The Durst Firm

By Partner T. Sandberg Durst

Sandy Durst, Esq., is a partner with the Princeton firm of Lynch, Osborne, Gilmore & Durst, and LLC where he heads the Family Law Department.   Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter.  Each case is given the personalized attention it deserves.

As in any litigation, attorneys for a matrimonial client must follow the New Jersey statutes on Divorce, the Rules governing the Courts of the State of New Jersey and the Rules of Evidence. In order to obtain any meaningful discovery with regard to assets, liabilities and income, time is needed between the initial filing of the complaint and the date for a trial. After complying with the statute in determining the cause of action for divorce, and once a divorce complaint has been filed, the client has committed to beginning the process. Once the complaint is filed the cause of action can be set aside and the real work begins.

Obtaining the appropriate financial information through the  preparation and exchange of Case Information Statements and Interrogatories is a critical step in the divorce process. A Case Information Statement (CIS)  is a financial statement which sets forth 1) income; 2) deductions from income such as federal, state and social security taxes; 3) monthly expenses for shelter (i.e. rent or mortgage payments, homeowners or renter’s insurance, utilities), automobile expenses (i.e. car loan payments, gasoline, utilities, maintenance) and personal expenses (i.e. food, clothing, non-reimbursed medical, etc.); 4) assets and their values and; 5) debts and their balances. The CIS is a “living” document which will need be updated and supplemented as more information becomes available.

Interrogatories are written questions that must be answered by your spouse under oath with regard to any financial issues in the divorce case. Many times requests are made within the interrogatories to attach documents such as bank or brokerage statements, financial statements from a business, appraisals of property, tax returns and experts reports. In order to make a fair and reasonable settlement, all of the facts and finances must be disclosed.

Once the required financial information is disclosed through the Case Information Statement and Interrogatories, a decision must be made as to whether depositions should be taken. Depositions are questions asked of your spouse, he or she will be placed under oath and a court reporter transcribes everything that is said. Since they are taken under oath deposition transcripts may be used in court as a statement by a party. Depositions of parties or of experts may be taken as a matter of course as to all issues except for those relating to the cause of action for divorce. Experts are often needed to give their opinion of the value of an asset. Experts are used to value real estate, pension plans and businesses and to make custody/parenting time recalculations. A client must work with their attorney to obtain the best expert possible in their particular case because an expert’s opinion of the value of an asset will need to stand up to cross examination at a divorce trial. It takes time and money to obtain an expert’s report in any particular area, and this should be discussed with the client as soon as possible in every divorce case.

After discovery is completed, it may be helpful for the parties to sit down together with their attorneys at a four-way conference. A four-way conference is a meeting among the two parties and two attorneys usually at one of the attorney’s offices. This is an informal meeting for the purpose of addressing and discussing the issues involved in the case with the goal of moving closer to a settlement. Many times questions may be answered that are not obvious from responses on a Case Information Statement or Interrogatories. If a four-way conference is not appropriate or if the conference fails to end in a settlement, the next step is the Early Settlement Panel.

The Early Settlement Panel consists of two attorneys whose practice is largely dedicated to matrimonial law. The panelists are provided with a Memorandum of the issues involved in the case, as well as with a Case Information Statement and any other financial information the attorney for each party deems appropriate by each side. The panel meets with the two attorneys to determine the issues and their arguments. At that point, the attorneys leave the room and the panelists review the information submitted to them along with the positions of both sides and come up with a non-binding recommendation. This recommendation is relayed by the panelists to the two attorneys and their clients. If this process leads to a settlement, the divorce may be placed on the record that day. If this process does not lead to a settlement, a mediation date, an Intense settlement conference dates for the trial will be scheduled.

The divorce process takes about one year. If the parties are able to assist in the process, and if the attorneys work through the discovery process and obtain all of the information needed to come up with a proposed settlement, the case should settle without the need of a trial. If, on the other hand, there are issues of fact which must be determined by a court, or if there is a question of fraud or incorrect financial information, a trial will be necessary.

By Partner T. Sandberg Durst

Sandy Durst, Esq., is a partner with the Princeton firm of Lynch, Osborne, Gilmore & Durst, and LLC where he heads the Family Law Department.   Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter.  Each case is given the personalized attention it deserves.

For most people, a divorce can be an overwhelming and intimidating process and may be the first time they have been involved in the court system. As an attorney, one of my most important responsibilities is to educate my client’s as to what they can expect from the divorce process.

I.          The Initial Interview

Many times an initial interview with an attorney to discuss divorce is a very difficult step for a client to take. Often this step is just for informational purposes and not with the intent to go ahead with filing a divorce complaint in the immediate future. However, many times one spouse or the other has done everything they could possibly do to hold a marriage together, and have now come the realization that the marriage is over and are ready to proceed. In some instances, this reality is very difficult to deal with and in others, this realization brings relief. To be of value the initial consultation must be a candid and mutual exchange of information.

Typically initial interview takes about one hour in length at a minimum the information that an attorney will need from a client at that interview is as follows:

1.          name and address of the client and spouse;

2.          place of employment;

3.          telephone numbers at home and at work and a secure e-mail address;

4.          salary information;

5.          spouse’s place of employment;

6.         spouse’s salary;

7.         whether the other party has contacted at attorney;

8.         date of marriage;

9.         place of marriage;

10.       whether there have been prior proceedings between the two parties;

11.       whether there are children;

12.       names of children

13.      dates of birth of children;

14.       whether the parties are separated;

15.       list of assets and values, including: (a) real estate; (b) bank accounts; (c) stocks and

bonds; (d) automobiles; (e) personal property; (f) life insurance; (g) pension plans; (h) IRAs;

16.       list of liabilities: (a) mortgages; (b) loans; (c) credit card debt;

Once the attorney receives the above basic information the cause of action for divorce must be discussed. Under New Jersey law, there are nine reasons for which a person may obtain a divorce. They are as follows:

1)      Irreconcilable Differences: This cause of action simply requires that the filing party allege that irreconcilable differences have existed for six months or more.

2)      Extreme Cruelty: This may be physical, mental or verbal conduct by a spouse which makes it unreasonable to expect the other spouse to continue in the marriage. While this may appear distasteful to the client, it can be as harsh or mild as the client would like it to be.

3)      Eighteen Month Separation: The parties must have lived separate and apart for 18 consecutive months with no reasonable prospect of reconciliation. Using separate bedrooms in the same residence does not meet the requirements of this cause of action.

4)      Desertion: One party must have willfully and continually deserted the other party for at least twelve months. This can be physical desertion or one party’s refusal to have sexual relations for this period of time.

5)      Habitual Drunkenness: A fixed, frequent, irresistible or regular habit of drinking alcoholic beverages in such excessive quantities as to produce drunkenness. This habitual drunkenness must be for a period of twelve months or more. This same cause of action    encompasses drug addiction.

6)      Adultery: The complaint must state the name of the person with whom such conduct was committed and also state the time, place and circumstances under which the act or series of acts were committed. The correspondent must be served with a copy of the complaint and given the opportunity to intervene in the matter.

7)      Mental Illness: One party must be kept in an institution for twenty-four or more consecutive months during the marriage. This institutionalization does not have to be court sanctioned.

8)      Imprisonment: One party must be imprisoned for eighteen or more consecutive months during the marriage.

9)      Deviant Sexual Conduct: As with adultery, if another party is involved, he or she must be named in the complaint and served with a copy of it in order to have the opportunity to intervene.

Once the cause of action for divorce is determined, it is important for the client to have an understanding of the litigation process, and the time frame for a divorce.

Continue to the second installment in this series for more information on the divorce process after the initial consultation.

By Partner T. Sandberg Durst

Sandy Durst, Esq., is a partner with the Princeton firm of Lynch, Osborne, Gilmore & Durst, and LLC where he heads the Family Law Department.   Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter.  Each case is given the personalized attention it deserves.

A divorced husband or wife of an individual entitled to Social Security retirement is entitled to spousal benefits if (1) he or she applies for such benefits, (2) is meets the age requirement established by the social security administrator, (3) is not entitled to his or her own benefit in an amount equal to or greater than one—half that due his or her spouse, and (4) is not married. A divorced spouse who is otherwise eligible for spousal benefits may receive those benefits regardless of whether the former spouse has begun to receive benefits. However, both the claimant and the insured must meet the age requirement and must have been divorced for at least two years prior to the date that the spouse applies for benefits. In addition, in order for a divorced spouse to receive Social Security benefits under the ex—spouse’s work record, the parties must have been validly married for a period of at least ten years prior to the date the judgment of Divorce became effective.

The basic benefit for a spouse or divorced spouse is an amount equal to one—half of the beneficiary amount of the individual on whose work record the spousal benefit is based. Payment to the former spouse does not impact the benefit the employee spouse will receive.

A divorced spouse’s benefits will terminate when: (1) he or she dies; (2) his or her spouse dies; (3) he or she becomes entitled to benefits on his or her own work record in an amount greater than or equal to one—half of his or her spouse’s benefits; (4) his or her spouse loses eligibility for benefits for any reason; or (5) he or she marries someone other than the worker from whom the divorce was obtained; (6) his or her spouse’s eligibility status ends; (7) he or she remarries the insured who is not yet entitled to old—age benefits.

Despite what appears to be the clearly articulated conditions above, there exceptions to every rule. A divorced spouse can be entitled to benefits after a remarriage, if that remarriage is subsequently marriage terminated. Entitlement on this basis would ensue in the months following the termination of the subsequent marriage. A divorced spouse would be so entitled no matter how the remarriage was terminated; no matter how many remarriages were entered into and terminated; and even if the divorced spouse would qualify for spouse’s benefits based on a later spouse’s work record.

It is also possible for more than one former spouse claimant to be entitled to spousal benefits based on one worker’s record. If the worker marries and divorces several times, each spouse may receive the basic benefit of one—half of the worker’s primary insurance amount. Provided he or she can meet the eligibility requirements.

SURVIVOR’S BENEFITS

The surviving divorced spouse may be entitled to survivor benefits based on the record of the former spouse if (1 the surviving former spouse is not married; (2) he or she meets the age requirement; (3) he or she is not entitled to old-age insurance benefits in an amount at least equal to that of the deceased’s primary benefits; and (4) he or she has filed an application for benefits. However, the surviving divorced spouse must have been validly married to the deceased for a period of ten years immediately before the divorce became effective. The amount of the basic widow’s or widower’s benefit is equal to the primary insurance amount to which the deceased was or would have been entitled to.

CONCLUSION

Since alimony may be impacted by the retirement of the payer spouse, and will certainly terminate upon the death of the payer spouse, it is important to know that you may have an additional means of support from Social Security based upon your ex—spouse’s work record. For additional information you should consult an attorney and go to www.ssa.gov.

By Partner T. Sandberg Durst

Sandy Durst, Esq., is a partner with the Princeton firm of Lynch, Osborne, Gilmore & Durst, and LLC where he heads the Family Law Department.   Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter.  Each case is given the personalized attention it deserves.

Many divorces take place later in life. Often, one or both of the spouses may be considering retirement. Retirement has many implications in the context of a divorce. Alimony is one issue that may be greatly affected by retirement.

For parties, it is important to know what income may be available to pay alimony and met the needs of each party. Income may be available from pensions or other retirement funds, interest on investments, and Social Security.

The Social Security Act makes available certain benefits to workers, who have contributed to those benefits, upon their retirement or disability, but social security benefits are not limited to the employee.  The Act also provides benefits for the worker’s family members and to the worker’s survivors should the worker die. One can begging receiving Social Security benefits at age 62 although the longer the worker waits to receive a benefit the greater the monthly payment will be. It is therefore a good idea to address what will constitute an accountable retirement age in divorce settlement negotiations.

A spouse, even if never employed, is entitled to Social Security benefits based on the working spouse’s benefits. But what happens if there is a divorce? Is the non-working former spouse still entitled to benefits as a result of his or her ex—spouse’s work record? The answer is “yes”.

Continue to part II of this article to learn more about the Social Security benefits available to a former spouse.

By Partner T. Sandberg Durst

Sandy Durst, Esq., is a partner with the Princeton firm of Lynch, Osborne, Gilmore & Durst, and LLC where he heads the Family Law Department.   Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter.  Each case is given the personalized attention it deserves.

As discussed in the recent posting by the New Jersey Law Journal, the true impact of the NJ Palimony statute remains to be decided. Retroactive application would be grossly inequitable and it is hoped that the Court proivdes guidance on this point. NEW PALIMONY STATUTE OF FRAUDS’ RETROACTIVITY AT ISSUE ON APPEAL Against a backdrop of conflicting trial court rulings, a New Jersey appeals court is poised to decide whether the state’s year-old statutory ban on oral palimony agreements is retroactive. On Dec. 13, the Appellate Division will hear arguments in Botis v. Estate of Kudrick, a dispute over a revision to the statute of frauds, N.J.S.A. 25:1-5(h), that requires an agreement by one person to provide support to another during or after a “non-marital personal relationship” be put in writing after both parties are advised by counsel. The law, signed by Gov. Jon Corzine last Jan. 18, 2010, stated that it “shall take effect immediately,” but it is unclear whether that meant it applies only to agreements struck after that date or also to longstanding agreements that are sought to be enforced after that date. The difference is especially critical where the alleged promisor is dead.