Stock Awards in a Divorce: Yours? Mine? It Depends…..

Oftentimes, you or your spouse receive stock awards from the employer. Those shares will vest over a period of years as opposed to all at once. The question then becomes, what happens to the stock awards which vest after a divorce complaint has been filed if the vesting depends upon you or your spouse’s efforts on the job after the filing? We know have an answer for you. The answer is…it depends.

A recent case from the Appellate Division now tells lawyers that they can argue that if the award was made during the marriage that their clients can keep them free and clear of the spouse’s claim if that stock was issued in whole or in part for future performance. In other words, the stock award must be made for services performed after the complaint for divorce was filed, for future services, and not a deferred compensation for prior efforts.

If you have stock awards, or you believe your spouse has them, you should find out if the stock was intended to vest due to future services and not prior services by looking at the stock plan and find out if the stock grants were designed to maintain a long term interest by the employee in the overall success of the company. Or, you need to determine whether the stock was intended to vest through mere continued employment without consideration of you or your spouse’s level of proficiency.

Self-Defeating Tweeting (and other social media pitfalls)

It’s too bad there isn’t some Miranda-type warning before posting on social media, something along the lines of: what you post online can and will be used against you in a (family) court of law. It seems elementary but it bears repeating: be careful what you post—whether it’s on Twitter, Facebook, Instagram, Snapchat, or even in text messages and emails. Messages and postings frequently end up being used in court filings and even during trials.

I have been involved in many cases where social media postings contribute to the undoing of a client’s case or the opposing party’s case. For example, if a parent claims he or she cannot afford to pay child support but posts on social media outlets about his or her vacations, meals out, and extravagant expenditures, it will undermine that person’s credibility. Incriminating online postings in cohabitation cases by an alimony recipient are also common social media pitfalls. If the alimony recipient claims he or she is not, for example, in a relationship recognized in the couple’s social and family circle (one of the factors for a finding of cohabitation, see N.J.S.A.  2A:34-23), but Facebook is littered with photos of family holiday celebrations, trips, and birthdays, with the new significant other, this information can and will be used against the alimony recipient in court and potentially hurt his or her case.

Another thing to keep in mind is whatever you text or email can end up in a court filing. Does it matter, legally, that ex-spouses/partners trade barbs via text message? Probably not. But, it does not paint the acrimonious and hostile party in a good light for the Court, and Judges are human, too. A party with reasonable positions and a credible and calm demeanor can be undermined by the other party introducing ugly and expletive-filled text messages.

Many clients ask “can he/she ACTUALLY use this stuff against me?” The answer is—absolutely. So, be careful.

10 Basic Rules of Testifying

Rule 1: LISTEN TO THE QUESTION ASKED

While this may seem like a rather obvious rule, the majority of witnesses have a hard time following the rule’s simple instruction. Most of the time, witnesses are nervous and will be more inclined to simply “hear”, instead of “listen” to each question.

A helpful technique to be sure you are listening to each question is to repeat the question in your head. If you cannot repeat the question in your head, then you either did not hear the question or you have forgotten the question. In this case, you can certainly request that the attorney repeat the question.

Rule 2: MAKE SURE YOU UNDERSTAND THE QUESTION ASKED

None of us like to look ignorant, especially when put on the spot in front of a soon-to-be-ex-spouse. Consequently, witnesses often attempt to answer a question without having a full and complete understanding of the question.

Make sure you fully understand each question before you attempt to answer.

Rule 3: ANSWER THE QUESTION ASKED AND ONLY THE QUESTION ASKED

Once you have listened to the question, answer only that question and do not offer any additional information.

Never answer a question by asking a question.

Do not be evasive with your answers.

Rule 4: TAKE YOUR TIME

Witnesses are not under any particular time limit to answer questions that are posed to them. Take your time when answering.

Rule 5: DON’T ARGUE

It is understandable that you are not going to like the other attorney. It is also understandable that some of your animosity towards that other attorney may wear off on your other witnesses. There has never been a recorded circumstance where a party has convinced the opposing counsel during cross-examination that their position is the right one. It just does not happen. The attorney on the other side is never going to agree with your position no matter how eloquently you plead your case. So don’t bother trying.

Rule 6: DO NOT GUESS

The purpose of a trial is to reach the truth. A guess, even if it is an educated guess, is not the truth. It is perfectly acceptable to answer “I don’t know” or “I don’t recall.”

Rule 7: AVOID BOXING YOURSELF IN

Be very careful in your answers to avoid using absolutes such as “always,” “never,” “all,” and “every”, unless you are absolutely sure it is the right answer. Lawyers will jump on those absolutes whenever they can, and they will make you look silly. It can be hard to remember every last thing that you have said, done and seen in your life. It is better to say “I don’t believe so” or “I do not recall that” rather than “I never said that” or “that never happened.” Additionally, it is almost always better for you to leave yourself open by responding “to the best of my recollection” or “that is all I can remember at this time.”

Rule 8: ALWAYS TELL THE TRUTH

As shocking as it may seem, sometimes witnesses do not tell the truth.

Honesty, simplicity and sincerity go a long way with the Court. Evading questions or telling fantastical stories will only hurt you.

If you know that there was a time that you behaved badly, it is better to own up to it openly and honestly, accept responsibility for your actions, acknowledge the consequences, and be remorseful.

Rule 9: BE ON TIME

Being prompt shows responsibility and the importance that you place on the issues at hand.

Rule 10: DRESS AND ACT APPROPRIATELY

You should dress for court as if you are going to church to or to an important business meeting.

Be very cautious about making jokes or sarcastic comments, in the courtroom or even out in the hall. Some people use humor to calm themselves or to “lighten” the situation, but in Family Court it will usually come across as inappropriate.

It is perfectly acceptable to show appropriate emotions. If you start to cry, do not get angry at yourself. Take a moment to collect yourself. If you need to take a break, it is acceptable to request a few minutes. Do not let your emotions get out of control, but appropriate emotional responses tend to show sincerity and lend credibility to the testimony.

Is enforcing payment under religious agreement a “double-dip” if alimony is also awarded?

Written by Daria B. Janka, Esq. & Cynthia N. Grob, Esq.

Download the article PDF (Bulgarian)

American Courts increasingly must deal with how to treat shari’ah law in divorce proceedings.

To quote a Mhar Agreement: “This is a prompt Mahr: One gold coin, sum of money and jewelry to be given prior to marriage, sum of money deferred and to be paid upon the divorce of the parties. This contract is to be governed by Islamic Law.”

Did you know that the First Amendment might not preclude a Court from enforcing a Mahr agreement? How far have the Courts gone on to treat the agreement as a valid prenuptial agreement, or to nullify it, or to incorporate it as part of the equitable distribution division of the assets?

Mahr agreements are Islamic religious agreements entered into prior to marriage and are governed by Shari’ah law.  For many Muslims the Shari’ah is more than “law” it includes the methodology and process of ascertaining divine meaning and as such forms the moral and legal anchor of a Muslim’s existence.  In all interactions, under Shari’ah, a Muslim is governed by the same degree of honesty, good faith, an eye to fairness, social responsibility, and equity essentially they are to live an ethical life seeking to please God.

Many times Mahr agreements contain all elements of a secular contract between the parties.  Mahr is not a dower because it does not involve the bride’s father paying the groom but rather the groom must pay a price for the woman.  If they do not agree to a price, one will be determined by the Court.  In the bluntest terms, in the Islamic world, marriage is more of a contract than a sacrament. Islam emphasizes orthopraxis rather than orthodoxy and theology. The difficulty lies where a particular religion has developed an extensive system of laws.  Those laws govern marriage and divorce, alike.  Under New Jersey jurisprudence, it is a basic established principle that “a contract is a set of promises for the breach of which the law gives a remedy, or performance of which the law in some way recognizes as a duty.” Reinstatement (Second) of Contracts § 1 (1979).

The questions our Courts are faced with are what are Mahr agreements, what did the parties agree to, and is their contract enforceable?  Is a Mahr a prenuptial agreement?  Is it a simple contract?

In the New Jersey case of Odatalla v. Odatalla, 355 N.J. Super 305 (2002), the Court applied a two-prong test to determine whether a religious agreement is enforceable during divorce proceedings. Namely, is the contract: (1) capable of specific performance under “neutral principles of law” and (2) once those “neutral principles of law” are applied, does the agreement in question meet the state’s standards for those principles?  The trial court enforced the dower provision holding that applying neutral principles of law (i.e., the principals of contract law in New Jersey), the Mahr agreement satisfied the all of the elements of a valid civil contract. The court used the evidence adduced from a period prior to the contract to interpret the meaning of the words of the contract and concluded that the ten thousand dollar deferred portion of the Mahr was due upon the dissolution of the marriage under the contract. It is important to note that the Court equitably  distributed marital property, assets and debt and made findings as to alimony in the matter.

This New Jersey Court decision closely followed the New York Court decision in the case of Avitzur v. Avitzur, 58 N.Y.2d 108  (N.Y. 1993) addressing Jewish marital agreement. In Avitzur, the Court held there was nothing in law or public policy that prevented judicial recognition and enforcement of the secular terms of a religious marriage agreement because there was no excessive entanglement between church and state when the court applied neutral principles of contract law to decide the case.  This approach is consistent with Jones v. Wolf, 443 U.S. 595, 9 S. Ct. 3020 (1979) which explained that the “neutral principles of law” approach that allows agreements to be enforced based upon neutral principles of law as opposed to religious doctrine.

This approach, however, could run afoul of the parol evidence rule, which bars the introduction of extrinsic evidence to clarify the meaning of a contract, and is in essence rewriting agreements. The parol evidence rule of contract law stands for the principle that parol evidence cannot be introduced to create, vary or contradict a term of a contract not otherwise present in the written agreement. The overreaching use of parol evidence undermines the certainty of the contract and invites problems with the statute of frauds, which requires agreements to be in writing in order to be enforceable. The Odatalla Court, however, used an exception of the parol evidence rule, which stands for the preposition that evidence can be introduced to interpret the meaning of the written words of a contract.

            To avoid unnecessary confusion with regard to agreements which are likely to be enforced, you may want to contact an attorney to determine whether additional language should be included in your religious contract to avoid “double dipping”. We are taking the time to write about this to show you that entering into an agreement for religious purpose is far from a trivial question. You must understand how a religious agreement may affect your future rights. We, at Cooper Levenson, P.A., have earned a recognition as a specialized and experienced law firm in the representation of  clients in various areas, including contract and family law. 

Don’t Pay Your Lawyer For This

By: Alexandra K. Rigden, Esq.

Law is a business. So, this blog is actually against my financial interests because I am here to tell you what you should NOT pay your family law attorney to do:

  1. Referee day-to-day, ordinary parenting disputes: Fighting through lawyers over day-to-day, ordinary parenting disputes, can come with a high price tag, both emotionally and financially. When I say “day-to-day, ordinary parenting disputes”, I’m talking about, for example, mom feeding the kids non-organic instead of organic hot dogs; dad returning the children a few minutes late from parenting time; objections by one parent to other parent getting the child a haircut without prior consent—the list goes on and on. Parents will have to co-parent with each other long after the lawyers are gone. Sending the message during the litigation that day-to-day parenting decisions cannot be navigated without lawyers engenders acrimony and unnecessary fees. To the extent possible, parents should pick up the phone and try to figure it out.
  1. Act as your therapist: In the course of family law representation, I learn a lot about a client’s life. I may learn why their marriage broke up, why their kids are estranged from them, how their new relationship is going, how much they earn, and other personal—sometimes very personal—facts. Naturally, conversations transition from facts to feelings. As much as I do enjoy getting to know clients and understand the very human element to family law, I am a counselor at law, not a counselor at life. Moreover, in comparing hourly rates, most family lawyers are more expensive than therapists.
  1. Fight about ordinary personal property: I’m not talking about a Van Gogh painting or a Cartier watch…those items may well be worth the fight. I’m talking about tables, chairs, bed frames, mattresses, pots, pans…ordinary household items. Once these items were brought home they drastically depreciated in value. Your five-year-old mattress isn’t going to have much, or any, value on the open market. Paying lawyers to fight over ordinary personal property is not a wise use of your money.

4. Advise you about taxes and finances: I am not an accountant nor am I a financial advisor. Tax returns, tax issues, and finances are a daily part of a matrimonial practice. But, simply because a client’s finances are part of the equation, does not mean that a family lawyer is qualified to offer advice on them.

Parenting Plans

Divorce is an emotional process. As parents begin to develop a parenting plan, the need for flexibility and responsibility are important in creating options that consider the child first.

An effective parenting plan maximizes the child’s emotional security. It also needs to work well for both the child and the parents, and develop as the child grows up.

While many people are interested to know what constitutes as an effective parenting plan, the answer will vary depending on the parents. The process of getting to the agreement can be effective if approached in a positive, cooperative way. Parents should approach the parenting agreement as parents rather than as parties to a divorce/separation action.

It may seem easier said than done to create an effective yet flexible parenting agreement, especially in the midst of the divorce process. Appropriate professionals may be able to offer options that have not yet been considered while facilitating a discussion about each option’s practicality.

Working with a mediator is another option where parents make their own decisions, rather than have a third party make binding decisions about their family.

Here are five questions for parents to consider when developing a parenting plan:

  1. How will the plan work for this child?
  2. Does the plan maximize this child’s emotional security?
  3. Does the plan maximize stable care-giving?
  4. Is the plan stage age appropriate?
  5. Is the plan practical (times, locations, travel, exchange, venues)?

Is there Alimony in Pennsylvania?

The simply answer is “yes”; however it is important when you are getting a divorce to understand how and when alimony is an issue.

Alimony, at times referred to as spousal support or maintenance, is handled differently in Pennsylvania than in New Jersey. In Pennsylvania, once a divorce decree has been entered, the court may reasonably allow alimony, but only if its considered necessary.

Read more:

Alimony Prior to Divorce Action or During Pending Divorce Action:

Prior to a divorce decree, a non-earning or lower earning spouse, may be entitled to spousal support or alimony pendent lite. Spousal support is made after the parties separate, but before a divorce is final and can be ordered before a divorce action is even filed.

Alimony pendente lite is a temporary order of support made after the divorce action is filed but before a final divorce decree is entered. Such support is set pursuant to R. 1910.16-4 which sets forth the equation from which a monthly spousal support figure or alimony pendente lite is set. In this equation, and support matters in general, the individual responsible for paying support is called the obligor and the individual receiving the support is the obligee.

If the couple does not have dependent children the equation is as follows:

obligor’s net monthly income

minus (-) any support obligations to children or former spouses not a part of the action

minus (-) the obligee’s monthly net income

multiplied (x) 40%

(=) resulting figure which is the preliminary amount of monthly spousal support or alimony pendente lite.

Thereafter, adjustments for other expenses paid by the obligor pursuant to Rule 1910-16-6 such as health insurance premiums, mortgage payment, and unreimbursed medical expenses, et. al.

If the couple does have dependent children the equation is similar to the one outlined above except the equation subtracts the obligor’s total monthly child support obligation and the difference is multiplied by 30% to determine the amount of monthly spousal support or alimony pendente lite.

Alimony Following A Final Divorce Decree:

Following the entry of a final divorce decree there are four types of alimony in Pennsylvania: 1. Permanent; 2. Rehabilitative; 3. Limited Duration; and 4) Reimbursement. In determining whether one of these types of alimony is necessary the Court will consider a number of factors, including, but not limited to:

· Earnings of both spouses;

· Ages and physical, emotional, and mental conditions of both spouses;

· Sources of income of both spouses;

· Inheritances and expectancies of both spouses;

· Marriage duration;

· Contribution of one spouse to the training, education, or increased earning power of the other;

· Standard of living during the marriage;

· Relative education of both spouses and the time necessary to further education or training of the spouse seeking alimony to get a job;

· Liabilities and assets of both spouses;

· Contribution of a spouse as a homemaker;

· Any martial misconduct of either spouse during the marriage; and

· Tax ramifications of the alimony aware.

There is no entitlement to alimony post-divorce in Pennsylvania whether it is awarded is discretionary based upon the 17 factors set forth in Section 3701 of the Pennsylvania Divorce Code.

Alimony can be a very volatile subject between spouses. Although the Court takes many factors into account before awarding alimony it is possible that the award of alimony may create additional disputes. If parties utilize mediation they may be able to come to an agreement themselves which could avoid the pitfalls associated with a Court determining these issues; however this may not always be a workable option.

If you are contemplating or getting a divorce in Pennsylvania, divorce and alimony attorney, Cynthia N. Grob, Esquire, can help you understand alimony and support in Pennsylvania as well as all other divorce-related matters. To learn more, call 856-857-5538 today for a consultation.

Considerations for prenuptial agreements in New Jersey

One of the most important aspects of putting together a prenuptial agreement in New Jersey is to ensure that it is enforceable. Otherwise, the time and effort crafting the document will have been a waste.

 

New Jersey operates under the Uniform Premarital Agreement Act, which stipulates the following conditions in order for the prenuptial agreement to be enforceable:

 

  •          It must be in writing.
  •          Both parties must sign the document.
  •          It cannot be made under duress or without one party receiving full and fair disclosure of financial information.

 

Further, the agreement cannot be unconscionable or treat one party extremely unfairly.

 

In addition to those factors, couples that are drafting an agreement are advised to talk about finances honestly. A report in Daily Finance suggests that tax season presents a good time for people to start talking about money. This is also convenient, as tax documents provide a comprehensive look at both parties’ situations.

 

Couples are also encouraged to start planning the agreement long before the wedding. Doing so will give each person plenty of time to review the document. Further, it can be difficult to enforce a last-minute contract, as one party may try to demonstrate that the agreement was signed under duress.

 

Lastly, people who are putting together a prenuptial agreement should keep emotions out of the situation as much as possible. It can be easy to get swept up in distractions, but properly planning for one’s financial future can help prevent serious turmoil down the road. Working with a professional to put together these agreements can help provide an unbiased source of logic.

Benefits of prenuptial agreements extend beyond divorce

New Jersey abides by the Uniform Premarital and Pre-Civil Union Agreement Act. According to the law, prenuptial agreements can be made before a marriage or civil union, which is an important note because it extends the right to same-sex couples.

In order to be considered valid, these agreements must abide by the following standards: 

  • Both parties must sign it.
  • The agreement must be in writing.
  • The agreement must have a statement of assets attached to it.

The last piece – the statement of assets – is especially useful in ensuring that both parties have reasonably disclosed their financial information.

While asking for a prenuptial agreement may present an uncomfortable conversation initially, it can save a couple time and money should the marriage come to an end down the road. According to U.S. News & World Report, one of the greatest advantages to having such a document is that the couple’s assets will not be subject to a judge’s discretion when it comes to property division.

Further, simply talking about the agreement can give people more insight into their relationship and their future. For example, if one spouse is opposed to paying alimony and would fight it if the situation arises, the other may be inclined to continue to work or pursue a bigger career.

Experts advise that couples interested in having a prenuptial agreement should not delay until the last minute, as it can create unnecessary stress. While New Jersey law does not permit unconscionable documents, which grant an unfair amount of property to just one person in the relationship, it is still vital that both parties have time to review the document to ascertain that it is fair.

Prenuptial agreements are not just for the wealthy. People who own their own business, have children or are expecting an inheritance may want to explore the benefits of putting such a document in place.

How should we tell our children about our divorce?

Going through a divorce can be difficult on everyone involved, especially children. Breaking the news to your child or children is a conversation that should be well planned. According to a report in Psychology Today, Utah researchers did some in-depth research into parents who are divorcing and how they tell their children.

The findings showed that parents should do the following: 

  •        Tell everyone all at once. Leaving younger children out of the conversation could put pressure on older children not to talk about the situation, and the younger children may feel slighted.
  •        Have the conversation in a safe, welcoming place. Researchers stated that children often remember hearing the news, leaving the potential for a particularly scarring experience to stick with them over time.
  •        Work toward a swift divorce. Dragging out the process can be stressful on children who were told a year ago that the divorce would happen, and it has yet to come to fruition.
  •        Allow a child to express his or her feelings. Each child may have a different reaction, and parents should keep in mind that sadness, anger, fear and even indifference are all normal.

While the New Jersey Courts stipulate that a couple must cite a reason for the divorce when filing, experts recommend shielding children from the details of why the marriage is ending. Kids should not be used as intermediaries or as sounding boards for a spouse’s complaints. When breaking the news, answer questions truthfully but succinctly, catering responses to the age of the children.

While this information may be useful, it should not be taken as legal advice.