AAML NJ Blog

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.

*****

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.

*****

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.

***** 

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.  

*****

By: John P. Paone, Jr., Esq. and John P. Paone, III, Esq.

On January 1, 2019, new federal tax laws were ushered in, as part of the Tax Cuts & Jobs Act of 2017, which have revolutionized the financial landscape for divorcing parties.  The most dramatic change is the elimination of the federal income tax deduction for individuals who pay alimony.  This also means that persons receiving alimony will no longer have to declare these payments as income – thereby making the receipt of alimony tax free.  It is important to note that this new change in tax law only affects alimony awards entered after December 31, 2018.

The result of alimony now being non-tax deductible is that ultimately more tax dollars are being clawed back by the federal government. This is because the spouse who pays alimony will not be able to claim alimony as a tax deduction and will likely pay taxes in a higher income tax bracket compared to the spouse who receives alimony.  The net result of this is that there will be less available after tax dollars between the households in order to meet financial obligations such as alimony, child support, and college. 

So what does the elimination of the alimony tax deduction mean for divorced parties in actual dollars?  The following example will demonstrate the impact of the change in the tax law:  Under the old tax laws, a spouse who was required to pay alimony in the amount of $1,000.00 per month and was in the 35% tax bracket in effect only paid $650.00 per month after taxes ($1,000.00 - $350.00 tax deduction = $650.00 net payment).  The spouse who was the recipient of the alimony and was in a 20% tax bracket would only owe $200.00 per month in taxes leaving the recipient of alimony with $800.00 in net dollars ($1,000.00 alimony - $200.00 tax = $800.00 net payment).  Therefore, through the benefit of an alimony tax deduction, the payor paid $650.00 in net tax dollars while the recipient received $800.00 in net tax dollars.  The difference of $150.00 was effectively subsidized by the federal government.  The loss of this “divorce subsidy” will inescapably mean that alimony payors will pay more and alimony recipients will receive less in future alimony awards.    

Although alimony payors will no longer be able to deduct their payment of alimony on their federal income tax returns, they will still be able to claim alimony as a deduction for state income tax purposes in New Jersey. Similarly, spouses who receive alimony will still be required to report alimony as income on their New Jersey State Gross Income Tax Returns. This is because New Jersey law continues to provide for the deductibility (and therefore taxability) of alimony payments.  It remains to be seen, however, whether over time New Jersey will adopt the provisions regarding alimony that have been enacted under the Tax Cuts & Jobs Act of 2017, to make the tax treatment of alimony in New Jersey consistent with federal law.    

Divorcing spouses should also understand that while there may be less money for support between the households, there remains no exact formula or percentage for how an alimony obligation is calculated.  Family courts are required to review the statutory criteria which references 14 factors that must be considered in rendering an alimony award.  Among these factors (such as actual need and the ability of the parties to pay) includes “the tax treatment and consequences to both parties of any alimony award.”  Therefore, even in the new world of non-tax-deductible alimony, the court must continue to examine what each party will be left with in after-tax dollars in order to calculate a proper award of alimony.

It is imperative that spouses going through a divorce who will either be paying or receiving alimony be aware of the new federal tax law and inevitably, the impact it will have on their case.  If you are going through a divorce, you should confer with an experienced family law practitioner regarding the new tax change.

 *****

John P. Paone, Jr., Esq. and John P. Paone, III,  Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge. 

By John P. Paone, Jr., Esq. and Victoria E. Paone, Esq. 

Americans have a love affair with pets. According to a recent survey, “three-fourths of Americans in their 30s have dogs, while 51 percent have cats.” It is not uncommon for people to spend thousands of dollars per year on pet clothing/accessories, food, photographs, medicine and the like.  But what happens to “Fluffy” when parties go through a divorce?

Under the common law, pets were treated as chattel-put another way-just a typical piece of property to be distributed like an automobile or a piano. In today’s world, however, there is a growing consensus that pets are more like family members and less like property.  New Jersey courts have mirrored this sentiment and the leading case on this issue demonstrates that disputes over animals during divorce litigation can no longer be resolved by using basic property principles. In a case decided by the New Jersey Appellate Division, the court held that reimbursing a party for a dog's monetary value (i.e. what you paid for the animal) is not an adequate remedy for purposes of compensating a party for the loss of the “special value” that some pets hold to their owners. That’s right, the court decided that money cannot resolve all problems even in the context of divorce litigation!  

This case further stands for the proposition that courts can and should determine which party has a “sincere” interest in possession of the pet and which party is merely asserting an interest in the pet “out of greed, ill-will or other sentiment or motive similarly unworthy of protection in a court of equity.” In determining whether a party or whether both parties have a true and equal interest in their pets, the court directs that focus should be placed on establishing “the facts and circumstances which endow the chattel with special…value.”

 Most commonly, the court will consider testimony and other proofs from parties demonstrating which party acts as the primary caretaker of the pet. Meaning, the court can contemplate who “potty trained” the animal, takes the animal to medical and grooming appointments, feeds and bathes the animal, etc.  In addition, the court can consider whether a party had possession of the animal prior to the marriage.  Furthermore, the court can examine where the children of the marriage primarily reside and deem whether it is in their “best interest” to enjoy the animal’s companionship at their primary place of residence.

Less compelling factors that a court might also consider when determining possession of a pet is the party who is the title owner of the animal and if a certain party made the preliminary investigations or took the initial steps to acquire the pet. At this time in New Jersey, the test is not what is in the “best interest” of the pet.  However, that may soon change based upon experiences in other jurisdictions.

On September 27, 2018, the Governor of California, Jerry Brown, signed into law Assembly Bill 2274 which provides for the courts to “assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal” in the context of a divorce case.  Considering the “care” of a pet is akin to considering the “best interest” of a child when determining custody.  Assemblyman Bill Quirk, who introduced the law, said “it’s time family pets received the status they deserve — family members.” This law takes effect January 1, 2019. 

It remains to be seen how New Jersey law will develop over the next few years regarding this very important issue of pet custody in divorce cases. Although the interpretation of pets as more than basic “chattel” is a fairly recent development in the law, it would not be surprising should New Jersey go the way of California and adopt a standard akin to that used for deciding child custody.   In the interim, pet owners who are about to go through a divorce should consult with an attorney about how to pursue legal rights and remedies regarding custody and possession of Fluffy in a matrimonial action.   

*****

John P. Paone, Jr., Esq. and Victoria E. Paone, Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski & Murray, with offices in Red Bank and Woodbridge.