NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Many times I have been asked whether New Jersey has a form of legal separation.  The answer?  The closest form of legal separation is what is known by statute as divorce from "bed and board," also known as a "limited divorce."  In simple terms, it means that two spouses have obtained a divorce from a financial standpoint, but they are still actually, legally married.  Assets are distributed, support is determined.  Notably, both parties must agree and request to a divorce in this form pursuant to the divorce from bed and board statute, N.J.S.A. 2A:34-6. 

The statute even says that the grounds upon which the divorce is based are the same available in a standard divorce situation.  As the parties are still legally married, they can then later reconcile, apply for a revocation or suspension of the Judgment of Divorce or, should no reconciliation occur, either may apply to the court for a conversion of the divorce from bed and board to that of a standard divorce "from the bounds of matrimony."  The conversion application must be granted to the requesting party.   A divorce from bed and board allows each party to acquire property free of the rights that the other party would have if there were no divorce in place.  Similarly, such a divorce prevents a spouse from inheriting the other spouse's property at that spouse's death where there existed no Will.

This type of divorce was recently at issue in Pipitone v. Pipitone, an unreported (not precedential) decision from the Appellate Division holding that the bed and board statute does not mandate that an alimony award, entered into years after the bed and board divorce, must be deemed retroactive to the date of the bed and board divorce order.  Simply put, such an award is prospective only.  The Appellate Division reasoned that, in a situation where one spouse attempts to convert a bed and board divorce into an divorce from the bounds of matrimony or "absolute" divorce, there is an opportunity to revisit the support and distribution terms of the prior property settlement agreement.

While the property acquisition freedom associated with a bed and board divorce may be beneficial to some, many people avoid this antiquated concept and prefer to end the bonds of matrimony with an absolute divorce so that the legal attachment to the other that remains with a bed and board divorce no longer exists.

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Since they have been in the news a lot lately, I have bloged a lot recently on celebrity divorces, be it John & Kate, Stephanie Seymour or Jim Nantz.  That is why the article from Billy Witz that recently appeared in the New York Times about the divorce of Frank McCourt and Jamie McCourt, the owners of the Los Angeles Dodgers got my attention.

Both parties claim to own the team - though Frank claims to be the sole owner.  Both worked for the team until recently, when Jamie was fired.  As a sign of the war to come, Jamie's lawyers budgeted her legal fees for this matter to be $2 million.  Per the article, the central issue is as follows:

"The key legal issue is whether the Dodgers are considered the McCourts’ community property. Under California law, a couple’s assets are split 50-50 unless a written agreement states otherwise. Shortly after buying the Dodgers, the McCourts put the team in Frank’s name and all their property in Jamie’s name to protect the homes from potential creditors. One of her lawyers, Michael Kump, said they would challenge the validity of the postnuptial agreement.

If the agreement is not valid, Fisher said, the McCourts would probably be forced to sell, as John Moores did with the San Diego Padres when he divorced."
 

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Alimony terminates at remarriage, doesn't it?  At least that is what we have learned.  In fact, there is even a statute, N.J.S.A. 2A:34-25, that says permanent or limited duration alimony terminates upon death or remarriage of the recipient.  This is not the case for reimbursement or rehabilitative alimony, per the statute, absent an agreement to the contrary or good cause. 

Fast forward to November 17, 2009, the date of the release of the unreported (non-precedential) Appellate Division opinion in the case of Kelly v. Arato.

In this case, the parties were married in 1985 and divorced in 2004.  Their agreement called for $100 per month of alimony and $3100 per month in child support.  The wife remarried 6 months after the divorce and the husband immediately stopped paying alimony.  Four years later, when the husband's attorney wrote to address college for the children, the wife raised the issue of the non-payment of alimony.  After cross motion, the trial judge denied the husband's motion to terminate alimony as well as the wife's motion for payment of alimony arrears.  Both parties appealed.

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I have previously blogged on the standard courts consider when asked whether a custodial parent can relocate outside of New Jersey. 

In our global economy with the economic times being what they are, more and more often I hear people asking if they'll be allowed to move with their children after the divorce.  Recently, the Appellate Court in New Jersey issued an unpublished decision in what appears to have been a hotly contested divorce and relocation trial.  In Hryack v. Hyrack, A-1321-08T4, A-3645-08T2 (two consolidated appeals) decided October 29, 2009, the court gave its thorough analysis of the relocation issue as it pertained to this family.

The first question for a court to answer when faced with an application for relocation outside of New Jersey is whether the physical custodial relationship between the parents is one where one parent is the primary caretaker and the other the secondary caretaker. O'Connor v. O'Connor 349 NJ Super. 381, 385 (App. Div. 2002). If a court does find that the relationship between parties is one where one parent is the primary caretaker and the other the secondary caretaker, the request to relocate must be analyzed further with the standard set forth in the New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001).

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Yesterday, my partner, Apple Sulit-Perelejo wrote about the case of Maria Jose Carrascosa, who  was found guilty of eight counts of interference with custody and one count of contempt of court. Carrascosa had taken her daughter, Victoria, to Spain in 2005 while involved in a custody dispute with her ex-husband. A family court judge in August 2006 then granted sole custody of the girl to Innes and ordered Carrascosa to bring her back to New Jersey within 10 days. She failed to comply though and was arrested in November 2006 for contempt of court. She has remained in jail since then and has since been charged with the more serious, criminal offence of interference of custody. She can receive a sentence of up to ten years.   Yet, as Apple pointed out, the child’s father does not have custody due to a jurisdictional dispute between the United States and Spain, and the child is with neither parent.

This case brings to mind what was truly one of the most upsetting times in my career as a family lawyer.  While I have been involved in several international parental kidnapping cases, approximately ten years ago, I represented a father of a teen age son whose mother absconded with the child to South America, to a country which is not a signatory to the Hague Convention, the international treaty which deals with these types of situations.  The parents had shared parenting time, and during a period during which the mother had the child, they left the country and fled to the jungles of South America. Many, many months later, after Herculean efforts by investigators,  the United States and the consulates of several countries through which the mother had passed, the pair was located and returned to my client. Sadly, while in South America, the child had been mistreated by the mother, sent to the jungles to work and returned with various emotional issues. Fast forward several years later, and luckily, the teenager had completed therapy, was in college and had reunited with his family. His mother was sentenced to a prison term for her actions.

While these types of extreme actions are rare, they are real, and children are injured both emotionally, and in some cases physically.  It is always difficult when faced with a situation in which your client believes that a child may be of risk to be kidnapped by the other parent.  Angry parents often say things in the context of custody dispute in order to disparage the other parent. Yet in some cases, the fear is warranted, and appropriate steps must be taken in order to protect the child in question. The National Center for Missing and Exploited Children (www.missingkids.com), has resources for parents. Additionally, there are steps that parents can takew ith the assistance of their counsel in the context of their divorce or custody proceedings in order to prevent a parental abduction, or at least be prepared in the event it happens.

The biggest concern, of course, is the effect on the children are the victims of these situations. Parental abductions represent parental alienation at its worst, and the victim is always the child.  

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After serving almost three years in jail for failing to comply with a Family Judge’s Court Order, a Bergen County, New Jersey jury found Maria Jose Carrascosa guilty of eight counts of interference with custody and one count of contempt of Court. The guilty verdict could result in another ten years of jail time for Carrascosa.

In early 1999, Carrascosa married Peter Inness in her native country of Spain. Carrascosa had resided and worked in the United States since 1992. Inness was an American citizen. After their marriage, they returned to the United States and resided in North Jersey. On April 17, 2000, the parties’ daughter, Victoria, was born. 

By early 2004, the parties had separated and shortly thereafter, Carrascosa filed for a religious annulment with the Ecclesiastic Tribunal of the Archdiocese of Valencia Spain. 

In October 2004, the parties entered into a written agreement, through counsel, indicating that Inness would have parenting time with Victoria and prohibiting Victoria’s removal from the country. 

In December 2004, Inness filed a divorce complaint in the State of New Jersey seeking among other things, custody of Victoria. The Complaint was served upon Carrascosa in early January 2005 and within seven days of being served, Carrascosa left for Spain with Victoria snowballing into two years of litigation in the New Jersey Family Court, New Jersey Appellate Division, Spain and the Appeals Courts of Spain.

In the New Jersey Family Court proceedings, Carrascosa was ordered on a number of occasions to return Victoria to New Jersey and at no point did she comply. Carrascosa argued that New Jersey did not have jurisdiction to handle the matter and that pursuant to an Order of the Court in Spain, Victoria was prohibited from leaving Spain until her eighteenth birthday. However, the New Jersey Court and the New Jersey Appellate Division rejected Carrascosa’s arguments.  After a trial, the New Jersey Court entered one last Order requiring return of Victoria to New Jersey and granted Inness sole and residential custody of Victoria. Carrascosa appealed the Order but the Appellate Division affirmed the rulings of the Trial Court. The Order further directed that should Carrascosa fail to comply with the Order, she would be incarcerated until such time as compliance was met. Victoria was not returned to New Jersey and Carrascosa was arrested on November 13, 2006 pursuant to the Family Court Order.

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So often we hear about how to prevent identity theft. Do not give out your social security number; do not give out bank account information, etc. But what do you do when you are going through a divorce, and the Court requires you to provide documents that contain your social security number and/or bank account information. The thought of one’s personal income tax returns and bank statements floating around the courthouse for all personnel to see can make anyone feel uncomfortable. 

The Supreme Court of New Jersey recognized this issue and adopted R. 1:38-7. Said Rule requires that any document or pleading submitted to the Court containing confidential personal identifiers must be redacted. A confidential personal identifier is defined as a Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number, or active credit card number. In addition, in the event one of your accounts, i.e. bank account, brokerage house account, etc. is the subject of the litigation, the Court Rules provide that only the last four (4) digits of the account be disclosed if the account cannot otherwise be identified.

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Connecticut seems to be the hotbed of celebrity divorces these days. 

Yesterday's news reported that model Stephanie Seymour will have to make due on $270,000 per month in temporary support while her case is pending.  The news accounts report that her husband nets $1.5 million per month making this appear to be a veritable drop in the bucket.

Today's new reports that sportscaster Jim Nantz has to pay his wife $72,000 per month in permanent alimony plus $1,000 per week in child support.  This is a substantial amount if his income is $3.2 million as noted in one place but not so much if his income is $7 million as reported in other places. 

Aside from a look into the lives of the rich and famous, this shows another thing - that is, divorce can be a very public airing of very private matters.  While perhaps it may be more noteworthy for celebrities, even much of regular people's divorce can become part of the public record.  While it is not possible to completely avoid this, treating each other in a dignified and fair manner and settling issues is a way to help keep things out of the public record. 

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We have blogged in the past about parental alienation and "Parental Alienation Syndrome."  There was an excellent article in US News and World Report on line posted on October 29, 2009.  To read the article, click here.  To view some of our prior posts on this topic, click here and here.

The article discusses a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association.  The new edition is scheduled to be published in 2012. 

While there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness.  On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified.  The people of this view are concerned that making parental alienation a mental illness could be invoked by an abusive parent to gain visitation with a child that has good reason to oppose contact.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.

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