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Pertinent Information As It Relates To New Jersey Family Laws

If You Agree that Alimony Terminates on Cohabitation, It Really Terminates on Cohabitation, Even If the Cohabitation Ends

Posted in Alimony, Modification, Practice Issues

The impact of cohabitation on alimony is often one of the most difficult clauses to negotiate in a marital settlement agreement.  The payor always wants the agreement to read that alimony shall terminate upon cohabitation, while the recipient, if they are allowed to agree to anything, might agree to allow the payor to seek to modify alimony “in accordance with the law”.  Generally, “the law” would be an economic benefits test – i.e. is the alimony recipient receiving an economic benefit by virtue of the cohabitation and/or is she providing one to her cohabitant.

That said, at least since 1999, when the Konzelman case came was decided by the Supreme Court, that agreements to terminate alimony based upon cohabitation are enforceable if cohabitation is proven and the “the cohabitation provision of the marital settlement agreement [sic] was voluntary, knowing and consensual.”

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But what happens in a case with a clear cohabitation clause requiring termination, where the cohabitation ends, perhaps because of the litigation, or simply because the relationship ran its course?  Should the alimony recipient be entitled to start receiving alimony again?  Today, the Supreme Court answered that question in the negative in the case of Quinn v. Quinn.  Put another way, the law is now clear that if you have a termination clause and you cohabit, alimony is over, even if the cohabitation ends.

In Quinn, the parties divorced in 2006 after a 23 year marriage.  Per their Property Settlement Agreement (PSA), the wife was to receive permanent alimony of approximately $68,000 per year plus Cost of Living Increases.  The PSA stated that “alimony shall terminate upon the Wife’s death, the Husband’s death, the Wife’s remarriage, or the Wife’s cohabitation, per case or statutory law, whichever event shall first occur.”  The wife started cohabiting in January 2008.  The cohabitation included all of the usual indicia of cohabitation – including the fact that the cohabitant maintained his own home – apparently for appearances only.  PRACTICE NOTE:   Finally a case that seemingly looks past the fiction of a separate residence that the cohabitant has access to but really doesn’t live at.

About a month after the motion to terminate alimony was filed, the cohabitation allegedly ended.  Though cohabitation was found to occur, the trial court’s decision deviated from the PSA.  Specifically,

Having determined that Cathleen and Warholak had cohabited, the trial court invoked its equitable powers and suspended alimony for the period of cohabitation — from January 2008 until April 2010 — but declined to terminate alimony permanently. The trial court based its decision on the great difference in incomes between Cathleen and David, concluding that Cathleen was “entirely dependent on her alimony for her support.”

 

However, because the court found her not credible in her testimony, that she had litigated in bad faith, and that she had falsely denied cohabitation, the payor was awarded $145,536.74 in legal fees.  Both parties appealed but the Appellate Division affirmed.  Both parties sought Certification from the Supreme Court but only the payer’s Petition was granted on the issue of “whether the trial court properly invoked its equitable power to modify the clear and unequivocal terms of a PSA entered knowingly and voluntarily by both parties.”

The Supreme Court reversed deciding:

In sum, we reiterate today that an agreement to terminate alimony upon cohabitation entered by fully informed parties, represented by independent counsel, and without any evidence of overreaching, fraud, or coercion is enforceable. It is irrelevant that the cohabitation ceased during trial when that relationship had existed for a considerable period of time. Under those circumstances, when a judge finds that the spouse receiving alimony has cohabited, the obligor spouse is entitled to full enforcement of the parties’ agreement. When a court alters an agreement in the absence of a compelling reason, the court eviscerates the certitude the parties thought they had secured, and in the long run undermines this Court’s preference for settlement of all, including marital, disputes. Here, there were no compelling reasons to depart from the clear, unambiguous, and mutually understood terms of the PSA. We therefore reverse the judgment of the Appellate Division.

In noting that Courts have greater discretion in interpreting marital agreements, the Supreme Court reiterated that, “An agreement that resolves a matrimonial dispute is no less a contract than an agreement to resolve a business dispute.”  Of course, the court failed to correlate this statement with the famous quote from the landmark Lepis case that “contract principles has no place in the law of domestic relations” but I digress.

The Supreme Court was clear to point out that this case was decided based upon the law in effect at the time of the Agreement, not the 2014 amendments to the alimony statute.  It bears repeating that under the new statute, alimony may be suspended or terminated if there is cohabitation.

In equating this to remarriage, the Supreme Court noted:

Furthermore, Cathleen continued to cohabit with Warholak after David filed the motion to terminate alimony and still cohabited with him when the trial commenced. This record presents a situation no different from a remarriage that terminates by death or divorce. In light of the parties’ agreement that alimony would terminate upon cohabitation, the circumstances here do not call for a different result.

The Supreme Court rejected the notion that this type of provision allows a payor to control the alimony recipient, holding:

Finally, we reject the suggestion that enforcement of this cohabitation agreement permits a former spouse to control the post-marital conduct of the other spouse. Such a contention misconstrues the purpose of identifying cohabitation as an alimony-termination event and also misconstrues this record. When parties to a matrimonial settlement agreement have agreed to permit termination of alimony on remarriage or cohabitation, they have recognized that each are equivalent events. In each situation the couple has formed an enduring and committed relationship. In each situation, the couple has combined forces to mutually comfort and assist the other. The only distinction between remarriage and cohabitation is a license and the recitation of vows in the presence of others. When the facts support no conclusion other than that the relationship has all the hallmarks of a marriage, the lack of official recognition offers no principled basis to treat cohabitation differently from remarriage as an alimony-terminating event.

We do not today suggest that a romantic relationship between an alimony recipient and another, characterized by regular meetings, participation in mutually appreciated activities, and some overnight stays in the home of one or the other, rises to the level of cohabitation. We agree that this level of control over a former spouse would be unwarranted and might violate the no-obligation clause found in many divorce agreements.  However, the romantic relationship described above is not the long-term relationship presented in this voluminous record.

Finally, this case is unusual in that Justice Albin filed a strong dissent (which will be the subject of a separate post on this blog), about the harsh result on the recipient here.  The majority responded:

Our dissenting colleagues highlight the financial consequences of this decision to Cathleen. To be sure, those consequences are serious. Yet the record demonstrates that she knew that cohabitation would risk the loss of her primary source of income and, recognizing the consequences, she proceeded to cohabit with Warholak. She, not the Court or her former husband, exacerbated her financial situation by quitting her job and fashioning a defense that was found baseless by the trial court.  (Emphasis added)

In rejecting the dissent’s feeling that an economic benefit test should always be applied, the majority noted:

We also cannot subscribe to the view advanced by our dissenting colleagues that applying the Gayet economic reliance or dependence rule is somehow less intrusive in the personal life of the former spouse. There are few exercises more intrusive than the need to identify every expenditure and the source of the funds for each expenditure. Such an inquiry reveals a vast amount of personal information about the daily life of the former spouse that is of no concern to the obligor spouse. Moreover, sixteen years ago in Konzelman, this Court declined to import the Gayet economic dependence or reliance rule when the parties have agreed in a marital settlement agreement that cohabitation is an alimony-termination event. We discern no basis to depart from that determination. (Emphasis added)

In the past, and maybe even currently, far too many cases settled with vague language requiring termination in accordance with the law – without setting forth which law.  Quinn evidences that that was a dangerous practice for the recipient.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_myvector’>myvector / 123RF Stock Photo</a>

The Arbitration “Rules of Engagement”

Posted in Mediation/Arbitration, Practice Issues

The recent Appellate Division case of Sirigotis v. Sirigotis, although unpublished (non- precedential), provides a great reminder of how important it is to know the “rules of engagement”.

In Sirigotis, the parties were able to resolve a majority of their issues by consent but agreed to submit the remaining unresolved issues to “final and binding” arbitration to be conduct by a retired judge. The parties provided the arbitrator a list of open issues that were to be decided.

The parties agreed to the appropriate amount of base alimony but a remaining open issue was that wife had an additional claim for alimony should husband’s income rise over a certain level as well as the inclusion of specific language in the award regarding plaintiff not being able to maintain the standard of living Crews v. Crews. Husband had objected to both of these requests.   During one of many arbitration sessions, the arbitrator had initially indicated that “all Crews [language] is out” because the issue of the determination of the marital lifestyle was not “before him”. Notwithstanding, in a later submission from wife, she again raised the issue of additional alimony on the grounds that the base alimony would not neither meet her needs or the marital lifestyle.  Husband’s submission argued that no additional alimony should be paid as the base alimony would “without question” meet wife’s needs and exceeds the marital lifestyle. Moreover, Husband requested that language be inserted that specifically indicated that both parties would be able to maintain a lifestyle reasonably comparable to that enjoyed during the marriage.

The reasons the parties were at odds over this language is because the standard of living and the likelihood that each party can maintain a reasonably comparable standard of living is a factor that must be considered when awarding alimony. This factor is of import because it serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when ‘changed circumstances’ are asserted.

Ultimately, the arbitrator denied wife’s request to predicate more alimony based on a “future event” (increased income) and left wife to make an application to the Court in the future if necessary. The arbitrator also agreed with the husband that wife could maintain the standard of living.

Once the final arbitration award was issued, the wife moved to vacate the arbitration award in the trial court asserting that the arbitrator exceeded his authority by addressing the standard of living issue. Although the trial court found that the arbitrator had the authority to address the issue, the court ultimately vacated the arbitrator’s Crews finding and remanded for further proceedings, finding that plaintiff did not have the opportunity to give all her proofs on the issue.  Both parties appealed.

The Appellate Division found the trial court erred in vacating the Crews finding and reversed and remanded to the trial court to confirm the arbitrator’s award. In doing so, it reminded us that arbitration awards are given considerable deference therefore the party seeking to vacate it bears a heavy burden, with the scope of review being narrow.

While arbitration is ‘creature of contract’ and an arbitrator exceeds his or her authority if they decide something outside the scope, the Appellate Division found that be virtue of the issues raised by the wife herself, the Crews issue had to be decided. Moreover, the Appellate Division found that the wife had ample time and ability to present evidence on this issue and indeed did so by virtue of oral testimony, written submissions and voluminous exhibits.

The take away from this case is regardless of whether you decide to mediate, arbitrate or litigate, some or all of your divorce, it is important to know the “rules of engagement”. It is imperative to engage an experienced professional to help guide you through the ins-and-outs. You do not want to find yourself at a disadvantage simply because you were not aware of the rules.

Filling in the Gaps: The Addition of “Criminal Coercion” as a Predicate Act Under the NJ Prevention of Domestic Violence Act

Posted in Domestic Violence, Practice Issues

In August 2015, the New Jersey Legislature formally amended the Prevention Against Domestic Violence Act (N.J.S.A. 2C:25-19(a)) to include the predicate act of criminal coercion as a fifteenth form of domestic violence (in addition to: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking, all of which are as defined under their respective criminal statutes).

By way of background, in order to obtain a restraining order under the NJ Prevention Against Domestic Violence Act, the plaintiff/victim must have a qualifying relationship with the defendant, must prove that one or more of the (now) 15 qualifying “predicate” acts of domestic violence was perpetrated against you, and  must also show that there is a continuing need for protection based on the facts of your case.  The addition of criminal coercion as a predicate act opens an additional avenue by which victims can seek to obtain protection under the Act.

Criminal coercion is defined as a threat made to unlawfully restrict freedom of action, with a purpose to coerce a course of conduct from a victim which defendant has no legal right to require, including threatening to:

  1. Inflict bodily injury on anyone or commit any other offense;
  2. Accuse anyone of an offense;
  3. Expose any secret which would tend to subject any person to hatred, contempt or ridicule or to impair credit or business repute;
  4. Take or withhold action as an official or cause an official to take or withhold action;
  5. Bring about or continue a strike, boycott or other collective action except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the defendant acts;
  6. Testify or provide information or withhold testimony or information with respect to another person’s legal claim or defense;
  7. Perform any other act which would not in itself substantially benefit the defendant but which is calculated to harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

coercion graphic

A recent opinion penned by Judge Jones, J.L. v. A.C. specifically addressed the first category of criminal coercion.  In that case, Judge Jones found that the defendant had criminally coerced the plaintiff into meeting with him, at which time he brutally beat her, by threatening the safety of her child if she refused to meet with him as he demanded.  As Judge Jones notes in his opinion, the NJ Prevention Against Domestic Violence Act has been criticized for its failure to provide protection to children because the Act only extends protections to victims who are over the age of 18 (except in cases where the relationship between the victim and defendant is a dating relationship).  Thus, Courts have typically denied relief to plaintiffs who try to obtain restraining orders for acts of violence committed against their children, rather than against them personally.

The major takeaway from this decision?  As a parent, it seems that you can definitively obtain protection under this Act where the defendant coerces a course of conduct from you by threatening to inflict bodily injury or commit an offense against your child.  It would also seem that this could extend to threats against anyone else in the plaintiff/victim’s life, including a boyfriend or girlfriend, co-worker, friend, or other family member.  However, there are limits.  Although Judge Jones’s opinion emphasizes that the new predicate act of criminal coercion fills in the gap where there was no way to obtain a restraining order for threats of violence toward a child or third party, it is important to note that there must also be “purpose to coerce a course of conduct” from the plaintiff him/herself.  A threat to harm a child or third party is not enough; that threat must cause the victim to engage in a particular course of conduct.  In J.L. v. A.C., that course of conduct was the act of meeting with the defendant, which the victim would not have done but for the threat to her child.

Additionally, it is vital to remember that the restraining order is still going to be between the plaintiff and the defendant – NOT between the defendant and the third party against whom a threat has been levied.  With that said, the court has always been empowered to issue a final restraining order that includes a victim’s family members as additional protected persons.  As an important practice tip, if you are an attorney or a self-represented party seeking a restraining order based upon criminal coercion that includes a threat to inflict bodily injury or commit an offense against a third party, it is imperative that you seek to include the threatened third party as a protected party on any final restraining order issued by the Court.


 headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

APPELLATE DIVISION ADDRESSES NON-RELOCATION AGREEMENT IN NEW PUBLISHED DECISION

Posted in Custody, Modification, Visitation/Parenting Time

In many custody disputes, a primary area of concern is one parent’s ability to relocate with the children after the divorce is over.  Relocation requests have been characterized as often resulting in “heart-wrenching” decisions.  As we have previously discussed on this blog, the legal standard to be applied to a parent’s interstate removal application differs if the parent is the primary caretaker as compared to an equal/”shared” physical and legal custodian with the other parent.  The two standards are briefly explained below:

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Equal/”Shared” custodial parents:  If the parents “truly share both physical and legal custody,” then the moving parent must prove that the best interests of the children would be better served by residential custody being primarily vested with the relocating parent.

One primary custodial parent:  On the other hand, if one parent is the primary caretaker, that parent’s request to relocate with the children is governed by the two-prong Baures test – specifically, the moving party has to prove by a preponderance of the evidence that (1) there is a good faith reason for the move; and (2) the move will not be inimical to the children’s interests.  The Baures test is analyzed in the context of twelve (12) factors set forth in that case, and is more favorable to the primary custodian seeking relocation.  In fact, it is this favorable standard that often sees non-custodial parents claiming “de facto” equal custodial status in response to a primary custodian’s relocation motion so as to convince the trial judge to utilize the best interests standard.  As an aside, there exists pending legislation that would alter this favorable legal standard.

What happens, then, if there exists a so-called non-relocation agreement and a primary custodian seeks to relocate interstate?  The Appellate Division was faced with that issue in the newly published (precedential) decision of Taormina Bisbing v. Bisbing.  Here are the facts that you need to know:

  • The parties were married in 2005 and the children were born in 2006.  Both parties were highly-paid professional employees, with wife earning more than husband.
  • In early 2013, husband investigated job opportunities in Colorado and California.  The parties separated in August, 2013 and, in November, wife began a long distance relationship with a Utah resident who had children from a prior marriage.  The Utah resident owned a business in Idaho and had business interests requiring him to frequently travel to California and Louisiana.
  • On March 8, 2014, the parties entered into a marital settlement agreement wherein they agreed to joint legal custody, and that wife would have primary residential custody under the condition that she would not relocate outside of New Jersey.  The MSA also provided that dad would have “broad, reasonable and liberal timesharing” of the children – Father’s Day, his birthday, every other weekend and on one weeknight during the weeks when he did not have parenting time, every other Thanksgiving, Christmas Eve, Christmas Day, New Year’s Eve, New Year’s Day, and school breaks.  Each parent was entitled to attend all sporting events and activities regardless of which parent was scheduled to have parenting time.
  • As to relocation, the agreement provided:

The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said   minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move, the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children outside of the United States without the prior written consent of the other party.

The parties hereby acknowledge that the Children’s quality of life and style of life are provided equally by Husband and Wife.

The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children’s contact with both parties and the quality of the relationship of the Children and each party.

The parties hereby acknowledge that any proposed move that relocates the Children any further away from either party may have a detrimental impact upon the frequency and duration of the contact between the Children and the non-moving party.

  • On April 16, 2014, a final judgment was entered that incorporated the terms of the settlement agreement.  Husband represented that, after the divorce, he was very involved in the children’s lives, coached their teams, took them to activities, and attended school events.
  • One month after the divorce, wife sent an email to husband telling him that, although she received no alimony, she was planning to leave her job on July 1, 2014 to be a full-time stay-at-home parent, which she did.
  • On January 8, 2015, wife called husband to tell him of her intention to get married to the Utah resident and relocate to Utah.  Wife asked for husband’s permission to relocate with the children.  Husband refused, indicating that she could move and leave the children with him.
  • On March 16, 2015, wife filed a motion to relocate with the children to Utah without the need for a plenary hearing.  The court granted the motion – without a hearing – so long as a visitation schedule could be established through mediation.
  • On July 14, 2015, after unsuccessful mediation, with only wife suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule using most of wife’s suggestions.  Eleven days later, wife and the children “left for a vacation to Utah.”  Three days thereafter, she permanently relocated with the children in Utah.

In reversing and remanding for a plenary hearing, the court found:

  1. The best interests of the child standard should be applied if wife was found to have negotiated the settlement agreement in bad faith.
  2. If no bad faith finding is made, the court is to consider whether wife proved a substantial unanticipated change in circumstances “warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis.”
  3. If the settlement agreement was deemed to have been negotiated in good faith, but wife fails to prove a substantial unanticipated change in circumstances, the court is to apply the above-referenced best interests of the child standard.
  4. In other words, wife could only receive the “benefit” of the Baures standard if wife was found to have negotiated in good faith and proved a substantial unanticipated change in circumstances.

Under such guidance, the Court distinguished from the notable prior trial court decision of Shea v. Shea,wherein the father accused the mother of of manipulating the Baures procedure by settling the divorce, and immediately thereafter filing for removal so as to reply upon the more favorable burden of proof.  Here, the Court critically found that husband was entitled to a hearing to prove whether wife manipulated the situation to obtain “favorable Baures removal procedures” that:

  1.  When wife entered into the agreement, she may not have definitely known of the “material facts and circumstances forming the good faith reason for the removal request” (i.e., moving to Utah to marry her boyfriend).
  2. The non-relocation provision did not exist in the earlier matter.

In so holding, the court found:

Similar to the situation in Shea, the close proximity between the parties’ agreement and [wife’s] plans to relocate provides evidence of suspicious circumstances requiring a plenary hearing.  If, after holding a hearing, the family court finds that [wife] negotiated in bad faith, it should then analyze the relocation request under a “best interests” analysis.

The non-relocation was to be considered even if wife is found to have negotiated in good faith, “without manipulative intent” premised on New Jersey’s strong public policy favoring agreements that resolve marital disputes.  In damning tone, the Court found:

Thus, [wife], in a written and voluntarily agreed-upon contract, specifically surrendered her “freedom to seek a better life” in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.

While the relocation language of the agreement considered new employment as a basis for moving, it did not mention remarriage, thereby leading the Court to suggest that testimony would reveal whether remarriage was a considered eventuality at the time of the agreement and, thus, not an unanticipated substantial change in circumstance.  The Court also noted that, if the Baures standard was to ultimately apply, the trial judge would be charged with analyzing the effect on the children of moving away from both parents’ extended families.

When I first read the facts, I was saddened, but not at all shocked at what seemed to be a clear manipulation of the prevailing legal standards discussed above.  I have been involved in many cases on both sides of the relocation argument, and have seen the devastation that can result.  A difficult situation becomes all the more tragic when it is clear that one party is not proceeding in good faith.  What wife seemingly did here is just as bad as the non-custodial parent who claims de facto equal custodial status just to have the best interests standard applied.  It is for these reasons, in part, why the pending legislation mentioned above makes sense in some form – to remove this sort of gamesmanship from the equation when children are involved and the relationships with one or both of their parents is potentially at stake.  The Appellate Division certainly got it right here with a just result.

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

Cohabitation Under the Amended Alimony Statute – Are We There Yet?

Posted in Alimony, Cohabitants' Rights

Suffice it to say, the issue of cohabitation under the amended alimony statute has been a hot topic of late in New Jersey family law. With several recent notable seminars on the topic, and two recently issued Appellate Division decisions (one published and the other unpublished) addressing when the amended law applies, practitioners and potential litigants hungrily consume these new cases looking for any morsel of guidance on how the statutory language will work.

Back when the law originally passed, I wrote an article for the New Jersey Law Journal analyzing cohabitation law past, present and future. A year and a half later, I am not only unable to confirm how a trial judge would apply the new statute, but if the discussions from each of those recent seminars are any indication, different judges may and will likely apply the statute very differently.  In other words, some trial judges may favor applying the pre-amendment legal analysis, some may strictly apply the new statutory language, and some may even implement some sort of combination of the two.

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Thus, as a very strong introductory caveat – We have no idea how the new will be applied given what we have heard judges say about it, and the fact that there is no law to guide us.  Now, with that being said…

Just to briefly refresh, what did the old law say? Well, cohabitation was described by the Supreme Court of New Jersey as:

  • An “intimate,” “close and enduring” relationship that requires “more than a common residence” or mere sexual liaison. The relationship “bears the generic character of a family unit as a relatively permanent household,” is “serious and lasting,” and reflects the “stability, permanency and mutual interdependence” of a single household.
  • It involves conduct whereby “the couple has undertaken duties and privileges that are commonly associated with marriage.”

Indicia may include, but is not limited to, long-term intimate or romantic involvement; living together, intertwined finances such as joint bank accounts, shared living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.  The so-called “economic benefits” test would come into play after the payor made an initial showing of cohabitation, at which time the court would determine if the third party contributed to the dependent spouse’s support, or if the third party resided in the dependent spouse’s home without contributing anything to household expenses.

Now what does the new law have to say? The law defines cohabitation as involving a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” A trial judge presented with a cohabitation allegation is required to consider: (1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities; (2) Sharing or joint responsibility for living expenses; (3) Recognition of the relationship in the couple’s social and family circle; (4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship; (5) Sharing household chores; (6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S. 25:1-5; and – of course, since this is family law that we are dealing with – (7) All other relevant evidence. So we now know that, at the very least – under the amended law – cohabitation does not require the couple to live together on a full time basis, which was unresolved pre-amendment.

Also to clarify what I indicated earlier, some trial judges have suggested that because the family part is one tasked with imparting an equitable result, they may still apply the economic benefits test and potentially modify – rather than suspend or terminate as the statute says – an existing alimony obligation. Notably, as I wrote for the Law Journal, those amended portions of the law addressing an alimony change in the event of the payer’s retirement or down income use the word modify as a possible option, but that word is nowhere to be found in the cohabitation section. Was that deliberate, favoring the notion that the law is more payor friendly, or was it unintentional and not meant to wipe away the old law?  We do not yet know the answer.  Also notable is how a recent case addressing the retirement language section of the amended statute relied upon statutory interpretation and construction, rather than a broader interpretation that perhaps some practitioners were expecting. This does not mean, however, that the cohabitation portion of the statute will be similarly analyzed and applied.

Other trial judges have indicated that the statute requires a suspension or termination, although a separate question exists as to when a suspension would occur. Perhaps as a sign of rulings to come or, perhaps, also inadvertently, the Appellate Division in one of those two cases I mentioned above indicated that alimony “shall” terminate upon cohabitation by the payee. This, however, was neither an issue or holding in the case, and even the statute uses the word “may” rather than “shall.” Also, when should a so-called suspension of alimony even occur? Should it only occur during a cohabitation proceeding and potentially be reinstated if cohabitation is ultimately unproven? Should it occur as a final result and be subject to reinstatement if the cohabitation ends?  The answers are unknown at this point.

What about making the initial cohabitation showing?  As is true with any case, judges are going to look at the same set of facts differently from each other. For instance, while one judge may find it sufficient for the payor to establish that the couple has been living together at least four days per week for a month, another judge may want more. While one judge may deem sufficient intertwined finances via a single joint bank account and the couple holding themselves out as in a relationship on occasion, another judge may disagree. All judges present at the seminars seem to agree, however, that the more information and evidence of cohabitation to be considered in the initial filing, the better. We even discussed a good old fashioned garbage inspection, where you never know what kind of gems may turn up in a payee’s trash bin – in other words, one payee’s trash may be one payor’s Exhibit A to a Certification.

Thus, no matter how the law is to apply once cohabitation is established (suspension, terminate or modify), the process by which a payor spouse is to gather information for a motion to “address” alimony due to cohabitation seems to remain the same. Private investigators will often still be a potentially key part of the puzzle, and, to the extent the couple somehow cannot manage to keep themselves from discussing the relationship on social media, such evidence is often, but not always, the equivalent of the goose that laid the golden egg – in other words, the online version of the garbage can.

It was those recent seminars that really brought back to the forefront for me how much has yet to be determined under the amended law and, perhaps more importantly, how each case leaves unanswered the question of what gets a moving party passed that first litigation hurdle, and what a payee spouse can do to successfully fend it off. For both sides, the picture remains cloudy in some ways and crystal clear in others, and that is without any of the sort of guidance that we have recently seen with the retirement portion of the amended law.  We will all continue to stay tuned as to what this portion of the new law can do once tested.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of mondspeer (Google free images).

Another Reminder that Parent Coordinators Are Not Replacements for Judges

Posted in Custody, Modification, Practice Issues, Visitation/Parenting Time

Whether it is because of busy dockets or the fact that the issues could be hard to decide, especially without a plenary hearing, the use of parent coordinators (PC) began becoming more frequent about 10 years ago.  Sometimes it was by consent but other times, it was foisted upon warring parties whether they wanted it or not.  A new reality of “let the parenting coordinator referee the disputes” became a new reality for many.  In fact, in 2007, the Supreme Court implemented a pilot program for the use of parent coordinators in several counties which had both guidelines and a model order.  The goals were laudatory:

A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.

The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

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What was clear was the “The Parenting Coordinator may not make any modification to any order, judgment or decree, unless all parties agree and enter into a consent order” though this was often honored in the breach and PCs were vested with far more authority than the law allowed.

The issue that then came up was whether a Parent Coordinator appointed in a non-pilot program county had to follow the Supreme Court Guidelines.  We and others had cases where we objected to what we believed was the PC overstepping their roles and heard both PCs and court’s say that they were not bound to the pilot program guidelines.  The Appellate Division disagreed in Milne v. Goldenberg, a reported decision that we previously blogged on.

In 2012, the pilot program ended, however, the use of parent coordinators was not abolished.  Rather, court’s could still appoint PCs and parties could agree to use them.  Does that mean that a court could simply defer decision making to the PC?  Once again, the answer was a resounding no in the case of Parish v. Kluger, an unreported (non-precedential) decision of the Appellate Division decided on March 17, 2016, which was the latest chapter in the long standing litigation between these parties.  In fact, I was involved in the original reported decision in this matter dealing with similar issues, as we blogged on in 2010.  In that decision, the Appellate Division held that judge’s must decide enforcement motions, noting:

We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.

The Court also made clear that parent coordinators could not address enforcement issues nor could they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.

One would think that with this history in this case, that it couldn’t happen again, but it did.  In the 2016 decision, the Appellate Division wrote:

If, as plaintiff claimed, defendant was preventing him from exercising parenting time as per the MSA, then he was entitled to a remedy. If, as defendant claimed, plaintiff failed to exercise his parenting time out of disinterest, then the court’s decision to not alter parenting time was appropriate. The court should have resolved that dispute. When the court’s decision is considered in its entirety, it could be interpreted – as plaintiff has interpreted it – to vest in the parenting coordinator the resolution of the parties’ conflicting positions as to why the MSA parenting plan was not working. The court has no authority to delegate its decision making to a parenting coordinator. Further, a trial court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”

That last sentence is important, “…court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”  Too often, PC orders would expressly or impliedly give the PC the final say, with the trial court as a rubber stamp and/or requiring the losing party to file a motion so that the PC’s recommendation would not become a de facto Order.

The takeaway from this case is clear.  PC’s don’t make decisions.  Court’s make decisions.  Court’s cannot tell parties to follow a recommendation of a PC in advance, and moreover, even after it is issued, without fully assessing the issues and making independent fact findings.  Given that this is the case, in the real high conflict cases where one of the parties is inevitably going to oppose a PC recommendation and take the issue to court, what is the point of having a PC in the first place?

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_yeletkeshet’>yeletkeshet / 123RF Stock Photo</a>

Don’t Let Your Arbitration Agreement Bite You

Posted in Mediation/Arbitration, Practice Issues

You hear people talk all the time these days that mediation and arbitration, or quite frankly, any alternate dispute resolution (ADR) methods are the best things since sliced bread.  They may very well be in the right case – which these days may be most of them given judicial backlogs, and other factors making presenting cases to a court undesirable.  They may not be the panacea that people think they are, especially when you don’t frame what you want the arbitrator to do or how you want them to do it, correctly.  In fact, I have previously blogged that the right to appeal is not automatic unless you contract for it.

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The issue of a less than ideal arbitration agreement coming back to bite a litigant in the behind was exemplified again yesterday in the unreported (non-precedential) Appellate Division case of Little v. Little.  In that case, the parties agreed to arbitrate a Tevis claim seeking damages for alleged spousal abuse and battered woman’s syndrome before a retired judge. Rather than a full blown arbitration agreement, spelling out all of the desired standards, a right of appeal, etc., the agreement to arbitration was only memorialized in an order, which stated in total:

ORDERED, that the matter is hereby dismissed as the parties have agreed to submit to binding arbitration with a retired judge agreed on between the parties, which arbitration shall take place on or before February 15, 2013, the costs of which will be shared equally by the parties.

After the arbitration took place, the arbitrator issued a two-page written arbitration decision that awarded plaintiff $125,000 “for the physical and mental injuries sustained by her during her marriage…” The award did not set forth any findings of fact or conclusions of law.  Thereafter, the plaintiff moved to confirm the award and the defendant moved to vacate the award, both because of the lack of findings of fact and the reliance on a letter produced after the close of discovery.  The cross motion was denied and the arbitration award confirmed, leading to an appeal.

Defendant appealed claiming that  (1) the arbitration award was against public policy and should be vacated because without findings of fact and conclusions of law it cannot be determined if the award was procured by corruption, fraud or other undue means; and (2) the arbitrator’s reliance on the letterproduced after the close of discovery in constituted undue means.  The Appellate Division rejected both of those arguments.

As to the lack of fact finding, the Court specifically noted:

The scope of arbitration and the requirements of an arbitrator are controlled by contract. Minkowitz v. Israeli, 433 N.J. Super. 111, 132-33 (App. Div. 2013). If the arbitration agreement does not require the arbitrator to make specific factual findings or follow particular procedures, the arbitrator is free to make an award in a manner consistent with the Arbitration Act. N.J.S.A. 2A:23B-4. The Arbitration Act only requires the arbitrator to “make a record of an award.” N.J.S.A. 2A:23B-19(a). Moreover, the arbitration award provides that an arbitrator may conduct an arbitration in any manner that the arbitrator considers appropriate, with the goal of disposing of the matter fairly and expeditiously. N.J.S.A. 2A:23B-15(a). Accordingly, we have previously explained:

[W]ithout an agreement to the contrary, the power of the arbitrator is simply to issue an award that resolves a dispute. If they have not agreed in advance, the parties cannot, for example, force an arbitrator to give reasons for an award or to write a decision explaining his or her view of the facts. Neither can they appeal from the award as they could if they had proceeded to litigate their matter in court. Rather, the rights of the parties following issuance of an award, in the absence of an agreement to the contrary, are entirely governed by statute. (internal citation omitted).

As to the reliance on the letter produced after the close of discovery:

Arbitrators are not bound by the rules of evidence, and instead may determine the admissibility, relevance, materiality and weight of any evidence. N.J.S.A. 2A:23B-15(a). Additionally, an arbitrator may permit any discovery that he or she determines to be appropriate, taking into account the goal of making the proceeding fair, expeditious, and cost-effective. N.J.S.A. 2A:23B-17(c).

What is the takeaway here?  If you want the rules of evidence to apply, put that in your arbitration agreement.  If you want findings of fact and conclusions of law, put that in your arbitration agreement.  If you want a right of review greater than the very limited right of review contained in the arbitration statute, put it in your arbitration agreement.  Otherwise, you can be left with very little remedies if you disagree with a decision, and like the litigant in this case, very little ability to determine what the decision was actually based upon.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

Photo credit:  Copyright: <a href=’http://www.123rf.com/profile_zetwe’>zetwe / 123RF Stock Photo</a>

‘Til Death Do Us Part…or Not.

Posted in Divorce, Equitable Distribution, Estate and Trust Issues

In the recent case O’Hara v. Estate of John B. O’Hara, Jr., the Appellate Division reminded us that even though the death of a party to a marriage ends that marriage, it doesn’t always end the divorce.  In Carr v. Carr, 120 N.J. 330 (1990), our Court examined what happens in the event that a party dies mid-divorce – after the Complaint has been filed, but before the divorce is finalized.  You might think that when this happens, the case simply ends – after all, if one party passes away, what is the point of the divorce?

For better or worse, things aren’t so simple.  If a party passes away mid-divorce, then the intent to divorce and to no longer be married has been expressed.  If one party’s death mid-divorce would lead to unjust enrichment for either the deceased party’s estate or for the surviving spouse, the Court must see the divorce through.  Otherwise, the surviving party might be unjustly enriched; what if he or she were to inherit everything in the deceased spouse’s estate, when the deceased party may not have wanted that?  The converse could also be true.  What if the spouse had specifically been provided for in a will, despite the divorce, but the bequest affords the surviving spouse less than (s)he would have gotten in the divorce case?

That latter is the issue at the center of O’Hara, where, in the midst of the divorce matter, the husband passed away.  While the divorce was pending, but prior to his death, the husband executed a Last Will & Testament.  The Will left the wife without any property interest in the marital assets, but created a trust for her benefit and support.  The problem with this was that, in filing a Complaint for Divorce, the Wife had asserted her right to an equitable share of the marital assets.  The trial judge permitted her to see that through by amending her complaint to include a claim against the husband’s estate.  The Court concluded that  “[w]ithout allowing the matrimonial matter to proceed to determine the value of the parties’ assets and what is available per equitable distribution, it will never be clear whether [the wife] received everything under the trust to which she is entitled, via equitable distribution.”

 

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The Appellate Division affirmed.  Skeptical of the husband, the Appellate Division found that the marital estate had to be valued, and the wife’s equitable interest had to be determined before it could be said that the benefits to the wife under the trust established by the husband did not deprive her of what she would have been entitled to under the divorce.  Therefore, the lower court’s decision to impose a constructive trust – to effectively freeze the estate – was upheld and despite the death of one of the parties, the divorce litigation set to continue.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

The Forgotten Insurance: Life Insurance to Secure Alimony & Child Support

Posted in Alimony, Child Support, Divorce, Interspousal Agreements, Modification, Practice Issues, Property Settlement Agreements

When we all think of insurance, we often think of medical insurance, car insurance and homeowner’s insurance as these seem to be the necessary and everyday types of insurance. Life insurance, which for some can be synonymous with high premiums, is one of the first costs to go when seeking to reduce your budget. I often find that the issue of life insurance is something that typically does not cross a person’s mind when they are getting divorced, whether they are the supporting spouse or the supported spouse, especially if the parties did not maintain life insurance during the marriage.

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Often times however, when a supporting party has an ongoing alimony and/or child support obligation, a court may order (or the parties will agree) that a life insurance policy will continue (or be implemented) as a method of financially protecting a dependent party and/or child in the event of the supporting party’s premature death.

In other words, the same reasons an intact family would procure life insurance, remain after the divorce. All too often however, an obligation to maintain life insurance is the forgotten provision of a divorce settlement agreement in that either 1) it is noticeably absent from the agreement, or 2) it is not being maintained. Obviously, either of these scenarios is troublesome for the supported spouse and could ultimately cause substantial financial ruin should a situation that life insurance seeks to protect against come to fruition.

In the recent case of Ashmont v. Ashmont, Judge Lawrence Jones recently released an unpublished (non-precedential) yet persuasive opinion on how to deal with the issue of life insurance between divorced parties. In Ashmont, the parties’ Marital Settlement Agreement required that the wife would receive permanent alimony and child support for the parties’ children. In order to secure same, the parties agreed that the husband would carry life insurance as a means to protect against the loss of financial support in the event of an untimely death.

Several years after the parties were divorced, wife brought an enforcement action against the husband for a breach of their agreement for his failure to provide proof that he was maintaining life insurance as well as for sanctions for his past and alleged ongoing violations of his life insurance obligations. At the time of the hearing, husband admitted that he had been in violation of this obligation, but had recently brought himself into compliance by securing a new policy, consistent with the terms of the parties’ agreement.

Although wife acknowledged that husband was now compliant, she still sought sanctions against the husband for his prior failure to maintain the policy and for allowing his dependents to go uninsured for such a long period of time. It was clear that husband only complied with the obligation after wife was forced to bring litigation and wife feared that husband would simply fail to pay the next scheduled premium.

In his opinion, Judge Jones lays out four tips regarding life insurance and divorce:

• The court may direct that the supported spouse or other parent be named as the owner of the policy, if permitted by the insurance company. This option is particularly relevant when the supporting spouse has a history of failing to adhere to his or her court-ordered life insurance obligations. Being the “owner” of the policy, rather than the “beneficiary” or the “insured”, allows for the party to receive any and all notices and communications from the insurance company regarding the status of the policy, including invoices, notices of proposed cancellation, change in policy terms and renewal dates;

• When a party willfully breaches a court-ordered obligation to carry life insurance, the court may issue multiple forms of relief, including but not limited to ongoing financial sanctions, until such time as the defaulting party complies with the obligation;

• When a party violates a court order, but ultimately complies prior to the conclusion of enforcement litigation, such compliance does not completely erase or negate the violation. Nonetheless, remedial and corrective conduct is equitably relevant on the issue of mitigating sanctions and penalties which might otherwise be imposed under the circumstances. In this case, the wife had asked for a sanction of $7,440.00, the amount of money that husband had saved over the years by failing to comply with his obligation. Finding it a mitigating factor that husband ultimately did cure the defect and that wife was not financially harmed, husband was sanctioned $2,500.00 and was ordered to reimburse wife her $50.00 filing fee for the enforcement motion; and

• As life insurance is an ongoing financial obligation intrinsically related to spousal and/or child support, an insurance provision in a judgment of divorce or settlement agreement is potentially subject to post-judgment modification upon a showing of a substantial change of circumstances, pursuant to Lepis v. Lepis 83 N.J. 139, 145-46 (1980). This situation may occur when a term policy naturally expires and the insurance is either much older or less healthy than at the time of divorce, meaning the cost of the policy could be substantially increased and thus revisited by the Court.

While no one wants to think about the consequences associated with an untimely death, the takeaway from this case is that as the supported spouse/parent, it is imperative that you are “in the know” regarding the insurance policies that could very well dictate your financial security (and your children’s) for the rest of your life. If your ex-spouse has an obligation to secure their support payments with life insurance and you have not seen recently seen a copy of the policy, it might be time to reach out and connect with them to ensure the policy is current.

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LLauren Koster Beaver, Associate, Fox Rothschild LLP
Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

APPELLATE DIVISION FINDS THAT COHABITATION MATTER CANNOT BE REOPENED BASED SOLELY ON CHANGE IN ALIMONY LAW

Posted in Alimony, Cohabitants' Rights

While the Appellate Division has yet to address the substantive application and meaning of the cohabitation provisions of the amended alimony law, it has now determined twice when the law may apply.

In October, I wrote about how the Appellate Division in Spangenberg v. Kolakowsi, a reported (precedential) decision, held that the cohabitation portion of the amended law does not apply to post-Judgment Orders finalized prior to the amendment’s September 10, 2014 effective date.  On March 2, 2016, the Appellate Division in the unpublished (not precedential) decision of Chernin v. Chernin, similarly held that the 2014 amendments, “by the specific terms of the statute’s effective date”, are not applicable in a situation where cohabitation was previously established pre-effective date.  The primary point to be taken here is that the change in the law alone is not enough to reopen a previously concluded matter – in this case, a cohabitation matter.

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Here are the undisputed facts that you need to know:

  • The parties were married in 1958 and divorced in 1992.  The property settlement agreement provided that husband would pay permanent alimony of $100,000 per year until July 1, 1997, at which time the payments would increase to $150,000 annually.
  • In 1996, husband moved to retroactively terminate his alimony based on wife’s cohabitation.  Following a five day trial, the court granted husband’s motion in part by finding cohabitation, ordering wife to reimburse husband in a sum certain for past overpayments retroactive to when alimony commenced, and reducing husband’s annual alimony obligation by $12,000 annually.  There was no modification to the alimony duration.
  • Husband appealed, arguing that alimony should have been terminated pursuant to leading case law at the time.  Husband’s argument was rejected.
  • Following passage of the amended alimony law, husband again moved to be relieved of his alimony obligation based on wife’s cohabitation.  Counsel, during oral argument, confirmed that nothing had changed in the past twenty years following the prior modification other than the amendment’s passage.
  • The trial court found that the amendment’s passage constituted a change in circumstance and terminated alimony based on the trial court’s prior finding of cohabitation.
  • Wife appealed, arguing that the court erred in failing to give effect to the “anti-retroactivity provision” of the amended statute.

In reversing the trial court in wife’s favor, the Appellate Division quoted that anti-retroactivity provision, which provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a.  a final judgment of divorce or dissolution;

b.  a final order that has concluded post-Judgment litigation; or

c.  any enforceable written agreement between the parties.

The Appellate Court determined that the parties’ post-Judgment litigation concluded in 1997 when a final Order was entered reducing the amount of alimony and leaving the permanent duration untouched based on the wife’s cohabitation.  In other words, the cohabitation issue was already addressed and the matter concluded.  As a result, husband could not simply reopen the issue based solely on the law’s amendment.  Citing Spangenberg, the Court concluded:

Because the Legislature has commanded that the 2014 amendments not be construed to modify the duration of alimony ordered or agreed upon, or to modify specifically bargained for contractual provisions incorporated into an enforceable written agreement between the parties, a judgment of divorce, or a final order concluding post-Judgment litigation, all of which applied here, the court plainly erred in relying on the amendments to modify the permanent alimony previously ordered in this case.

So there you have it.  A second decision from the Appellate Division – this one expressly following Spangenberg – addressing when the cohabitation provisions (and, more broadly, the amended law as a whole) may apply to a given set of facts and circumstances.  The new law itself is not a change in circumstances meriting a review of a previously closed case.  Similar to that case, where the Appellate Division used the word “shall” (rather than “may”) when describing whether alimony should terminate in a cohabitation situation under the statute, the Appellate Court did not address whether terminating alimony was the only appropriate measure had application of the new law been deemed appropriate.  Stay tuned for future developments.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.