Divorce filings seem to be at an all-time high and, to no surprise, the trial courts are feeling the pressure. Documents filed with the court can get lost in the shuffle. Although motions should be addressed within 24 days from the initial filing date, it can take months until the court actually makes a decision. By then, the issues grow stale or even worse, they grow more complicated. Emotions blaze as time passes. Many would argue that having your "day in court" is becoming somewhat of an illusion. With this in mind, attorneys must be more creative and diligent in addressing issues in a case before they arise. Leaving it to the court can make it worse, especially if the judge does not follow proper procedures in providing their decision and the judgment/order of the court. If the court does it wrong, you may get your day in court - TWICE!Continue Reading...
Oftentimes, when a party to a divorce action is a partner in a small company or partnership, suspicion falls to the other partner or business. I am often told by my client that he or she is sure that the other partner is helping hide money or engaging in some behavior in order to lower the value of, or the income from the company. Not surprisingly, the question then arises of whether the company itself or the other partners can be brought into the divorce action. Except in rare circumstances, the answer is generally no.
The rules of court govern when a non-spouse can be joined to a divorce action. First, in order to bring in a non-spouse, the moving party must show that the company or partner is what is known as an “indispensable” party. According to Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995), “courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.” This means that a corporate party may only be joined if it would be difficult, if not impossible for the case to proceed without the addition of the corporation. This is usually not the case. Even when the company or other partners are not actual parties to the divorce action, the Rules of Court provide ample mechanisms for litigants to obtain discovery from non-parties, see, e.g., R. 1:9-1 (issuance of subpoena to non-party for attendance of witness); Rule 1:9-2 (issuance of subpoena to non-party for production of documentary evidence); Rule 4:14-7 (issuance of subpoena to non-party to conduct discovery depositions).
The Rules are designed to make sure that all necessary information is available to the court so it can make a fair decision in the divorce. Thus, complete financial records of the company are generally available for review. The rationale behind this makes sense. If at any time it could be said that a company or business partner is an interested party due solely to the fact that one of its members is getting a divorce, it would throw the entire business world into disarray, not to mention an already over-taxed family court system.Continue Reading...
How does one change their name, or that of a child, in the State of New Jersey? Well, as set forth in the recently unpublished (not precedential) Appellate Division decision, Henao v. Tibbrine, there's a law for that, which requires an applicant seeking a name change to file a verified Complaint in the Superior Court, with a sworn affidavit with certain required details. Interestingly, notice of the application must be published in a newspaper of "general circulation."
When the hearing occurs, if the verified Complaint fulfills the statutorily specified requirements and there is no reasonable objection to the assumption of another name, than the name change will be permitted. The issue in Henao was whether the biological, non-custodial mother of two children could orally oppose the father's name-change application at the hearing on the scheduled date. Notably, the law specific as to name changes does not require written opposition, which was the basis upon which the trial court relied in denying the mother's oral opposition (rationalizing that the mother should have known to file an opposition in writing because she had previously been involved with motion practice before the court). However, court rules specific to the family part do require a written response 15 days prior to a scheduled hearing date.
The Appellate Division disagreed with the trial court, finding that there existed no evidence that the mother was informed of the need to oppose the application in writing. Interestingly, the Appellate Division in dicta expressed concern with allowing a name change application to proceed via a default judgment. Noting that a strong presumption exists that the name change is in the best interests of the children since the father was the custodial parent, the Appellate Division also noted that the presumption is rebuttable, especially where the child has used the non-custodial surname for a period of time, is comfortable with that name, is known by that name, and maintains contact with the non-custodial parent.
As a result, the matter was remanded to provide the mother with an opportunity to contest the name-change application, where it is incumbent upon her to establish that it is in the best interests of the children to keep her surname, or, interestingly, have a name that combines that of both parents (such as a hyphenated name).
While not the typical "family part" matter, this case was nonetheless interesting for its specific issue and the Appellate Division's rationale and concern over the name-change proceedings.Continue Reading...
A recent case in which one party sought to enforce a purported settlement demonstrates the difficulties that arise when there is no signed agreement. In the unreported ( non-precedential) case of Galdo v. Hagarty, the parties were both represented by counsel during a dispute about the payment of child support and college expenses for one of their children. The father had filed an appeal of an order which required him to pay a percentage of college expenses and the mother filed an application for enforcement of the order. Thereafter, the parties agreed to explore a settlement and proceeded to negotiate through their counsel. Over a course of months the attorneys exchanged correspondence as well as emails. The mother received copies of many of the communications.
Subsequently, the mother’s attorney faxed to the father’s attorney a proposed settlement. Father’s attorney then emailed a revised agreement the next day. Twelve minutes later, mother’s attorney sent an email agreeing to the proposal and asking that Father’s attorney confirm that there was a settlement. Approximately an hour later, Father’s attorney sent a confirming email. Father then took no further action on the appeal and it was later dismissed. Father then made an application to terminate child support for one of the children, which was not opposed by the mother.
Several months later, the mother made an application to vacate the order terminating the child support, and enforcing the college expenses order which was the subject of the earlier appeal and settlement. She argued that there had been no settlement agreement that was reached. The father replied that there was in fact a settlement which was evidenced by the communications between the lawyers as well as the conduct of the parties after those communications. The father made a cross application for enforcement of the settlement agreement. The trial judge denied the father’s application for enforcement of a settlement and enforced the earlier order which required the father to pay a percentage of the college expenses.Continue Reading...
Surfing the internet on a recent morning, I noticed an advertisement for divorce insurance. This was news to me, as I had never seen nor heard anyone talk about such a thing. Practicing family law for twenty years, you would think that I would have noticed this before, but I haven’t. Indeed ,the website that I was viewing stated that it was the only company to offer such a policy. The premise behind the insurance policy is that an individual can purchase “units” of insurance which correspond to a payout in the event of a subsequent divorce. This payout can be used towards any divorce expenses including legal fees and distribution of assets, although the web site that I was viewing did not actually contain any restrictions. The website that I was viewing was selling units of $1250. So in other words, if a potential policy holder believed that his or her particular situation would warrant $125,000, then he or she would purchase 100 units of insurance. The policy is paid on the presentment of a final judgment or decree of divorce, and is payable to the insured in a lump sum. To prevent people from purchasing the insurance when a marriage is already in shambles, there is a waiting period of four years. If the insured gets divorced within the waiting period, all premiums ( less taxes) are returned to the policy holder.
So when my head stopped spinning, and after I thought how such a policy could be subject to fraud ( two spouses obtaining a policy and then divorcing just to collect- then possibly remarrying), I wondered how this fits in with New Jersey matrimonial law as we know it. Can this insurance policy be considered an asset of the marriage which would be distributable to both parties? Would it be considered income for support purposes? This raises all sorts of issues!
In New Jersey, all assets that were acquired during the marriage, regardless of whose name the asset is titled in, is an asset of the marriage which is subject to distribution in a divorce. In the event of a policy that was purchased during the marriage by one spouse and that spouse paid the premiums from income earned during the marriage, is the payout an asset? I believe the answer is likely yes. Indeed, I believe that it would be treated the same as the value of a whole life insurance policy, the premiums of which has been paid during the marriage. On the other hand, I am sure an argument can be made that it is only the sum total of the premiums that were paid which constitute the distributable asset.
Alternatively, consider the situation in which one spouse has an account that was his or hers prior to the marriage, and never places that account in joint names, and never commingles marital funds in the account. Then, I believe that the policy and the payout would belong to the purchasing spouse.
In addition, if a third party, say a parent of a spouse purchases the insurance in the name of the spouse, this may be considered a gift from a third party, which is also not distributable in a divorce. I can just imagine the father who never thought the husband was "good enough" for his daughter running out to purchase a policy.
So what about support? The most significant factor considered for both spousal support as well as child support is obviously income, and income from assets is included in that. If a policy holder has a payout of $250,000 ( the limit of the policy I was viewing), and the prevailing interest rate is 4%, do we add $10,000 of income for support calculations?
I have no doubt that these will be the type of questions that we will begin to see if indeed these policies are purchased by New Jersey couples who find themselves in a divorce.
Agreements between spouses, or those who are betrothed, are to be considered by judges as any other contracts, and can be subject to enforcement by the courts. Such is the cases with agreements under Islamic law, commonly referred to as “Mahr” agreements. In a recent case, the court affirmed that such an agreement can be enforceable in a New Jersey court within a divorce action. In Rahman v. Hossain, the parties had been married under Islamic law, and under the parties’ customs, an amount had been paid to the then- to- be married wife as an initial payment of “sadiq” or “mahr” by the husband. Usually, a “mahr-” agreement is negotiated between the parties to a marriage and their families, often with the assistance of a religious leader. Both parties then sign the agreement and it becomes a part of their religious marriage license. Many times, there are conditions for payment included is the agreement.
In the Rahman case, the parties were initially from Bangladesh were web in an arranged marriage. The husband argued that he should be entitled to the return of a $12,500 payment of sadaq that he had made to his wife. His expert testified that under Islamic law, retention of the payment was contingent upon neither party having fault that leads to the termination of the marriage. In this matter, after hearing the testimony of the husband, the court found that the wife was at fault for the termination of the marriage and ordered the return of the payment that had been made to her. In affirming the award, the Appellate Division noted the authority of the courts to enforce contracts which have been made under religious law.
This case serves as a reminder that parties are permitted to seek enforcement of contracts which have been entered into within the context of their religious customs. Generally, so long as a contract can be found to have been entered into freely and voluntarily, with consideration ( a payment of some type ) having been given for goods or services ( which are legal under secular law), the courts will enforce it. Additionally, this case serves as a reminder that all issues must be fully discussed with an attorney prior to filing for the divorce. The majority of divorce cases in New Jersey are routinely filed as “no-fault” cases. In this matter, the return of the payment was specifically based upon a finding of the wife’s fault in the demise of the relationship.
Following up on my recent blog entry talking about the impact of social networking sites such as Facebook and MySpace on the world of divorce, a recent article from the Star Ledger by Sue Epstein (no relation despite our interest in the same topic) discusses how divorcing couples are turning to these websites for evidence to use in their matrimonial proceedings or to simply talk about the divorce itself. The article states that more than 80% of the nation's top divorce attorneys have seen an increase in cases involving social networking evidence pursuant to a survey by the American Academy of Matrimonial Lawyers, with more than 66% of such evidence found on the ever popular and enduring Facebook.
Evidence found on these sites may be used for any number of purposes. Examples cited in the article include using evidence found on a child's Facebook page in a custody proceeding, to locate a person to simply serve them with a divorce complaint, to prove adultery where the party lists themselves in their site profile as "single," or even to prove wealth or ownership of assets when the ability to pay support is in dispute.
Children all too often are dragged into their parents' divorce disputes, and, not uncommonly, encounter postings by their parents on Facebook and other sites discussing the other spouse, the divorce, and the like. Oftentimes parties do not realize that not only can potentially hundreds, to thousands of people see the postings, but their children can as well. The emotional impact of such a finding can be dramatic, in addition to impacting the outcome of a custody dispute.
As I suggested in my prior posting, posting anything about yourself on these social networking sites essentially makes your life an "open book." To do so in the context of divorce or custody proceeding, however, may ultimately play a part in determining the outcome of your case.
EDITOR'S NOTE: Whether it is Facebook, MySpace, emails or text messages, people often tend to be their own worst enemies in divorce, emboldened to put certain things in writing that they would never say at loud. Once something is in writing and is either posted on the internet or the "send" button is clicked, it is potentially around forever. All to often, these items create excellent evidence for various purposes in a divorce. So if you are going through a divorce, a good idea is to get off of Facebook and/or Myspace, or if you wont, at least be very judicious in what you disclose. Consider not posting pictures of your children especially if that will lead to a battle. Don't disclose you relationship status and post frequent updates about it. Carefully read and re-read emails to your spouse, ex-spouse and others to make sure that they are not provocative or can otherwise be used against you. Think "less is more" or "Joe Friday" ("just the facts.") The case you save can be your own. Eric S. Solotoff
The Supreme Court of New Jersey’s recent decision in New Jersey Division of Youth and Family Services v. L.L., provides a good opportunity to review New Jersey’s Kinship Legal Guardianship Act. The Act is designed to address the needs of children and caregivers in long-term “kinship” relationships, placing those children who cannot safely reside with their parents in the care of a relative or family friend. This placement option avoids the need to terminate parental rights where adoption is either unlikely or not possible.
The Act defines a “kinship legal guardian” as a “caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court[.]" From a legal rights standpoint, the guardian has the same “rights, responsibilities and authority relating to the child as a birth parent,” subject to various limitations set forth in the Act. By that same token, the birth parent can consent to an adoption or name change, must continue to pay child support, and can still have parenting time with the child as determined by the Court. As parental rights are not terminated, the Act logically provides that the child does not lose rights derived from the parents, such as rights of inheritance, benefits, etc.Continue Reading...
In 1988, the New Jersey Supreme Court ruled that a surrogacy contract was invalid based upon the circumstances of that case. The Court found that such agreements are in direct conflict with existing statutes and in conflict with New Jersey public policy. In the Baby M case, would-be parents entered into a contract with a women who agreed to supply the egg for in vitro fertilization, to implantation of the embryo and to carry the fetus to birth at which point the would-be parents would adopt the baby. However, the surrogate mother changed her mind after the birth of the child and would not agree to the adoption. The Baby M decision made it clear that New Jersey courts disfavor surrogacy agreements especially those involving monetary exchange.
The Baby M case involved a surrogacy agreement by a surrogate who was also the biological donor of the egg. Since the 1988 Baby M decision, the question of whether or not surrogacy agreements are invalid regardless of whether or not the surrogate mother has biological relations to the child has never been answered. However, recently, on December 23, 2009, a trial Court in Hudson County entered a decision in the A.G.R. v. D.R.H. and S.H. case finding that surrogacy agreements in New Jersey are invalid regardless of the biological relationship of the surrogate mother.Continue Reading...
I have heard many beautiful stories about how people became engaged. Some people “pop the question” after a romantic dinner. Some do it during a romantic getaway. Some are very creative and have proposed at baseball games, on television, using banners being tugged from an airplane, on top of a mountain, etc. Clearly, those moments are very emotional and romantic. Moreover, those moments usually include the giving of a sparkling engagement ring that costs more than two months of salary…and that is being conservative. In some cases, the romance is a fleeting moment and the parties never make it to the wedding. When that happens and the wedding is OFF, who gets the engagement ring?
In New Jersey an engagement ring is considered a “conditional gift”. In other words, the ring is being given on condition that the parties will be getting married. Winer v. Winer, 241 N.J. Super. 510 (App.Div. 1990). If the engagement is broken, the condition cannot be met and the ring must be returned. Aronow v. Silver, (Ch.Div. 1989.) Notably, while other states hold that the party who unjustifiably breaks off the engagement loses the ring, in New Jersey, the Courts do not consider fault when determining who is entitled to receive the engagement ring. Id. In New Jersey, if the marriage does not occur and the person giving the engagement ring wants the ring back, the Court will render a ruling requiring return of the ring (or its value if something untoward happens to the ring for example it gets lost or destroyed.) Once the marriage occurs and the condition is met, (regardless of a subsequent divorce), the return of the ring will not be required by the Court.
Therefore, in New Jersey, until the marriage occurs, the strings on the engagement ring are still attached and can be yanked regardless of who jilts who.
In light of the current economic crises plaguing our country, your home may be on the brink of foreclosure, or will be sold by way of a short sale. You may also have staggering credit card debt. Therefore, when entering into a property settlement agreement that involves debt forgiveness (i.e. foreclosure, short sale, and reduction in credit card debt) it is critical that you choose a matrimonial attorney that is aware of the tax consequences associated with debt forgiveness because the financial impact can be enormous.
Historically, debt that was forgiven or cancelled by a commercial lender must be included as income on your federal and state tax return and was taxable. For example, if the total amount of the mortgage debt immediately prior to the foreclosure was $220,000 and the fair market value of the property was $200,000, the amount of the debt forgiven, $20,000, was treated as taxable income. Unless of course the borrower qualified for an exception under the Federal Tax Code, i.e., bankruptcy, insolvency, certain farm debt, and non-recourse loans.
On December 20, 2007, the Mortgage Debt Relief Act of 2007 (hereinafter referred to as “the Act”) was enacted. Said Act provides financially strapped homeowners with some relief in connection with treating debt forgiveness as income. Generally, the Act allows exclusion of income realized as a result of modification of the terms of the mortgage, or foreclosure on a principal residence that occurred in 2007, 2008 or 2009. Moreover, there is no dollar limit if the principal balance of the loan was less than $2 million ($1 million if married filing separately for the tax year) at the time the loan was forgiven.Continue Reading...
More often than not, a matrimonial law attorney is not a C.P.A. More often than not during the process of a case, a client will ask the advice of their attorney, "How should I/we file tax returns this year?"
The answer is and should be first and foremost a reference to a C.P.A. A qualified C.P.A will be able to look at a divorcing couple's entire financial picture, including their past and advise as to how to best file the final tax return in a way to minimize the taxes due.
What happens when one party does not want to file a joint return because of concerns regarding tax liabilities or even worse, penalties? The recent unpublished Appellate Division decision of Hreha-Coloccia v. Coloccia, A-3892-07T1, decided September 2, 2009, gives some guidance in this regard.Continue Reading...
Oftentimes clients will ask once an Order or Judgment of Divorce is entered, what happens if he/she does not comply with its terms? The bitter and harsh truth is that an Order or Judgment is a piece of paper that is enforceable by the Court. So what does that mean exactly? Well, in simplest terms, if a spouse or ex-spouse does not comply with its terms, then a enforcement application will have to be filed with the Court. That application, among seeking enforcement of the Order or Judgment, can also request additional relief such as the payment of counsel fees, sanctions, interest payments, possible jail time, etc.
Recently, the Appellate Division addressed this issue in the unpublished decision of Scheps v. Paparazzo, A-0717-08T1, decided July 29, 2009. This appeal stemmed after Wife filed several post judgment applications seeking to enforce the parties' Property Settlement Agreement for her payments of alimony and a subsequent more detailed Consent Order regarding these payments. From the record it appears as though Husband had the ability to pay the monies owed, however he would not make these payments according to the schedule set forth in the Agreement and subsequent Orders.
After Husband had been found in violation of litigant's rights on more than one occasion and judgments were entered and recorded against him , the parties entered into negotiations. As a result, a Consent Order was drafted and executed which carefully delineated the result of Husband's continued non-compliance. The relevant portions stated that Husband would "pay any and all legal fees and costs associated with plaintiff's enforcement of the terms of this Consent Order....., if defendant does not make timely payments on or before the first of each month as defined above, the defendant expressly agrees to pay the plaintiff interest in the amount of 6% per month on any balances due and owing..." The 6% monthly interest was in addition to a 7% annual interest on the monies owed.
If you've ever been involved in any type of litigation you are probably aware of how expensive the process can be. Attorneys bill for their time. In addition there are the copying costs, facsimiles, postage, etc. When experts are involved those fees must also be accounted for. When a trial is involved the fees can quickly mount. Trials involve preparation not to mention days and hours of an attorney's time.
Almost every client or prospective client asks the same question, "How much will this cost me?" The answer is an unsatisfying it depends. We often tell clients that we do our best to control our side of the case, however we have no control over the other side. It's nearly impossible to give clients an accurate fee estimate as things change on a daily basis. In family law, the minute an emergency arises that requires an emergent application to the court for relief, fees are expended. So who pays these fees?
The issue of fees can be addressed in one of two ways. One, the parties reach an agreement as to the responsibility of fees. Or, the parties can leave it up to the judge to decide.Continue Reading...
APPELLATE DIVISION FINDS THAT TRIAL JUDGE SHOULD HAVE GRANTED MOTION TO RECUSE HIMSELF BASED ON PRIOR RELATIONSHIP AND LITIGATION WITH PARTY'S ATTORNEY
A difficult question often faced by litigants is whether a trial judge is deciding his or her case with a fair and unbiased eye. Should a litigant feel that they are not getting a fair shake, the party can file a motion for recusal of the trial judge. R. 1:12-2 of the New Jersey Rules of Court, however, requires that the motion be made to the actual trial judge whose recusal is sought.
This issue was recently addressed by the Appellate Division in the published opinion of Vic Chandok v. Rekha Chandok. Rekha appealed from the judgment of divorce on various issues, but the Appellate Division only addressed her challenge of the trial court's Order denying her motion to recuse the trial judge. The original motion was based on Rekha's assertion that she could not receive a fair and unbiased hearing because of a prior relationship between the trial judge and her attorney where they were partners in a law firm that went under, subsequently followed by contentious litigation between the judge and attorney. Ultimately, the trial judge ruled that Vic's business and investment interests were exempt from distribution; Rekha was not entitled to alimony; no child support was granted over and above Vic's maximum obligation pursuant to the Child Support Guidelines; the parties were granted joint legal custody; and Rekha was to pay in excess of $40,000 to a discovery master.Continue Reading...
Beware, once a party has entered into a written agreement addressing all marital issues, it is very difficult for either party to be relieved of an obligation required by the agreement especially if the agreement was incorporated into a Final Judgment of Divorce. It is quite common for litigants to state that they wanted to get the divorce “over with” because the other side made life “unbearable” and as such were “pressured into” signing on the dotted line. However, these types of situations do not necessarily form the basis for a Court to hold written agreements unenforceable. I am writing this Blog because yet another person has asked me why I think it is unwise to purchase a “do-it-yourself-divorce kit”. I am told that these divorce kits contain all the forms necessary to proceed with a divorce. What the kits don’t tell you is that if you proceed with a divorce and you incorporate a written agreement that you and your spouse entered without the benefit of legal advise, if it turns out that the agreement is unfair based upon information that you later find or that you find the agreement unfair only after you effectuate the terms of the agreement, you may find yourself stuck with the agreement. Therefore, to avoid being sorry later on, it is imperative that you do not enter into any written agreement simply for the sake of “getting the divorce done” and without thoroughly reviewing your situation with an attorney.
It is important to note that New Jersey has a strong policy favoring enforcement of agreements. “Property Settlement Agreements” are used as vehicles to efficiently and expeditiously resolve divorce litigation. The Courts encourage parties to enter into agreements to resolve the personal issues created by divorce including custody, visitation, alimony, child support and equitable distribution. Moreover, marital agreements allow the parties to resolve these personal issues in such a way that best fits each party and the children’s needs. The parties also have the ability to assume certain obligations that they otherwise would not have if the Court were to conduct a trial and render a ruling. In other words, in negotiating agreements, the parties are not bound by what the Court can or can not do if the matter were to go to trial so long as the agreement is entered voluntarily and fairly.Accordingly, Property Settlement Agreements that have been knowingly and voluntarily executed by divorcing spouses are entitled to considerable weight with respect to their validity and enforceability such that a presumption of validity is present. Although such agreements can be avoided on grounds of fraud, duress or unconscionability, the party challenging the agreement bears the burden of demonstrating that the agreement is unfair and inequitable. Furthermore, a Property Settlement Agreement that is incorporated into a final judgment of divorce may be set aside pursuant to New Jersey Court Rule 4:50-1, Grounds of Motion for Relief from Judgment, among other reasons, if there was fraud, misrepresentation, or other misconduct of the adverse party.Continue Reading...
A question often asked by clients when negotiating the terms of a settlement agreement or when in receipt of a Judgment of Divorce (“JOD”) is what happens if my spouse doesn’t comply with these terms? If you’ve been through litigation related to a divorce or post-divorce situation you may feel frustrated that an Order signed by a judge is nothing more than a piece of paper and can all too often be difficult to enforce. Since the family courts are courts of equity, more often that not, judges tend to give second and third chances when a litigant does not comply before more severe punishments are imposed. Judges may often fear that if they do not give litigants an opportunity to correct the error of their ways, they are not acting equitable or could be subject to criticism and reversal from the Appellate Division.
In the unpublished decision of Cordier, Jr. v. Day-Cordier, decided
These parties were divorced in February 2007. Part of the judgment of divorce required that in return for $100,000 from plaintiff, defendant relinquished her interest in the former marital home; plaintiff would refinance the mortgage to remove defendant’s name and associated responsibility; defendant warranted that other than the mortgage, she had not caused any other liens, etc. to be lodged against the former marital home but if any were found to exist, she would satisfy them from the $100,000 she received from plaintiff; and plaintiff was to pay $425/week as term alimony for 4 years.
In November 2007, plaintiff filed a motion to enforce litigant’s rights. Defendant, despite two postponements, never filed any response thereto. Plaintiff’s motion was stimulated because a lien in the amount of $16,221.62 had been placed on the former marital home because of defendant’s credit card debt and the IRS had imposed a lien of $4,684.90 due to defendant’s unpaid tax obligations. Plaintiff also sought to suspend his alimony obligation until the debts were paid; an accounting of how defendant spent the $100,000 received from the settlement; counsel fees for defending the foreclosure action; and counsel fees for the motion itself.
Now that you have made the determination that you want to proceed with a divorce, you wonder what is/are the next steps. The following is a summary of the Procedural Steps in a Divorce Litigation and a summary of substantive issues that may be addressed in the divorce proceedings.
Procedural Steps for Divorce Litigation in New Jersey
1. The Filing of the Complaint: All divorce cases officially begin with the filing of a Complaint with the Family Court. The Complaint is the first pleading filed with the Court and it must be filed before any requests can be made to the Court such as requests for support or custody. There are filing fees associated with the filing of every Complaint.
2. After the Filing of the Complaint: Once the Complaint is filed, it is returned to your attorney, who serves it on the opposing party or the opposing attorney, if one has been retained. Service is usually accomplished by mailing the Complaint to the opposing attorney, along with an Acknowledgment of Service which they sign and return. You will also file an Affidavit of Insurance Coverage which states the types, extent and beneficiary of your insurance policies; in most cases, the party responsible for maintaining insurance coverage before the filing of the divorce complaint must continue to maintain that coverage unless a Court enters a different Order. After the service of a Divorce Complaint, you will be asked to fill out a “Case Information Statement” (“CIS”) which sets forth your personal and family assets, liabilities, income and expenses. In some cases, it may be appropriate to reflect past and/or projected expenses. It is extremely important that the CIS be as accurate and complete as possible because the Court and the attorneys will use the CIS throughout the case in assessing support and property distribution issues.Continue Reading...
Previously, I blogged on an individual’s right and the implications that may arise out of that right to name a child of their own. This issue arose again in the April 2, 2009 unpublished Appellate Division decision of A.K. v. D.O., A-4326-07T1.
Parents A.K. and D.O. were not married. Plaintiff A.K. filed a motion in 2007 seeking to establish D.O. as the biological father of child, H.R.K. As a result of that motion, the court not only established paternity but also ordered A.K. to amend H.R.K.’s birth certificate to reflect that the child’s father is D.P.O.
Thereafter, another motion was filed as to issues related to child support. D.P.O. also filed a motion seeking to change H.R.K.’s name. Oral argument was heard in October 2007, during which the court inquired as to the status of the birth certificate issue. A.K. stated that she felt that the Order would be insufficient for the Registrar of the birth certificate and also argued that her failure to comply was an “innocent oversight”.
The Court found A.K. in violation of litigant’s rights and assessed counsel fees against her. She did not file a motion for reconsideration or seek leave to file an interlocutory appeal. She retained new counsel who filed a motion seeking to vacate that part of the Order directing that she change the child’s name to H.R.O. In her motion, A.K. argued that the child’s name should be changed to reflect the name H.R.O-K. Defendant sought to change the child’s name altogether. The court found plaintiff in violation of litigant’s rights for failing to comply with the prior Order requiring her to change the child’s name on the birth certificate and provided that she was to complete the necessary forms to accomplish the name change and if she fails to, sanctions and/or counsel fees will be imposed. The appeal followed.
The Appellate Division reversed part of the trial court’s Order and affirmed part of the Order. In refusing to grant A.K.’s request to change the child’s name to H.R.O-K. the court failed to place its reason for denying this request on the record. The court only alleged that no one gave a reason why the prior Order should be changed. A.K.’s Certification filed in support of her application did provide reasons for her request and advised that defendant’s proposed name was only an expressed preference and that her other daughter, M.K., resides with her and the child in question and she felt it was in the child’s best interests to also have the same last name as M.K.
The Court in reaching its decision noted that defendant did not have any significant objection to the use of hyphenated surname. The Appellate Division exercised original jurisdiction to dispose of that issue for the sake of completeness and because the record provided ample basis for disposition without further fact-finding. The Division cited to Gubernat v. Deremer, 140 N.J. 120 (1995), which discusses the history of surnames and the adoption of regulations promulgated by the NJ Department of Health. Under N.J.A.C. 8:2-1.4(a)(1), “where either parent is unavailable, the choice of the child’s name(s) rests with the parent who has custody of the newborn child.”
“The presumption that the parent who exercises physical custody or sole legal custody should determine the surname of the child is firmly grounded in the judicial and legislative recognition that the custodial parent will act in the best interest of the child….The non-custodial parent bears the burden of demonstrating by a preponderance of the evidence that despite the presumption favoring the custodial parent’s choice of name, the chosen surname is not in the best interests of the child…The rebuttable character of the custodial-parent presumption serves two ends: it protects the rights of the custodial parent to make decisions in the best interests of the child; and it permits judicial intervention, on a sufficient showing by the non-custodial parent, when that decision does not reflect the best interests of the child.” Gubernat at 144-45.
In this case, the trial court did not apply the proper legal standard and as such, was reversed.
On March 12, 2009, the Appellate Division issued a reported decision in the case if Sweeney v. Sweeney.. RBC Dain Rauscher Inc was also involved in the appeal. To view the case, click here.
The parties were married in 1991. In 1999, the wife sold a premarital business and building for $555,000 and kept the proceeds as her separate property. She invested the proceeds with RBC, signing a standard agreement containing an arbitration clause in the event of a dispute. The husband was a broker at and he became the broker for the wife's account. He was already
the broker for the couple's joint account and for two accounts held by RBC on behalf of the couple's minor children.
The parties divorce in 2004. Their divorce agreement does not mention any of the parties' brokerage accounts, but it contains a standard mutual release clause in which the
parties give up any and all claims that each might have against the other by reason of any matter.
In 2006, the wife filed with NASD (now FINRA) a Statement of Claim for Securities Arbitration against RBC, alleging, among other things, mismanagement of her accounts, breach of contract,
breach of fiduciary duty and breach of the duty to supervise. In response, RBC filed in the family court where the divorce was heard a post-judgment motion to intervene in the divorce action and to stay arbitration. RBC contended that as a result of the Judgment of Divorce, her arbitration claims were barred by res judicata and by the entire controversy doctrine. RBC also claimed that it is a third-party beneficiary of the Judgment of Divorce and that the release of the husband released RBC. The Wife filed a notice of cross-motion to compel arbitration.
Both the trial court and Appellate Division ruled in the wife's favor.Continue Reading...
When I have an initial interview with a client, one of the common questions that comes up is, “how should I get in touch with you?” Because I am at times up and working early in the morning, or out of the office in court during the day and catching up at night, a common response is, “e-mail.” As we continue to move into the age of technology; when our President has a Blackberry, e-mail is increasingly supplementing phone calls as a way for me to communicate with clients.
Yet there are a couple of important things that have to be considered when communicating electronically with a lawyer. I had previously discussed some of these issues in a previous blog. For instance, it is important to remember that AOL, and other non-web based e-mail servers may place copies of your sent and received e-mails directly onto your hard drive. Therefore, any person in the household who has access to your computer also may also have access to that you may have believed were confidential communications to your attorney. Thus, I always suggest that client’s use a web-based e-mail such as yahoo, gmail or hotmail.
Another issue that comes up is the fact that many clients utilize their work computers and e-mail address to communicate with their legal counsel. A unreported non-matrimonial case was recently decided, Stengart v. Loving Care Agency, in which an employee had used her company issued laptop to e-mail her lawyer. Even though she utilized her web-based e-mail address, a temporary file was still stored on the hard drive. Thus, the court found that the employee had waived the attorney client privilege when she used the company’s hardware. Important in that case was the fact that the employee handbook specifically provided that e-mail messages were part of the company’s business records. Also in this particular case, the employee had used the company lap top to communicate with her lawyer about the terms of her resignation from the company.
Notwithstanding the particular facts of this case, it is surely the tip of the iceberg floating our way. This is an area of the law in which the technology is moving faster than we can respond. It is imperative that you know what files will be stored on the hard drive of the computer that you are using when conveying information to your lawyer. The lesson to be learned here is that when you have critical confidential information to get to your lawyer, pick up the phone and give me a call.
In the recent unpublished Appellate Division matter of McDermott v. McDermott, A-0631-07T1, Decided February 20, 2009, the Appellate Division remanded the matter to the trial court for further proceedings on the amount of loans taken during the marriage from plaintiff's family and the distribution of responsibility for repayment of those loans.
The parties were married for nearly 30 years. Plaintiff/husband was an attorney with a solo practice and defendant worked at his office for many years, helping to raise their five children and eventually finding employment outside the home with a local school district. During the marriage, the parties primarily relied upon the income earned from plaintiff's law practice. This income fluctuated throughout the years, in part due to the economy and in part due to plaintiffs bouts of depression.
During the 15 day trial in this matter, testimony was offered that during the course of the marriage, plaintiff made some unilateral decisions with regards to the parties' finances, including taking loans from his family and purchasing property without notifying defendant, who only found out during trial. Defendant claimed that she only knew of very few of the loans given by plaintiff's family, however evidence submitted at trial indicated otherwise. Plaintiff's sister offered credible testimony that the total amount of loans given was $283, 398.50 of which only $6,300 was repaid.
After the trial, the trial judge issued a written decision, which in part, obligated defendant to repay plaintiff's sister the amount of $57,165.31 as her share of loans made to the marital partnership; valued plaintiff's law practice at $100,000 of which defendant was entitled to half; compelled plaintiff to pay $2,000 per month in limited duration alimony for a period of 6 years; and ordered plaintiff to pay $49,000 of the $80,202.70 counsel fees incurred by defendant in the divorce litigation.
Divorce isn't easy. Over the past fourteen years, I have been practicing family law and have always appreciated the difficulty my clients go through during the divorce process. However, it wasn't until this past two weeks that I had the opportunity to take off my attorney hat and feel the sting of divorce. A very close friend of mine is going through the process in a different jurisdiction and she called me for support and guidance.
In speaking with her for several hours, I found myself immersed in emotion. When she was angry, I was angry. When she was sad, I was sad. As I was riding the roller-coaster with her, from time to time she asked for my advice. Even though my career has focused on my family law practice, unconsciously I gave her advice as a supporter and as a friend. While I was being very supportive, I didn't realize until this past weekend that I probably was not helping. I realized that I was fueling the emotion and not being very objective. A divorce attorney's job is to protect the client's interest, to give objective advice and to get their client through the divorce process as efficiently and expeditiously as possible. Divorce is difficult for the litigant as well as the litigant's family and friends which makes being objective challenging for them.
In short, I experienced first hand that the best person to give a divorce litigant advice is his or her divorce attorney--advice I often give to my clients. After all, that is what you pay an attorney to do--give objective advice. I think that my friend will be far better off using me to vent but getting her advice from her attorney.
We all hear that in bad economies, divorce filings traditionally decrease. There are many reasons for this, many of which are a subject for another day. Yet a prevalent concern that many of my potential clients express is the fear of the next step financially. Starting over is difficult and indeed overwhelming in the most amicable divorce where the parties both have substantial income. When the money is tight, is adds an additional layer of stress. Some people mistakenly believe that they simply cannot afford to divorce their spouse.
One of my first questions to a new client is to find out if they have an accountant and financial planner of their own that they trust. If they do not, having them find one is near the top of my “to do” list for that client. This is because, in most cases, there will be an equitable distribution of assets that have to be invested, whether it be a new home, a new IRA, or a new investment account. My client has to plan for his or her future early on and this may mean very different planning that occurred during the marriage. Even when there is a distribution of debt, there must be consideration of how to best pay that debT. Is a home equity loan appropriate? Should the debt be paid from assets that may not have as much capital gains given the current economic state? What are the tax consequences? These are all issues that need to be discussed with the client and financial specialists.
Another concern for many clients is purchasing a new home. For some, it may be the first time they are purchasing a home. Clients are concerned about obtaining a mortgage in these difficult economic times. It seems as if forces are colliding against some clients. For instance, we have all heard that banks are only lending to people with excellent credit scores. Yet during a divorce, many people experience financial stress and their credit rating suffers, often because of the other spouse. So what to do? First, many people do not realize that there are banks that are lending and there are mortgage brokers who cater to people who find themselves in a divorce. Also, rates are down and there are incentives for first time homebuyers. Clients already have most of their financial information ready as a result of the divorce. There are people and banks out there. It is just a bit tougher to find them in these times.
At the end of the day, my client has to make the decision that is best for his or her situation. But I have to make sure that the client has to tools to make the right decision.
Litigants who get caught lying about their income in their filed submissions to the Court subject themselves not only to denial of their request for relief from the Family Part Judge but they also open the door for problems with the IRS, the State of New Jersey Division of Taxation, the Prosecutor’s office and the Social Security Administration.
In the recent unpublished Appellate Division decision of Lucci v. Lucci, Defendant ex-husband filed an application in 2008 to permanently terminate his alimony obligation on the basis that his income significantly decreased. Notably, between the time of the divorce in 2000 and the time of the application, Ex-Husband had been successful in reducing his alimony obligation on two separate occasions. First, by consent in 2004, he was able to reduce alimony from $300 to $150 per week. Then, by consent in 2005, he was able to suspend his alimony because he was “unemployed”. In 2008, he was seeking to permanently terminate his alimony obligation.
Ex-husband stated in sworn Certifications filed with the Court in the 2005 and the 2008 proceedings that he was laid-off of work, went through periods of unemployment and was finally able to obtain employment with much lower compensation. The Ex-Husband also certified that during his periods of unemployment, he received unemployment benefits.
In opposition to the application, Ex-Wife presented the Court with a sworn Certification from a Company that was never disclosed by Ex-Husband. The Company stated that it had employed Ex-Husband including the period during which Ex-Husband received unemployment benefits, that Ex-Husband misrepresented his employment status to the Court, and that he had earned income in an amount comparable to that which he earned when the Order of support subject to the Motion was filed. The Company further advised the Court that Ex-Husband provided two conflicting Social Security numbers to the Company. Finally, the Company advised that the income reported on Ex-Husband’s tax returns did not include his income from the Company.
Ex-Husband’s attorney did not know about Ex-Husband’s employment with the Company.
Not only did the Court deny Ex-Husband’s request to terminate alimony but the Court also wrote a letter to the IRS, State Division of Taxation, the Sussex County Prosecutor and the Social Security Administration. Moreover, the Court granted Ex-Wife’s request to reinstate alimony at $300 per week effective in 2004 and granted her counsel fees. Despite the fact that Ex-husband was reported to the authorities for what the Court perceived to be intentionally wrongful conduct, the Ex-Husband had the gall to appeal the decision to the Appellate Division.
The Appellate Division affirmed the trial Court’s decision with the exception of the effective date of the reinstatement of alimony. The Appellate Division noted that while it was clear from Ex-Husband’s filed submissions to the Court in 2005 that he had provided misleading information, it was unclear whether he provided misleading information in 2004. If Ex-Husband did not provide misleading information in 2004, the Appellate Division noted that the effective date of the reinstatement should be in 2005 when Ex-Husband was required to pay $150 per week in alimony. The Appellate Division directed the trial court to determine the issue after further Court proceedings.
The moral of the story is if you get caught lying in submissions to the Court for which you certified under oath that your statements were true, be prepared to not only pay the consequences to the other litigant but you may also have to pay a hefty price to authorities.
The rights of individuals who have children to parent is one of the most precious and protected while at the same time vulnerable and subject to termination when state agencies, including the courts are involved.
In November, Robert Epstein blogged on the procedural safeguards that must be in place when custody is at issue. To read more on this blog, click here. In conjunction with that blog entry, the Appellate Division just last week handed down another published decision, which scrutinizes the burden of proof required by DYFS and that must be considered by trial courts when determining whether parental rights are to be terminated.
In DYFS v. M.C. III, In the Matter of M.C. IV and N.C., a father who had custody of his two children after a divorce from their mother was accused of physically abusing the children. The father testified at trial that an argument arose with the children, who were at the time ages 15 and 13, over their use of the Internet. From that argument the father admitted to pulling at his son's shirt and accidentally falling on his daughter, after his son jumped on his back and pushed him to the ground. On the day in question, the police came to the home twice, neither time reporting any signs of abuse or injuries. Subsequent to the second visit, the children went to an aunt's home, where they called their mother and took a train to see her. Their mother then brought the children to a nearby hospital and DYFS received a report from the hospital.
At trial, rather than providing live, in-person testimony, DYFS presented as evidence written reports created by the doctor at the hospital, but not part of the hospital's file. Rather, these reports were written on DYFS intake and procedure forms by DYFS workers, relaying what the doctor had allegedly reported to them. In addition, the DYFS caseworkers who worked on the file did not provide their own live, in-person testimony. Rather, other caseworkers testified as to the contents of reports prepared by other caseworkers. These reports contained statements made by the children, police and hospital staff. Since the caseworkers who prepared the reports themselves nor the doctor were available to testify, the trial judge accepted hearsay and double or even triple hearsay as substantial, credible evidence in finding abuse and neglect on the part of the father and terminating his parental rights.
On appeal, the Appellate Division held that given the serious impact a finding of abuse and neglect has on an individual and family's life, credible evidence must form the basis for a finding of abuse and neglect. It is incumbent upon DYFS to provide such credible evidence, in conformity with New Jersey statutes, case law, Rules of Court and Rules of Evidence when presenting a case requesting the termination of parental rights. Citing the law set forth in In re Guardianship of Cope, 106 N.J. Super 336 (App. Div. 1969), "it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and..the answering parent be given the fullest possible opportunity to test the reliability of [DYFS]'s essential evidence by cross-examination." Id. at 343.
As such, the Appellate Division held that the admission of DYFS created documents was "clearly capable of producing an unjust result" because the trial judge relied directly upon that evidence in finding that the children had been abused and neglected. Those documents did not provide a reasonably high degree of reliability as to the facts contained therein. Further, DYFS workers should only be permitted to testify to facts within their own first-hand knowledge of a case.
This case provides further guidance as to the standard of proof and credible evidence that must be presented in a case addressing a request to terminate a parent's rights.
On appeal from a decision rendered by the now-retired Judge Camp of Essex county, the Appellate Division's affirmation of Judge Camp's decision in the matter of Robert Goldman v. Gail Mautner is one that details and describes the unfortunate but all too common realities that occur during contested custody trials in the family court., though this case appears to be almost as bad as it gets.
This appeal stemmed out of defendant's displeasure with Judge Camp's determination that the parties should share joint legal and physical custody of the children despite defendant's allegations that plaintiff was an unfit parent and unfounded allegations of abused by plaintiff on the children.
After a 29 day trial limited solely to the issues of custody and parenting time, Judge Camp rendered a detailed 33 page opinion whereby he determined that it was in the best interest of the children to have shared legal and physical custody with their parents.
During the trial, both parties initially sought sole custody of the two children of the marriage. Plaintiff later changed his position to joint custody while defendant remained steadfast for sole custody. This litigation commenced in 2003 after the parties had been married for approximately 10 years. Defendant claimed that plaintiff was abusive to her as well as the children. DYFS conducted an investigation and hired an outside expert to evaluate the parties and children. After such an evaluation it was determined that there was no abuse substantiated by the plaintiff against the children and rather that the children had been programmed to allege same without fully understanding or appreciating the effects of their allegations. Supervised parenting time was recommended by the DYFS expert only so that plaintiff would be protected against further baseless allegations. Testimony was offered during the trial by the supervisors relating to incidents where the children made unfounded allegations of abuse during times when the supervisors were present and noted that these allegations were fictitious.
Defendant's appeal raised several issues relating to alleged bias of Judge Camp against her, error by the trial court in not permitting the live testimony of lay witnesses on defendant's behalf, error by the trial court for not interviewing the children, and alleged error by the trial court for not requiring the experts to update their reports prior to trial.
In it's unreported (non-precedential) opinion, the Appellate Division found defendant's claims of bias by Judge Camp unfounded and unsupported by the record below. They also found sound Judge Camp's decision and rationale for prohibiting the testimony of defendant's lay witnesses as these witnesses were only to provide testimony based on information provided by defendant, to which she had already provided her own live testimony. Furthermore, Judge Camp allowed defendant to submit proffers as to these witnesses testimonies and allowed the proffers into the record without providing plaintiff the benefit of cross examination.
Lastly, the Court noted that there is no requirement in the Court Rules that a trial judge interview children in a family matter or experts retained in a family must update their reports prior to trial. As to the interview of the children, both parties' experts testified that at this point interviewing the children would be counterproductive as they had been through many years of extensive therapy related to this litigation. The Court also noted that since the parties had privately retained their own experts in this matter, it was not incumbent upon the court to require those experts to submit updated reports. If defendant felt that new pertinent information was available for her own expert to review, she could have had her expert update her report, which she did not do.
An interesting portion of the Appellate Division's decision noting Judge Camp's decision were the portions that related to the credibility of the parties upon their testimony and demeanor during the trial. Whenever the scrutiny of the court is upon a litigant, judges are carefully observing demeanor and judging credibility. In the midst of highly contentious trials, such as this one appeared to be, clients may forget the all too simple tenants of civility, however it is in their own best interest not to.
EDITOR'S NOTE: This case evidences some of the absolute worst that can arise in family court cases. There was a finding by the trial judge that the wife actively tried to alienate the children from their father. There have been several recent posts on this blog regarding parental alienation.
In addition, it is rare that one sees that a parent's parenting time is supervised to protect that parent from wrongful allegations. In this case, it appears that the alienation was so bad that allegations arose even when supervisors were present. In this case, it appears as though the father's parenting time with the children was compromised for years. The damage that this could seemingly cause to the relationship seems unthinkable. Moreover, the legal and other costs associated with had to be staggering.
It would appear that the cause of action for intentional infliction of emotional distress raised in the prior blog posts and recently approved by Judge Galipoli in Hudson County, appears as appropriate in this case as in any other. It seems hard to imagine that the father here can ever get back what he has lost. Should there not be some kind of monetary punishment here - an award of legal fees just does not seem to be sufficient. Perhaps that will be an issue in the financial aspect of the case which was apparently not resolved. ERIC S. SOLOTOFF
In the recently published Appellate Division decision of J.A. v. A.T., the Court faced a complicated decision regarding whether to overturn the trial court's opinion as to which court, as between NJ and Greece had jurisdiction to decide custody of minor children.
In this complicated and seemingly tortured case's history, where three litigations where taking place at the same time, one in NJ, one in Greece and one in the Federal courts, it's difficult enough to keep track of the role each court should be playing and the primary goal of what is best for the children.
J.A. and A.T. were both born in Greece but naturalized as U.S. citizens. They married and resided in NJ, where two of the children were born. After four years of marriage, the parties decided to return to Greece, where they had a third child. After living in Greece for approximately eight years, J.A.(father) returned to NJ with the two sons. A.T. remained in Greece with their daughter. Divergent stories begin at this point as A.T. claims that J.A. returned to NJ with the boys only for a short visit. J.A. claims it was the family plan for him to relocate to NJ with the boys and that A.T. would later join them with their daughter.
After J.T. and the boys had been in NJ for nearly three months, A.T. filed an application in Greece seeking temporary custody of all three children. The Greek tribunal held a hearing whereby J.A. was represented by a designated representative. The Greek tribunal entered an Order granting temporary custody of all three children to A.T.
J.A. claims that he was never served with this Order. Several months after the Order was entered by the Greek tribunal, A.T. also filed a Complaint in Greece for divorce and custody. She later also filed an action under the Hague Convention (International Child Abduction), which was two years later dismissed by consent of both parties.
Nearly one year after A.T. filed her applications in Greece, J.A. filed a Complaint for divorce in NJ and sought custody of all three children. A.T. was served in Greece with a copy of this Complaint and responded by filing a Notice of Limited Appearance, seeking to stay or postpone J.A.'s Complaint and dismiss his custody application. The NJ courts denied this application and found it had subject matter and personal jurisdiction over the divorce action.
The NJ court subsequently entered two additional Orders, which were also subject to A.T.'s appeal regarding payment of counsel and expert fees. However, the published Appellate Division opinion focuses on the jurisdictional and custody aspects of the lower court's decision.
The matter eventually proceeded to trial in the NJ courts. A.T. did not appear in NJ for trial, did not provide her testimony or any witnesses nor did she introduce any exhibits. A.T.'s argument was based on the theory of comity, which argued that the NJ court had to defer to the earlier Greek order because J.A. had voluntarily submitted himself to the jurisdiction of the Greek tribunal by authorizing a designated representative to appear on his behalf.
Counsel for the parties agreed to allow J.A.'s custody expert's report into evidence in lieu of her testimony. J.A. also testified, produced three witnesses on his behalf, and introduced evidence. The trial court awarded sole legal custody to J.A.
On appeal, A.T. made several arguments as to the court's award of sole legal custody to J.A., centering around the main argument that the NJ court erred by not deferring to the jurisdiction of the Greek tribunal.
Pursuant to N.J.S.A. 2A:34-57(c), NJ courts are to give full faith and credit to child custody orders issued from foreign nations except when "the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child." A.T.'s argument was that because the Greek tribunal was the first court to address the issue of custody of the children involved, that decision should be given deference. The Court in this opinion distinguished the general rule long adhered to "that the court which first acquires jurisdiction has precedence in the absence of special equities." Sensient Colors v. Allstate Ins. Co., 193 N.J. 373, 386 (2008). Of utmost importance in making determinations relating to custody of minor children is that the custody decision reached by the court be guided by the "best-interest-of-the-child" standard.
In evaluating the initial opinion and order released by the Greek tribunal as to custody, the Appellate Division held, "[a]ssuming that these findings represent the Greek equivalent of a "best-interest-of-the-child" determination, they fall woefully short of the factors our Legislature has mandated that New Jersey courts consider in making custody determinations." J.A. v. A.T., A-3003-07T4 at page 21.
Furthermore, the absence of a decision as to permanent custody of the children and an absence of the Greek tribunal's consideration of the statutory factors set forth by the NJ legislature as the guiding principles for a "best-interest-of-the-child" determination contravenes the public policy of NJ to safeguard the interests of children who are at the center of a custody dispute. Those best interests are overriding. Thus, the trial court's opinion as to custody was affirmed.
In its opinion, the Court noted that while it appeared as though J.A. was perhaps forum shopping, this too does not override the best interests determination the court must make.
The U.S. Department of Labor recently issued a new set of guidelines for compliance for what are known as qualified child support orders ("QMSCO").
Many employers offer what is known as an employee based group benefit plan. Simply stated, this is usually health insurance offered at a reduced rate to employees of companies. Most of these programs are governed by both federal and state law. The federal law, known as the Employee Retirement Income Security Act (ERISA) is especially pertinent to these employer sponsored group health plans.
A 1993 amendment to ERISA requires employer-sponsored group health plans to extend health care coverage to the children of a parent/employee who is divorced, separated, or never married when ordered to do so by state authorities. Many states refer to such a court ordered obligation as a "qualified medical child support order". The group health plan must determine whether the medical child support order is “qualified".
The recently issued Compliance Assistance Guide released by the U.S. Department of Labor provides general questions and answers about Qualified Medical Child Support Orders, answers questions about National Medical Support Notices and the role of State child support enforcement agencies in obtaining health care coverage on behalf of children, and also lists additional resources that may provide useful information about ERISA and obtaining health care coverage and medical care for children.
To learn more about these guidelines click here.
In a recent trial court opinion issued by the Superior Court in Hudson County, Judge Gallipoli recognized that parents in NJ may have a right to collect damages for intentional infliction of emotional distress when their relationships with their children are poisoned by former spouses or even grandparents who partake in alienating behaviors.
In a November 21, 2008 trial court decision, the court recognized the right of one parent to sue another, as well as grandparents, for what is known as the intentional infliction of emotional distress. In this particular case, the father sued the mother and maternal grandparents because they had alleged that the father sexually abused the children. The suit alleges that the ex-wife and her parents began alienating the children from the father during the pre-divorce separation in 2006. The defendants allegedly told the children, court-appointed psychiatrists and law enforcement officials that the father was a sex addict and had molested the children in the past, the suit says. It also says the children are afraid to sleep at their father's home because they have been told they are in danger of being sexually abused.
The wife and her parents denied the allegations and argued in motions to dismiss the suit for failure to state a claim that the Heart Balm Act had eliminated the cause of action of alienation of affection. They argued that the term "alienating the children" is what the complaint calls the alleged wrong. Judge Gallipoli found that this claim was not a disguised claim for alienation of affections, which was banned in the state in 1935 by what is referred to as the Heart Balm Act.
This is the first time that a NJ Court has recognized the ability to bring such a claim. A prior suit was filed in the Morris County Superior Court but dismissed by Judge Rand on the grounds that the suit was nothing more than a disguised claim for alienation of affections. Noting Judge Rand's opinion in his own, Judge Gallipoli respectfully disagreed with Judge Rand's interpretation of the decisional law in this state and found that a claim existed for these types of behaviors. Since they are both trial court judges, Judge Rand's opinion was not binding upon Judge Gallipoli. Judge Gallipoli noted that the father would have to file an application in the family part seeking relief, however his claims against the maternal grandparents would proceed in the law division.
The real question remains as to how the Appellate Division and perhaps even the state Supreme Court will view claims such as these.
EDITOR'S NOTE: It seems contrary to notions of judicial economy, mandatory joiner and the entire controversy doctrine that the claims against the mother and her parents would be handled in separate venues. In addition, while there is precedent to bring tort actions related to a divorce in the family part, a party may have a right to a jury on these issues and the cases are often severed and sent back to the law division anyway.
The bigger question is how a court should handle these claims in a post-judgment situation where there is not an ongoing matter and ultimate trial date pending. While court's can order plenary hearings post-judgment, it seems that when these issues arise post judgment, the better place for them may be in the law division.
Also, the theory here that makes the claim viable is not that there has been an alienation of affections, but that a person's intentional act has harmed another, where the only possible remedy for same may be money. ERIC S. SOLOTOFF
New IRS Revenue Procedure: Children of Parents Divorced, Separated, or Living Apart Can be Claimed as the Dependent of Both Parents Under Certain Code Provisions
New IRS Revenue Procedure 2008-48 details certain sections of the Internal Revenue Code under which a child of parents who are divorced, separated or living apart will be deemed the dependent of both parents, custodial and noncustodial, whether or not the custodial parent has released his/her claim to the dependency tax exemption. The Procedure became effective August 18, 2008 and may be applied in any taxable year beginning after December 31, 2004 where the period of limitation on a credit or refund under Section 6511 of the Code has not expired as of the effective date.
The IRS generally provides that a dependent child under these circumstances can only be claimed as an exemption by the custodial parent. Section 152(e)(2) of the Code provides that, in the absence of a qualified pre-1985 instrument, a child may be treated as the dependent of the noncustodial parent only if the custodial parent releases the claim to the exemption (i.e., has signed a written declaration that he/she will not claim the exemption for any taxable year, which the noncustodial parent then attaches to his/her own return). The new Procedure creates an exception to this commonly known tax rule, impacting exclusions generally involving medical care and expenses, as well as fringe benefits, incurred by noncustodial parents for their dependent children. It applies to taxpayers who:
1) Are divorced, legally separated under a decree of divorce or separate maintenance, legally separated under a written separation agreement, or live apart at all time for the last 6 months of the calendar year; and
2) Are the parents of a child who:
a. Receives over ½ of the child’s support during the calendar year from the child’s parents;
b. Is in the custody of one or both parents for more than ½ of the calendar year; and
c. Qualifies under Sections 152(c) or 152(d) of the Code as a qualifying child or qualifying relative of one of the child’s parents.
While some observers might think that this new Procedure benefits noncustodial parents, oftentimes dads, what may more likely happen moving forward, because there is a dispute, both parents will claim the dependency exemption. When that happen, they will probably both be audited.
EDITORS NOTE: Obviously, the better practice is to have an agreement as to the allocation of dependency exemptions, in order to avoid the problem of both parents claiming the exemption. In fact, this is typically done as part of divorce settlements. However, to avoid a situation where someone has a right to claim an exemption but has not paid their support which gives right to the exemption, I often include a provision in agreements that states that in order for the non-custodial parent to be permitted to claim the exemption, they must be current in their child support as of December 31st of the applicable tax year.
This also leads to a comment that people often spend more in the fight for the exemption then is at stake. Specifically, in high income cases, the exemptions may provide little or no tax relief given that the use of the exemption phases out as income increases.
-Eric S. Solotoff
Just recently a judge in New Zealand declared a 9 year old girl a ward of the court so that he could change her name during her parents' custody battle. The Judge stated that by naming their child "Tulula does the Hula from Hawaii" the parents "made [sic] a fool of the child and set [sic] her up with a social disability and handicap, unnecessarily."
In New Jersey, our highest court has said that in contested cases there is a strong presumption that the surname selected for a child by the custodial parent is consistent with the child's best interest. This presumption may be rebutted by evidence which shows that a different surname would better serve child's best interest. However, the noncustodial parent bears the burden of demonstrating, by a preponderance of the evidence, that the chosen surname is not in the best interests of child.
The New Jersey case centered around a father who went to the court in an attempt to have the child's surname changed to match that of his own. This happened after the fact as the parents of this child were not wed and initially, the father contested paternity of the child. Historically, the societal norm has been that children bear the surname of their father. "The practice of children assuming the father's surname is traceable to the English medieval property system in which the husband controlled all marital property. That preference continued in America, reflecting not only the long-standing English tradition but also the societal distinctions in the status of men and women. Until the latter part of this century, the assumption that children would bear their father's surnames was a matter of common understanding and the preference for paternal surnames was rarely challenged. But the historical justifications that once supported a tradition in the law for children to bear paternal surnames have been overtaken by society's recognition of full legal equality for women, an equality that is incompatible with continued recognition of a presumption that children must bear their father's surname. That presumption shall no longer apply in this State." Gubernat v. Deremer, 140 N.J. 120, 122-123 (1995). In recent years, we have seen a growing change in this trend as more and more children are being given their mother's surname or at times, a combination of both surnames.
New Jersey courts have not yet attempted to intervene in a parent's personal selection of a name for their child as New Zealand courts have. However, with the ever increasing trend of 'unique' names seen in our society, who knows if we are headed in that direction?
In a recently published Superior Court opinion, a Monmouth county judge found that unauthorized discovery in a post judgment matter is inadmissible and against the rules of discovery in a matrimonial matter. In the matter of Welch v. Welch, the defendant filed a post judgment application for a change of custody of the parties' minor child. His application was based upon his concerns for the plaintiff/mother's mental well being and hence ability to properly care for the parties' child. Two days prior to filing his motion seeking a change in custody, defendant's attorney issued a Subpoena Duces Tecum and Ad Testificandum upon the Marlboro Township police department. This subpoena requested copies of all documentation pertaining to incidents related to the plaintiff as well as requesting the appearance of an officer on the return date of the motion to possibly give testimony. Plaintiff's counsel filed a motion to prohibit the release of these documents, alleging the request was made in violation of the Court Rules and also sought sanctions against defendant and his attorney as well as counsel fees.
Ultimately, the court refused to consider any of the documents turned over by the police department asserting that the documents had been obtained in violation of court rules. The court also assessed counsel fees against the defendant but did not issue sanctions.
The court based its reasoning, in part, upon the notion that discovery is limited in post judgment applications. The court found that without the scheduling of a plenary hearing or any further proceedings, defendant's subpoena was unnecessary, harassing and impermissible. The court went on to state that "post-judgment matrimonial motions are summary in nature and are resolved with little or no discovery."
What is troubling about this trial court decision is the fact that in contested post judgment custody matters, how can a court ignore the admissibility of relevant evidence? Does that not contradict the court's main objective, which is the child's best interest? What about the court's parens patriae duty to protect children?
The decision appears to be inconsistent with the the Appellate Division's 2002 holding in Tartaglia v. Paine Webber, Inc., which held that illegally obtained evidence in a civil matter was admissible (though a party could be sanctioned for illegally obtaining it). On a final note, police records are public records. Is the court's finding in Welch punitive, insomuch as defendant was assessed counsel fees for issuing a subpoena for the release of what is public record.
It should be noted that the finding in Welch pertains only to post judgment matters. Discovery in pre-trial matrimonial cases remains broad (See R. 5:5-1). It would not be surprising if this case is appealed.