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.

Ronald G. Lieberman to speak at New Jersey State Bar Association Annual Meeting and Convention May 16 – 18

Atlantic City, N.J. — May 16, 2018 — Ronald G. Lieberman will speak at the New Jersey State Bar Association Annual Meeting and Convention on May 16, 17, and 18 at the Borgata in Atlantic City, N.J. The sessions include:

On Wed., May 16: “Is Alimony a Pension or Is There a Duty to Mitigate”
This session “looks to address the many practical issues surrounding whether a supported spouse has an affirmative duty to obtain gainful employment. While our case law allows for the imputation of income in appropriate circumstances is that a mere fiction? An obligor is required to work to capacity to support her ex-spouse, meaning she does not have the real option of hawking roses in the airport. Without a corresponding obligation imposed on the supported spouse are they not, in practical effect, permitted to hawk those roses in the airport if they choose? If income is imputed to a supported spouse should the courts upon a modification or retirement application factor into the analysis the monies representing possible bonuses, promotions and other career advancements? Should monies be imputed for the savings that would have or could have accumulated, whether in the form of retirement benefits or actual savings? In the end if there is no such duty then is alimony nothing more than a pension earned during the marriage?”

Presenters:
Moderator/Speaker: Paris P. Eliades, Esq., NJSBA Past President, Paris P. Eliades Law Firm LLC
Hon. Marie E. Lihotz, P.J.A.D. (Ret.), Archer Attorneys At Law
Hon. Angela White Dalton, J.S.C., Family Division, Monmouth County Superior Court
Hon. James A. Farber, J.S.C. (Ret.), Paris Eliades Law Firm, LLC
Ronald G. Lieberman, Esq., Cooper Levenson, Attorneys At Law
Frank A. Louis, Esq., Louis & Russell

On Thurs., May 17: “Would Equal Physical Custody Elevate a Parent’s Desires Over the Child’s Best Interests?”
This program explores whether exactly equal physical custody between parents elevates a parent’s desires over the fundamental underpinning of custody which is a child’s best interest. Social science and human conflict need to be reviewed to determine whether exactly equal physical custody is appropriate.

Presenters:
Moderator/Speaker: Ronald G. Lieberman, Esq., Cooper Levenson, Attorneys At Law
Hon. Terry Paul Bottinelli, J.S.C., Family Division, Bergen County Superior Court
Jeralyn L. Lawrence, Esq., Norris McLaughlin & Marcus
Megan S. Murray, Esq., Paone Zaleski & Murray
Amy Wechsler, Esq., Shimalla Wechsler, Lepp & D’Onofrio, LLP
Michael A. Weinberg, Esq., Archer Law

On Fri., May 18: “Family Law Bench-Bar Conference”
A discussion among experienced family law practitioners and family part judges on how we can work together to help resolve and adjudicate family law cases expeditiously. What do judges need from lawyers to help prepare them to hear a case and what lawyers need from judges to help them resolve their cases.

Presenters:
Moderator/Speaker: Sheryl J. Seiden, Esq., Seiden Family Law, LLC
Hon. Maritza D. Berdote Byrne, P.J.F.P., Presiding Judge, Family Division, Morris County Superior Court
Hon. Lisa F. Chrystal, P.J.F.P., Presiding Judge, Family Division, Union County Superior Court
Hon. Charles W. Dortch Jr., P.J.F.P., Presiding Judge, Family Division, Camden County Superior Court
Hon. Peter J. Melchionne, P.J.F.P., Presiding Judge, Family Division, Bergen County Superior Court
Hon. Marcella Matos Wilson, J.S.C, Family Division, Essex County Superior Court
Ronald G. Lieberman, Esq., Cooper Levenson, Attorneys At Law
Michael A. Weinberg, Esq., Archer Law

Cooper Levenson is a full service law firm since 1957, with 75 attorneys and New Jersey offices in Atlantic City and Cherry Hill. The firm also has offices in Bear, Del., Fort Lauderdale, Fla., and Las Vegas.

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. 

Divorce Lawyers Know: One Size Does Not Fit All

by Ronald G. Lieberman, Esq.

As a family law/divorce attorney, I must be sensitive to my client’s backgrounds (cultural, economic, religious to name a few) . I must be sensitive to the fact that people from different cultures or religions may have a different view of marriage and divorce. I must listen to what you as the client are saying and also try to put things into the context of where you are from. Some divorces are not only about money and children but also about face and honor.

It’s up to me as the attorney to explain to clients what to expect based upon the legal system but also understand that the expectations of someone from one religious or cultural background may be different from that of another racial, ethnic, or religious background. I need to explain to clients that the legal system cannot solve one’s family problems.

I need to be sure to discuss whether to use the typical holidays or one of significance to someone who may be Islamic, Jewish, Hindu, or from some other religion with different holidays.  

You as the client should know that settlements are not be one-size-fits-all but should be based upon your particular needs and background. If you are worried about your child being removed from the United States and taken to another country where it will be impossible for the return of your child, then it is imperative to take protective measures. These issues should be explored carefully. If there is a religious aspect of a divorce such as an Islamic decree or a Jewish divorce or Get, these issues should be negotiated and put into writing so that there are no problems later on. Issues such as the religious upbringing of children and their schooling should be dealt with as well. If there is an issue of travel abroad with a child or children where there is family in another country, these issues should be covered. If there are issues involving a Green Card or citizenship or visas, it is important to find out the implications and deal with them. Sometimes it is important to have an opinion or intervention from an immigration attorney as well.

 Divorce is difficult, painful, and confusing, to say the least. If the client and I step back and work together, we can make the experience a little less painful.

Substance Abuse – A Cry Out for Help

As first appeared in the New Jersey State Bar Association Family Law Section – New Jersey Family Lawyer  Vol. 38, No. 1 – October 2017
by Ronald Lieberman

As family law practitioners, we are involved in some of the most private aspects of our client’s lives. Unfortunately, those aspects are not always positive. This author would venture to say that most family law practitioners have been involved in cases where one party or the other, or even both parties, have faced substance abuse issues. With the recent focus in the news on the opioid addiction issue, this author was struck by a new bill signed into law in June in New Hampshire, which provided that grandparents will receive preference in child custody cases involving drug or alcohol abuse by either or both parents.1 Read more> see page 6.