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What’s New . . . Moving

– please visit my blog for the latest developments in New Jersey law and other interesting tid bits. Thanks.

File this one under “seriously?” No NJ residency – No Jurisdiction – No Soup for YOU!

In a recent trial court decision, Judge Sohail Mohammed sitting in the Passaic County Family Part held that the court lacked jurisdiction to modify a child support order earlier issued by that court because both parties had moved to other states. The case was brought by Margot Patrice Johnson the mother of the child born to she and Ahmad Bradshaw, former running back for the (New Jersey) Giants. Johnson who never lived in NJ previously obtained an order in Passaic County under the Uniform Interstate Family Support Act requiring Bradshaw to pay $1,200. per month in child support. At the time Bradshaw was living in Clifton, NJ. Johnson moved to modify the earlier order, requesting an increase to somewhere around $10,000. per month. Bradshaw, who in the meantime was released from his contract with the Giants and signed on with the Indianapolis Colts, and now lives in Virginia asked that Johnson’s application be denied on the ground that New Jersey had lost jurisdiction because neither of the parties live here. Judge Mohammed agreed with Bradshaw and held that jurisdiction had been lost under the UISFA because neither party was living in NJ. Because there was no New Jersey precedent, Mohammed relied on cases from other states for his holding. Although the court did retain jurisdiction to enforce the earlier order, it could not modify it. Ms. Johnson will have to re-file it seems in her home state or in Virginia where she currently resides. The case Johnson v. Bradshaw is approved for publication and is available for a short time on New Jersey Courts Online, and should be available soon in the Rutgers Law Library.

GAY MARRIAGE – UP DOWN – YES NO – WHERE ARE WE NOW?

The decision of the United States Supreme Court in U.S. v. Windsor on June 26, 2013 to declare the federal Defense of Marriage (“DOMA”) statue unconstitutional set in motion a series of events in New Jersey that now appear to have once and for all settled the gay marriage issue in this state. I say appears to have settled the issue, because, even though we have a Superior Court ruling that declares gay marriage legal, there is still pending in the NJ Legislature bill S-1 which although vetoed by Governor Christie last year, could be overridden by a 2/3’s vote of the legislature as late as January, 2014.

To recap this monumental sea change in New Jersey Law, is that Windsor decision in June spurned an application by the plaintiffs in the Garden State Equality vs. Dow matter pending before the Superior Court of New Jersey in Mercer County. There, in light of the US Supreme Court’s earlier determination, the plaintiffs filed a motion for summary judgment which was ultimately heard by Judge Mary Jacobson, assignment judge for Mercer County on August 12th. On September 27, 2013 the court rendered its decision and held that the New Jersey statutory scheme which provided “separate but equal” treatment of marriages between members of the same sex, was unconstitutional under the recent Windsor decision. The court gave the state until October 21, 2013 to legalize same sex marriage.

The state asked Judge Jacobson to stay her decision; however by order dated October 10, 2013, she refused. Thereafter the state appealed Judge Jacobson’s order directly to the New Jersey Supreme court which agreed to hear the case, but on Friday, October 18th declined to grant the state’s later application to that court for a stay of Judge Jacobson’s September 27th ruling. The following Monday, October 21, 2013, Governor Christie announced that the state had withdraw its appeal, and therefore Judge Jacobson’s September 27, 2013 Order essentially legalizing gay marriage became the law of New Jersey.

S-1 defines “Marriage” as the legally recognized union of two consenting persons in a committed relationship, but provides that no member of the clergy shall be required to solemnize any marriage which violates the free exercise of religion under the US or the New Jersey Constitution.

The question remains whether or not the legislature will attempt to override Governor Christie’s veto of S-1 – and if enacted into law, whether S-1 with its religious exemption will pass constitutional muster.

A complete chronology of the New Jersey Same Sex Marriage case including all documents can be found at New Jersey Courts online – here

The text of S-1 can be found here.

PRE-NUPS – ON THE WAY OUT!

A new law, signed by Governor Christie on June 28, 2013 may sound the death knoll for Prenuptial Agreements. Bill S-2151 amends the current Prenuptial statute N.J.S.A. 37:2-32 by requiring judges to determine conscionability and thus enforceability at the time of the signing of the agreement rather, than as the case is now at the time of enforcement. This means, practically speaking that a contract between two prospective spouses which essentially leaves one without any sharing of the pre-marital assets of the other, may after several decades of marriage, be enforced, and one partner may leave the relationship without any significant assets, without means of financial support, and having economic rights in only those assets acquired during the marriage. Commentators have opined that anyone entering into such an agreement would have to be nearly insane. Only time will tell how the courts will interpret the new law, but until the dust has settled, it may be better to avoid the issue all together by remaining single.

REMOVAL RULES – Revised again

Another case on removal hit the pages this week. In Benjamin v. Banjamin a case decided in Ocean County, the mother wanted to move to North Carolina – apparently because her new husband had obtained emloyment there.  Mom had been employed in New Jersey, and had received one job offer in North Carolina – BUT didn’t have a guaranteed offer there.  The trial court held that Baures v. Louis (167 N.J. 91 (2001) does not require a custodial parent to have a guaranteed job offer, and that it would be “highly impractical for a custodial parent to obtain a concrete job offer from an out of state employer.”  The court found that Mom’s relocation request was reasonable and her employability potential very legitimate, and that her proposed move was not irresponsible, impulsive or financially inimical to the child’s interests.  Mom was permitted to relocate at the end of the school year with the 11 year old child because “having a guaranteed job in another state is not a mandatory prerequisite for relocation . . .”

DV LITIGANTS – NO APPOINTED COUNSEL FOR YOU!

In a recent decision, the Appellate Division upheld the ruling of the lower court, which denied the application of an indigent Domestic Violence litigant for assigned counsel. In its January 24, 2013, the Appellate Division held that the Prevention of Domestic Violence Act (PDVA) does not impose consequences of “significant magnitude” to warrant mandatory appointment of counsel. It concluded that the provisions of the PVDA are curative and that the act does not pit the power of the state against the defendant. See DM v. KM, A-3021-11T3, A-3022-11T3. Soon to be available in the NJ Superior Courts reporter, and accesable at Rutgers, New Jersey Search page using the Party Search function.

PARENTING COORDINATOR PROGRAM RIP!

Due to the fact that the Administrative Office of the Courts could not find “any level of satisfaction” with the current Parenting Coordinator Pilot Program, the program was scrapped officially as of November 26, 2012. The program which had been active for the past 5 years was an attempt to assist parents in the most bitter cases to work constructively with each other with respect to parenting issues. It comes as no real surprise that the parents who could not act civily with each other to arrange parenting time and deal with other aspects of parenting, could not cooperate when a third party was appointed to assist. Although judges may still appoint parenting coordinators, they will need consent of both parties, or in the most extreme cases by Order after request via motion.

NEW LEGISLATION ALERT!

For those of you who can’t wait a minute longer to join the ranks of the married – Be aware that NJ is now considering eliminating the 72 hour waiting period for marriage. Rational you ask? To give NJ a competitive edge as a wedding destination for tourists! I imagine that drive through wedding chapels will follow . . . Stay tuned to Senate Bill S-2106 to see if the bill is enacted as law. File this one under PENDING!

FREE AT LAST!

In a case of first impression in New Jersey, an eighteen year old high school senior was able to convince a court to declare her emancipated and thus eliminate her right to receive contributions from her parents for her college education. Sharon Ort, who lives with her mother in Ocean County, sought an order of emancipation, claiming tht her father, as a joint legal custodian was attempting to exert authoity over her choice of college. Sharon, an aspiring doctor testified that she had already arranged funding of her college education, and had no intent to seek additional funding from either of her parents. The court held that that if the now adult child “does not seek the compulsory financial support of a parent, than that parent should not have any legal control over the adult child so long as tht child is competent and can independently function as an adult.” No mention was made of whether Sharon would be paying room and board to mom! The case, Ort v. Ort was decided in August 2012 and will be published and digested in the NJ Superior Courts reporter, and may be accessed at Rutgers, New Jersey Search page using the Party Search function.

IS IT REALLY OVER?

Consider that in a case decided in June, 2012, the New Jersey Appellate Division held that a formerly emancipated child may be declared unamancipated to receive support in the form of contribution to college. Sharon it seems may not be as free as it seems. Azimi v. McVeigh-Azimi is published in the NJ Superior Courts reporter, and may be accessed at Rutgers, New Jersey Search page using the Party Search function.

CUSTODIAL PARENTS NOT ENTITLED TO CHANGE CHILDREN’S LAST NAMES

In a decision that asks “What’s in a name?” a quote from Shakespeare’s Romeo and Juliet (Act II, scene 2), the Appellate Division has ruled that primary custodial parents have no presumptive right to change their children’s last names. At least that is when the children were born and given the name during the marriage, and have used their father’s name for their entire lives. The case, Emma v. Evans was decided on January 20, 2012 and will be published and digested in the NJ Superior Courts reporter, and may be accessed at Rutgers, New Jersey Search page using the Party Search function.

PARENTS ENTITLED TO REPORT CARDS

In a ruling that illustrates the principal of “he who pays the piper picks the tune” a lower court has imposed an obligation on the child/student and the custodial parent to produce ongoing proof of continued attendance at college, credits and grades as a condition to continued contribution. The Appellate Division decided the case in April, 2011, and hopefully will be widely followed. Van Brunt v. Van Brunt will be digested in the NJ Superior Courts reporter, and may be accessed at Rutgers, New Jersey Search page using the Party Search function .

REMOVAL RULES REVISITED!

Once again the rules for permanently removing children from the state are up for grabs. Last Tuesday, the case of Morgan v. Morgan was argued before the NJ Supreme Court. The Morgans were divorced in 2004. They had two daughters, and their divorce agreement provided that the parties would share joint custody, with Mom being the parent of primary residence. Skip ahead three years later, and Mom becomes engaged to a Bostonian and wants to live with him in Massachusetts. Dad refuses to give permission, so Mom files a motion seeking the court’s blessing for the move. Mom argues that according to current case law, based on the 2001 decision in Baures v. Lewis (167 N.J. 91) she should only have to show a good faith reason for the move, and that the move will not harm the best interest of the children. Dad objects and files a cross-motion seeking to become the parent of primary residence, and to deny Mom the right to take the kids to Massachusetts. The lower court denied both Mom and Dad’s motions and the each appealed. The Appellate Division ruled that Mom should be able to move – having met the standard of the Baures case. Then Dad appealed to the NJ Supreme Court, where the case was just argued. Dad’s lawyers argued that the “best interest” standard should apply rather than the test set forth in Baures. The case is complicated by the fact that the case took so long to wind its way through the system that Mom’s engagement fell apart! File this one under PENDING!

COLLEGE COSTS – PAY UP!

In a recent unpublished opinion, the Appellate Division held that the father’s argument that compelling a non-custodial parent to contribute to college expenses when such an obligation is not imposed upon a parent in general is a violation of the Federal or State Constitution. In this case, the father had not raised the issue below, and there was a Property Settlement Agreement that required Dad to contribute to the extent of his financial ability. The father’s argument that his contribution should be limited to that which Rutgers would charge was also dismissed by the Court. You can read the opinion here at http://lawlibrary.rutgers.edu/courts/appellate/a2230-08.opn.html Stay tuned to this issue — NJ is one of a minority of states which requires divorced parents, but not those in an intact marriage to contribute to the college expenses of their children. Not that there is anything wrong with that! Except it appears to be a disparate treatment of divorced individuals. Constitution 101??

PALIMONY NO MORE!

In one of his final acts as Governor, then Gov. Corzine signed into law, an amendment to the NJ Statute of Frauds, which brings for all practical purposes an end to any claim for Palimony. With this amendment, a promise to support an unmarried partner must be in writing to be enforceable. Yeah Right! We ALL know that Palimony is support which is compelled by a long term relationship where for one reason or another, the parties determined NOT to formalize their relationship. Makes you kinda wonder what the Governor was protecting! See the text of the law here: .

Damages for Intentional Infliction of Emotional Distress

were allowed as a possible remedy for parents whose relationship with their children has been damaged or destroyed by x-spouses in Smith v. Smith [Hud-L-1837-08] a law division case decided in November, 2008. In this case the father had alleged that his ex-wife and her parents had lied to the children and alienated them from him by telling them that he was a sex addict and that they were in danger of being sexually abused if they stayed overnight in his home. Before you start writing your law division complaints, hold on and stay tuned – the case is on appeal, and well – who knows. There is a conflicting case, Segal v. Lunch [MRS-L-3076-07] where the Morris County Superior Court came to the opposite conclusion.

Domestic Violence Final Restraining orders will now automatically be added to the National Crime Information Center (NCIC) database.

In addition, 150,000 existing Final Restraining Orders will also be entered into the national database. This will extend “an added layer of protection for domestic violence victims who have left the state, either temporarily or permanently.”

PALIMONY ONCE MORE!

In Bayne v. Johnson, [A-0974-061T1], decided on October 27, 2008, the NJ Appellate Division overturned the trial court’s decision granting Palimony to the long time live in girlfriend of the married defendant. In what can only be described as “unusual facts,” in 1978, Earl Johnson then 41 married Carolyn Johnson then 61. Earl had been married three times before, and Carolyn, the beneficiary of an 11 Million dollar trust, (which paid her between $200,000. and $300,000. per year) had been married six times previously. Carolyn had three children, (none of whom she got along with) and was fearful that one of them, was planning to have her declared incompetent so as to take control of her trust. (Perhaps the kids were right!) Thus, the marriage between Carolyn and Earl was one of convenience, and they agreed to live separate lives, with Carolyn bankrolling Earl’s numerous and largely unsuccessful businesses. Indeed in 1981, while Carolyn and Earl lived in the Bahamas he began a relationship with Bayne who was (of all things) an airline stewardess. Eventually Earl rented an apartment for Bayne, telling her that he lived with and cared for his elderly ill aunt who did not want anyone else living in the apartment.
Eventually they all moved to Florida, where again, Carolyn and Earl lived together in one apartment and Bayne in another which was paid for by Earl, using his wife’s funds.

In the mid 1980’s Bayne started pressuring Earl to marry her, but he put her off. Eventually when she discovered that Earl’s “elderly Aunt” was actually his wife, he claimed that it was not actually a true marriage, and promised that he would “take the next step,” after he could ensure that his wife would be taken care of financially!

Subsequently, the trio moved from place to place, following the path of Earl’s business attempts and failures. At times they lived in one apartment with Bayne caring for Caroline.

Despite Earl’s poor business acumen, they were able to live well on Caroline’s trust fund income. In 1996, Bayne, contributed $10,000. which she had borrowed from her mother, towards a Condo in North Bergen. Earl continued to have business problems, and by 2000, Bayne had enough, and moved back to England, still not having secured a marriage commitment from Earl.

In 2004, Bayne sued Earl for palimony, fraud, unjust enrichment and conversion of the monies she contributed towards the North Bergen Condo. After an 8 day trial in Hudson County, Judge Maureen Sogluizzo found that there had been an enforceable agreement and that Bayne was entitled to a judgment of almost $400,000. for palimony.

Unfortunately for Bayne, the NJ Appellate Division thought differently and reversed Judge Sogluizzo, finding “Palimony is the enforcement of a broken promise made for future support. It is not recompense for years spent in a failed relationship nor an economic substitute for opportunities that may have been lost of expectations that were unfulfilled.” All Bayne ended up with was an equity interest in the North Bergen Condo!

Bayne v. Johnson will be digested in the NJ Superior Courts reporter, and may be accessed at Rutgers, New Jersey Search page using the Party Search function .

PALIMONY RULES ADDRESSED ONCE AGAIN!

In June, 2008, the New Jersey Supreme Court overruled prior palimony cases by deciding that cohabitation is not required to sustain a claim for palimony in New Jersey. In Devaney v. L Esperance ___ NJ ___ (2008), the plaintiff began an intimate relationship with her employer when she was 23 and her employer was 51 . . . and married. The couple sustained their relationship for twenty years, and although the defendant promised to divorce his wife, marry the plaintiff, and have a child with her, never did. Although the defendant provided financial support to plaintiff, including purchasing a condominium for her, giving her a car, paying for her education as well as giving her cash and paying for other expenses, They never resided together. Eventually plaintiff began a relationship with another man, and defendant evicted her from the condo.

Plaintiff filed a complaint for palimony in October, 2004, and lost at trial. Plaintiff appealed and also lost at the Appellate Division. Both the Appellate Division and the trial court denied the claim for palimony because the parties never resided together. The NJ Supreme Court granted certification and in a unanimous ruling again denied the palimony claim, but held that cohabitation is but one of the many factors that a judge should look at in determining whether a claimant has proven a marital type relationship sufficient to support a claim for palimony. It is conceivable that a plaintiff in the absence of cohabitation could prove an entitlement to palimony.

Stay tuned!

Devaney v. L Esperance ___ NJ ___ (2008) will be reported in the Supreme Court reports. The full text may be accessed at Rutgers, New Jersey Search page. using the Party Search function.

PALIMONY RULES NARROWED

In April, 2006, the Appellate Division confirmed that alleged agreements for lifetime support between unmarried couples will not be unforced unless it is accompanied by long term co-habitation which mimics traditional marriage. The court opined that to prevail on a palimony claim, the party must prove 1) co-habitation; 2) a marital type relationship; 3) during the co-habitation period the other party promised to support the other for life; and 4) the promise was made in exchange for valid consideration.  In Levine v. Konvitz and McDonald v. Estate of Mavety, neither of the claiming parties had lived in a marital like relationship, thus their claims were dismissed.   The Supreme Court of New Jersey denied certification in both cases.

In 2002, in the landmark decision of In Re Estate of Roccamonte (see below) the N.J. Supreme Court had imposed an obligation upon the estate of the decedent to pay a lump sum payment to his former partner, finding that the plaintiff was  not economically able to provide for herself with a reasonable degree of economic comfort appropriate in the circumstances.  Roccamonte is distinguishable from the April 2006 cases because the economic dependency developed over a period of co-habitation of 25 years.

Levine v. Konvitz is reported at 383 N.J. Super. 1;   McDonald v. Estate of Mavety is reported at 383 N.J. Super.  (App. Div 2006); and  In Re Estate of Roccamonte is reported at 174 N.J. 11 (2002).  All three cases may be accessed at Rutgers, New Jersey Search page.

MARITAL FAULT OF NO CONSEQUENCE IN AWARDING ALIMONY

In April, 2005, the Supreme Court of New Jersey held that marital misconduct, no matter how egregious, unless if affects the economic status quo of the parties may not be taken into consideration in the calculation of alimony.  In Mani v. Mani, the husband was awarded $610. per week in alimony.   Husband appealed the award claiming it was insufficient.  Ms.  Mani cross appealed  arguing that her former husband was not entitled to any alimony because of his misconduct during the marriage, and because he did not contribute to the non-remunerative activities of the marriage.  The Appellate Division agreed with Ms. Mani, and noted that Mr. Mani’s adultery was significant and “his marital indiscretions warrant consideration in the amount of the (alimony) award..”   The Appellate Division also upheld the denial of counsel fees to Mr. Mani, citing marital fault as a factor.

The New Jersey Supreme Court disagreed with the Appellate Division and held that marital misconduct may only be taken into consideration in the calculation of alimony when it affects the economic status quo of the parties, or where the fault is egregious.  The Court further held that where marital fault has no residual economic consequences, it may not be considered in an alimony award.  The Court further elaborated that egregious marital fault is a term of art that “requires not simply more, or even more public acts of marital indiscretion, but acts that by their very nature are different in kind.”  Examples of egregious fault provided by the Court were where one spouse attempted to murder the other; deliberately infecting the other with a loathsome disease.

Mani v. Mani is reported at 183  N.J. 70  (2005), and may be accessed at Rutgers, New Jersey Search page.

 

CREWS CASE MODIFIED
STANDARD OF LIVING STIPULATION NO LONGER NECESSARY IN UNCONTESTED CASES

In June, 2004, the Supreme Court of New Jersey modified its previous requirement, set in the Crews v. Crews case, that in all proceedings the marital standard of living must be either stipulated to by the parties or determined by the court.

In Weishaus v. Weishaus the parties had attempted to settle their case by entering into an agreement for alimony, but not stipulating the marital standard of living.  The court refused to accept the parties settlement, and relying on the New Jersey Supreme Court case of Crews v. Crews, required them to ether stipulate to the marital standard of living or submit to a hearing so that the court could determine same.

The Supreme Court disagreed and in so doing, modified its previous holding in Crews.  In Weishaus, the Supreme Court held that in uncontested cases the trial court would have the discretion to approve agreements between the parties which contain provisions for spousal support without rendering marital lifestyle findings at the time of entry of the final judgment of divorce.

Weishaus v. Weishaus is reported at 180  N.J.131  (2004), and may be accessed at Rutgers, New Jersey Search page.

DOMESTIC PARTNERSHIP ACT SIGNED INTO LAW

In January, 2004, Gov. McGreevy signed the Domestic Partnership Act into law.  This act, which is codified at N.J.S.A. 26:8A et seq. gives Domestic Partners entitlement to enjoy certain rights and benefits that are accorded to married couples under the laws of the state including;

  • Protection under the “Law Against Discrimination;”

  • the right to make medical and/or decisions for an incapacitated partner;

  • an additional exemption from the state personal income tax;

  • exemption from the state transfer inheritance tax.

The Act defines domestic partners as persons who:

  • are over 18 years of age; and

  • are not presently married; and

  • are not related to each other; and

  • are of the same sex, or are over the age of 62, not of the same sex and meet the other requirements; and

  • have not been in a domestic partnership terminated less than 180 days prior to the filing of a current Affidavit of Domestic Partnership; and

  • agree to be jointly responsible for each other’s basic living expenses; and

  • have chosen to share each other’s lives in a committed relationship of mutual caring; and

  • have a common residence and are otherwise jointly responsible for each other’s common welfare; and

  • file an Affidavit of Domestic Partnership.

The law requires the filing of an “Affidavit of Domestic Partnership,” defines the rights and obligations of Domestic Partners, and vests jurisdiction in the Superior Court to terminate Domestic Partnerships on grounds similar to dissolution of marriages.  Upon dissolution of a Domestic Partnership, the court is permitted to adjudicate issues of support, but not equitable distribution.  

The act takes effect in June, 2004

The law is codified at N.J.S.A. 26:8A et seq. and may be found through New Jersey Law Finder

COURT APPOINTED PSYCHOLOGISTS HELD TO HAVE IMMUNITY FROM SUIT

In January, 2004, the Law Division determined that a court appointed psychologist, who had been appointed to perform a “best interests” evaluation in a custody dispute was immune from suit for malpractice in connection with that function.  In so holding the court found that court appointed psychologists play an integral role in the judicial process, and that important policy concerns, such as the need for freedom from undue influence, and intimidation, coupled with adequate procedural safeguards support this immunity.

Gannett v. Milchman is reported at 361 N.J. Super 419 (Ch.Div.2004), and may be accessed at Rutgers, New Jersey Search page

INTRASTATE RELOCATION MAY TRIGGER “CHANGE IN CIRCUMSTANCES”

In June, 2003, the Appellate Division in Shultz v. Morris, that a change in residence by the custodial parent in a joint parenting arrangement, may constitute a change in circumstances, permitting the noncustodial parent to move for a change in custody. In Shultz, the father/noncustodial parent attempted to force the mother of his 10 year old son to move back to Middlesex County from Sussex County where she had recently relocated. Although the court did not order the mother to relocate, nevertheless, it allowed the father to seek a change in custody based upon the dimunition of his parenting time with the child brought about by his former wife’s relocation of 74 miles.

Shultz v. Morris is reported at 361 N.J. Super 419 (App.Div.2003), and may be accessed atRutgers, New Jersey Search page

RULES FOR GRANDPARENT VISITATION CHANGED

In July, 2003, the New Jersey Supreme Court of New Jersey construed the New Jersey nonparent-visitation (N.J.S.A. 9:2-7-1) and added a constitutional “threshold of harm” standard.

In Moriarty v. Bradt, custody of the children had been granted to the father, because at the divorce trial the mother had been proven to be a habitual drug user. Although the maternal grandparents had been seeing their grandchildren on a regular basis when their daughter, the children’s mother had visitation, the mother died in 1999, and subsequently, animosity developed between the maternal grandparents and the father, which ultimately resulted in a restraining order against the father, and denial of visitation to the grandparents. The grandparents moved for visitation, and the N.J. Supreme Court was forced to construe the New Jersey non-parent visitation statute in light of the 2002 U.S. Supreme Court decision of Troxel v. Granville, (120 S.Ct. 2054). Troxel had struck down what the U.S. Supreme Court termed a “breathtakingly broad” nonparent-visitation statute of the State of Washington, and held in that the Washington State statute infringed upon the constitutional rights of parents to rear their children.

In Moriarty the Court held that the “best interest” of the child standard is not applicable where grandparents seek visitation over the objections of the parents of the children. Instead, the grandparents must prove, by a preponderance of the evidence, that denial of the visitation they seek would result in harm to the child. This burden the Court held, is necessary to safeguard the fundamental right of fit parents to make decisions regarding the care and custody of their children. If the grandparents prove that harm will result to the children by denial of their requested visitation, then the court must decide on a vitiation schedule based on the children’s best interests after considering the eight factors in N.J.S.A. 9:2-7.1.

The factors set forth in N.J.S.A. 9:2-7.1 are:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

In Moriarty, the Court found that harm would result to the children if they were not permitted to visit with their grandparents, and a visitation schedule was ordered.

Moriarty v. Bradt is reported at 177 N.J. 84 (2003), and may be accessed at Rutgers, New Jersey Search page

BUSINESS VALUATION RULES REVISED

In February, 2002, the Appellate Division drastically revised the way family owned businesses are valued for equitable distribution purposes. Previous to this decision, the value of family owned or closely held businesses was regularly “discounted” to reflect the difficulty of selling these businesses on the open market.

In Brown v. Brown, the court erased years of precedent by holding that “absent extraordinary circumstances” neither a marketability nor a minority discount should be applied to reduce the value of a closely held business for equitable distribution, and that the valuation of shares in these concerns should be based upon the “fair value” of those shares which may or may not equate with the market’s judgment about the stock’s value.

See, Brown v. Brown, 348 N.J. Super. 466 (App. Div. 2002). The case may be accessed at Rutgers, New Jersey Search page

PALIMONY REVISITED

In October, 2002, in a landmark decision, the New Jersey Supreme Court held that the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably rest on a promise by one to support the other, and that “as a matter of law, that promise is not discharged by the death of the promisor.

The facts of In Re Estate of Roccamonte, are quite unique. There, Arthur J. Roccamonte, Sr. had lived with plaintiff as husband and wife for 25 years until his death, and had induced plaintiff to return to New Jersey from California, and to divorce her husband. Roccamonte had provided lavishly for plaintiff as well as her daughter, but had not made any provision for her in his will. The estate’s argument that plaintiff was not entitled to share in Roccamonte’e estate because no valid palimony agreement could have been entered into because plaintiff was not entirely economically dependent upon Roccamonte was rejected. The court held that complete economic dependency is not necessary for a valid palimony agreement to exist. The issue, as defined by the court is whether the plaintiff is economically able to provide for herself with a reasonable degree of economic comfort appropriate in the circumstances. The court remanded the case to the Family Division for a determination as to the appropriate lump sum to be granted to plaintiff.

In Re Estate of Roccamonte is reported at 174 N.J. 11 (2002), and may be accessed at Rutgers, New Jersey Search page

REMOVAL RULES REVISED

In 2001, the New Jersey Supreme Court reviewed the factors which will enable a custodial parent to move out of New Jersey with the child or children of the marriage. In Baures v. Lewis, 167 N.J. 91 (2001), Justice Long, writing for the Court declared that the first question relating to removal is whether or not the parties share joint physical custody. When joint physical exists, a motion for removal will be considered a motion for a change in custody, requiring a “best interests” review to determine which of the parents should retain custody. Where the parties do not share joint physical custody, the party seeking to remove the child from the state must show that he or she has a good faith reason for the move, and that the move would not be inimical to the child’s interest.

The Court then set forth the following twelve factors that should be considered to determine whether the party seeking to move out of state has met his or her burden:

  • The reasons for the move

  • The reasons given for the opposition to the move

  • The past history between the parties (as it relates to the reasons advanced for the move);

  • Whether the child will receive educational, health and leisure opportunities at least equal to what is available at the present location of the child;

  •  Any special needs or talents of the child that require accommodation, and whether such accommodation or its equivalent is available in the new location;

  • Whether the visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;

  • The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;

  • The effect of the move on extended family relationships in New Jersey and in the new location;

  • If the child is of an age where he can make a reasoned decision, his or her preference;

  • Whether the child is entering his or her senior year of high school, at which point he or she should generally not be moved until graduation without his or her consent;

  • Whether the non-custodial parent has the ability to relocate;

  • Any other factor bearing on the child’s interest.

Not all of the above factors may be relevant or carry the same weight in every case.

In addition to the factors above, the court commented that a mere change, even a reduction in the non-custodial parent’s visitation is not an independent reason to refuse to permit the move.

Once the party seeking to remove the child to another state has met his or burden, the burden shifts to the other party to prove that the move is not in good faith, or in the best interest of the child.

Baures v. Lewis is reported at 167 N.J. 91 (2001), and may be accessed at Rutgers, New Jersey Search page

NEW CHILD SUPPORT LIEN LAW

In August, 2000, Gov. Whitman signed a bill into law which allows a court to place a lien on a judgment, arbitration award, inheritance or workers’ compensation award or settlement, if the recipient owes child support. The lien will have priority over all other liens, garnishments, or levies, except for unpaid state income taxes. The lien applies to the “net proceeds” of a settlement which is the sum awarded minus attorneys fees, courts costs, medical costs and other miscellaneous expenses of litigation. The child support judgment must be docketed with the court clerk in order to create a record of the lien. The new law requires that the attorney for the party who is to receive the monies, must search to determine if there is a child support judgment, and if such a judgment is found, the outstanding arrears must be paid first.

The law is codified at N.J.S.A. 2A:17-56.23b, and may be found through New Jersey Law Finder

CREWS v. CREWS – Highlights marital standard of living

In a sweeping decision, in June, 2000, the New Jersey Supreme Court determined that “lifestyle” is one of the most important determiners in setting alimony. This case arose in the post judgment setting, where Mrs. Crews who, after a 17 year marriage, received only three years of Rehabilitative Alimony, sought to reinstate and increase same. Mr. Crews, resisted her motion on the ground that she had not demonstrated a “change in circumstances” warranting an increase.

In this case, the Supreme Court held that since the trial judge had not made a specific finding as to the lifestyle of the parties during the marriage, that the case would have to be remanded for specific findings on that issue. The Court held that “The marital standard of living is the measure for assessing initial awards of alimony, as well as for reviewing any motion to modify such award. In the future, the trial courts must make a specific finding of lifestyle, and when appropriate, a trial court should expressly find that there is a higher need existing at the time of the initial award based on the standard of living maintained during that marriage, but that the higher need could not be met by the supporting spouse at the time of the divorce.” If it was found the supported spouse was incapable of maintaining that lifestyle on the alimony awarded, because, say of a downturn in finances, then the supported spouse may, if the supporting spouse’s income increased, move in court later for an upward modification without showing a change in circumstances.

This far reaching decision has implications for couples who are going through the divorce process at the present time, as well as for those who have been divorced for years.

Couples currently divorcing should make sure that, in the case of settled cases, there is a statement that the supported spouse can reasonably be expected to maintain the lifestyle enjoyed during the marriage, or that because of whatever reason, it cannot be maintained, and that they understand that the alimony portion of the award may be modified without a showing of changed circumstances in the future. Both parties should understand that it will, most likely be more expensive later to go through a hearing to establish what the lifestyle was during the marriage.

For couples who are already divorced, if the supporting spouse is unable to maintain the lifestyle enjoyed during the marriage, an application for an increase should be considered.

The Crews v. Crews case is reported at 164 N.J. 11 (2000), and may be accessed at Rutgers, New Jersey Search page

TERM ALIMONY PERMITTED

In mid September, 1999, Governor Whitman signed into law a bill that adds two new forms of alimony; “Limited Duration Alimony,” or “Term Alimony” is alimony which is awarded for specific time period, to permit a spouse who needs time, perhaps to train or gain experience in the workplace, to find a job, or to obtain education to be supported during that time. “Reimbursement Alimony” is that which awards reimbursement to a spouse who assisted in his or her spouse’s education.

Although both Term and Reimbursement Alimony were common in Property Settlement Agreements agreed upon between the parties, the Court was not previously permitted to make an award of either, but was limited to either Permanent or Rehabilitative Alimony.

The bill also permits the Court to consider the tax consequences to both parties from an award of alimony, as well as income from investments in making its award.

NEW EDUCATIONAL PROGRAM FOR DIVORCING PARENTS

On May 19, 1999, governor Whitman signed into law, a measure which will require most divorcing parents to participate in a “Parents Education Program” whenever custody, visitation or support is an issue. Parents who have, or are in the process of obtaining Final Restraining Orders will not required to participate in the program. The program will educate divorcing parents about the effect of divorce on children, the economic ramifications and financial responsibilities of divorce, and the legal process. Failure to participate may be considered by the court when it rules on custody and/or visitation issues. The program is currently being developed and is expected to be implemented this fall.

As of November 15, 1999, any complaint or counterclaim requesting child support, or stating that visitation or custody is an issue will be surcharged $25.00 for participation in this program.

MEDIATION OF ECONOMIC ISSUES

Commencing in June, 1999, six counties will participate in a pilot testing of mediation of economic issues in matrimonial matters. Bergen, Morris and Somerset counties will mediate these issues after the parties have attempted settlement in the Matrimonial Early Settlement Panel. Atlantic, Burlington and Union counties will mediate economic issues before the MESP. After the program has been in operation for a two year testing period, the program will be reevaluated.

IRRECONCILABLE DIFFERENCES GROUND FOR DIVORCE VETOED

The New Jersey state Senate, in mid-January, approved a bill, which, if signed into law, would have permitted a divorce based upon irreconcilable differences for a period of six months, or by mutual consent. Governor Whitman vetoed this bill, with a recommendation that the time period be lengthened to nine months. The bill has been amended, and must once again go through the committee process.

N.J. SUPREME COURT AMENDS COURT RULES

On April 5, 1999 new rules went into effect which in some cases radically effect matrimonial practice, give broader enforcement powers to judges, and alter certain aspects of the attorney-client relationship in family law matters.

Highlights of the new rules are:

  • Judges are given additional remedies to grant when a parent has been found to have violated an order respecting custody, visitation or the payment of support, including ordering the party to pay the other’s attorneys fees, granting additional or “make-up visitation,” ordering the party failing to exercise scheduled visitation to pay the child care costs associated with his or her failure to do so, ordering the violator to participate in community service.
  • The rules also allow a judge to order the sale of marital property to fund litigation, so as to “level the playing field” and permit the spouse not having control over the marital assets to retain counsel and fund the litigation.
  • A listing of insurance coverage (life, health, auto and homeowners) must be submitted with each first pleading (ie. Complaint, Answer or Appearance). Insurance in place at the time of the initial pleading cannot thereafter be cancelled or allowed to lapse unless permitted by court order.
  • Non-refundable retainer agreements are prohibited.
  • Clients must receive a “Statement of Client Rights and Responsibilities” upon retention of counsel. 

     

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