AAML NJ Blog

By Richard F. Iglar, Esq. of Skoloff & Wolfe

The COVID-19 coronavirus pandemic has plunged our world into a once in a lifetime crisis--we have not seen anything like this in the United States since the Spanish Flu pandemic of 1918. Many aspects of our society have ground to a virtual halt, and our economy has been decimated.  Restaurants, hotels, airlines, manufacturers, small businesses and large businesses alike, are shuttered and at risk of going out of business.  Fear of the loss of employment and income is pervasive.  How will this pandemic impact one particular family law issue, the issue of the payment of alimony?  The divorced individual paying alimony asks, “How can I possibly be expected to pay now?”

Alimony is often the most contentious economic issue in a divorce case and that is understandable given the raw emotions and resentment involved between divorcing spouses and the economic pressure on each of them in facing the reality of having a subset of the prior family income.  The COVID-19 crisis exacerbates that dynamic, with the divorcing parties facing a given set of obligations and expenses and a likely unknown fraction of future income due to the economic ramifications of the pandemic.  To what extent will income be impacted and for how long?  The politicians, pundits and medical experts seem to give contradicting predictions of the duration of the crisis.  Will the COVID-19 crisis cause merely a temporary economic setback with income slightly down overall for the year, or on the other end of the spectrum, will it result in the destructions of businesses and permanent losses of income, or perhaps, will it be something in between these two extremes?

Legally, alimony is a function of income, and as income changes, it is logical that alimony should be changed.  As a general proposition, the law provides that alimony may be modified upon a showing of a changed circumstances under Lepis v. Lepis and subsequent case law.  Therefore, if there is a substantial change in income there is a legal basis for seeking a change in alimony.  However, New Jersey case law has also developed the principle that the change in income must be substantial, and not merely temporary, and cases have arisen as to what period of time should have to pass before a court will recognize a situation which warrants modification.  In a scenario such as the COVID-19 crisis, the decrease in income may be more obvious and more severe than in many other everyday type situations presented to courts in the past.  However, an essential variable remains unknown: how long will this crisis and the economic impact last?  How long must a payor wait before seeking relief from the court to modify alimony?

It appears there is a clear answer for those who are employees, that is, those identified as “non-self employed” workers.  The New Jersey alimony statute, N.J.S.A. 2A:34-23, modified in 2014, clearly addresses the issue of the timing of a modification application where the payor is unemployed or “has not been able to return to or attain employment at prior income levels.”  The statute in subsection (k) provides that no application may be filed until the unemployment or reduction in income has lasted for at least 90 days.  Although this may delay the filing of an application, it might not delay the actual benefit to be ultimately awarded.  The statute provides that the court may grant relief which is retroactive to the date of “the loss of employment or reduction of income.” 

Furthermore, despite the 90 day time frame set forth in the statute, we are confronted by an unprecedented situation and there may be a genuine legal issue as to whether that time frame should still apply.  An argument might be made that with businesses physically closed it would be extremely difficult for a person who has lost his or her job to obtain a new one prior to the end of the crisis.  Accordingly, it may be that a family court, as a court of equity, might be called upon to relax the 90 day requirement in light of the circumstances and as a matter of justice, but this is an issue which will have to be addressed by the courts in the days ahead.

In assessing the application of the “non-self employed” individual, the court must consider the following statutory factors under N.J.S.A. 2A:34-23(k):

(1) The reasons for any loss of income;

(2) Under circumstances where there has been a loss of employment, the obligor's documented efforts to obtain replacement employment or to pursue an alternative occupation;

(3) Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;

(4) The income of the obligee; the obligee's circumstances; and the obligee's reasonable efforts to obtain employment in view of those circumstances and existing opportunities;

(5) The impact of the parties' health on their ability to obtain employment;

(6) Any severance compensation or award made in connection with any loss of employment;

(7) Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;

(8) The reasons for any change in either party's financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party's financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;

(9) Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and

(10) Any other factor the court deems relevant to fairly and equitably decide the application.

But again, in an application filed based on the economic impact of the COVID-19 coronavirus, many of these factors might be more obvious than in situations the courts have typically considered.  For example, where government actions have curtailed or closed business operations, there may be no reasonable dispute about the factual circumstances underlying the alimony modification application.

What about the business owner or other self-employed individuals?  The New Jersey alimony statute, N.J.S.A. 2A:34-23, addresses those payors in a separate section (l).  Interestingly, there is no requirement that the reduction in income must have lasted for at least 90 days before filing in cases involving self-employed individuals.  However, the applicant will certainly still have to address the legal issue of whether the change is a substantial one that warrants relief or whether it is merely a temporary change which does not warrant modification.  The statute requires a comparison of the benefits from the business to the business owner at the time the alimony obligation began and at the time of the application.  Specifically the statute provides the application “must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.”  These statutory provisions recognize that the business owner has more flexibility in how economic benefits are paid out, whether as salary or distributions, for example, or through indirect, but real economic benefits such as the payment of expenses or other perquisites.  The court must consider all of these economic benefits in evaluating the alimony modification application.

The New Jersey alimony statute also specifies a range of relief that can be granted by the court.  Aside from simply modifying the support obligation, N.J.S.A. 2A:34-23(m) provides that a court can order a temporary remedy. The court can temporarily suspend support or reduce support according to specific terms.  The moving party should be aware that the statute also specifies that the court can direct that support be paid from assets pending further proceedings—something which might completely undermine the moving party who seeks relief on periodic payments and winds up having the court essentially take assets away and give them to the supported ex-spouse.  The court also has to the power to direct a periodic review of the situation so what might have been envisioned as a straight-forward request might lead to an ongoing examination in multiple legal proceedings.

Finally, it should be noted that the statute provides that the court may enter any other order which the court finds appropriate to assure fairness and equity to both parties.  This gives the court considerable flexibility.  It also provides any party seeking relief with a legal basis for arguing for what should be the right result in any alimony modification application related to this unprecedented world crisis.

With the pandemic all around us, alimony payors are now raising the legitimate and logical question of how can they be expected to pay alimony at the same levels as previously.  The 2014 amendments to the New Jersey alimony statute, N.J.S.A. 2A:34-23, discussed above, supplement the basic legal principles about modification of alimony and provide further specific statutory factors to be considered.  New Jersey law does provide an answer to the question being asked by alimony payors and it does provide a mechanism in order to obtain relief.  Family law attorneys will now be using these tools to try to address the difficult legal issues created by the impact of the COVID-19 coronavirus and obtain fair results for their clients.

Richard F. Iglar, Esq. is a partner of Skoloff & Wolfe, P.C. and President-Elect of the American Academy of Matrimonial Lawyers-New Jersey Chapter (AAML-NJ).  This article was previously published at www.skoloffwolfe.com.

By Carolyn N. Daly, Esq. of Daly & Associates LLC

Many parents have questions about custody and parenting time during this pandemic. The problem is there is no one answer to any of those questions. The one thing that professionals and judges do seem to agree on is that this is an overwhelming situation for everyone and that during this time, when anxiety levels are high, it is important that children are reassured by their parents and caretakers that “everything will be ok.” Most of them also agree that children need to see their parents in order for this to happen and children need to see their parents working cooperatively and responsibly during this time.  Our children are understandably watching all of us for how to react.

That having been said, COVID-19 is unprecedented and many are working quickly to respond to concerns with as much information they have and with thoughtfulness. It would appear that a consensus is emerging in cases where there is an existing custody and parenting time order.  In those cases, unless and until there is an order or agreement altering the current parenting schedule, then the existing order or agreement, including holiday time, is to be followed during the pandemic.

The Case for Changes in Custody Agreements During COVID-19

When faced with a request to alter custody or parenting time, the courts are looking to see if one parent can show that the other parent has COVID-19, the child has COVID-19, the other parent or child has been exposed to COVID-19 (or is at a substantial risk of exposure), or the other parent is engaging in behavior which is inconsistent with COVID-19 protocols.  A parent seeking to alter the custody or parenting plan for any of these reasons should be prepared with specific evidence, or examples of the other parent’s behavior which support their request to alter or end parenting time or custody.  These factors also apply to cases where one parent, a child, or member of a parent’s household has a serious medical issue or pre-existing condition making them more susceptible to the virus.  If that parent can demonstrate their medical issue and provide specific examples or evidence of how the other parent is not taking precautions or following COVID-19 protocols, a court may alter the custody or parenting time of the other parent.

There are some important things to consider if there is a change in custody or parenting time by agreement or otherwise.  A parent who is not going to have parenting time should absolutely be afforded an opportunity to not only have phone calls, but to video chat by FaceTime, Skype, What’s App, Zoom, Microsoft Teams, etc.  This time should be in a room or place where the child is alone with the other parent.  The other parent can help with homework, e-learning, watch a movie, play a game, read a book or do hundreds of other things with the child(ren) that I am sure others have already suggested.  If there is more than one child, then maybe there should be one video session for each child so that they can have time with the other parent. Additionally, the parties should absolutely agree, or the court should provide, that there will be make-up parenting time as soon as the stay at home mandate has been lifted, provided both parties are prepared to abide by any COVID-19 protocols that exist at the time, or any other protocols that the parties themselves agree are appropriate.

Parents can also consider alterations to their current parenting plans if they are going to continue exchanging the children during this time, such as the location of pick up and drop off.  If it was previously in a public place or at school, then you may want to change it to somewhere more private or accessible.  If there is restraining order in effect, or other concern, then the parties could alter their location for exchange to curbside at each other’s residence or a police station convenient to both.

If the parties’ parenting time provides for frequent exchanges of the children each week, for example if one parent has one overnight each week and every other weekend from Friday night to Monday morning then maybe the every other weekend should be extended to being from Thursday night until Monday night at 5 pm and the mid-week overnights suspended until the stay at home mandate has been lifted.  For parents with 50-50 parenting that isn’t on a week on\week off basis, perhaps they should consider moving to that schedule on an interim basis so that there is an exchange only once per week. The children are all e-learning and have no extra-curricular activities they are attending in person so this might be a perfect opportunity to try other parenting schedules.

Making New Co-Parenting Decisions as a Family

What parents should always remember is that these are your children and your family and a court will never be upset if you reach an agreement on how to handle these issues amongst yourselves.  In fact, they welcome it. With that in mind, parents should be aware that the courts have limited resources and these are only a few of many issues being raised to them on an emergent basis.  Therefore, it would be wise to reach out to the other parent with concerns and attempt some simple problem-solving before initiating court proceedings.  If the parents can’t resolve the issue amongst themselves, there are also a number of mediators, statewide, who are ready to assist them, by phone or video conference, from anywhere, to resolve this issue quickly.

The bottom line is the courts will address these issues on a case-by-case basis and what is needed now for families is more cooperation and less litigation.  This situation should not be seen as an opportunity to withhold or terminate parenting time from a parent, absent truly emergent circumstances.  The American Academy of Matrimonial Lawyers has put up guidelines for parenting during this time, which can be found here.  A very thoughtful judge from Canada gave a well-reasoned decision in an application to alter parenting time during this pandemic, which has been circulated by professionals in this state, and can be found here.

Parenting time when there is domestic abuse could be a whole other discussion. However, what I can tell parents is that the courts are open and hearing emergent matters by phone or video conference.  The same factors and considerations set forth above apply.  If an abuser refuses to allow a child to return to the ex-spouse and there is no valid reason to do so and you can’t resolve it otherwise, you can file an emergent application for the return of the child. The application can be found here on our website under the button on the first page “Our Response to COVID-19”

This article was originally posted on New Jersey Family

By Carolyn N. Daly, Esq. of Daly & Associates LLC

We are in the midst of a serious crisis. Unfortunately, some parties are taking that only too literally, weaponizing the current pandemic and social distancing guidelines to restrict the other party’s parenting time and ability to see his or her children. This is particularly true among first responders or other “high risk” individuals who are continuing to work and risk exposure to the virus. This crisis should not be seen as an opportunity to withhold or prevent parenting time between a parent and child unless there is a demonstrable risk to a child. 

The American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC) attempted to get ahead of this issue, and issued guidelines on March 17, 2020 regarding parenting time in the midst of our current “social distancing” which can be found here https://aamlnj.org/njresources However, stories continue to arise around the state of individuals who are going to the courts to attempt to suspend parenting time because of this pandemic or to seek the continuation of parenting time when one parent unilaterally stops parenting. 

This is a difficult situation, and every case has its own unique circumstances which must be considered. The consideration changes if, for example, you live with individuals older than 65 or someone who has respiratory issues – in other words, if you risk exposing not only your child to the virus, but an at-risk individual who has a higher mortality rate because of their pre-existing conditions. Generally, however, the first thing all parents must be aware of is that they really have only three options: (1) they can work something out amongst themselves, taking into account the best interests of the child; (2) they can hope that a judge will see things their way and apply to change or limit parenting time when necessary; or (3) they have to follow the Court Order currently in place. What is not an option, however, is to knowingly violate any court order in place and unilaterally change parenting time – courts have never looked kindly on self-help. Parents also risk running afoul of criminal law. N.J.S.A. 2C:13-4 provides that if you withhold a child for more than 24 hours you could be charged with interference with custody, a crime that is a second degree offense and carries with it a presumption of imprisonment. 

Work it Out 

The one way to ensure everyone is safe, healthy and happy is to work things out amongst yourselves, with mediators, parenting coordinators, attorneys, pediatricians or other members of the community, as necessary. In doing so, you can craft a plan that works best for you and your children, as opposed to hoping someone else will make the right decision for you based on what information they have had thrust before them. Parents can always modify parenting plans amongst themselves in order to ensure minimal transfers. If, for example, you have “50/50” custody requiring multiple back-and-forths per week, you could instead switch to a “week on/week off” plan temporarily if that works for you. Such a temporary plan would allow for fewer transfers and, therefore, less risk of exposure. If someone does become positive for COVID-19, you should work to ensure liberal access to the children via all of the video conferencing applications available 

today, as well as provide make-up parenting time once that individual is all clear. It is important to remember that central to any discussion should be what is best for the children – and that may not always be the same in each case. What matters is what works for your children and family. 

When it comes to individuals who are still working and potentially risking exposure, you only need to peruse local Facebook groups to find a myriad of opinions of what should be done, ranging from “keep the kids home” to “follow the court orders.” What’s important to remember is that as recently as March 30th, the government has said that social distancing guidelines will continue to be in place for a month and that the “peak” of cases could be weeks away. Simply cutting off contact with one parent for a month or more is not acceptable if based solely upon a parent’s employment responsibilities. 

Think of it this way: what if you were still living together? Would you think it reasonable to suddenly stop having contact with the children? What about a decision to move out and self isolate? In most cases, the answer is probably no, although there are some families who have done this or sent their children to live with relatives. Parents still living together would work cooperatively and take appropriate steps to minimize the risk of exposure; such steps might include completely disrobing in the garage and bagging clothes to go into the wash and then taking a towel and going right into a hot shower as recommended by some. Just because you’re divorced or living separately,the children should still be able to see both parents as long as there isn’t an emergent and clearly identifiable risk. 

Of course, on the other side of this, it is important that both parents remain as healthy and mindful as possible. Wherever possible, practice social distancing. Children should not be exposed to two sets of rules – one parent allowing friends over, treating this as an extended summer vacation, and the other practicing strict social distancing with no friends and a strict school-like schedule. This will only confuse the children, and the parent not practicing social distancing (in spite of all the guidelines) will not find themselves in front of a very happy judge if it comes to that. 

Parties also should remember that the other parent is not being “irresponsible” if they are continuing to visit with their new romantic partner, or exposing the kids to that partner. In fact, Governor Murphy’s Executive Order specifically allows visitation with “family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker, or romantic partner. This also means that you are allowed to travel for purposes of picking up/dropping off children and would not be violating the Governor’s Order since this is a legitimate purpose. 

Again, the most important consideration is what is in the best interests of the child. How do parents work together to ensure this? The answer will be different for each family, as each family has unique circumstances that require additional consideration. 

The Right Solution for Your Children 

Co-parenting is of the utmost importance to the courts and decisions should be made by both parents to ensure uniformity and access. You should also remember that if you cannot come to a solution on your own, family law attorneys trained to handle these situations are here to help. At Daly & Associates, we have attorneys who are ready to help. Ms. Daly is a trained mediator and has been appointed as a parent coordinator and guardian ad litem by the courts to help in these situations. If you are a first responder in need of assistance, call and ask about our special rates for you to help you while you are putting yourselves on the front lines to help us. We may be working remotely, but we are still here for you during this difficult time. 

By Carolyn N. Daly, Esq. of Daly & Associates LLC

It’s finally here.  Some people dream of having kids from a young age, and others later.  Regardless it becomes real and exciting and scary the moment you hear you are pregnant.  Now you are finally at the point where mom is in labor (or is scheduled to go in for a pre-planned, medically necessary C Section), and you can’t wait to meet your newborn and neither can your family.  But now, because of COVID-19, you may all have to wait.  That’s what hospitals in New York were telling partners, grandparents, siblings, and more: that in the age of social distancing, you can’t come meet your newborn.  You can’t care for your partner, who will have to go through labor, delivery, feeding, and recovery alone.  And in New Jersey this restriction is being considered as well.  A “necessary precaution” of the world we currently live in.

As just one example of this, Mount Sinai Health System’s restrictions allowed zero visitors (not even the father), until New York put a stop to it.  Mount Sinai is a health system that has 15 locations around the New York Area.  They justified their decision by stating that they are doing this “to provide the safest environment possible to protect our patients, staff and visitors.”  (Well, if having birthing partners, who are emotional support in the very least.  present is a risk, then perhaps there should be no visitors at all.)  The hospitals say they want to “prevent avoidable exposure to mothers and babies,” and claim their moves are “critical to ensure that we can continue to slow the spread of COVID-19.”  Mount Sinai acknowledges “how important it is to connect with loved ones,” but makes the decision to prevent such connections.  More than 600,000 people had signed this petition to attempt to have these restrictions lifted.

Now here’s the good news for New Jersey residents (for now) – the two largest hospital systems in the state, Hackensack Meridian Health and Atlantic Health, are both allowing one visitor or “support person” in maternity wards.  As recently as 8:48am on March 25^th, Atlantic Health updated their visitor policy to no longer allow visitors for surgical patients, but still allow a “designated support person for patients in the maternity centers.”  We can only hope this continues – but what if it doesn’t?

While this is going on, the courts are doing everything they can to prevent the spread of this disease, including by going almost completely virtual.  The Supreme Court, the Administrative Office of the Courts, and the local Assignment Judges should be commended on getting everyone “up to speed” on virtual hearings as quickly as possible, and so far the court system is moving as best it can.  Obviously, in these times, it is important, as attorneys, that we not overburden the courts with issues that can be worked out between parties.  At Daly & Associates, for example, we are encouraging all of our clients to utilize mediation and other “out of court” measures to settle their matters before going to court.  However, a parent’s attendance at the birth of the child is a momentous occasion, which may not be repeated, and it’s not one that should simply be delayed.  This is a potentially emergent matter – and it’s likely only a matter of time before the courts are asked to weigh in on this issue.

Here are some facts and arguments we suggest lawyers and litigants consider when advocating on behalf of a client should they seek to file an emergent application on this issue, taking into account the factors the Courts consider for emergent applications:

(1)   Whether the petitioner will suffer irreparable harm.

In considering irreparable harm, one should first consider who the “petitioner” is.  Should mom be suing for a support person?  Should the partner be suing for the right to be a support person and to the see their child born?  Or should the parents be suing on behalf of their unborn child?

Here is one of the most stunning facts that calls into question the decisions of hospitals that suspend all maternity visitations.  The World Health Organization is against it, even in light of COVID-19.  According to their “Q&A on COVID-19, pregnancy, childbirth and breastfeeding,” the WHO states that “all pregnant women…have the right to high quality care before, during, and after childbirth. … A safe and positive childbirth experience includes: … having a companion of choice present during delivery.”  So in spite of COVID-19, the WHO still believes in the importance of having a support person present.  It’s not hard to see why they’ve come to this conclusion.  According to developmental and behavioral pediatrician at The University of California at Davis' Dr. Mary Beth Steinfeld, “a normal, full-term baby is…programmed to initiate and enter into a bonding relationship. … When a caregiver consistently responds to an infant’s needs, a trusting relationship and lifelong attachment develops.  This sets the stage for the growing child to enter healthy relationships with other people throughout life and to appropriately experience and express a full range of emotions.”  Dr. Steinfeld furthers “the first few days of life are believed to offer an optimum opportunity for bonding to take place.”  But do they need both parents there?  According to Dr. Steinfeld, “[a]bsolutely.”  The National Institute of Health, WebMD, Psychology Today, Sanford Health, and Medscape have some of additional details on the data and research regarding the importance of immediate bonding for both parents. 

Further, without a support person, moms may be more susceptible to post-partum depression (see the CDC's fact sheet on depression in women, which notes “stressful life events” and “low social support” as risk factors).  And the newborn risks missing what Dr. Steinfeld calls the “optimum opportunity” for bonding to take place.  Clearly, there is irreparable harm to all of these parties.

(2)   The legal right underlying the petitioner’s claim is settled.

Once you have proven there is irreparable harm, you must show a settled legal right.  In this case, one need only look to the WHO’s standards as showing a legal right.  You could also look to the fact that most U.S. hospitals allow bonding as a standard practice.  According to Dr. Steinfeld “standard practice in most U.S. hospitals allows mothers and babies as much time as possible together after birth.  Even when babies are born ill or premature, the importance of bonding is recognized.  Whenever possible, health care providers in intensive care units try to create opportunities for parents to spend time holding and caring for their babies.”

According to Atlantic Health, patients have a right “to receive considerate and respectful care consistent with sound nursing and medical practices.”  Hackensack Meridian says right on their website for maternity services that they “encourage the father or support person to take an active role in the birthing experience,” and even note that “it takes a village to have a child.”  The hospitals themselves recognize this important right.

(3)   Whether the petitioner is likely to prevail on the underlying claim.

Given the wealth of information about the importance of bonding, as well as the rights as defined by the hospitals themselves, one can clearly make an argument that a petitioner is likely to prevail on an underlying claim.  You may also have specific circumstances to further support your claim – for example, if mom is giving birth by way of Cesarian-Section, she will have limited mobility and it will be even more important to have someone there to help.  And in the era of COVID-19, we already know nurses and doctors are stretched thin; won’t they feel better knowing someone else is there to watch over mom and baby and only alert them when something has gone wrong so they can focus on other patients?

(4)   The relative hardship to the parties in granting or denying the requested relief.

The hardship to the hospital is obvious, and the factor the hospital will likely focus on the most is that they are trying to prevent the spread of COVID-19 to other patients and healthcare workers.  They are doing their part to “flatten the curve” by mandating social distancing.  But the articles referenced above make very clear the hardship to the parents and child may outweigh those and certainly a hospital, better than most institutions, can protect again the potential for cross-contamination.  When balancing all of the factors, a court may have a difficult time finding the hospital’s hardship overcomes the hardship of the parents and child, especially given their parens patriae power.

All of this is very new with unforeseen consequences and it is obviously important that we all take part in “flattening the curve” to preventing the spread of this disease.  However, it is also important that we look to protect our parents and children and their future.  We certainly do not want to not handicap that future by over-restricting ourselves in the present. 

If you or someone you know has any questions regarding the topic of this article or other family, domestic violence, municipal court, or criminal law issues, we encourage you to reach out to Daly & Associates at (973) 292-9222.  We are working remotely, but are fully ready and able to help your family in this difficult time.

By Paul Townsend, Esq. 

Ever since the Seminole case of Bisbing v. Bisbing, 230 N.J. 309 (2017), New Jersey relocation law has been in a state of almost mandatory best interest hearings “ in all contested relocation disputes…” . In Bisbing, the Court held that a best interests analysis is required “in all contested relocation disputes in which the parents share legal custody - whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody.” Further, the New Jersey Supreme Court concluded that a relocation decision when the parents share legal custody should be treated in the same manner as the original custody determination.  To further compound the problem, most recently in the case of [A.J. v. R.J., 461 N.J. Super. at 176] a case of intrastate relocation post judgement the Appellate Division held.

in cases where a court exercises its authority pursuant to R. 1:10-3 and 5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction imposed is in the best interests of the children. We further hold the factors in Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (2001) no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309, 166 A.3d 1155 (2017), the court must apply N.J.S.A. 9:2-4.

The area of New Jersey relocation law, whether it be intra or interstate relocation, will  continued to demand a best interest evaluation and as such will be difficult if not impossible to prepare for and to schedule with the court. The consequences of this state of almost mandatory  “best interests” analysis  and its impact upon  the already  jammed court docket has yet to be seen by the family practitioner.  But it certainly appears that all relocation matters are going to need a best-interest hearing under Bisbing. Which in turn leads us to the question: with the family courts as backed up as they are and with forensic evaluations taking as much as one year,   will any child ever be able to leave New Jersey again?  With the way the system is operating now I believe the answer could be no!

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By Amanda Trigg, Esq. 

In 2020, families come in all shapes and sizes.  Within each generation, there may be multiple combinations of parent/ child relationships that impact how your family functions.   Help your family enjoy each other as much as possible by considering these practical tips.

1. Be Real. Don’t ignore the potential problems that your family faces if one parent who has children with multiple partners, or one parent has a partner who has children with others.  Be realistic and address the questions about scheduling, rules, and plans that truly impact all of the children.
2. Be honest with each other.  Learn and work with existing agreements about parenting schedules, a radius clause (which dictates how far parents can move away from each other), the choice of a child’s school district, transportation obligations, and, always, financial obligations. 
3. Be literal. Get out that paper calendar, or invest in good computer software, to chart out the various parenting time scenarios. Do not risk creating last-minute problems when you realize that the kids’ schedules do not work the way you all expected.  For example, it is almost universally accepted that the children will spend Mother’s Day with their mother and Father’s Day with their father, but that can result in step-siblings never sharing the day amongst themselves unless the parents can be selfless and see a different way to approach these days of cultural significance.
4. Be Inclusive. Without knowing how all of the adults feel and think about the children’s schedules, you cannot know the full range of options for maximizing everyone’s enjoyment of each other.  Though it may be difficult, consider including the other parents in discussions, for the benefit of all of the children and adults involved., Many parenting plans include broad provisions for attendance at important family functions, but with multiple layers of family involved, you might propose opening the door to promoting broader involvement with all parts of the family.  For example, some written agreements include specific clauses:

Family Events

: The parties will work together for the benefit of the children and be flexible with each other so that the children will not miss family events of either parent unless there is a conflict between two equal family events. In the event of a conflict, when both parties seek to have the children attend a family event, the regular parenting schedule shall control.

5. Be resourceful. Even the most open-minded parents cannot anticipate every scenario and opportunities to be contentious and to disagree will arise. Avoid taking that bait.  If the situation needs professional input, call an experienced family law attorney, consider involving one therapist for all of the children and if necessary, an all else fails, seek a court order that all adults must cooperate or waive his/her right to give input or have the right to raise a parenting time dispute.

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Questions? Contact the Family Law Team at Cohn Lifland Pearlman Herrmann & Knopf, LLP at 201-845-9600. 

By Jean Ramatowaski, Partner, Ramatowaski & Schwartz 

There can be a significant injustice to a party seeking to enforce a support or property right against their former spouse.  The cost.

Attorney’s fees may be awarded to help make the supported party whole.  Attorney’s fees are granted based upon good faith versus bad faith standard amongst other criteria.  A court order enforcing a previously ordered obligation, without addressing the cost resulting from the application to obtain the order, can only leave the moving party further in debt.  This could make it cost-prohibitive to even seek to enforce a support or property right.

Attorney’s fees that are awarded in the establishment or enforcement of support obligations are enforceable through enhanced wage garnishments; up to 55% of the supported spouse’s disposable income.  If retirement assets exist, an award of attorney’s fees can be collected along with support arrears from the payor’s share of these assets by way of a Qualified Domestic Relations Order. 

The Appellate Division recently acknowledged the collection of attorney’s fee awards as an exception to the anti-alienation provisions of ERISA.   “The anti-alienation provision reflects a policy ‘to safeguard a stream of income for pensioners (and their dependents, who may be and who usually are blameless) even if that decision prevents others from securing relief for wrongs done them.’”  Orlowski v. Orlowski, 459 N.J. Super. 95, 104 (App. Div. 2019) citing  Guidry v. Sheet Metal Worker’s National Pension Fund, 493 U.S. 365, 376 (1990). “When a marital decree qualifies as a QDRO, the anti-alienation provision does not apply.” Orlowski, at 105.

To qualify as a Qualified Domestic Relations Order under ERISA, the required payment must be allowed under the terms of the retirement benefits plan, must be made to a dependent, not their attorney, and must be related to the payment of support or equitable distribution.

A failure to grant this relief addressing collection when available would cause a reduction in the relief otherwise granted to the moving party by the number of the attorney’s fees it cost to obtain the court order.

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For more information, you can contact Jean Ramatowski at 732.613.8300. 

By Sharon Klein, Wilmington Trust 

Does your client know that after a divorce he/she may be responsible for paying the income taxes on trust distributions made to an ex-spouse forever? 

Check out my recent podcast recorded for Family Law Magazine regarding dramatic changes in the taxation of trust income after divorce. 

https://familylawyermagazine.com/articles/podcast-new-tax-laws-for-trust-income-following-divorce/

The tax consequences of every trust created during a marriage should be factored into the divorce settlement negotiations or presented in evidence to a court.

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If you would like to discuss, please feel free to contact Sharon L. Klein, President, Family Wealth, U.S. Eastern Region, Head of Matrimonial Advisory Solutions Practice, sklein@wilmingtontrust.com, 212-415-0531

By Peter C. Paras, Esq. Partner at Paras, Apy, & Reiss. 

A few years ago a billboard prominently placed in Times Square read:

                                    “Hi Steven,

                                    Do I have your attention now?

                                    I know all about her, you dirty,

                                    sneaky, immoral, unfaithful,

                                    poorly-endowed slimeball.

                                    Everything’s caught on tape.

                                                Your (soon-to-be-ex) wife,

                                                Emily 

                                    p.s. I paid for this billboard

                                           from our joint bank account.”

The attention of commuters, tourists, and New Yorkers was captivated by this assault on decorum for days.  The media picked up the story and speculated about who Steven and Emily were. 

And then, a few days later, it was revealed that this was a fictionalized marketing ploy by an ad agency charged with promoting a new television show.  It seemed so real, so believable – and that’s why it was so effective.  The billboard was certainly within the realm of bizarre behavior often exhibited by divorcing spouses. 

The billboard wasn’t real, but these stories are.  One late afternoon I received a call from a client who had retained me a day or two before.  He explained that he had just gotten home from work and was sitting on the floor.  Why, I asked, was he telling me that? “It’s the only thing left”, he replied.  His wife had plotted to move out, lock, stock and barrel while he was at work. 

Another client returned home from work one evening, opened his closet, and found the left sleeves of every garment he owned in a heap on the floor.  In a fit of anger, his wife let her sharp scissor do her talking. 

And then there was “Hairless Joe.”  Joe had a side job that his wife knew about and benefitted from economically.  Joe made pornographic films and that was alright with his wife.  What wasn’t alright was when she returned home one afternoon to find him co-starring in his next film with two naked women.  The film, titled “Hairless Joe” because Joe shaved his head, was an asset, his wife claimed, that was subject to equitable distribution.  Joe argued that it wasn’t. 

The Judge’s decision didn’t make anyone happy.  He decided that the film was, indeed, subject to the wife’s claim for equitable distribution, making Joe unhappy.  But then he found that the film had no value (after reviewing it in chambers several times), making both unhappy.

Just last month, billionaire Harry Macklowe took a parting shot at his ex-wife, with whom he had recently gone through an acrimonious divorce.  He placed a 42-foot photo of his new fiancée and himself on New York City’s tallest apartment building, professing their love for each other.  There was no missing the portrait, nor his point.    

 In a Seinfeld episode, Elaine, during a conversation with Jerry, remarked, “People!”  Jerry responded, “Yeah, they’re the worst.”  People aren’t “the worst”, but people going through divorce can be.  Don’t be one of those people. No one can take your dignity from you, but you can give it away.  Don’t do it.       

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Peter C. Paras is a shareholder in the Family Law Firm of Paras, Apy & Reiss, P.C. For more information please see the firm’s website at www.par-law.com.

The information in this article is not intended as legal advice.  For legal advice, you should consult your attorney.

 

By Lynne Strober, Mandelbaum Salsberg P.C. 

I thought I would use this blog as an opportunity to raise a very out of the box issue:  Should more than two people be legally allowed to marry each other? 

We see multi-person relationships in the news, in marriage columns, social discussions and political analysis.

The new term is “trouple” or “throuple”.  A trouple is a relationship where three individuals are in an equally exclusive relationship.  The circumstances currently vary.  On some occasions two marry and the third comes along.  In other situations none may marry. 

In the University of Pennsylvania Journal of Constitutional Law on line January 2017 entitled “Plural Marriage: When One Spouse Is Not Enough”, the oral argument during Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which is the case holding, by a five-four ruling, that under the Fourteenth Amendment of the United States Constitution all states must license a marriage between two people of the same sex and recognize such a marriage if it was lawful licensed and performed in another state, raised the issue of multiple party marriages.  This article references comments made by Justice Roberts that the arguments supporting same-sex marriage could be used with equal force to justify plural marriage.  There was another exchange during that oral argument when it was said, according to the law review article, Justice Alito asked:

Well, what if there’s no – these are four people, two men and two women, it’s not – it’s not this sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today.  And let’s say they were all consenting adults, highly educated.  They’re all lawyers. (Laughter.)  What would be the ground under – under the logic of the decision you would like us to hand down in this case?  What would be the logic of denying them the same right?

Currently, more than two people can’t all marry each other.  However, if the three people are in an equally committed relationship and two of them marry, the third person, who is unable to marry, risks suffering economic loss.  Their property rights, rights to inherit, tax rights, interest in retirement assets and medical benefits all suffer.  They cannot receive social security based upon the earnings of the two that are married.  Survivorship benefits are gone.  While there are no marital benefits for the non-married person, obviously, they can be provided for by a plan such as a trust or other financial arrangement.  There is no spontaneous entitlement. The third person in the trouple is treated in a discriminatory manner.  If the three members of the trouple decide that the three of them will not marry than all three lose rights.  They are all discriminated against. 

The seminal case on polygamy is the 1878 Supreme Court case Reynolds v. United States, 98 US 145.  That case held that a religious belief could not be accepted where the law makes the act illegal.  The evidence of religious beliefs was not admissible because the Court does not control ideas, it controls practices and behavior.  The Court held the view that the marriage was perpetrating a crime against innocent woman and children; the argument that the law should not have been enacted is not a defense.  Evil intent is not necessary.  Knowingly violating the law for religious reasons does not make the law invalid.  While the Mormon Church held to the position at the time that male members of the Church should marry more than one woman and not to do so risked the penalty of damnation in the life to come, it was not legal to do so.  Therefore, religion pitted against the state created to say the least a very difficult problem.  The law remains in effect; an individual cannot marry more than one person. 

The University of Pennsylvania article goes on to discuss that applying the principles of same-sex marriage to plural marriage gives rise to its’ further consideration.  These points are highlighted as follows:

Applying these principles to plural marriage, it can be argued that:

1. Plural marriage-like same-sex marriage is encompassed in the right to personal choice inherent in the concept of individual autonomy.

2. The right to marry is fundamental but nowhere is it required that it be limited to two people, just as it is nowhere written that it must be limited to individuals of the opposite sex.

3. Just as prohibiting same-sex marriages would harm and humiliate the children of such unions, so prohibiting plural marriages harm and humiliate the offspring of such unions who most likely would be more numerous.

4. Just as it would be demeaning to lock same-sex couples out of a central institution of our nation’s society, it would be just as debasing to bar polygamous couples from this institution.

So, we are faced with a quandary. 

The same Law Journal article requires that we go back to Judge Roberts’ assertion that same-sex marriage gives rise to a reconsideration of plural marriage:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.  Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.  Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.  If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

Of course, we then have the question of how many people can participate in a plural marriage. Can ten people marry?  Are we limiting marriage to a certain number of people?  So, what happens if some of the members of the plural marriage wished to get a divorce, but not all?  How are their property and support rights addressed?

The biggest question here is the discrimination to the third or fourth or whatever number of people that are in the relationship with the two married people.  They are being discriminated against and they are losing economic rights that belong to the two that are married.

Clearly, there is nothing in the law that addresses this issue.  The laws are a reflection of a present society guided by precedent.  This is a hot topic in the news as to the existence of the trouple relationship but not what happens if that relationship is fully legalized. 

Some or all individuals in the multi-person are being denied the benefits of the law.  They are being precluded from receiving some benefits that others receive.  One of the questions is whether if the door is open to review the status of multiple individuals marrying, an article in the University of Illinois Law Review 2016 concludes with:

While voidance of the reference harms would certainly be a compelling state interest for criminalized polygamy, there are questions about whether the global empirical evidence is sufficiently strong to create the necessary foundation between polygamy and these harms giving the lack of statistical data on the outcome of polygamous Americans and the negative impacts of criminalization itself.  A second concern is whether the prediction that decriminalization for religious practitioners will result in a non-trivial growth in the polygamous population in the United States is sufficiently convincing.  This is relevant both to the issue of whether there is a compelling state interest in that exempting religious practitioners and whether the only possible less restrictive alternative to criminalization, legal non-recognition of polygamous marriages, would be a sufficiently effective way to keep polygamy in check.  If, however, the decriminalization of same-sex marriage is a good analogy, then there’s evidence that decriminalization will lead to legal recognition, making legal non-recognition an entirely ineffective alternative.

If these questions can be successfully resolved, state criminal polygamy laws can survive the strict scrutiny required by many-RFRAs that allow federal RFRA juris prudence.  Regardless of the outcome what emerges from this analysis is that scrutinizing polygamy poses difficult questions for RFRA strict scrutiny itself.

Allowing multiple marriages would create a floodgate of laws that would need to be modified.  It would take enormous work to permit it.  It will probably only occur in limited circumstances.  Society may not be ready for this.  Even if society is ready the legislatures may not be ready to change all the necessary laws.  Reynolds, however, interestingly, seems to have the last word as the case holds that:

“The Court should consider the history of the times when the law was enacted.”

If we look at society now, the question is has the time come?  How would we open up the floodgate of laws that would need to be changed? Is the risk of discrimination and loss of participation in the rights of married people enough for us to review the entire situation?

Again, what are the considerations in whether multi-person marriages should be permitted:

1. Are all the individuals in the multi-person relationship equally protected?  Are all individuals treated the same and have the same right to be in the same relationship?  If they are all not able to marry, will they all be receiving equal protection under the law?

2. Massive law changes are necessary so that marriage provides all the individuals that are married the same rights and not just to the actually married portion of the relationship.

3. What happens with regard to marital rights?  As with all marriages, we have to assume that some of these multiple-person marriages will end in divorce.  In a multiple marriage, would the whole unit have to terminate its’ existence or only those who wish to withdraw from the marriage/divorce be able to do so?

4. So hypothetically, if A,B,C,D and E are married, if A seeks a divorce and the remaining unit were to pay alimony and equitable distribution and then B were to seek a divorce, are B,C,D and E still paying alimony to A and then do they have responsibilities as to B?  This would be very complicated, to say the least.  As to children, what happens to custody.  There would be may psychological parents and relationships that would need to continue to provide for a child’s best interests.  What about child support?  Who would be paying the child support?  Would major decision-making powers belong to all the members of the marriage?  One could only imagine the layers of multiple marriages with divorce and remarriage.  However, the law managed to deal with two people at a time.  It is assumed it will be able deal with more. The answer perhaps is that as issue arise the law will address them, as always

5. It is assumed that the percentage of the population desiring to be in a more than two person marriage is limited.  Should the law provide for those individuals who desire to be in a multiple person marriage or not open the door?

6. Could more than two people adopt a child?  When a child is born of a marriage of more than two people, are all the members of the marriage to be given parenthood rights?

Clearly, there are more questions than answers and more roads to travel.  I offer this analysis of issues arising as a result of the presence in the news and in social commentary of multiple individuals in marriage-like relationships, and discussions of actual marriages between multiple parties.  This analysis may spark discussion or go nowhere; who knows what the future holds.

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