Keeping Your Divorce On Track While Stuck At Home

By Frank Morano, Esq.

So you’ve hired a lawyer and filed a complaint for divorce but now you are quarantined and you hear the Courts are closed or only hearing emergent matters.  Does it feel like you are never getting divorced?  Not necessarily!  Many county courts will still go forward with uncontested divorces either on the papers (no appearances, just need to send the documents) or with a brief hearing telephonically or virtually.

You can be doing valuable work to keep your divorce process moving forward.

What can you be doing during this time? Well, there are many things you could be preparing for while you wait for the Courts to catch up.

  1. Complete your Case Information Statement: That multipage document which asks for all your financial information is one of the most important documents in your divorce.  This is the perfect time to hunker down and look up balances, pay stubs, and W2s and fill in as much as you can.  Review past credit card statements and bank statements to come up with what your monthly spending has been for the many different categories found in that form.
  • Gather important documents: We know, a home quarantine does not mean you have extra time on your hands.  Kids, homeschooling, work from home, exercising, cooking, and making sure you stay sane takes up 25 hours a day! But if you find yourself with some time, it’s the perfect opportunity to gather certain documents that you will most likely need, and, if you get to the discovery phase, will most likely be sought in a Notice to Produce.  The last few years of tax returns and W2s, your last several paychecks (which you need for your CIS anyway,) checking account statements, savings account statements, 401K statements, mutual funds, and other financial documents are important. 
  • Answer the discovery questions if they were sent to you: In addition to a Notice to Produce that requests specific records, you may have received sets of interrogatories, which are questions for you to answer.  They may come under separate topics (financial and lifestyle interrogatories, custody and parenting time interrogatories) or they may come as one long list of questions.  Take the time to read the questions fully, make notes about the questions, write down any questions you have for your attorney, and then answer the questions to the best of your ability.
  • Review documents sent by your attorney: Remember to be checking your email as attorneys are still working.  You may be needed to review documents before they are filed.  As with the interrogatories, read each document carefully and write down questions for your attorney.
  • If children are involved, develop your idea for parenting time, custody, and holiday/vacation schedules: Take some time to think about what you would like for parenting time and custody and what practically works for your family’s life (under normal circumstances!).  Write out all the major holidays, birthdays, and other special days, and list which of those days you would like to have the children.  Then think about how to equitably divide those times between you and your coparent.  Make note of any particular days or times that are extra special for you and the kids that are not necessarily major holidays like Thanksgiving. (Super Bowl? Valentines Day? St. Patrick’s Day?) Fourth of July is one that many people forget, even though it often involves travel opporunties. Also, think about the children’s birthdays and how time might be shared on those days.
  • Talk to your attorney: As you work on questions and come up with concerns, set up times to speak to your attorney.  Ask your questions and discuss concerns.  Your attorney is most likely working remotely and many firms are set up with all the same resources and capabilities they have in a formal office. 

As you can see, there are many steps that can be taken to continue to make progress in the process of your divorce.  Your attorney can work with you and opposing counsel to try and settle the matter without the Court’s intervention.  Even mediation can move forward using virtual mediation methods.   This time of quarantine may help speed the process giving parties the opportunity to focus on their cases and work out challenges to come to an amicable agreement. 

Plan A Parenting Schedule That Works For Your Family

Recently we found this great article on parenting schedules for people that are co-parenting but not living together. It covers a many different considerations and offers advice on how to create a schedule that can work for the whole family.

Disclaimer: This is not legal advice from our team, but a great piece written by Ryan Howard from SmartParentAdvice.com

K.D.E. v. J.E.: A Lesson in How Vague Language in an MSA Can Cost You Money

On October 12, 2018, the Appellate Division handed down an unpublished decision in K.D.E. v. J.E., a post-judgment matrimonial matter in Monmouth County. 

The parties married in 1988, had two children, and divorced in June 2009.  The parties negotiated a Marital Settlement Agreement (MSA) which was incorporated into their Judgment of Divorce.  At the time of the divorce, both parties resided in the marital residence.  The MSA allowed for Plaintiff and the children to remain in the marital residence until it sold.  It also allowed Defendant to remain in the home until she found alternate housing approved by her GAL. 

Defendant moved out of the marital residence approximately one month after the parties signed the MSA.  Plaintiff and the children ended up living in the marital residence for six years thereafter.  Plaintiff later claimed that he tried to sell the home but that Defendant refused to cooperate; however, Plaintiff did not file a motion in those six years.  Finally, the parties agreed to list the home for sale in 2015 and the house sold on November 30, 2015.   

The parties were unable to agree on how the sale proceeds should be distributed, so Plaintiff filed a motion seeking certain credits, including a credit for the mortgage principal he had paid down in the six years following the divorce.  Defendant opposed Plaintiff’s motion and pointed out that Plaintiff received the benefit of the mortgage deduction on his taxes as well as the benefit of not having to spend more money to buy/rent a new residence.  The trial court did not hold a plenary hearing on the matter, but instead, issued a written decision based upon the conflicting certifications filed by the parties.  The trial court granted Plaintiff’s request and commented that the parties did not anticipate the lengthy delay in the sale of the home and that Defendant was the sole cause of the delay. The decision did not address Defendant’s arguments that Plaintiff reaped tax benefits and saved money by not moving.  Defendant appealed. 

The Appellate Division lamented about the fact that there was no language in the MSA stating that the Plaintiff was supposed to receive credit for reducing the mortgage while remaining in the home, and that the language was ambiguous at best.  The Appellate Division ultimately reversed the trial court’s decision and remanded the case for a plenary hearing to be held as to the issues concerning the proper interpretation of the MSA.  Further the Appellate Division commented that when courts are determining the meaning of matrimonial agreements, they must “discern and implement the common intention of the parties.” Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) but not use extrinsic evidence to rewrite the MSA.  (citing Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268-70 (2006)).  Ultimately, the Appellate Division reversed and remanded the case for the trial court to hold a plenary hearing to parse out the parties’ conflicting stories and their intentions with respect to their MSA. 

Sahai v. Sahai: A Noncompliant Party Cannot Withhold Financial Information from the Court then Claim an Inability to Pay Sanctions and Attorney’s Fees

On October 2, 2018, the Appellate Division handed down an unpublished decision in Rooney Sahai v. Susan Sahai, a post-judgment matrimonial matter on appeal from Bergen County. 

The parties divorced in 2012 after 26 years of marriage.  Their Property Settlement Agreement (PSA) provided for no parenting time between Susan and the parties’ severely disabled adult daughter, even though both parties cared for the child from the time of her birth through the entry of their divorce.  In July 2014, Susan filed a motion to vacate the PSA on the grounds that Rooney coerced her into signing it.  The court scheduled a plenary hearing shortly thereafter. 

Over the 4 ½ years that followed Susan’s motion; Rooney engaged in what the Appellate Division labeled as “obstructionist litigation.”  Rooney failed to comply with 3 separate court orders (including a consent order), entered over the course of 9 months, for Susan to have visitation with the parties’ daughter.  Rooney initiated a criminal complaint against Susan with the Bergen County Prosecutor’s office (which was administratively dismissed).  He also filed civil suits against Susan’s attorney in Superior Court and Federal Court (both of which were also dismissed).  During all of this chaos, the trial court imposed $20,000 in sanctions against Rooney for his non-compliance with court orders as well as ordering him to pay over $10,000 in attorney’s fees.   

Rooney filed 2 appeals relative to the sanctions and attorney’s fees.  Prior to the Appellate Division reviewing the matter, Susan’s attorney informed the court that the plenary hearing was still pending, as the trial court was now awaiting the Appellate Division’s decision. 

On appeal, the court noted that Rooney had failed to comply with the financial discovery that was required of him at the trial level.  For that reason, he could not now come before the Court and claim an inability to pay.  The Appellate Court also supported the trial court’s statements that it did not find Rooney’s testimony about his financial circumstances to be credible, and that it was able to make a “reasonable inference” that he was either attempting to hide money or attempting to mislead the court.  The Appellate Court ultimately affirmed the trial court’s award of counsel fees and imposition of sanctions.