, I do not have to drive to the argument this saves time and furthermore the headache brought on by the annoyance of finding a parking space. My clients save money as well because as a lawyer, I bill for travel time. I also do not have to wait as the Zoom meeting starts promptly when the court is ready to hear our case; a second savings to our clients who are otherwise billed for waiting time. Lastly, I find argument easier as I am able to have all of my documents spread out on my desk (and floor.) When arguing in person the need to drag my files with me and have them all stored at the speaker’s podium which leaves me minimal space to spread out, the ease of finding documents and case law has greatly improved when my appearances have been virtual.

When looking at the trial level, a virtual conference has the same travel and waiting time advantages. When participating in a Zoom trial, the ability to load all of one’s exhibits onto the server and instantly deliver the documents being presented to the judge, the witness, and opposing counsel is very efficient. No more fumbling around for a piece of evidence or waiting for everyone to find the relevant page or section being referred to. Further, when trials were held in person, there were constant interruptions by lawyers seeking emergency relief or other parleys with the Judge. There is more of a flow with uninterrupted trial time on zoom. When first having to cross-examine a witness virtually, I was concerned that it would be harder for the court to capture the demeanor of the witness, this concern I learned is unfounded. Delays in responding and hedging are actually more obvious on zoom. You can literally see the liar sweat.

Motion practice has also been an absolute joy to do via zoom. Usually, on motion days a busy lawyer could be racing from county to county sometimes making three court appearances in three geographically distant locations on any given day. Clients paid for the travel and racing across the state takes a toll on the lawyer. Now I am able to schedule matters in; Bergen, Atlantic, and Sussex County and get them all done in the morning.

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When does it make sense to hire your own expert and when does it make sense to use a joint expert with your spouse? Using a joint expert saves money, obviously, but is the saving worth the lack of control and flexibility? It depends. The more sophisticated the issue related to the asset the more important it is to have your own expert. For example, under our law, a premarital asset is exempt from equitable distribution unless it appreciated by an active effort of a spouse during the course of the marriage. So if you started pexels-maitree-rimthong-1602726-300x200a business before the marriage the question is what part of any appreciation of the asset is related to market forces and what percentage is related to your efforts. This is a complex issue with many nuances if you have a joint expert they may not feel that all such nuances should be investigated without an agreement. You will not have the same freedom to speak to the expert and your lawyer will certainly be limited in his/her ability to instruct the expert and to discuss concepts. Market forces and the time value of money may play a role in the increased value of your business and the savings if you do not have to share a portion of your businesses’ appreciated value can far exceed the cost of an independent expert.

Inherited assets are also exempt from distribution however once again active appreciation in that asset is distributable. You may have inherited an office building during your marriage. The value of that building when inherited is exempt however if it has appreciated in value during your marriage you will need to prove that the appreciation is not due to your effort but due to market forces. Having your own expert to navigate the appreciation and to explain how the property appreciated could have a critical impact on how much you will need to pay your spouse. In February I will be giving a seminar for the New Jersey Institute of Continuing Legal Education dealing with valuation issues including identifying how to distinguish active from passive appreciation. Joining me will be a Real Estate Appraiser, a Forensic Accountant, and an Appellant Division Judge. This is a complex issue in matrimonial litigation and the outcome can have a tremendous impact on the outcome of your case. Money is a commodity and we use it to value other commodities such as Real Estate and Business Ventures. Money can change in value because of inflation or depression or simply over time. World opinion may also have an impact on the relative value of a dollar. If you use the dollar to value assets without further insight into the factors that affect the value of the dollar you could be economically harmed. If you are looking for a real appreciation you need to stabilize the dollar in the year of valuation relating it to the value of the dollar in the year of acquisition.

Not all appreciation is active distributable appreciation. World or local economic changes may affect value wholly unrelated to owner effort. For example, real estate may appreciate because of zoning changes unrelated to any owner effort or because of market factors that might inflate value; a perfect example is the appreciation in the value of residential real estate in New Jersey caused by the exodus of high-income people from New York City as a reaction to Covid and taxes. This spike in value is clearly due to market reaction to the demand for none urban housing.

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With the COVID-19 pandemic raging, I have spent a lot of time thinking about what the holidays will be like this year. Of course, the holidays are supposed to be a time filled with love and joy; a time spent with family and friends. This is true no matter what holiday you celebrate at this time of year. After all, that is what we see in all the holiday movies and hear in all the holiday songs. But, as most grownups know, even in normal times, as special as this time of year is, it is also a time that is inevitably more hectic and more stressful. But this year is different. Many are facing the loss of a loved one, in some cases, more than one loved one. So many people are separated from family members – in hospitals, nursing homes, or just keeping their distance to stay safe. Those who live alone are feeling the solitude even more while those who live with others are feeling the added pressure of the extra time couped up inside because while time together is wonderful, most of us are not accustomed to quite this much “time together.” And then there is the absence of so many of the holiday activities and traditions which we have come to treasure. As an Italian American from Brooklyn, for me, this means foregoing Christmas Eve in Brooklyn with extended family. As the mom of a two-year-old, it means no visit to see Santa this year. But I consider myself lucky. My family is healthy and I have not had to suffer the loss that so many have.pexels-nicole-michalou-5765727-200x300

Yet even as the pandemic drags on, we are striving to make the holidays a time of happiness. These are unusual circumstances, we tell ourselves. It is only one year and next year we will be able to celebrate again like we once did. These feelings of loss, loneliness, sadness, and hopelessness are not usual for this time of year and this too shall pass. But of course, this is not true for everyone. For some, the holidays are not a happy time, even when there is no pandemic. This is true for so many including those who are recently divorced or in the middle of a divorce.

Certainly, it is hard to be happy when the life you knew changes. Suddenly you find yourself dealing with the magnification of loneliness and navigating the stress and the hectic of the holidays alone. Maybe you are struggling with old traditions. Perhaps it is the first year that you will spend the holidays without your children. And added to the normal stress that always comes with the holidays is the need to manage parenting time schedules and feeling like you need to keep everything the same for the kids, while so much has changed.

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You know the feeling. Like clockwork a favorite relative sends you a birthday card year after year, often days if not weeks before your actual birthday. Then one year your birthday comes and goes and no card was received from that relative. You are filled with feelings of surprise and disappointment. What happened? Did the relative forget? Is the relative upset with me? For whatever the reason, you feel a sense of loss. For those of you who are regular readers of my blog posts, you know that in the Fall of each year, like clockwork, I write a series of posts summarizing recently promulgated amendments to the New Jersey Court Rules that would directly or indirectly impact Family Court matters. Like the expected birthday card that was not received, I am sure you are surprised and disappointed that I have yet to do so. However, like the belated birthday card that arrives weeks later, this blog post is just what you are waiting for. Candidly, however, it is more like getting a card without the expected check inside. Why? Whether due to the COVID pandemic or other reasons, there were an unusually small number of changes or amendments made to the Court Rules for this year, none relating to the Part V Family Part Rules, and few even indirectly impacting Family Court practice. However, there was one new Rule which was adopted, which although procedural in nature, could directly impact how Family Court matters are handled, particularly those unresolved matters for which a trial may be necessary. What you may ask? We finally have a Rule dealing with in limine motions.

I know. I know. You are asking what in the world is an in limine motion, and why does it deserve its own Rule? Over the years, in limine motions have come to resemble the “Wild Wild West” of motion practice. Generally speaking such in limine motions were made on the eve of and/or at the outset of a trial. Often they sought to address various evidence-related issues, such as whether certain evidence should be allowed and/or excluded from consideration during the trial. However, motions labeled as “in limine” were also being filed for the purpose of having a court make a determination on certain substantive matters such as whether a certain claim or issue would be granted or excluded from a case. For example in the Family Court context, a party may make a motion in limine as to whether or not a certain asset should be deemed exempt from equitable distribution in the hopes of “limiting” the issues to be addressed at trial. Often such in limine motions were made within days of, if not on the day of trial itself, leaving the opposing party with nominal opportunity to prepare and respond to same. How such motions were handled were largely left to the discretion of the trial court. While less so in the Family Court context, such in limine motions were being filed, the disposition of which could actually result in the dismissal of a complaint or claim, or of a defense thereto. Ultimately, several court decisions were rendered making clear that one should not be able to disguise what was in effect a “summary judgment” motion as a motion in limine, and that such motions must utilize the timing and notice requirements for summary judgment motions under R.4:46. Unfortunately, notwithstanding these admonitions against the misuse of the in limine motion practice, these abuses continued.

In the case of Seoung Ouk Cho v. Trinitas Regional Medical Center, 443 NJ Super 461 (App. Div. 2015); cert. denied, 224 NJ 529 (2016) the Appellate Division appeared to reach a breaking point when it came to this use and abuse of in limine motion practice and the lack of any rules or guidelines respecting same. In this medical malpractice case, the defendant doctor made a motion “in limine” on the day before jury selection was to begin to dismiss the claims against him. Although initially questioning whether this was a proper “in limine” motion, the trial court ultimately granted that motion. The Appellate Division reversed. In so doing it noted:

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pexels-sora-shimazaki-5668882-200x300In the Supreme Court decision, Roman Catholic Diocese of Brooklyn v. Cuomo, the limits placed on houses of worship in certain “orange areas” in New York City were struck

down on constitutional grounds based on religious freedom and equal protection.

Fundamentally the Supreme Court found that there was no rational basis that allowed the Governor by Executive Order to treat religious houses of worship differently from nonessential manufacturing facilities, certain classes of categorized “essential services” and pubic transportation. The Court was split 5- 4 with Chief Justice Roberts voting with the minority.

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Cohabitation of a dependent spouse with another in a relationship tantamount to marriage may lead to the suspension or termination of a payer’s obligation. During COVID many people have begun nesting for companionship and resource sharing. Ma

ny of these new “quasi-family” unions are built upon established long term relationships; others are built on less firm footing. The question arises: do these arrangements give rise to the right of the payer to examine the nature of the relationship and the appropriateness of some financial relief?

An application to terminate or suspend alimony based on cohabitation is provided for by  Statute and Case Law and is frequently refined and defined by Property Settlement Agreements. Generally if one believes their spouse is cohabiting and the spouse is not conceding the fact, a  motion must be made to the Family Part seeking relief or a hearing regarding the payee’s status.

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Although Covid has dramatically affected how the Courts operate day to day divorce cases are still moving forward efficiently. Most matters are proceeding with e-filing of pleadings and motions while appearances are being hosted on Zoom as well as several other internet platforms.

The court buildings are also open to attorneys and litigants specifically involved in a matter on a limited basis. Through a combination of internet and limited physical appearance, matters are

moving through the courts efficiently.

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Ahhhh, the Coronavirus pandemic. As I write this blog post, most people are torn between feelings of fatigue and fear. After more than eight months since this pandemic began, most people are understandably weary over the personal, emotional, financial, and societal upheaval that this has caused. To say that this situation has put one’s coping skills to the test would be an understatement. People yearn for a return to some sense of “normalcy”. At the same time, that yearning has been tempered by the predicted “second wave” of this pandemic, with increasing infection rates and the return of lockdowns and restrictions that had been previously eased. At the early stages of this pandemic, I had written a blog post highlighting the significant economic impacts this pandemic was having (i.e. loss of jobs, diminished incomes, reduction in asset values and net worth, increasing debt, etc.) and how all of this was complicating the ability to resolve divorce matters. Between the economic upheaval and the uncertainty over what the future would bring, negotiating settlements was becoming a daunting task.

One of the topics which I had touched upon in my earlier blog post was the extent to which this pandemic might impact a family’s most valuable asset – their home. Prior to the pandemic, the housing market was looking strong. Homes were moving, prices were rising and everyone was looking forward to a robust spring market. However, when the pandemic hit everything, including the housing market, essentially came to a grinding halt. The number of new home listings, as well as mortgage applications, dramatically declined as stay home requirements took hold and the uncertainties made people leery of moving or taking on new financial commitments. While it was too early to tell how this pandemic would impact real estate values, this uncertainty would likely complicate how to approach the disposition of the marital home for purposes of equitable distribution in a divorce.

Jump forward seven months. The pandemic has resulted in a flight of people out of urban areas and choosing to movepexels-pixabay-164522-300x215 to the suburbs or country. Rather than living like sardines in close quarters with other people where the virus could more easily spread, people sought the openness and space. Further, the restrictions and lockdowns evaporated much of the quality of life living in a city would bring. The racial and societal upheaval following the death of George Floyd only exacerbated and reinforced people’s decision to move. The consequence? The housing market throughout much of New Jersey has exploded. Houses are getting snapped up as soon as they hit the market. Bidding wars are prevalent. Home values have risen dramatically. To say that it has become a buyers market would be an understatement. What impact has this had on divorce matters?

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The holiday season is upon us and with it comes the joy and at times the tribulation and challenges of family gatherings. This year the holidays might be configured a bit differently than in past years. Uncle Charlie might be participating by Zoom and Aunt Ruth may be sporting her signature mask. This year offers new challenges both because of the pandemic and the Presidential election. Very few of us are neutral regarding issues of: voter fraud, election interference, or the quality and character of candidates. Some of us are Republican, others Depexels-olya-kobruseva-5842243-200x300mocrats or perhaps Independents. We all have an opinion and most of us have voted. In a democracy, our job as citizens is to vote. Once we have voted the outcome of the election is left to the States and if contested to the Courts and the Legislature.

As ordinary citizens, we really have nothing after voting to add to the process. No matter how loud you yell at FOX or CBS nothing Is going to change. It is like a football game you may get caught up in cheering on your team but your cheers have very little to do with the outcome. Biden or Trump will ultimately prevail because of the vote and whatever legal process follows. By Christmas, the die will clearly be irrevocably cast and your support or distress or discourse at family gatherings will not move the needle even a little bit.

Out Republic has been around 244 years and will survive the incumbency of either candidate. Politicians and the Press always say this is the most important election of our time. Maybe they are right this time that is a question to debate just not at the Holiday table.

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