Believe it or not, your participation or lack thereof, with your attorney, can either help or hurt your divorce process.  That could mean the process taking longer, costing more or actually proceeding to trial as opposed to being resolved either through mediation, four-way or after an early settlement panel (ESP).   Keep in mind that it is your divorce and your attorney is just a tool or, for lack of better words, a mouth piece to advocate for you.  If you give your attorney all relevant information (whether verbally or through documents or other ancillary proof and if you are not sure if it is relevant, just ask your lawyer) you will be helping to complete the paperwork necessary to formulate a global settlement agreement which will lead towards your ultimate goal…. a divorce.

If you give your attorney false information, that does nothing but hinder the process, show bad faith to the adversary, your soon to be ex-spouse and possibly the judge.   It lets your attorney know that you will be a difficult client and will make them consider filing a motion to be relieved or to withdraw from representation in your case.   If your false information involves the children, you can possibly risk a change in custodial arrangements.  The best road to take is the high road and avoid the cliche of a knock-down dirty divorce.

If, on the other hand, you are compliant with your attorneys requests, ask questions and take an active role in participating with the process, you may find (despite having an angry spouse on the other side) that you will understand and appreciate the process, the process should move along faster and smoother, and you will ultimately end up spending less money to your attorneys and leave extra money for yourself and/or your children.  If you are having difficulty with emotions, seek help or advice from a mental health professional or a religious advocate.  A divorce is a process and can be long or longer.   In the long run, the only thing that matters is that you are healing and heading towards a better way of living.

In a case of first impression for the Third Circuit, Judge Maryanne Trump Barry has held that a husband’s estate can sue to enforce a provision in his divorce agreement which resulted in the ex-wife’s waiver of his retirement account.

The agreement, resolving the parties divorce issues, was finalized approximately nine months before he died without a will.  The ex-wife, sought to receive those very same benefits, despite signing the agreement confirming her negotiated agreement that she would not receive those benefits in equitable distribution in exchange for other benefits.  The snafu occurred because after the divorce, Mr. Kensinger forgot to notify his employer to remove his ex-wife as his beneficiary from his 401-K plan with his employer, URL Pharma, Inc.

In In Estate of Kensinger v. URL Pharma Inc., the panel was unanimous in its decision, which partially reversed a District of New Jersey opinion.  This is a good reminder that immediately upon divorce, all beneficiaries must be changed in accordance with the parties agreement.

As reported today, a Family Part judge may order continued state custody of a child even without a finding of parental abuse or neglect.  This precedential decision was reported by the Appellate Division that permits continued court assistance under Title 9, or a determination based on a best-interests analysis under Title 30, warranting continuation of state custody of the child/children.  The court held that determination is enough to continue custody by the Division of Youth and Family Services, the Appellate Division ruled in DYFS v. I.S., A-5793-09.

This ruling ends a mother’s attack on a trial judge’s order that permitted DYFS to retain custody of her twin daughters which it held for two years and forced her to go through proceedings that resulted in her losing custody of one of the girls.

The Internal Revenue Service has recently announced that it has changed the two year limit imposed on a spouse claiming innocent spouse status to help those innocent spouses try and get certain relief the provision provides.   The innocent spouse relief is meant to protect spouses who are unaware that the spouse who earns the money has properly declared all taxes and/or filed their taxes properly.  Most times during a divorce, the non-monied spouse learned that the wage earner has been properly declaring taxes or not declaring taxes at all.  Because the parties are married, both parties would be subject to fines, additional taxes and penalties.  The award of the “innocent spouse” would relieve that spouse from that obligation.

The IRS has reportedly conducted a review of the equitable relief provisions for the innocent spouse program earlier this year. Policy and program changes with respect to that review will become fully operational in the fall and additional guidance will be forthcoming.  Significant changes are as follows:  

1.   The IRS will no longer apply the two-year limit to new equitable relief requests or requests currently being considered by the agency.

2.   A taxpayer whose equitable relief request was previously denied solely due to the two-year limit may reapply using IRS Form 8857, Request for Innocent Spouse Relief, if the collection statute of limitations for the tax years involved has not expired. Taxpayers with cases currently in suspense will be automatically afforded the new rule and should not reapply.

3.   The IRS will not apply the two-year limit in any pending litigation involving equitable relief, and where litigation is final, the agency will suspend collection action under certain circumstances.

The change to the two-year limit is effective immediately, and details are in Notice 2011-70, posted today on IRS.gov.

The Appellate Division in Villanova v. Innovative Investigations Inc. says yes.  Plaintiff, Kenneth Villanova, sued Innovative Investigations, Inc. and its principal Richard P. Leonard for invasion of privacy.  Because Leonard had difficulty with his surveillance of the plaintiff, he suggested to the plaintiff’s wife (now ex-wife) that she place a global positioning system (GPS) in one of the family vehicles.  Plaintiff’s wife placed the GPS device in the glove compartment of the vehicle primarily driven by the plaintiff.  The private investigators ultimately observed the plaintiff leaving the driveway of his suspected paramour with her in his car.  The court held that “the placement of a GPS device in plaintiff’s vehicle without his knowledge, but in the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, does not constitute the tort of invasion of privacy.”  In other words, there was no evidence that the GPS device had invaded his privacy or led to an invasion of his privacy as he was observed from a public street where he could not have an expectation of privacy.  The court granted summary judgment in favor of the defendants and dismissed the suit.

Where the objecting spouse failed to establish shared custody, the correct test for relocation was whether there was a good-faith reason for the move, the Court held.   The father tried to argue that he had a de facto shared custody arrangement.  This argument failed after the father filed a motion to apply the best interests standard. The removal application was denied after a hearing.

The Court found that a reversal of the decision was warranted, and nevertheless remanded for a full evidentiary hearing to account for changes in the parties circumstances since the case was first decided. “Four years have elapsed since the evidence was adduced before the trial court,” Justice Virginia Long wrote. “Enormous changes in the parties’ lives have occurred.”

Yes, according to the Appellate Division in New Jersey recently.   In the case of C.M.F. v. R.G.F., App. Div. (Espinosa, J.A.D.)  the court ruled that if the language was said to disturb or annoy another, then it is covered under New Jersey’s domestic violence act and a restraining order for protection is in order.

The underlying predicate act was admitted by defendant/husband.  He admittedly shouted offensively coarse names at his wife at their children’s basketball game.  Obviously, he let his temper get the better of him.  She filed for domestic violence protection.  A temporary restraining order was granted and the matter proceeded to trial. 

The husband argued that he was motivated by anger and had no intent to harass or annoy her.   Therefore, domestic violence protection should not have been afforded to her.   The court reasoned, however, that pursuant to State v. Hoffman, 149 N.J. 564 (1997), and N.J.S.A. 2C:33-4(a), the requisite intent for domestic violence protection was “to disturb, irritate or bother.”  Clearly, under this premise, defendant was guilty.

The court affirmed the issuance of the final restraining order against the husband reasoning that just because he was admitting he was angry, did not mean that he didn’t have an intent to harass as well.  Further, when considering the totality of the circumstances, the evidence supported the conclusion that defendant’s purpose in directing the offensively coarse language at plaintiff was to harass her.

Many people may not know but under extreme circumstances, a victim of domestic violence may be able to obtain a new social security number under the HALE Program by the federal government [Harassment, Abuse & Life Endangerment],  to protect against an abuser’s stalking, invasion of privacy and other safety concerns.  This program became effective in November 1998 and was implemented by the Social Security Administration to aid victims of domestic violence.  The concept for the change in policy was to make it easier for victims of domestic violence to elude their abuses and reduce the risk of further domestic violence and possibly death.   Many people are still not aware of this change.  You should speak with your attorney about whether or not you qualify or speak with a representative at the local office.

Applying for a new social security number is almost the same as initially applying for a social security card.  You are required to appear in person at any social security office.  You cannot do this over the phone or on-line.   You must complete a statement explaining why you qualify for a new social security number.  The representatives will assist you in completing the statement as well as an application for a new number.  You should bring your temporary or final restraining order with you or any consent order that you have obtained documenting the domestic violence.

Additionally, you will also need to present your current Social Security number; an original documents establishing your U.S. citizenship or immigration status, age, identity and evidence of your legal name change if you have changed your name.  Also, any document that shows the custodial arrangement regarding your children will also be required if you are requesting new numbers for the children as well.

You should know that if you legally change your name because of marriage, divorce, court order or any other reason, you need to tell Social Security so that you can get a corrected social security card. If you are working, you should also tell your employer so they can update their personnel file.   One reason for making this change is so that your income is correctly posted to your Social Security record, which may affect your receipt of the proper amount of future social security benefits.