AAML NJ Blog

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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By Jeralyn Lawrence, Esq., Managing Member and Founder of Lawrence Law. 

A client may want a divorce, but may be unsure on what basis a court would grant them a divorce.  In New Jersey, there are several grounds for divorce.  The legal term for grounds for divorce is “cause of action.”  In every divorce, a party has to allege a specific cause of action that warrants a legally sustainable basis for a divorce.

Irreconcilable Differences

The most utilized cause of action is irreconcilable differences. A party may plead that there have been “irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.” Accordingly, a party can simply plead irreconcilable differences, with no other allegation, and meet the legal standard of irreconcilable differences. There is no requirement for a period of separation. There is no need for name calling or disparaging the other party. A simple and innocuous assertion of irreconcilable differences is enough to meet the standard.

Filing under irreconcilable differences allows divorcing parties to proceed in a kinder, gentler fashion. This is extremely important to many couples, particularly those with children. Because divorce pleadings are public record, many clients are uncomfortable having to air the private and personal details of their married life in a divorce pleading.

Extreme Cruelty

Prior to the enactment of irreconcilable differences as a viable cause of action, most couples proceeded on the grounds of extreme cruelty. In this situation, a client has to assert acts of extreme cruelty that occurred during the marriage. I require my clients to provide me with six to eight allegations. Some struggle to have three allegations, while others give me hundreds. The beauty of irreconcilable differences is that a client no longer has to engage in this type of mudslinging. They still can, if they wish, but with irreconcilable differences available as grounds, they have the option not to.

18 Month Separation

In addition to irreconcilable differences and extreme cruelty, parties can file on the grounds of an 18-month separation. This cause of action is not widely utilized because most people cannot afford to live separate and apart for 18 months before filing for divorce. Therefore, these litigants were forced to allege extreme cruelty and come up with allegations against their spouses. Now the farce is over, and clients can simply say they have irreconcilable differences to meet the legal threshold necessary to file a complaint for divorce.

Other Grounds

In addition to irreconcilable differences, extreme cruelty, and 18 months separation, a party can proceed with an adultery cause of action which requires that they plead and eventually prove that their spouse had opportunity and inclination to cheat on them.

Desertion (12 or more consecutive months of no intimacy), imprisonment (18 or more months), deviant sexual conduct, habitual drunkenness, or drug addiction (12 or more months) still remain viable options as grounds for divorce. Filing under these grounds will not provide one with a financial benefit. In these cases, the client is often driven by his or her emotions to plead a cause of action.

It is the client’s personal decision as to which cause of action to assert in their complaint. New Jersey now provides litigants with a variety of grounds to obtain a divorce.

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Please contact me at jlawrence@lawlawfirm.com if you have questions about this post or any other family law matter.

By Amy Sara Cores, Esq. 

On September 12, 2019, the New Jersey Appellate Division released its opinion in Landau v. Landau, ___N.J. Super. ___(App. Div. 2019). Of the many New Jersey opinions decided each year, few are actually chosen for publication as precedential. And Landau is noteworthy for a number of reasons.

First, the amount in controversy was unusual. At stake was the termination (asserted by the ex-husband)  or the continuation (asserted by the ex-wife)  of alimony payments of $40,000 per month or $480,000 per year. These payments had been agreed to as part of their 2014 New Jersey divorce agreement. Three years later, in 2017, alleging that his ex-wife was cohabiting with a man she had been seeing exclusively for over a year and relying on the anti-cohabitation clause in the divorce agreement, the ex-husband moved to terminate alimony.

Second, the opinion reemphasizes the continuing critical importance of Lepis v. Lepis, 83 N.J. 139 (1980), the seminal case that continues to be the bedrock of New Jersey matrimonial jurisprudence.  In fact, it is no overstatement to suggest the Lepis decision, some 40 years later, remains the single most important precedent in New Jersey family law. Why? Because it authorizes (under the doctrine of “changed circumstances”)  the potential for setting aside or modifying post-divorce orders or agreements for (a) alimony or (b) child support (including post-high school educational expenses, such as those for college) and or even (c) non-financial issues such as parenting time and visitation. Thus, Lepis is the conduit through which the Landau parties litigated their various cohabitation issues. It forms the foundation of the court’s analysis which begins and ends with the application of Lepis.

Third, it is clear that cohabitation, as evidenced by Landau, is such a “changed circumstance” and its most recent reported appellate example.  Morevoer, this particular “changed circumstance” was deemed so crucial in New Jersey family law practice that it merited special attention in the major revisions to the New Jersey alimony statute enacted in 2014. Among the various statutory changes and revisions, the New Jersey legislature saw fit to update the definition of “cohabitation” by engrafting it in statutory form. Before then, “cohabitation” was defined and articulated through the well-known process of stare decisis and the peristalsis of the common law. Landau is thus significant because it is one of the first reported decisions expanding upon the legislative intent behind the 2014 statutory amendments.

Fourth, and on a practical level, the Landau opinion provides a road-map for navigating the risks, pitfalls, and costs of cohabitation litigation. In Landau, the ex-husband claimed his ex-wife and her alleged cohabitant traveled together, attended social activities together, posted photos and accounts on social media sites. He further contended that the man engaged in many activities with the Landau children, such as birthday dinners and others. The ex-wife countered that having a boyfriend does not necessarily equate with cohabitation and pointed out the absence of intertwined finances or shared expenses, as well as the absence of other indicia of cohabitation. The trial court ordered limited discovery, prior to a plenary hearing as to whether a prima facie case of cohabitation had been established. The ex-wife appealed these rulings and argued discovery was inappropriate, precisely because the ex-husband failed to meet his burden to establish a prima facie case of cohabitation.  Therefore, the Appellate Division reversed and held that discovery was not warranted, relying on the guiding principles established in Lepis.

In the last analysis, the reversal just ordered by the New Jersey Appellate Division in Landau may result in a negotiated settlement. Or there may be further litigation, possibly by way of further appeal to the New Jersey Supreme Court. Stay tuned.

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Amy Sara Cores, Esq. is the Founder of Cores & Associates, LLC. She can be reached at 732-414-6669.

By Amanda S. Trigg of Cohn Lifland Pearlman Herrmann & Knopf LLP and originally posted in Family Law on Monday, April 29, 2019.

If money was a person, how would you describe your relationship? Is friendly, or marked with tension and anxiety? In family law, we deal with that connection constantly, as we discuss alimony, child support, equitable distribution of assets and debts. Every family has its own method of managing assets, debts, expenses. When spouses divorce, it frequently comes to light that they had dramatically different ideas about money. Money might have caused strife, even if there was plenty to go around. Discussions about dividing assets and debts, and making appropriate arrangements for the support of the whole family, forces husbands and wives, mothers and fathers, to consider how they have acquired, spent and saved their money, and how they think they should be entitled to spend or save it in the future.

Educating each client about economic rights and responsibilities in a family law case takes time and careful attention to personal financial details. When one party owns a business, the details matter a great deal because it is not always simple to determine the value of that business, or the full economic benefit that the family unit obtained from the business income. When family wealth passes between generations, perhaps both spouses do not have the same claims to those funds when dividing marital assets.

Generally, all assets and liabilities acquired during the marriage can be divided as part of the divorce process. Important exceptions include inheritances and gifts received by one party from someone other than the spouse. Businesses owned or operated during the marriage, however, are (at least partially) joint assets regardless of which spouse is actually named as an owner or worked at the business. This frequently baffles the business owner, whether she is a professional, an entrepreneur, a franchise owner or self-employed in any capacity. We often hear an objection that the business does not have value, because "without me" it is "worthless." Business owners often produce an income tax return as proof of his/her income, usually without realizing that in Family Court we look far beyond the first-page declaration of "adjusted gross income" when the taxpayer is self-employed.

Lawyers quickly learn about each client's perspective, and each business owner's relationship with money. We use that starting point to teach the client about how the divorce court views businesses and business income.

Sometimes, the business owner correctly asserts that his/her operation lacks any value independent of personal efforts and the revenue generated by those efforts. More likely, from the perspective of the divorce court, the business operation has a value that someone else might pay to acquire, based upon the market value of that business (e.g. a franchise), the value of the future income stream (e.g. a professional services company like a law firm or medical practice) or the value of the assets held by the business (e.g. a real estate holding company). A profitable or asset-rich business probably has a value that can be calculated by a valuation expert and that value becomes another asset on the marital balance sheet. How to divide that value, or compensate the non-titled / non-owner spouse for his/her share of the value, is a topic for a future blog.

For anyone who requests, or who might have to pay, alimony or child support, we total income "from all sources". There can be a drastic but legitimate difference between the amount of a business owner's income that is taxable and the amount of total income that the court will consider for purposes of alimony and child support. For example, business owners frequently and reasonably deduct automobile, cell phone, some meals / entertainment paid through the business. To the extent that these payments defray personal costs, the value of the benefit to the business owner can be added into taxable income when calculating support payments. More technically, some perfectly acceptable tax deductions, like depreciation on assets, do not actually reduce a business owner's cash flow, and might also be added into taxable income. The complexity increases if there are questions of whether all receipts were actually reported to the taxation authorities.

Earning, spending and sharing money can be complicated. If you own your own business, and have questions about how it will be discussed in your divorce, alimony or child support case, the expert lawyers in the New Jersey Chapter of the AAML are available to talk if you are not sure about your own agreement or your own options.  Find one of us near you by using the search function on this website.  

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