AAML NJ Blog

By Jeralyn Lawrence | Law Law Firm, AAML NJ Immediate Past President

New Jersey courts previously analyzed divorce custody relocation cases differently, based on whether they were intrastate or interstate. Intrastate relocations of the parent with primary physical custody did not require that parent to file a motion with the court for permission to move the child. Instead, the other parent had the burden of proof and was required to file a motion objecting to the primary parent's move. By contrast, a primary parent who wished to move out of state had the burden of filing a motion with the court if there was a disagreement. While this difference between who has the burden in interstate and intrastate relocations has not changed, divorce lawyers should consider factors courts consider when analyzing divorce custody relocation cases have. In both types of relocations, courts now analyze them under the best interests of the child standard following the New Jersey Appellate Division's decision in A.J. v. R.J., 219 A.3d 579 (App. Div. 2019).

Historical Treatment of Relocation Cases

The New Jersey court had previously treated interstate and intrastate relocation cases differently. Relying on social science research, the New Jersey Supreme Court established 12 factors to consider when determining whether to allow an out-of-state relocation in Baures v. Lewis, 167 N.J. 91 (2001). Following that decision, the court gave more weight to the primary parent and would generally allow them to move out of state if good cause for the move was demonstrated. 

In Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), the Appellate Division distinguished between interstate relocations like in Baures and intrastate relocations in which a primary parent relocated to a new city or county within New Jersey. Under the Schulze decision, the court did not consider intrastate relocations to be true relocations. The primary parent who wanted to move was thus not required to file a motion to relocate with the court. Instead, the alternate parent had to file a motion to oppose the primary parent's intrastate relocation with the court and present evidence that the relocation amounted to a substantial change in circumstance that was contrary to the best interests of the child because of the change in the alternate parent's parenting time with the child. If the parent could show that, the court would then consider the Baures factors.

The New Jersey Supreme Court overturned its decision in Baures for interstate moves in Bisbing v. Bisbing, 230 N.J. 309 (2017), holding that courts must apply the best interests of the child factors found in N.J.S.A. 9:2-4(c) to interstate moves instead of presuming that such a move was better for the child. However, while this decision made it clear that the best interests of the child standard was to apply to interstate relocations, the Supreme Court did not address intrastate relocations. This question remained until the New Jersey Appellate Division's decision in A.J. v. R.J(commentary) in 2019. 

Standard for Intrastate Relocations Under A.J. v. R.J.

In A.J. v. R.J., the mother, who had primary residential custody, moved her child more than 60 miles away from the father's residence but remained in New Jersey. She did not ask for permission from the court or the father. The father filed a motion opposing the relocation, and the trial court issued an order to the mother to move back and live within 15 miles of the father's home so that the father's parenting time with his child would not be disrupted. However, the mother refused. The father filed a motion with the court to transfer custody of the child to him because of the mother's contempt of the court's order. 

The Appellate Division reversed the lower court's transfer of custody, holding that the trial court relied on Schulze when making its decision. The Appellate Division pointed out that Schulze, which dealt with intrastate relocations, had relied on the Baures factors. Since the Baures case was overturned by the New Jersey Supreme Court, the Appellate Division found that the factors no longer applied. Instead, the Appellate Division held that the best interests of the child factors in N.J.S.A. 9:2-4(c) must be considered to determine whether an intrastate relocation is in the child's best interests.

While this decision means that both interstate and intrastate relocations now must be analyzed according to what is in the child's best interests instead of giving a presumption that the primary residential custodian's choice to move will likely increase the child's happiness, there is still a difference in which parent has the initial burden. 

In interstate relocation cases in which a primary parent wishes to move with a child out of state, the parent wishing to move must seek permission from the court by filing a motion to relocate. He or she will then have the burden of proving that the proposed relocation is in the best interests of the child before the court will permit the move. 

By contrast, in intrastate relocation cases, the primary parent does not have to ask the court's permission before moving with the child within New Jersey. Instead, it remains the other parent's burden to file a motion in opposition to the relocation, and he or she must also present evidence showing that the intended move is inimical to the best interests of the child in order to prevail.

Conclusion

While it is good that both interstate and intrastate relocation cases are now analyzed under the best interests of the child factors, the difference in who has the burden of proof in interstate vs. intrastate relocation cases seems somewhat arbitrary. For example, if a primary parent decided to move to New York City from Bergen County, New Jersey, the moving parent would have the burden of proof even though the relocation would be relatively close to the alternate parent's residence. 

If the same parent decided to relocate across the state of New Jersey from Bergen County to Cape May, but remained within the state, the other parent would have the burden of proof regarding that move. Regardless of which parent has the burden of proof, the parent must present evidence about what is in the child's best interests whether the proposed relocation is interstate or intrastate.

By Carolyn Daly | Daly & Associates, AAML NJ President

As I am sworn in as the President of the New Jersey Chapter of the American Academy of Matrimonial Lawyers, it occurs to me that many people may not be aware of the American Academy of Matrimonial Lawyers (AAML) and who we are. The AAML is a national organization with chapters in most states. There are approximately 1,650 Fellows in the United States and 52 Fellows in New Jersey. The AAML is dedicated to providing and promoting the highest degree of professionalism and excellence in the practice of family law. To be represented by a Fellow of the American Academy of Matrimonial Lawyers is to be represented by a leading practitioner in the field of family law. 

To achieve this goal, admissions standards require that an attorney wishing to become a Fellow must have been practicing for at least ten years and at least 75% of the applicant’s practice must be devoted to family law. The attorney must also be a member in good standing of the state bar. Applicants must demonstrate substantial involvement in the area of matrimonial and family law, beyond just their firm. They do this by teaching, lecturing, serving as court appointed guardians ad litem, serving as mediators and authoring articles on family law. 

All Fellows must be able to competently handle complex family law cases and have substantial trial experience. However, AAML fellows must also be able to settle cases when appropriate. 

Importantly, Fellows in New Jersey must also be certified by the New Jersey Supreme Court as a Matrimonial Law Attorney (a designation that only approximately 2.5% of New Jersey attorneys possess). Finally, Fellows must take and pass a National Exam given by the National Academy. 

Why is any of this important for you and your family law case? Simply put, those who successfully obtain membership in the AAML have devoted themselves to the practice of matrimonial and family law. Many of the Fellows are involved in making or changing laws involving divorce and families in New Jersey. Others are mediators and certified arbitrators who assist families in resolving disputes outside of court. Family law is a complex and high-stakes area of law that often becomes emotionally charged. Contested family law cases often involve the care and custody of children, alimony, child support, life and health insurance, financial protection, and the division of assets such as a business, the family home(s), stock options, restricted stock units, retirement accounts, Bitcoin, NFTs and other assets. To make decisions on these issues you need sound advice from someone who is specialized in the practice of family law. You wouldn’t have just any mechanic service your 1967 Austin Healey.  Having a Fellow as your attorney, you know you have a lawyer who has specialized in divorce and family law who can handle any range of complex issues and who will help you to arrive at a fair and equitable solution so that you can move on with your life.

Carolyn N. Daly is a Fellow and current President of the New Jersey Chapter of the American Academy of Matrimonial Lawyers. She is the Founder and Managing Partner at Daly & Associates in Morristown, NJ and has been practicing family law for more than 25 years. Carolyn’s practice includes complex matrimonial cases, mediation, arbitration, and much more.Visit www.dalyfamilylaw.net for more information on her practice and the AAML. 

No aspect of this advertisement has been approved by the Supreme Court of the State of New Jersey. 

By Sharon L. Klein, Senior Vice President and Head of National Divorce Advisory Practice | Wilmington Trust, AAML NJ Bronze Sponsor

Pet custody issues are real! As part of her monthly tip series for Family Lawyer Magazine, Sharon L. Klein leveraged May’s National Pet Month theme to share how proactive planning can help prevent heartache by ensuring that pets are properly cared for, whether a couple stays together or not.

Link to the article here.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

It’s finally spring: tulips are blooming, baseball is back, and spring break is now in the rearview mirror.

Which makes it the perfect time to talk summer ’22.

Long, lazy days of sunlight and surf, ice cream and watermelon—everyone loves summer! Memorial Day weekend is on the horizon (seriously, we’re less than two months away…), and then June, with the end end of the school year. Before you know it’ll be July 4th weekend, and we’ll be deep in the heart of suntan lotion, rose, and let’s-just-throw-something-on-the-grill and stay outside. In other words, our favorite season.

If you’re separated or divorced, what do you need to do now—while we’re still in spring, while there’s still time to do it—to get ready for summer 2022? Here are four steps to take:

• Talk to your co-parent about what the children’s summer will look like—now is the time. While it’s undoubtedly most children’s favorite season, it’s often parents’ least favorite season, because with summer comes many, many questions: are the children going to camp? (And if so, is it sleepaway or day? And for how long?) If the children are not going to camp, or they attending recreational sport or day-camp put on by the town or a local youth group? Who is the primary caregiver for the children day-to-day, when they don’t have to be at school for the morning bell? Are you (and, potentially, your current significant other) taking the children on a summer vacation somewhere? Who has custody of the children for which summer holidays? Put simply: what are we going to do all day?!

All these questions are best addressed now. Schedule a time, whether over the phone or over a cup of coffee, to sit and civilly address all these questions with your co-parent. Bring your calendar, your daybook— whatever you use to schedule your busy life. By creating space now to do it, you’ll be able to handle emergencies down the road. For instance, if a plan falls through because of work or a family emergency, you can consult your calendar and adjust, knowing you put in the time prior to be able to do so.

• Be honest with yourself and your co-parent about what you can afford. Summer fun, while awesome, adds up quickly! Vacations, souvenirs, surf lessons; trips to the beach or the boardwalk— this all costs money, to say nothing of camp costs these days. Talk with your co-parent: is there a way to make one week special? One day special? (A great summer memory could hang on that one mid-week trip to Six Flags Great Adventure. Not in the budget this year? The zoo, an ice cream parlor: anyplace you don’t normally go can go a long way in creating a great summer memory.) If you can, keep a couple bucks on you at all times— you never know when the sound of the ice cream truck may be heard in your neighborhood.

No matter the budget, look at local library programs, town events (a lot of towns have free outdoor concerts and/or movie screenings this time of year) and other free or free-ish activities to fill those long summer days.

• Get in touch with your inner child this summer. Separation or divorce takes a toll. Whether it’s running through the backyard with a water gun or making sure you get an ice cream cone as well, be sure to treat yourself with kindness this summer. Be goofy, be silly, be kid-like… it’ll connect you more with your child, and with summer.
• Get creative about creating summer memories. We talked above about spending some money to create a great summer memory. However, as most parents know, it’s not really about the money, it’s about something more precious: the time. Putting in the time to be with your child—whether by creating a summer scavenger hunt, a DIY picnic or simply setting up the sprinkler in the lawn and taking that box of ice-pops out of the freezer—is what summer is all about. And looking back on it what your child will remember is you taking the time to create a summer memory with them.

Everyone at our firm hopes you and your family have a safe and amazing summer, creating summer 2022 memories that last a lifetime!

No matter the season, divorce is hard (and, with all the extra family time, summer may be one of the hardest times). If you need help, reach out to Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC: (201) 488-1161.

Originally published on April 22, 2022. Link to the original article here. 

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

Divorce is expensive. While there is, of course, an emotional toll, there is also a heavy financial toll for which many clients are not prepared. This is a problem not only for clients but also for the divorce lawyers and experts representing them. Even under the best circumstance, divorce is difficult and costly.

Options when you can’t afford a divorce

In a perfect world, both spouses have money set aside, though, in reality, people save for weddings, not divorces. While it would be wonderful if both spouses got along and could agree on how assets should be divided, unfortunately, this is not always the case. It is important for clients to know about options they have to fund their divorce.

Application To The Court

As an alternative to saving, the moneyed spouse could be ordered by the court to pay both sides’ legal fees and expert costs, but even getting to motion practice can be expensive and time-consuming. Not to mention, there are no guarantees the client will be awarded fees. Further, many judges defer a decision on fees to the end of the case.

Credit Cards

Putting the cost of a divorce on a credit card is another option, but for many, the credit card limit would not meet the cost of the legal fees. Additionally, interim payments have to be made which may not be possible for some clients (and please know that low credit scores may prevent a spouse from being eligible for a credit card after the divorce).

Home Mortgage

Clients sometimes look to a bank to refinance the marital home to help pay for their divorce. Litigants may pull equity from a house in order to pay for interim support and legal fees until a divorce is final. Home equity loans can take many months to be approved, and the loss of a home can threaten custody battles. On the other hand, lenders may not approve clients during a divorce, causing a variety of roadblocks to a divorce. Sometimes couples going through a divorce don’t know where to turn.

Divorce Funding

For many couples, one spouse has easier access to their combined wealth. Oftentimes the monied spouse will cut off access to funds by the non-moneyed spouse entirely, a court will freeze assets, or assets are not liquid. Divorce funding provides a cash advance of the client’s potential settlement for legal fees, expert costs, and living expenses. It “levels the playing field,” enabling litigants to afford their attorney and expert fees, while maintaining their standard of living. Repayments are not made until a settlement is reached and cases can be funded in as little as two weeks. Divorce funding provides access to this essential capital.

Clients may not have the liquidity to engage in divorce proceedings and simultaneously afford living expenses, such as mortgage payments, school tuition and other personal costs during the proceedings. These expenses are sometimes used as leverage by the moneyed spouse, forcing clients to agree to an inequitable settlement. With the liquidity of divorce funding, no one is forced into a settlement less than they deserve.

Nicole Noonan, Esq., CEO of New Chapter Capital Inc., specializes in divorce funding. She formerly served as President of Novitas US. She is a nationally recognized divorce expert and pioneer of divorce funding.  Crowned the “Fairy Godmother of Divorce” by the New York Post. Formerly President of National Divorce Capital, prior to which she was Director at BBL Churchill.

Originally published on March 25, 2020. Click here for the original article. 

By Marc Demetriou, SVP of Mortgage Lending/Branch Manager | AAML NJ Gold Sponsor

As a member of the AAML, you know firsthand that your divorce clients face many new challenges as they rebuild their lives. We’re here to help. At Guaranteed Rate, we understand that purchasing a new home could be an overwhelming task. Our 67-page FREE guide has everything your clients need to know about purchasing a home. Written specifically to help first-time homebuyers, this instructional ebook will take your clients through the home purchasing process, step-by-step. Our Ultimate Guide to Buying Your First Home is an essential reference source for any homebuying questions that might crop up along the way and can save your clients time and money on their journey to homeownership. Download this guide today.

Click Here. It's Free.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

Divorce is a difficult process which can be emotionally draining and exhausting for all parties involved. While the divorce process may feel like it consumes your life from the very beginning, there are practical ways that can assist you to work with your attorney to streamline the process as much as possible and make the process feel less overwhelming. In order to ensure that you can resolve your matter as expeditiously as possible follow these seven tips on how to effectively work with your attorney during your divorce.

#1: Read and reread correspondence from your attorney: When you see an email from your attorney that appears lengthy, it can be intimidating and daunting, but sometimes lengthy correspondence from your attorney contains vital information and legal advice that it is important to your case. Even if you discuss the same information with your attorney over the phone, it is in your best interest to actually read all correspondence from your attorney as well. It is often difficult for litigants to retain all of the information about the law that they are given, which is why if legal advice is written, it is easier for litigants to reread the correspondence at a time that they are able to understand and emotionally process the information.

#2: Provide your schedule: Although the divorce process can feel like an all-consuming venture, attorneys understand that you have your own life and responsibilities. We acknowledge that you may have children to care for or an occupation that takes a majority of your time. We also acknowledge that you have holidays, vacation time, and travel plans. It is best to let your attorney know about your schedule, your feelings and your time-table. If you have a huge project at work, upcoming travel plans, business trip for work, your children’s spring break, or really anything that means you cannot concentrate on your divorce, try to make sure your attorney knows that. Sometimes litigants have other ongoing problems in their lives and simply cannot emotionally handle what is occurring in their divorce. If you advise your attorney you will not be available – physically or mentally -for a certain time, your attorney will be respectful. However, if you do not let them know, then they may continue to ask you questions regarding your position, how you want to proceed or follow up on documents they have been seeking. To make sure you and your attorney are on the same page, just make sure your attorney knows when you will not be available.

#3 Be Responsive: During your divorce, if you and your attorney are working to expeditiously resolve your manner, and it is not one of the times you are unavailable discussed above, then try to be as responsive as possible when your attorney or their firm contacts you. In being responsive, it is less about an immediate response and more about providing a complete answer. Often immediate responses do not directly answer the attorney’s question and means the attorney will need to ask more questions to obtain the necessary information. Answering your attorney as completely as possible means that your attorney will not have to continually re-ask and follow up on the same question. This will make the communication between you and your attorney more efficient, which also means less costly.

#4 Be Transparent: While you should be answering your attorney’s questions as completely as possible, you should also make sure you are providing them with all of the pertinent information – the good, the bad and the ugly. Your attorney can only properly advise you of how you should proceed if the attorney knows ALL the facts – even if you believe some information is unfavorable or embarrassing. In order to properly protect you and your interest, the attorney needs to know the potential issues that could arise. Attorneys know how to represent you even if you have had some unflattering past transgressions. Therefore, it is best to be candid and straightforward with your attorney. Your attorney will not think any less of you, but if something you hide from your attorney becomes an issue later, it could cause a strain on your attorney-client relationship.

#5 Keep Your Attorney Informed: During the divorce process, and often during post-judgment litigation (i.e. you are already divorced), there are usually ongoing problems festering between the parties. The problems can sometimes be resolved through a quick letter or a quick conversation between attorneys, but if there is an ongoing problem that needs Court intervention, then it is better if your attorney is already aware of the ongoing issues. If Court intervention is necessary and your attorney is already aware of the issues, then you and your attorney will not need to spend extra time and energy playing “catch-up” on the events that occurred over the past few weeks, months or even years.

#6 Keeping Logs: Regardless of the issues in your case, it is always a good idea to keep a log of what is occurring between you and your spouse or former spouse. While it is suggested to keep your attorney informed of what is going on (see #5), it is easier for you than your attorney to keep a log of events and to compile documentation, such as text messages or emails, that demonstrate what transpired and is outlined in your log. It is your daily life. No one can monitor it as well as you can – especially as the events are occurring. A log of events is often seen in cases where there are parenting time issues such as missed parenting time, interference with parenting time, late pick-ups or drop-offs, missed extracurricular activities, etc. If you keep a log of these events, that log can be used to demonstrate the problems that keep occurring and how often the problems occur. These logs are often utilized as critical exhibits in motions. For financial issues, if there are arguments or conflicts with payment of regular expenses, it is good to keep track of when those incidents occur. (i.e. On March 10th he removed money from the savings account without notifying me. On April 8th she refused to allow me to use our joint account to pay the mortgage.) As previously stated, you should be keeping your attorney aware of these problems as they are occurring to strategize on the best way to handle the issues, but if you have a log of events that log can be helpful to your attorney who is advocating on your behalf.

#7: Listening/Reading Legal Advice: In conjunction with Tip #1 above regarding reading and rereading correspondence that you receive from your attorney, it is important to acknowledge and understand that the advice your attorney provides to you is just that: advice. Your attorney works for you and is there to provide you with insight into the law and how your case could be resolved. The best way for you and your attorney to make strategic decisions about your case is for you to understand their explanations about the current law. When an attorney tells you what the law is and how it could affect your case, try to understand that the attorney did not make the law and may not even agree with how the law is applied. When explaining the law, the attorney is not making personal judgments about you, your marriage or your children, but advising you of your options under the current law. Accept that your attorney is looking out for your best interest and sometimes that means providing you with information that you may not want to hear. Just remember the attorney is there to guide you through this process and to be your advocate.

If you are looking for a matrimonial attorney to advise you on how to proceed with your divorce or post-judgment issues, contact us today to set up a consultation.

Originally published on October 22, 2020. 

By Michelle Barr | Our Family Wizard, AAML NJ Silver Sponsor

Protecting your children through a divorce may look a bit different for every family, but at its heart, it means that both parents are always looking out for their child's emotional and mental health. Children deserve the chance to just be kids without being worried about getting caught in the middle of their parents' conflict. OurFamilyWizard provides families with a lasting solution that can improve parent communication once and for all. Curtail trips back to court to resolve disputes and protect the best interests of children with tools that help parents reach peaceful agreements on their own. Below please find tips and insights on ways clients can improve communication and work as a team to protect their children during a divorce or separation.

Read the full article here.

By Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain

As a full-blown crazy cat parent, it’s hard for me to believe that New Jersey courts consider our beloved pets (“fur babies,” if you will) as “chattel” or property.  Although New Jersey courts recognize that pets have a special subjective value, they are not bound to address custodial arrangements as they are in cases involving human children. However, New Jersey courts will honor an agreement between two parties with regards to actual ownership of or time-sharing with a formerly shared pet.

In Houseman v. Dare, the trial court initially found that pets are personal property that lack the unique value essential to an award of specific performance (in this case, actual ownership as opposed to the distribution of the property’s monetary value). Therefore, the trial court denied Plaintiff’s request to enforce an oral agreement between her and her former fiancé, Defendant, in which Plaintiff claimed Defendant had agreed to give her possession of the dog upon their separation.  Instead, the trial court awarded Plaintiff a total of $1,500 for the purchase price of the dog, but denied her request for specific performance of the oral agreement.  

In its review, the Appellate Division remanded the case back to the trial court. The Appellate Division rejected the trial court’s initial ruling that the parties’ oral agreement may not be specifically enforced by the court. In fact, the Appellate Division went to great lengths to liken pets to heirlooms, family treasures, or works of art – all tangible property that induce a strong sentimental attachment from their owners. The Appellate Division noted that money damages cannot compensate the injured party for the special subjective benefits derived from those possessions. Therefore, the request for specific performance as to ownership of a pet is appropriate and can certainly be addressed by the Family Part. The Appellate Division remanded the case back to the trial court and ordered that the trial court to conduct further proceedings on the existence of an oral agreement about ownership and possession of the dog and the propriety of specific performance as a remedy in the matter. After the case was remanded back to the trial court, the trial court reversed their initial decision and ordered that the parties alternate time with the dog every five (5) weeks. However, since custodial arrangements are still reserved solely for human children, the trial court could not award custody and, instead, awarded “alternating possession.”

Because custody is not awarded when it comes to our beloved pets, the courts are not bound by the custody statutes and case law as with human children. New Jersey courts have not caught up to courts in other states such as Alaska wherein pet custodial arrangements are now being treated more like those of human children including joint decision making, shared visitation time, and the consideration of the pet’s best interest. Therefore, the “best interests” of your pet are not part of the court’s analysis – the court will only consider the special subjective value held by the human parties.  So, how do you protect your rights to share your fur baby in the event of a separation or divorce?

Our number one tip is to formulate a written agreement with your partner.  This will ensure that your wishes are enforced by a New Jersey court.  Following the court’s holding in Houseman v. Dare, New Jersey courts will honor an agreement between two parties with regards to what happens with their pets upon separation.  However, absent an agreement, the courts will treat your beloved pet as though he or she were akin to a family heirloom – that means there is a possibility of shared possession, but same is not required.

If you and your partner adopted or purchased your pet prior to marriage, and you both decide you want to enter into a prenuptial agreement before marriage, including your pet in your prenuptial agreement is certainly a good idea.  In the event you did not execute a written agreement prior to entering into your marriage, you can certainly address who retains your pet in settlement discussions.

Originally published on January 19, 2021. Link here.

By Sharon L. Klein, Senior Vice President and Head of National Divorce Advisory Practice | Wilmington Trust, AAML NJ Silver Sponsor

Tax season is intimidating enough for clients without the added burden of navigating it through divorce. In this month’s Family Lawyer Magazine monthly tip, Sharon Klein shares what those maneuvering through divorce need to know before they file.

Link here to monthly tip.

For more information, reach out to Sharon L. Klein, Head of Wilmington Trust’s National Divorce Advisory Practice at 212-415-0531 or sklein@wilmingtontrust.com.