NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Recently I posted about questioning whether your own attorney knows what he is doing and, as part of that question, whether the attorney knows the law surrounding your divorce or related family law matter.  A related question worth discussion is whether you know and understand the law and how it impacts your case.

With busy schedules filled to the brim with jobs, childcare responsibilities, and other daily stressors, I do not want my clients to undertake the unnecessary burden of purchasing a family law textbook and learning its contents front to back.  I do, however, encourage my clients to at least become familiar with the main points of the law.  For instance, most clients seem to know the general principles of equitable distribution in New Jersey - i.e., most assets, under the law, are subject to a 50/50 distribution absent any other factors, credits, or details; most clients also know, and readily offer, his or her awareness of New Jersey's permanent alimony option. 

It was a recent incident that brought this issue to my attention.  During a first meeting with the parties and a custody expert in a very acrimonious matter, the expert asked one spouse whether her lawyers had explained to her the law of relocation.  She answered "no," despite relocation being one of the primary issues in the case and her desired result.  The expert then asked if her attorneys had made her aware of the Supreme Court of New Jersey's decision in Baures v. Lewis, and the Appellate Division's decision in O'Connor v. O'Connor, each of which are seminal cases on the issue of relocation.  The wife answered "no" to each.  Our client, by contrast, was aware of these cases because we took the time to advise him of the cases, and explain their underlying principles.  The expert then directed the wife to ask her attorneys to explain to her the law and those cases.

What is the lesson to be learned here?  If your client is going to spend tens of thousands of dollars, if not more, litigating an issue, make sure that he or she understands the law.  If there is a lack of understanding, or lack of awareness, then how is he or she supposed to know whether their position is reasonable, whether it is worth litigating over, and whether to settle?  An informed client better knows the risks, perils, pitfalls, and chances of success, no matter what area of law is involved.  In family law, where the stakes are often higher and more emotional, it is even more critical. 

__________________________________________________

Robert Epstein is an associate in Fox Rothschild LLP's Family Law Practice Group. Robert practices in the firm's Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.   

• Print
• Comments
• Trackbacks
• Share Link

An interesting decision on the issue of support modifications came down last week from the Appellate Division in the unpublished (not precedential) matter of Schechter v. Shechter.  There, the husband in 2004 agreed via settlement to pay child support and 12 years of limited duration alimony.  In July 2010, he filed a motion to modify his support obligations on the basis of a substantial and continuing change in circumstances (he had been unemployed since March 2009).  

The motion judge denied the parties' request for oral argument and, in ruling "on the papers," added several paragraphs to the husband's proposed form of order.  As part of the order, the judge, among other forms of relief, temporarily reduced the husband's child support obligation due to a finding of changed circumstances, but then denied his request to modify his alimony obligation. 

The husband appealed, arguing that the trial judge erred by (1) denying his request to modify alimony despite finding that changed circumstances warranted a temporary reduction in child support; (2) denying the parties' request for oral argument; (3) failing to make requisite findings of fact and conclusions of law; and (4) failing to conduct a plenary hearing. 

The Appellate Division reversed and remanded the matter because the motion judge failed to make proper findings of fact and conclusions of law.  As a result, the Appellate Division was unable to reconcile why the motion judge modified child support based upon a finding of changed circumstances, while also denying a modification of alimony.

Notably, while the husband was successful on having the matter reversed and remanded, it was a hollow victory because the motion judge had since retired.  The matter, as a result, was remanded to an entirely new trial judge for a "fresh look," especially in light of the parties' "possibly evolving financial circumstances."  Thus, while the prior motion judge had made a finding of changed circumstances (at least as it applied to child support), the new motion judge would no longer be bound by such a finding.  The husband, by unfortunate result, was essentially left with no choice but to start over.  While we have discussed on several occasions the issues raised by denying oral argument and failing to make proper findings of fact and conclusions of law, the result in this matter seemed particularly inequitable to one party under somewhat unique circumstances beyond his control.

• Print
• Comments
• Trackbacks
• Share Link

Harassment under New Jersey's Prevention of Domestic Violence Act can take on many forms, one of which, under a given set of facts and circumstances, can involve an individual placing a victim in fear of losing her job.  Recently we handled a matter where the defendant was contacting the victim's employer and threatening to tell the employer very private details about the victim's personal life.  Whether the victim would have actually lost her job was one thing, since, more importantly, she had a reasonable fear based on the defendant's harassment that it would occur.

The facts in J.J. v. J.M. were relatively similar (as each case carries its own details and nuances), as the Appellate Division affirmed in this unpublished (not precedential) case that the defendant's actions in placing his former girlfriend in fear of losing her job constituted harassment meriting issuance of a Final Restraining Order. 

• Print
• Comments
• Trackbacks
• Share Link

Following on the heels of Melissa Ruvolo's blog entry discussing the need for detailed proofs to fulfill one's threshold burden required to modify support, the Appellate Division's unpublished (not precedential) decision in Bonaventura v. Bonaventura tells the tale of a supporting spouse who unsuccessfully (and surprisingly) tried to reduce his alimony obligation after losing his job in the financial industry.  With the Dow having dropped 500 points yesterday as widespread economic jitters continue three years after the bottom fell out of the economy, and unemployment rates soaring at around 19%, job losses, especially in the financial industry are to sure to continue. 

With that, our jobs as matrimonial practitioners will continue to require creativity to convince courts that a given case is different from the "run of the mill" Lepis applications and, at the very least, necessitates a period of discovery and subsequent plenary hearing.  Bonaventura reveals, however, that not only is each case fact-specific, but also each trial judge can rule differently on a similar factual scenario.

• Print
• Comments
• Trackbacks
• Share Link

Lately, it seems as if everywhere I turn I am representing a party in a domestic violence matter, whether in relation to or separate from an ongoing divorce matter.  With these recent experiences fresh in my mind, I thought I would take the time to blog about the lawyer's role in representing a defendant in such matters.  While it is easy to sympathize with the victim, oftentimes it is the defendant who is falsely accused or caught up in a situation where the victim is trying to get a "leg up" over the other party in the context of a divorce. On of our prior post entited the The Abuse and Misuse of the Domestic Violence Statute, published almost 2 years ago, is perhaps our most commented on post.

Whether the person is the victim or defendant, each passing moment is critical in the compressed time between the filing of the domestic violence complaint and the final hearing to determine whether a temporary restraining order should be converted to a final (permanent) restraining order.  I paraphrase one recent client's opinion as to his wife obtaining a TRO against him - with one call by her to the police, his entire life began crumbling before his eyes as his family and career had been put at risk.  

• Print
• Comments
• Trackbacks
• Share Link

The protections afforded by New Jersey’s Prevention of Domestic Violence Act are deliberately liberal for the benefit of abuse victims. Those protections, however, have seemingly expanded to an even greater degree under a new published (precedential) decision from the Appellate Division released on January 26, 2011. In S.Z. v. M.C., the Appellate Division ruled that an adult male visitor who resided at the plaintiff’s home for less than a year constituted a “household member” as defined by the Act.

Briefly, the plaintiff had testified that defendant, who was a bookkeeper for plaintiff’s business in need of a place to live, resided in plaintiff’s home with plaintiff, his wife and three children from October 2008 through April 2009. Plaintiff claimed that defendant was engaging in acts of harassment and stalking against him under the Act, adding, important to the Court’s conclusion, that he was also not in a “dating relationship” with defendant, as that term is defined under the Act.

The trial court declined to exercise jurisdiction, finding that defendant was not a “household matter” under the Act because he was akin to a mere “social guest” of a “transient,” rather than permanent status in plaintiff’s household. As a result, the trial court concluded that the parties lacked the “familial, emotional and financial ties” between them that would merit the Act’s protection.

The Appellate Division disagreed, finding that defendant was a “household member” under the Act, similar to a college dormitory suitemate, which was found to be a household member in another matter relied upon by the Court in its decision. Rather than focusing on the duration of time the parties spent together, which the Court found sufficient nevertheless, the Court more notably focused on the “qualities and characteristics” of the parties’ relationship, and how such qualities and characteristics made plaintiff susceptible to defendant’s abuse. 

The Appellate Court’s decision suggests that other individuals one would previously not consider to be “household members” would now fall under the Act, such as nannies, au pairs, housekeepers, and in-home care providers. Thus, the Act’s broad protections for the benefit of victims have appeared to expand even further than before.

• Print
• Comments
• Trackbacks
• Share Link

A divorce action generally results in a Final Judgment of Divorce which dissolves the bonds  of matrimony - including the part about "in good times and bad . . . "  This however, is not always the case.  Certainly if two people have children together their relationship with each other, although different, will have to continue if they are to co-parent.  But what about a long term marriage at the end of which a Judge orders permanent alimony?  Through permanent alimony the financial relationship of two individuals live on "in good times and bad."

In a recent appellate division case, Knips v. Knips, the Court reversed the trial Court's determination regarding alimony where, after thirty-four years of marriage and an award of $175 per week in permanent alimony, the plaintiff could not afford to lead a "legitimate middle-class" lifestyle.  As the Court in Knips states, "alimony is intended to allow the dependent spouse to live at the marital standard of living, not just 'bare survival'" [emphasis added].  The idea is that If the parties enjoyed a middle-class lifestyle during the marriage, then the parties should be able to enjoy a similar lifestyle after the marriage.  If one party was mainly responsible for financially supporting that lifestyle, then a Court will likely order that they continue to be financially responsible (in the form of alimony payments).  And, if among other factors, the marriage was long enough then then Court will order that this financial responsibility be permanent (i.e. permanent alimony). 

• Print
• Comments
• Trackbacks
• Share Link

Oftentimes, people seeking to modify downward their child support payment obligation will seek to do so as of the date that they allege the change in financial circumstances commenced, i.e., a loss of employment, suffering a disability, and the like.  To protect the existing "duty of support," however, New Jersey has a statute that expressly addresses the retroactive modification of child support payments.

N.J.S.A. 2A:17-56.23a clearly states:

                [n]o payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of [N.J.S.A. 2A:17-56.23a], shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.  The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court.

The law is, therefore, clear - retroactive implementation of a child support modification may only be made back to when the other party is put on written notice that a change of circumstances has occurred and a motion to address the issue will be filed within 45 days of such notice.  Where the motion is not timely filed within that 45-day period, the retroactive implementation may only be made back to the date when the motion is actually filed. 

• Print
• Comments
• Trackbacks
• Share Link

New Jersey adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 2004, replacing the Uniform Child Custody Jurisdiction Act (UCCJA) in an effort to facilitate cooperation between courts of other states to ensure that the state best able to decide a given custody matter actually makes that decision.  The UCCJEA was recently at the forefront in Dalessio v. Gallagher and Jacobs, a new reported (precedential) decision from the Appellate Division.

To ensure that the state most capable of deciding a custody matter has jurisdiction to hear the case, the UCCJEA gives priority to the "home state."  The statute provides as to the "home state" definition:

a.  . . . [A] court of this State has jurisdiction to make an initial child custody determination only if:

(1)  this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2)  a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction . . . and:  (a)  the child and the child's parents, or the child and at least one parent . . . have a significant connection with this State other than mere physical presence; and (b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships[.]

b.  Subsection a. of this section is the exclusive jurisdiction basis for making a child custody determination by a court of this State.

The "home state" is defined by the New Jersey law as "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." 

• Print
• Comments
• Trackbacks
• Share Link

We previously blogged on the Appellate Division's notable decision in Rogers v. Gordon, which addressed the legal standard applicable to prenuptial agreements signed prior to New Jersey's enactment of the Uniform Premarital Agreement statute.  There, the Appellate Division reversed a trial court Order to the extent that it set aside the entire prenup, since, as to equitable distribution, the husband knew that the wife would likely be wealthier than him at the time of a divorce given her family wealth.  As to the issue of alimony, however, the Appellate Division modified the trial court's Order by holding that the husband could seek alimony at a later date if he could establish "changed circumstances" pursuant to  Lepis v. Lepis, 83 N.J. 139 (1980).

Considering the level of acrimony involved in the divorce proceeding, which could be easily discerned from the first Appellate Division decision, it was no surprise that a second appeal was filed, this time as to the issue of counsel fees.  On this appeal, the wife argued that the trial court erred by allowing the husband to seek and obtain counsel fees as to his claim for alimony, since he was denied such a claim in relation to equitable distribution issues previously raised. 

The Appellate Division affirmed the trial court's finding that the husband had expressly waived in the prenup his right to counsel fees in relation to equitable distribution, but that he had not done so as to alimony since the prenup provision regarding alimony did not contain a similar provision waiving counsel fees on that issue.  Ultimately, the Appellate Division remanded for a proper calculation of fees incurred as to alimony, but what struck me as interesting in reviewing the Opinion was the Appellate Division's conclusion that the husband's attorney had achieved some sort of success as to the alimony issue.  Specifically, while it noted that the attorney had not obtained for the husband an immediate benefit - i.e., he still was not entitled to alimony without establishing changed circumstances - the attorney was deemed successful in that he opened the door for the husband to make such a claim in the future.  This even though the husband could very well fail in making that future claim. 

The primary theme in the case was one of contract interpretation - while one paragraph contained language waiving counsel fees, another did not.  Since the prenup was the product of expert drafting, the Appellate Division found the lack of language waiving counsel fees as to alimony to be significant and, as a result, did not preclude the husband's claim.

• Print
• Comments
• Trackbacks
• Share Link

Are prenuptial agreements entered into before the enactment in 1988 of the Uniform Premarital Agreement Act in New Jersey in New Jersey analyzed for enforceability under the standards set forth in the Act? The simple answer is no, since the standard for determining the enforceability was established by earlier cases addresses addressing the issue. 

There is a three (3) prong test to determine the enforceability of these pre-Act agreements.  To be enforceable: (1) there must be “full disclosure by each party as to his or her financial conditions;” (2) the party sought to be bound by the agreement understood and accepted the terms of the agreement; and (3) the agreement is fair and not unconscionable - it will not "leave a spouse a public charge or close to it, or . . . provide a standard of living far below that which was enjoyed both before and during the marriage."

The party seeking to enforce the prenuptial agreement bears the burden of proving that there was full financial disclosure to the other party, the simplest way of which is to point to schedules attached to the agreement setting out  – at least in general terms and with approximate values – the assets of the parties as well as their income over the past few years prior to the marriage.  Simply put, a lack of full and complete financial disclosure in the agreement by one party prevents the other party from truly "accepting" its terms.  The underlying rationale is that, with full and complete disclosure, the other party might have found the agreement unfair or might not have even gotten married. 

• Print
• Comments (1)
• Trackbacks
• Share Link

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.

• Print
• Comments
• Trackbacks
• Share Link

In reading an article today from the New York Times entitled, Rise in Divorce Evidence from Social Websites, I was intrigued at how rapidly changing technology places a microscope on even the world of family law, as words you might have uttered once on the Internet may come back to haunt you in your family law litigation.  From Facebook, to Twitter, to Myspace, to blogs, there is certainly no shortage of ways to put your thoughts out there and, from a legal perspective, no shortage of ways to contradict what you might represent in a divorce dispute, domestic violence litigation, and the like.

The article is interesting for its discussion on the rise of the use of such evidence in matrimonial matters in recent years.  Even giving a cursory look at  someone's Facebook page typically reveals a wide breadth of personal information that you might not otherwise know about them.  Pictures and videos are often posted, and personal messages are often revealed for all with access to see.  Not surprisingly, usually the other spouse is a Facebook or Myspace "friend" with access to the page.  Even less protected is Twitter, where anyone can see your page, since there are no access restrictions.

I was just involved in a Final Restraining Order hearing where the wife claimed that she was fearful of her husband based on alleged acts of domestic violence.  I countered this claim in part by submitting to the Court as evidence a message that the wife posted to the husband on Facebook after the alleged act of domestic violence occurred where she professed her love for her husband, told him she missed him and that she could not wait to see him.  While the effectiveness of such evidence is no guarantee, it certainly helps to impeach one's credibility, especially during a Final Restraining Order hearing where the Court bases its rulings in large part on the a "he said/she said" version of events.

When all is said and done, these websites provide a cautionary tale for anyone party to a family law litigation.  While many of us enjoy posting information about ourselves, what we do for a living, who we know and what we look like, you never know if you will one day end up in family court litigating a dispute when all of a sudden you are confronted with something you wrote ages ago on the Internet that contradicts the position you are submitting under oath.  Technology will only continue to develop in the social networking realm and the lesson to be learned is - typers beware...

• Print
• Comments
• Trackbacks
• Share Link

Can one former spouse obtain a Court Ordered reduction in child support in New Jersey simply by stating that his or her income is no longer what it once was?  The simple answer is no, as the payor spouse must show that he has attempted to "improve" on his worsening situation, and an analysis of his expenditures and assets will also occur.  Courts will also look at the parties' understanding at the time when they executed a settlement agreement should one exist.  Only if the payor spouse can overcome those hurdles may a Court properly determine that he has established a prima facie case of substantial and continuing changed circumstances from when the support obligation was set. 

As I indicated above, Courts will look at the parties' intentions at the time the settlement agreement was signed to determine if the parties "reasonably anticipated" the very condition the payor now claims to have changed.  Such was the case in Lester v. Lester, a recently unpublished (not precedential) decision from the Appellate Division where the husband/payor moved for a reduction in his child support payments based on a claim that his income had continually declined due to his pre-existing, yet worsening psoriasis condition.  The husband was a physician who alleged that his condition prevented him from performing certain surgeries that were previously part of his medical practice. 

In affirming the trial court's denial of the husband's motion for a child support reduction based on his failure to establish a prima facie case of changed circumstances, the Appellate Division primarily noted that the reduced income was only one part of the puzzle.  The other parts, including the husband's medical condition pre-existing the settlement agreement with its potential worsening having been presumably contemplated by the parties when the settlement agreement was signed, the husband's failure to reduce his personal and professional expenses, and his "considerable assets" beyond his income, completed the puzzle in the wife/payee's favor. 

Establishing changed circumstances is therefore no easy task, as the Appellate Division in Lester analyzed every detail down to the husband's purchase of a new Mercedes.  As shown in this prior blog entry, as well as this one, there is a lot of work to be done in both making and defending against such an application.

• Print
• Comments
• Trackbacks
• Share Link

Abdelhak v. The Jewish Press, Inc., et. al., a recently reported (precedential) decision from the Appellate Division, raises the always interesting issue of Jewish divorce.  While the divorce itself was not the main issue in the case, which I briefly discuss below, the case provides a relevant opportunity to discuss Jewish divorces in general and how they have been treated by New Jersey courts. 

Under Jewish law, a "Get" is a bill of divorce that a husband gives to a wife in order to "free her" to remarry.  A secular divorce will not do the trick, as the couple's marital status will remain unchanged under Jewish tenets.  In such cases, the wife is labeled unceremoniously as an "agunah," or a "chained woman" so to speak.  What does that mean to the woman who wants to remarry?  The result is dramatic and far reaching, as she cannot remarry (and, simply put, most Conservative and Orthodox rabbis would not even perform a wedding for such a woman); and any children subsequently had with another man are considered children born of adultery.  A trickling down effect essentially occurs, where the children, grandchildren, etc., often can only marry other children born in such a situation or persons who converted to Judaism.  Unfortunately, this may place the woman in the position of obtaining an inequitable secular divorce settlement to procure the desired Get from the husband. 

• Print
• Comments
• Trackbacks
• Share Link

Five years after David Goldman commenced his legal fight for the return of his now nine-year old son Sean, the boy finally returned to the United States for good on Christmas Eve.  As reported in today's Star Ledger, the pair traveled together on a private jet to Orlando, Florida, where they will first vacation together before returning to New Jersey.

In what can only be described as an unbelievable, chaotic scene in Brazil yesterday morning, Sean's stepfather, grandmother and maternal uncle paraded the boy through the streets leading up to the United States Consulate where David Goldman waited for the exchange to take place.  The boy wore a shirt bearing a Brazilian flag and tearfully clutched his stepfather while being mobbed by throngs of reporters trying to catch a picture of the boy in his final emotional moments in the foreign country.  Instead of accepting the Consulate's offer to bring the boy privately inside through an underground garage, the attorney representing Sean's Brazilian family admitted to staging the horrific spectacle in protest for David's reported refusal to allow him and the maternal grandmother to accompany them back to the United States.  One can only hope that this conduct will be considered by a court should the Brazilian family seek visitation in the future.

As recently reported on this blog, the Brazilian Supreme Court had Ordered Sean's return to his father, affirming the decision of a lower federal court in a matter that captured the world's attention and placed great focus on the Hague Convention, which states that children abducted should be returned to their "habitual residence," in Sean's case, the United States. 

• Print
• Comments
• Trackbacks
• Share Link

During the course of a litigation where children are involved, the parties will often come to an agreement as to custody and parenting time.  By settling on this understandably emotional issue, the parties avoid having to go to trial, where the trial judge would have decided for them who has custody and what the parenting time schedule will be.  Depending on when settlement occurs during the course of the litigation, the time and expense of obtaining a custody evaluation, which involves the children in the process as well, may also be avoided. 

However, oftentimes after settling the issue and coming to an agreement, one or both parents will change their minds about what they just entered into for whatever the reason may be.  He or she wants to change the agreement or simple rescind on its terms.  We are actually involved in a litigation where the parties agreed to a holiday parenting time schedule with a parenting coordinator, the Court subsequently entered the terms of the Agreement in an Order, and the husband is still trying to back away from the agreement, having just filed a motion with the Court and leaving our client with no choice but to incur legal fees to respond.

The question then becomes, can they change the schedule so easily if they want to?  The simple answer is no.  A parent seeking a modification of a custody and parenting time agreement must show changed circumstances from when the agreement was made that the agreement is now not in the best interests of the children.

• Print
• Comments
• Trackbacks
• Share Link

One of the most common questions people ask when settling their divorce matter is, how do we figure out what the child support payment is going to be?  Well, as set forth in one of our recent blog posts found here, Child Support Guidelines in New Jersey control where parties combined net after tax income is less than approximately $185,000.  As also set forth in that prior entry, while a custodial parent cannot bargain away their right to child support and there generally cannot be an agreement to pay less than that set forth in the Guidelines, there may be an enforceable agreement to pay more.  Apparently, an agreement to pay more may hold true even where the number agreed upon was inadvertently higher than required.

In resolving child support, it is critical for the settling parties to set forth in the Marital Settlement Agreement the basis for how child support was reached - such as whether support was calculated pursuant to the Guidelines, as well as attach to the Agreement the Child Support Guidelines worksheet itself.  This will clarify whether the child support number set forth in the Agreement was part of an overall settlement of the parties' parenting and financial issues or, by contrast, a unilateral or mutual mistake of the parties.

The perils of not following these basic steps can be costly, as recently addressed by the Appellate Division in Haskoor v. Haskoor.  There, the parties entered into a Marital Settlement Agreement resolving their custody and financial issues.  A weekly child support amount was included, as well as terms addressing the husband's parenting time.  Less than 2 years after following the divorce, the wife sought to reduce the husband's parenting time while increasing his child support obligation.  In responding, the husband indicated that it was at that time that he first realized that the "sole parenting worksheet" rather than the "shared parenting worksheet" had been used to calculate child support in the settlement agreement, thereby obligating him to pay a higher level of child support.  The husband also argued that the sole parenting worksheet applied used the wrong amount of alimony.   

• Print
• Comments
• Trackbacks
• Share Link

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

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

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

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

• Print
• Comments
• Trackbacks
• Share Link