You see it all of the time.  Someone file a motion with the court regarding discovery and/or asking for various pendente lite relief, like temporary support, temporary parenting time and other things that come up during the pendency of a case.  Judges are human and sometimes they just get it wrong, either because they get the law wrong, misunderstand the facts, miss certain things that are in the paper or for any other reason.  When that occurs, it is common for one or both sides to file a “motion for reconsideration” to correct the mistake.  Some people just file motions for reconsideration because they don’t like the result and want a “second bit of the apple” as is referenced in the case law.  That said, often there is a legitimate mistake that one side will take advantage off, often to prolong a case and/or negotiate in bad faith, because they have the so called “bird in the hand.”

Judges seem to hate motions for reconsideration, either because they are overworked and don’t want to have to deal with the motion again, or because they don’t want to have to admit that they may have made a mistake, or for any other reason that a human being may not like to be accused of being wrong.  In these cases, even when the error is clear, motions are often denied and the defendant party is awarded counsel fees – even though there is no bad faith in the simple filing of a motion for reconsideration.

That said, an interesting reported (precedential) decision was released by the Appellate Division today that suggests that maybe, just maybe, many, if not most trial court judges were getting the standard for reconsideration wrong all along.  Specifically, the case of Alfred Lawson v. Officer Jeff Dewar, Et. Al., Judge Fisher starts the opinion, as follows, “In summarily deciding this interlocutory appeal and vacating the order under review, we write chiefly to point out commonly misunderstood distinctions between motions seeking reconsideration of final orders and motions seeking reconsideration of interlocutory orders.”  Later in the decision, when addressing the order before the court on appeal, Judge Fisher noted:

The problem with the judge’s disposition lies with his application of principles relevant only when a judge is asked to reconsider a final order; these standards are incompatible with a request that an interlocutory order be reconsidered. The approach to those requests is significantly different .

While this isn’t a family law case, as the same Rules of Court are implicated, it applies equally to family law cases.

Now typically, when a motion to reconsider a pendente lite Order is filed more than 20 days after the entry of an Order, often the defending party opposes it as being filed out of time even though the Rules and case law are pretty clear.  I have even seen judges agree with this and refuse to even hear the motion.  Judge Fisher definitively rejected this approach and held:

We start with a frequent misconception about the time within which a motion for reconsideration of an interlocutory order can be filed. Defendants have argued that plaintiff was obligated to move for reconsideration within twenty days of the May 14, 2020 order. That is plainly wrong. Rule 4:49-2 sets a twenty-day time bar for filing motions to alter or amend “a judgment or order,” a phrase that encompasses only final orders, as Judge Pressler long ago observed in Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 258-59 (App. Div. 1987). No one has or could possibly argue the May 14, 2020 order is a final
order. Rule 4:49-2 has no application here.

Now often – if not all of the time – court’s apply the standard set forth in Cummings v. Bahr to pendente lite reconsideration motions.  That standard requires a showing that the challenged order was the result of a “palpably incorrect or irrational” analysis or of the judge’s failure to “consider” or “appreciate” competent and probative evidence.  Judge Fisher made clear that that is not the proper standard to evaluate motions for reconsideration of non-final, pendente lite Orders and held:

Because Rule 4:49-2 applies only to motions to alter or amend final judgments and final orders, and doesn’t apply when an interlocutory order is challenged, so too the standard described in Cummings v. Bahr … did not apply to the motion before the trial judge. Instead, in ruling on the motion at hand, the judge should have been guided only by Rule 4:42-2 and its far more liberal approach to reconsideration, not the methodology employed when a motion is based on Rule 4:49-2.

Rather, Judge Fisher noted that the proper standard was as follows:

Rule 4:42-2 declares that interlocutory orders “shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” A motion for reconsideration does not require a showing that the challenged order was “palpably incorrect,” “irrational,” or based on a misapprehension or overlooking of significant material presented on the earlier application. Until entry of final judgment, only “sound discretion” and the “interest of justice” guides the trial court, as Rule 4:42-2 expressly states. Nearly forty years ago, Judge Michels said for this court in Ford v. Weisman,
188 N.J. Super. 614, 619 (App. Div. 1983) that, until the suit ends, a trial court “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.”  (internal citations omitted).  By invoking Cummings, the trial judge applied the wrong standard in denying plaintiff’s motion.

But Judge Fisher went even further and stated:

We observe as well there is nothing in our jurisprudence to suggest reconsideration of an interlocutory order is prohibited unless the movant can provide something “new” or unless the prior judge acted in an “arbitrary, capricious or unreasonable” manner.” …

In the final analysis, we urge judges not to view reconsideration motions as hostile gestures. To be sure, some are frivolous, vexatious or merely repetitious, and some constitute an unwarranted attempt to reverse matters previously decided solely because the prior judge is no longer available. But some reconsideration motions – those that argue in good faith a prior mistake, a change in circumstances, or the court’s misappreciation of what was previously argued – present the court with an opportunity to either reinforce and better explain why the prior order was appropriate or correct a prior erroneous order. Judges should view well-reasoned motions based on Rule 4:42-2 as an invitation to apply Cromwell’s rule: “I beseech you . . . think it possible you may be mistaken.” The fair and efficient administration of justice is better served when reconsideration motions are viewed in that spirit and not as nuisances to be swatted aside.  (Emphasis added)

Moreover, it is not uncommon for more than one judge to be assigned to a case prior to trial, especially, the longer a case goes on.  In fact, every year, a new General Assignment Order is entered by the Chief Justice, and it is not uncommon for judges to move between divisions.  Sometimes, judges move within a division and no longer have the same docket.  Other times, judges retire or some conflict requires the judge handling the case to change.  When this happens, what usually occurs is that the new judge gives absolute deference to the prior judge’s rulings – even when the first judge is no longer assigned and cannot hear the reconsideration motion.  Often times, I have heard judges say “I am not Judge X’s Appellate Division.”  Put another way, deference would preclude getting an order right. Turns out, that approach and attitude is not correct either.

In Alfred Lawson, Judge Fisher stated:

The judge further erred by giving undue deference to the interlocutory rulings of the Somerset judge. If a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference and should correct the error. See McBride v. Minstar, Inc., 283 N.J. Super. 471, 481 (Law Div. 1994), aff’d o.b., McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (App. Div. 1995). The polestar is always what is best for the pending suit; it is better to risk giving offense to a colleague than to allow a case to veer off course.

Similarly, the law of the case doctrine has no bearing when a party seeks reconsideration of interlocutory discovery orders. In writing for the Supreme Court, Justice Long recognized the law of the case doctrine “is only triggered when one court is faced with a ruling on the merits by a different and co-equal court on an identical issue.” Lombardi, 207 N.J. at 539 (emphasis added). In support, Lombardi cited Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 356 (App. Div. 2004), aff’d o.b., 184 N.J. 415 (2005), where we held in similar circumstances that the law of the case doctrine does not obligate a court to “slavishly follow an erroneous or uncertain interlocutory ruling.”Interlocutory rulings are “not considered ‘law of the case'” and are “always subject to reconsideration up until final judgment is entered.” Lombardi, 207 N.J. at 539 (citing Johnson, 220 N.J. Super. at 257).  (Emphasis added).

While this ruling may lead to a rash of new reconsideration motions – and maybe rightly so – perhaps more importantly, trial judges will heed Judge Fisher’s words and correct mistaken Orders as opposed to swatting aside reconsideration motions on principle.


Eric S. Solotoff, Partner, Fox Rothschild LLP    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

Last week, I blogged on the  A.J.V. v. M.M.V.  case, specifically, regarding the retroactive application of a savings component.  As noted in the post, there was an interesting treatment of deferred compensation in the case.

Specifically, the husband received RSUs as part of his annual compensation which serially vested over 3 years.  In this case, the Complaint was filed in 2014.  At issue were the RSUs granted in 2012, 2013 and 2014.  As is sometimes the case, in recognition for the fact that the husband had to continue to work post-complaint for the RSUs to vest, the parties attempted resolve the issue using a coverture fraction and “agreed” that the wife would receive thirty-nine percent of the net shares in the tranche that vested in 2015, twenty-two percent of the net shares in the tranche that vested in 2016, and six percent of the net shares in the tranche that vested in 2017.  What they never could agree on was how to determine the net based upon a disagreement of the tax rate to use.

In his decision, the trial judge came to the conclusion that the parties’ inability to agree on the tax rates meant they had no agreement at all . The judge then went on to make detailed findings as to the sixteen statutory factors in the equitable distribution statute and determined that the wife was  “entitled to 50% of all net RSU[s]” granted prior to the date of Complaint.

The Appellate Division affirmed and agreed that in absence of a complete stipulation, he could divide the RSUs and allocate the tax consequences in the way that he found most equitable.  The Appellate Division noted that a stipulation of settlement should not be enforced “where there appears to have been an absence of mutuality of accord between the parties or their attorneys in some
substantial particulars, or the stipulated agreement is incomplete in some of its material and essential terms.”

The Appellate Division noted that the trial judge properly considered all of the statutory factors.  Moreover, the Court addressed the 2018 M.G. v. S.M. case dealing precisely with this issue that we previously blogged on.  The Appellate Division noted that the trial court relied on an quoted that holding, specifically:

(1) “[w]here an award is made [by an employer] during the marriage for work performed during the marriage, but becomes vested after the date of complaint, it too is subject to equitable distribution”; (2) “there is a rebuttable presumption the award is subject to equitable distribution unless there is a material dispute of fact regarding whether the stock, either in whole or in part, is for future performance”; and (3) “[t]he party seeking to exclude such assets . . . bears the burden to prove the stock award was made for services performed outside the marriage.”

The court further noted that:

Applying these principles, the judge found the RSUs at issue were subject to equitable distribution because they were awarded for Alan’s “pre-complaint work performance” as “compensation” during times when he was working and traveling extensively and Martha was supporting those efforts by caring for their home and child. The judge also found that, “[u]nlike the plaintiff in M.G.,” Alan “provided no material, objective or credible testimony or evidence, including stock plan information or testimony from corporate representatives, that the RSUs were compensation for or contingent upon future work performance.” The judge, therefore, found Alan “failed to meet his burden of proof to exclude the RSUs from equitable distribution.” The judge added that he “generally did not find [Alan] to be credible,” and so rejected his “unsupported position that the RSUs are contingent or related to future performance.

This is often the when these issues arise – either the proofs are not put in or the plans are somewhat nebulous because when they claim to reward future performance, there are cases noted in my prior blog post on M.G. where the court disregarded that language because the employee would still get the deferred compensation, even if their was future disability, death, lay offs, etc.

The take away here is that if want to divide these assets on a less than 50-50 basis, you either need to formalize the stipulation regarding the issue and/or prove the necessary requirements of M.G. at trial.


Eric S. Solotoff, Partner, Fox Rothschild LLP

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

While the issue of savings being a component of alimony has been around for decades, since the Lombardi case in 2016 (which we previously blogged about), the issue of a savings component, especially where parties live reasonably frugally, but save a lot, have become more of a front burner issue.

In Lombardi, the Appellate Division discussed the concept of marital lifestyle and how savings fit into the lifestyle.  Specifically, the Court held:

Overall, “[t]he goal of alimony is to assist the supported spouse in achieving a lifestyle ‘reasonably comparable’ to the one enjoyed during the marriage.” Lombardi v. Lombardi, 447 N.J. Super. 26, 37 (App. Div. 2016) (quoting Steneken, 183 N.J. at 299). Establishing the standard of living experienced during the marriage “serves as the touchstone” in the analysis. Crews, 164 N.J. at 16. Marital lifestyle is ascertained by considering “the marital residence, vacation home, cars owned or leased, typical travel and vacations for each year, schools, special lessons, and camps for [the] children, entertainment . . ., household help, and other personal services.” Weishaus v.Weishaus, 360 N.J. Super. 281, 290-91 (App. Div. 2003), rev’d in part on other
grounds, 180 N.J. 131 (2004). A marital lifestyle finding must be based not just on the amounts expended but ultimately what is equitable. Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div. 2004).  ….

– – – – – –

“The most ‘appropriate case’ in which to include a savings component is where the parties’ lifestyle included regular savings  [b]ecause it is the manner in which the parties use their income that is determinative when establishing a martial lifestyle.” Lombardi, 447 N.J. Super. at 39. The fact that “the payment of the support ultimately is protected by life insurance or other financial tools, does not make the consideration of the savings component any less appropriate.” Ibid. Indeed, “[t]he Supreme Court has recognized the need to consider regular savings in determining a marital lifestyle by including a line item for monthly savings in Schedule C of the case information statement parties must file in family matters.” Id. at 40-41.

Notwithstanding Lombardi this issue still comes up often in high net worth and high income cases, as it did in the unreported (non-precedential) Appellate Division case decided on May 14, 2021, of A.J.V. v. M.M.V.      In this case, the trial judge included $5,000 as a savings component in his 11 year limited duration alimony award of $11,500 per month.  In addition, the Court awarded the savings component retroactively 52 months representing $260,000 due from the husband to the wife in the judgment of divorce.

In this case, the parties had amassed over $8 million in assets during the marriage.  The court found that the husband’s income fluctuated in the last 7 years (2012-2018) between $1,022,923 in the first of the years and $633,606 in the last.  The trial judge fixed support using $700,000 in earned income for the  husband and approximately $74,000 for the wife based on her earnings history.  The parties lived frugally (in fact the judge specifically found that they had a “frugal lifestyle”, vacationed off-season and/or in connection with work trips covered mostly by the husband’s employer.  The drove company cars and then Fords because they were able to use the husband’s father’s executive discount.  Both parties agreed that savings was a large component of their lifestyle.  Even the husband conceded that they saved $12,800 per month in 2012 and $21,250 per month in 2013. The trial judge concluded that the parties’ monthly marital lifestyle was approximately $10,588, and they had an additional monthly savings component of $19,087.  Based upon that lifestyle, the trial judge reasoned that “it will not be possible for both parties to maintain the marital lifestyle based upon their combined annual gross income of $776,415.”  Taking into account their incomes, need to downsize and income from their equitable distribution, the trial judge concluded that $6,500 per month in alimony as supplemented by the wife’s imputed net income of approximately $4,000 per month “equates to and reasonably supports the prior $10,588 per month” marital lifestyle”

As to the savings component, the judge found that:

… the $5,000 monthly savings component was “reasonable and appropriate based upon the history of the parties’ marriage” during which they saved approximately $19,087 per month. He recognized that “[w]hile 50 percent of the monthly marital savings component would be $9543.50 for each party . . . the savings component must decrease dramatically as a result of [Alan’s] alimony obligation and his having to maintain two households.”

The Appellate Division agreed and affirmed the decision and stated:  “In short, we agree with the trial judge and conclude that the $5,000 monthly savings component is reasonable under the circumstances – particularly given the couple’s joint emphasis on regular savings as part of the marital lifestyle.

The Appellate Division also affirmed the Mallamo credit to make up for the the absence of a savings component in the support  paid during the pendente lite stage.  Mallamo is the case that stands for the proposition that pendente lite support orders are subject to modification at any time prior to entry of final judgment and credits may be awarded to adjust the support paid prior to final judgment.  Further,

… When,as here, it is the latter, a judge may consider awarding the supported spouse a credit to equalize the fact that the supported spouse was short-changed during the pendente lite stage …

This decision reeks of equity and justice – something that is often elusive in litigated cases.  Moreover, when cases drag on, it is often very easy to sweep credits under the rug.  In fact, some people use that as a strategy, knowing that the cost of a trial may exceed the amount at issue.  When here, there was a small pendente lite aware yet the income remained substantial, a windfall on the part of the husband was a possible outcome that the court corrected by this retroactive adjustment.

The case was also interesting for how the court handled deferred compensation that was granted pre-complaint but vested post-complaint.  Stay tuned for another post on that issue.


Eric S. Solotoff, Partner, Fox Rothschild LLP

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

In January 2020, the Appellate Division considered an important question: how should a judge assess a party’s request to appear at a trial and present testimony by way of video transmission? The timing of this consideration could not be more fitting considering the challenges presented by a global pandemic, which would shift the future of lawyering forever. A famous example of the complexities of an exclusively virtual judiciary occurred when a lawyer accidentally masqueraded as a cat. This aesthetic appearance does not even begin to ‘scratch’ the surface. Court can be particularly tricky for Pro se (self-represented) parties as is, and remote proceedings have only exacerbated the difficulties of navigating the court system.

Although most of the world came to a complete halt during the pandemic, in order to prevent an unreasonable and unfathomable backlog to the court system, in the interest of judicial efficiency, New Jersey Courts have operated remotely through platforms such as Zoom, Microsoft Teams, and various other telecommunication services.  While these platforms have proved to be beneficial for lawyers conducting depositions, hearings, client conferences, and various other forms of “lawyering,” the remote trial process has created several difficulties for everyone involved. Notably, these telecommunication services present a unique set of challenges when conducting a trial and attempting to preserve the due process rights of the parties involved.

The Appellate Division released its reported (precedential) opinion on the above referenced question on May 11, 2020, in an opinion authored by Judge Whipple in the case of D.M.R. v. M.K.G. The defendant, on appeal, claimed that the trial court arbitrarily disregarded her due process rights while conducting a domestic violence trial via Zoom.

In the underlying matter, two individuals were involved in a romantic relationship.  The plaintiff had gifted the defendant a dog during the relationship. Unfortunately, the defendant had to leave for military boot camp and a dispute regarding the future home of the dog arose. The relationship ended and when the defendant returned from bootcamp, she was concerned as to where the dog was living and wanted to discuss the dog’s home with Plaintiff.  Defendant showed up at Plaintiff’s home at approximately 12:30-1:00 a.m. to discuss the dog. Plaintiff’s mother answered the door, and during the conversation, there was a dispute regarding: the individuals present with the defendant; whether threatening language was being used; and, the overall purpose of the defendant’s visit.

As it related to the appeal, defendant claimed that during the duration of the trial the judge failed to ensure her due process rights. Defendant had not been served with the initial complaint requesting the restraining order. Instead, the judge read the complaint and stated he would email it to the defendant and claimed, “for all intents and purposes”, she had been served. Trial would commence the next day. Due to the short window of time before the trial, the defendant did not have adequate time to prepare and as a Pro se litigant was not fully aware of what preparing for a domestic violence trial truly entailed.

Although remote lawyering has enabled increased flexibility and availability of lawyers to review documents quickly to be prepared for a hearing on short notice, Pro se litigants do not have the same availability and are not experienced with legal proceedings.

During questioning, it was clear that plaintiff’s mother was within ear shot while plaintiff was being questioned and frequently attempted to influence plaintiff’s answers. Videoconferencing trials may not be able to adhere to the same level bifurcation that we see at the courthouse. However, once it was apparent that plaintiff’s mother was attempting to correct plaintiff’s answers, the Appellate Division indicated that the judge should have intervened and sanctioned such behavior. The judge at the trial level in this matter tried to streamline questioning in a way that Judge Whipple indicated borderline advocating for the plaintiff. The judge asked a series of questions while the plaintiff was being questioned; the Appellate Division noted that this was due to the defendant’s inability to properly prepare and understand how the trial would be conducted. In the Appellate Division’s opinion, Judge Whipple indicated that the judge failed to ensure that each witness was alone while remotely testifying. Moreover, the parties, on numerous occasions, addressed each other directly, instead of having communications facilitated by the court. Typically, the court will engage in housekeeping prior to domestic violence trials advising the parties subject to the Temporary Restraining Order to address the court and not each other in order to avoid any violations thereof.

The opinion specifically provided:

Although there are obvious, understandable challenges facing judges who seek to administer effective trials using videoconferencing technology, court directives and due process must nevertheless be maintained. Specifically, each witness must be alone while remotely testifying. “The purpose of sequestration is to discourage collusion and expose contrived testimony.” Morton Bldgs. Inc. v. Rezultz, Inc., 127 N.J. 227, 233 (1992) (citing 1 Stephen A. Saltzberg & Michael M. Martin, The Federal Rules of Evidence Manual 736 (5th ed. 1990)). The presence of plaintiff’s mother throughout this trial was problematic. Additionally, the parties should not address one another directly, as they did here. These longstanding  guardrails remain in place alongside technological advances so that courts may continue to fairly and effectively serve the public amid a grave public health crisis.

It also goes without saying that, since defendant had less than 24 hours to prepare her defense upon receiving the complaint, she was unable to obtain any witnesses to testify on her behalf. In other words, she was unable to adequately prepare to corroborate her version of the events. The Appellate Division highlighted that defendant did not have a clear understanding that she would need to prepare those witnesses by the next day for trial.

Final Restraining Orders should only be issued if there is a continuous and severe threat of future harm or intimidation. See Silver v. Silver, 387 N.J. Super. 112 (2006). Defendant stated she only arrived at plaintiff’s house to understand what happened with the dog and that she had no plans to return to plaintiff’s home. Additionally, the plaintiff’s mother stated she did not feel threatened by the defendant, but rather by the individuals that had been present with the defendant.

Ultimately, this remote proceeding demonstrates the host of issues that COVID-19 has opened for virtual trials in the court system. As we continue to shift how we operate our proceedings, protecting litigants’ due process rights should remain a priority.

This post was authored by Arianna Diamantis.

I have seen this more than one time in my career.  One party (or his/her family members) really wants there to be a prenuptial agreement but, either due to lack of time, fear/cowardice, not having your act together, or any other reason, the prenup never gets done.  Some I have seen signed just after the wedding, with a clause that says something like “we really meant this to be done before the wedding, but didn’t get around to it, but want this agreement to be treated as if it was signed before the wedding.”  I have seen other signed weeks, months or years later with similar disclaimers and so-called “statements of intentions.”  Given that post-nuptial agreements are disfavored in New Jersey (more on that later), these attempts to claw back prenup treatment for agreements signed after the wedding have always given me cause for pause, and I figured that one day there would be a case where this was disallowed.  Today is that day.

Specifically, on April 30, 2021, the Appellate Division released a reported (precedential) opinion, authored by Judge Enright (a former matrimonial attorney) in the case of Steele v. Steele  where the prenuptial agreement was signed more than 7 months after the wedding, while the wife was pregnant with the parties’ first child.  While the trial court in this case, relying (improperly so it seems) on a similar unreported (non-precedential) decision enforced the prenuptial agreement as a marital agreement, the Appellate Division reversed in a 41 page opinion.

The factual background in the decision is quite long but I will try to boil it down to the essential facts.  The parties were both previously married and divorced.  The wife had a child from her prior marriage, but little else in terms of income and assets.  The husband apparently was the beneficiary of family wealth, in the nature of business interests, interests in trusts, retirement, assets, etc. valued at millions of dollars (and the value was different in different disclosures over time.)  The motion of the prenup can up, at least from the husband’s perspective, almost two years prior to the parties’ wedding – even pre-proposal.  Specifically, the husband retained a law firm and started the process of the drafting and preparing his financial disclosures approximately 2 years before the wedding, but did not first tell the wife he wanted an agreement until after they were engaged, several months after.  The evidence was pretty clear that the husband never shared the draft prenuptial agreement or financial disclosures with the wife prior to the wedding.  The evidence was also pretty clear, as the wife testified, that she would have signed agreement anyway – pretty much no matter what it said or if the disclosures were accurate, because the parties were “madly in love.”

The wife got pregnant in October 1991 and the parties then decided to get married in Paris in November 1991.  After the wedding, the issue of the prenup came up again and the wife retained the attorney recommended for her by the husband’s attorney.  She never felt that that attorney was really looking out for her interests, though some of the provisions were re-negotiated to be somewhat more favorable to her than as originally drafted, but perhaps, unfavorable given all of the facts and circumstances, even at that time.  The parties’ first child was born in July 1992, but the prenup was not signed until the following month, when the wife was sleep deprived, having been on a 2 hour, on-demand, breast feeding schedule.  Curiously, when her lawyer was deposed in the divorce action, the lawyer was unaware that the was pregnant or had the child and said she wouldn’t have let her enter into the agreement if she knew that.  The agreement did not address issues related to the child (e.g. support, custody, life insurance.)  Despite the husband’s massive wealth and significant income at the time of the marriage, the agreement provided for nominal equitable distribution and only $5,000 per month in alimony for each month of the marriage if the parties stayed married for 5 years.

After substantial and interesting pre-judgment litigation which included motions for leave to appeal that limited discovery to the time of the agreement, ultimately, the trial judge entered declaratory judgment and enforced the agreement.  Of note, the judge found the agreement was akin to a prenup and enforceable as a prenup, “[d]espite the signing of the agreement subsequent to the date of marriage.”  The judge then analyzed the definition of a premarital or pre-civil union agreement, as defined by the 2013 version of the Uniform Premarital and Pre-Civil Union Agreement Act, despite the fact that that version of the act was not in effect as of the signing of the prenup.  The judge then distinguished this from the Pacelli case which disfavors because it wasn’t presented  on a “take it or leave it” basis and that here “some form of a marital agreement was contemplated” by defendant prior to the parties’ marriage, and she was able to negotiate an “upward adjustment in her entitlement” under the MA.   The judge also compared the wife circumstances to those set forth in an unpublished appellate decision, which he found to be “extremely similar” to the instant matter.   The judge noted that in that case, the Appellate Division found the agreement to be an enforceable prenup due to the “relatively brief time which ha[d] elapsed since the parties[‘] nuptials.”  As such, he adopted the same view and found the agreement here similar to a prenup, finding:

in the present set of circumstances, the only thing that appears to have prevented these parties from entering into the agreement prior to marriage is that defendant became pregnant with their first child. Subsequent to the birth of the child, almost immediately thereafter, the parties signed and entered into the Marital Agreement.

Also, while finding that the husband’s financial disclosures were not accurate, they were not intentionally inaccurate and thus, it was not held against the husband.  Rather, blame was shited to the wife, as the the judge determined that she ailed to “ask questions or retain a financial expert” so the impact of plaintiff’s disclosures was “significantly offset by her lackluster desire” to ascertain the true extent of plaintiff’s finances.  Moreover, the judge concluded defendant did not demonstrate she relied on plaintiff’s disclosures, since she admitted in her deposition she read very little of the agreement, including the disclosures.  The judge further found that the wife signed the agreement “endorsing her support that whatever disclosure was provided was sufficient to her,” and he concluded her previous counsel “obtained positive results” for her, including “more favorable alimony and equitable distribution” provisions in the agreement.

As noted above, the Appellate Division reversed the decision and remanded the matter for further discovery and a trial.  First, they found that the agreement was not a prenup because the Act defines a premarital agreement as “an agreement between prospective spouses … made in contemplation of marriage … and to be effective upon marriage.”   This clearly did not happen in this case and what followed in the opinion was a long discussion on how the circumstances were actually unlike a typical prenuptial agreement.

Judge Enright then noted that even if the agreement qualified as a prenup, which it did not and the court held:

the 2013 iteration of the Act would not have governed its enforceability, given its effective date; instead the 1988 version of the Act would have applied to a prenup (sic) executed in 1992. The language of the 1988 version allowed for a separate determination of whether a premarital agreement is  unconscionable, apart from reasons established in its subsections. By comparison, the 2013 version of the statute only allowed for a determination of unconscionability for the reasons established in its subsections.

The Appellate Division then found that the agreement did not qualify as a property settlement agreement either, as it was not executed in contemplation of a divorce where each party’s economic rights would be fixed upon the entry of a divorce judgment.  They also found that it was unlike a mid-marriage agreement referenced in the Pacelli case where the husband use the threat of a divorce to improperly obtain an agreement whereby the wife gave up her rights – an agreement that was found to be unenforceable.  While factually unlike Pacelli, the wife in Steele did feel pressured to sign and that the husband would never let it go. In that way, the circumstances were similar to Pacelli and the court held:

Under these circumstances, we have little difficulty concluding the parties’ Agreement (sic) is in the nature of a mid-marriage agreement and deserves heightened scrutiny. Certainly, just as in the Pacelli case, there was a marriage and a family to preserve. Moreover, though the purported pressure placed on defendant differs from the tactics employed by the husband in Pacelli, plaintiff’s insistence on having defendant execute the agreement (sic)  months after the marriage, so soon after the birth of the parties’ daughter and while she was unemployed, appears to be “inherently coercive.” At that point, defendant was not free to just walk away.

The Court then found that though they were not persuaded that the wife was under duress when she signed the agreement, they found that based upon their review of the agreement and the circumstances surrounding its signing, that it might have  been unfair, if not unconscionable, when
it was executed, and when the husband moved to enforce it.   The Appellate Division pointed to 3 areas of concern;  (1) the adequacy of plaintiff’s financial disclosures before the parties signed the agreement; (2) the circumstances surrounding the agreement’s negotiation and execution; (3) and the adequacy of the settlement itself.

Interestingly, when discussing the whether or not the wife cared about the adequacy of the disclosures because she would have married him anyway, the court said that that may not matter.  Rather:

Ultimately, to the extent defendant had a limited understanding of the terms of the  agreement (sic)  or its consequences once she was married, we are satisfied her mindset did not relieve plaintiff of his obligation to treat defendant fairly.  To hold otherwise would effectively lead to ignoring defendant’s contributions as a spouse, parent,  homemaker and helpmate” and inequitably “preclude her participation in post-agreement wealth.” (citation omitted)(emphasis added).

As to the adequacy of settlement, without passing on the issue, the Court noted:  “The record is devoid of any indication she can enjoy any semblance of the marital lifestyle, notwithstanding the taxable and non-taxable distributions due her under the agreement (sic).”

The take away of this case is that is you want to be sure that your prenup holds up, get it done before the wedding and follow the statutory requirements without fail.  If you try to get an agreement, post-wedding, good luck because it is an uphill fight in light of Pacelli and now Steele.


Eric S. Solotoff, Partner, Fox Rothschild LLP

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



There used to be a family judge, who, with his law clerk, spent a lot of time on Google, looking up property records, Zillow “values” and other information regarding the parties and their property.  While most of the time it proved harmless, I was always concerned about the court relying on evidence that was not in the records – that is, not contained in the motion papers if it was a motion, or in the trial testimony or evidence at a trial.

Now judges are permitted to take what is called “judicial notice” of both the law and of certain facts.  In fact, New Jersey Evidence Rule 201(b) provides:

(b) Notice of Facts. The court may judicially notice a fact, including:
(1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute;
(2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute;
(3) specific facts and propositions of generalized knowledge which are capable ofimmediate determination by resort to sources whose accuracy cannot reasonably be questioned; and
(4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state

So as to my prior comments, looking up property records is probably ok – Zillow probably not so much.

But what happens when a judge relies upon facts or information that is not in the record in order to make a decision.  Well, on April 19, 2021, the Appellate Division answered this question in and unreported (non-precedential) opinion in the case of S.T.T. v. M.T.M.  This case happened to be an domestic violence case. Immediately prior to the start of trial, the judge addressed an incident that occurred at a prior court proceeding where “[t]here were discussions about [a] potential adjournment of the proceeding” but that during a “break” in the proceeding, “defendant left due to a medical emergency and the matter was” rescheduled.  The judge demanded an explanation and the Defendant’s counsel explained defendant suffered from a condition that had been recently diagnosed and defendant “had an episode just outside the courtroom” during the break in the prior proceeding.  Defendant’s counsel further advised that defendant brought “medical records [showing] what actually took place” and the records were provided to the judge.

Without getting into the facts of the domestic violence other than to say that there was conflicting testimony of the parties and that the police did not note any injuries when they arrived, the trial judge used defendant’s leaving the prior proceeding against him as it related to his credibility and granted the plaintiff a Final Restraining Order.  In doing so, the judge stated:

And perhaps most significantly, the [c]ourt takes note of what took place in court the last time this matter was heard . . . during which time the parties were seeking to work out an adjournment in order for the defendant to engage in some discovery, that it became evident that an agreement was not going to be able to be reached at that point in time, and it was only during a recess following the determination that it became clear that the case was going to proceed and would not be adjourned, that the incident in which the defendant sought medical attention . . . came to pass.

Now, certainly, there’s been documents that have been presented that explain both—or purport to explain . . . defendant’s medical condition and the episode that occurred . . . . However, the [c]ourt, taking in consideration the totality of the  circumstances and the situation that preceded the alleged medical emergency, concludes that . . . defendant’s testimony lacks credibility for those reasons.
[(Emphases added) in original.]

The Appellate Division reversed.  In doing so, the court noted that Appellate Court’s should typically defer to the trial courts’ credibility findings that are often influenced such as observations of the character and demeanor of witnesses and common human experiences that are not transmitted by the record.  That said, the reason for the reversal was that the trial judge relied on things outside of the testimonial record of the hearing in making it’s credibility determination.  Specifically, the Appellate Division held:

The court erred in making its credibility determination because it relied on information and events outside the trial record. Prior to the start of the trial, the court focused on defendant’s purported medical emergency at the previous proceeding, and the court’s preoccupation with the purported emergency continued through the end of the FRO trial. There was no testimony or evidence concerning the emergency during the FRO trial, but the court relied on defendant’s claimed medical emergency to support its finding defendant’s trial testimony was not credible. Indeed, the court relied on its apparent disbelief that defendant suffered a medical emergency necessitating an adjournment of the prior proceeding as “perhaps” the “most significant[]” fact supporting its finding defendant was not credible, and the court took into “consideration
the . . . circumstances and the situation that preceded the alleged medical emergency” to conclude “defendant’s testimony lack[ed] credibility for those reasons.”

The court’s reliance on the medical emergency to support its credibility determinations was in error. The court’s consideration of facts and circumstances “that were not part of the hearing record should not have played any part in the judge’s decision. Because matters outside of the hearing record were considered and relied upon in reaching [its] conclusions,” the court’s credibility findings lack adequate support in the evidentiary record. In re Forfeiture of Pers. Weapons & Firearms Identification Card belonging to F.M., 225 N.J. 487, 513-14 (2016). Indeed, the court’s findings based on defendant’s
actions in proceedings prior to the FRO trial suggest the court improperly prejudged defendant’s credibility before the trial began. “A judge’s suspicions about a litigant’s veracity . . . can never stand in the stead of a fair process, founded on an impartial consideration of evidence by a fair and impartial judge.” McGory v. SLS Landscaping, 463 N.J. Super. 437, 457-58 (App. Div. 2020).

As a result, the FRO was vacated and the matter remanded for a trial before a new judge.

The take away is that if if a court is going beyond the record in a prejudicial way, that can, and where appropriate, it should be challenged.


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

Can one attorney represent both spouses in a divorce? This issue presents itself in a multitude of scenarios: the proverbial “simple divorce” or merely reviewing a settlement agreement prepared by both spouses. As my colleague noted, if prospective clients request that you represent them both, even if it’s “simple” or merely reviewing their agreement, “[t]he answer is a resounding, no.”

On April 14, 2021, the Appellate Division approved for publication a decision which took up the task of answering a similar, yet more nuanced question: can an attorney who had an initial consultation with a prospective client now represent the party adverse to that prospective client? The Appellate Division’s answer was similarly a resounding, no. However, the reasoning behind the decision to affirm the trial court’s order disqualifying the attorney is an important lesson for family law attorneys. Indeed, it offers important caveats for when the answer could be “it depends.”

Greebel v. Lensak

We often have consultations without being retained thereafter.  In Greebel v. Lensak, that is precisely what happened. Nine years prior to being retained by the Defendant to file a motion to vacate a judgment and set aside the parties’ settlement agreement, the attorney had an initial consultation with the Plaintiff. They discussed the prospects of filing a complaint for palimony.

Palimony involves matters where the parties are not married, but in a long-term, romantic relationship and there is a promise of continued support.

Here are the facts:

  • During an initial consultation, the prospective client raised concerns she had about the parties’ finances, lifestyle, assets and income.
  • The attorney gave advice to the Plaintiff not to marry the Defendant due to the potential for pre-marital assets, debts, income or lifestyle not being considered in any future divorce proceedings.
  • The attorney calculated what the Plaintiff’s potential relief would look like in the event she moved forward with requesting palimony.
  • Nine years later: Plaintiff filed a complaint for palimony using a different attorney and eventually a settlement agreement was entered into and incorporated into a final judgment.
  • Five years later: Defendant hired the attorney that Plaintiff originally consulted with and filed a motion to vacate the final judgment, set aside the agreement, and re-open discovery pursuant to Rule 4:50-1.
  • The Defendant alleged that Plaintiff intentionally misrepresented and concealed her finances during the settlement negotiations.
  • Plaintiff moved to have the motion dismissed and disqualify the attorney, relying upon her certification and a 2013 e-mail to her current attorney where she specifically mentioned the consultation and how she followed the attorney’s advice not to marry Defendant.

Trial Court

The trial court found that there was sufficient evidence that a consultation took place based upon Plaintiff’s certification and the e-mail. Defendant’s attorney was disqualified since Plaintiff disclosed “significantly harmful information” about the parties’ finances and Defendant’s continued promises of support—all of which were “substantially related” to the current issues in Defendant’s motion to vacate. The pleadings prepared by that attorney were dismissed and sealed. Defendant was barred from sharing them with any new counsel.

Appellate Division

On appeal, Defendant raised several issues. Pertinently, that the trial court erred in disqualifying his attorney. The Appellate Division disagreed. Disqualification decisions are reviewed de novo pursuant to City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010). It was Defendant’s contention that Plaintiff failed to provide the information disclosed to his attorney in the consultation with specificity and that the same information would have been discoverable. The Appellate Division disagreed.

The Appellative Division recited the provisions of R.P.C. 1.18(a) and (b):

  1. Plaintiff consulted with the attorney with the end goal of forming a client-lawyer relationship and was therefore a prospective client under R.P.C. 1.18(a).
  2. The lawyer learned information during the consultation with the prospective client and therefore had a duty not to use or reveal any of that information under R.P.C. 1.18(b).

Next, the Appellate Division turned to O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206 N.J. 109 (2011). There, the Supreme Court of New Jersey laid out a two-step analysis to determine whether disqualification is justified:

  1. The information disclosed during any consultation must be the same or substantially related to the present lawsuit; and,
  2. The disclosed information must be significantly harmful to the former client in the present lawsuit.

Additionally, the former client—or, in this case, the former prospective client—must make more than “bald and unsubstantiated assertions” regarding her disclosures. Attorneys and clients should pay close attention to the Supreme Court’s definition within the two-step analysis:

  • Substantially related: if the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent represent of parties adverse to the former client or if the facts relevant to the prior representation are both relevant and material to the subsequent representation.
  • Significantly harmful: if the information is prejudicial in fact to the former prospective client within the confines of the specific matter in which disqualification is sought.

Applying the facts of the underlying matter to the two-step analysis, the Appellative Division concluded that significantly harmful information substantially related to the current litigation was disclosed to Defendant’s attorney by Plaintiff. The information about the parties’ relationship, finances, lifestyle, assets and income was at the heart of Plaintiff’s claim for palimony—the crux of the pending litigation. Indeed, it covered the first four years of the parties’ relationship.

Even more concerning is the fact that the disclosed information could be used against Plaintiff in this litigation. The Appellative Division opined that the information provided insight into Plaintiff’s motivations in the parties’ relationship and could be used against Plaintiff to challenge her palimony award and any future settlement negotiations.

The Appellate Division affirmed the dismissal without prejudice and permitted Defendant to refile. However, the Appellate Division reversed insofar as the pleadings were sealed and Defendant was barred from sharing the pleadings since the trial court made no factual findings or conclusions of law and the information was not the basis of Defendant’s underlying motion to vacate. Rather, it was based upon public records of property transfers that occurred long after the consultation.


I am often asked by clients whether their filings are accessible by the public. The answer is a resounding, yes as there is a presumption of public access. It is important to inform clients that, in order to rebut that presumption, it needs to be shown that disclosure will cause a clearly defined and serious injury to any person and that the person’s interest in privacy substantially outweighs the need for public access.

While it may seem rare, future litigation in family law matters is not uncommon. One need not look further than the post-judgment dockets in virtually every county in New Jersey. The family bar is vast, but simultaneously small enough where mere consultations and actual retainers within the same matter are not only conceivable, but rather abundant.

A lot of people believe that COVID has caused divorce cases to drag and the legal system to be ground to a halt – or at least, to lag behind.  While that is certainly the case in some counties and more particularly, with some Judges, for the most part, the courts are acting efficiently, and in some respects more efficiently, than in the past.  In fact, a few months ago, I wrote a post on this blog entitled NJ Divorce Court State of Play After 6 Months of Covid 19 Restrictions.  If anything, in the almost since months since that time, people have gotten even more used to Zoom motions, meetings, Case Management Conferences, mediations and even trials.

That said, last week I read that one in six judicial seats (approx. 17%) are vacant. In some counties, those number seem worse because when a trial judge gets moved up to the Appellate Division, it is my understanding that that judge counts toward that county’s roster and not a vacancy.  Either way, the number of vacancies has to contribute to backlog and delay.

The system has mandatory alternative dispute resolution (ADR) at various points.  Early on in the case, there is mandatory custody and parenting time mediation, with courthouse staff, and usually without attorneys.  That is not to say that attorneys should not be involved to prepare their client for the process.  That said, they are generally not part of the actual mediation.  For finances, there is also mandatory Early Settlement Panels (ESP or MESP) which is a process where the matter is submitted to a panel of 2 or 3 experienced matrimonial attorneys who are donating their time to make recommendations as to how the financial aspects of case can settle.  If the matter doesn’t settle at ESP, then there is mandatory economic mediation where the mediators typically give 2 free hours (one of which is preparation) to help assist in facilitating a negotiated agreement.  If cases still aren’t settled, many judges schedule Intensive Settlement Conferences (ISC) either with themselves or another matrimonial judge (some judges or parties don’t want the ultimate trier of fact knowing their settlement positions).

Now there is no reason that parties cannot agree to begin the mediation process before it is “mandatory.”  Parties are free to mediate whenever they want though it usually makes sense to do so once each side has enough information so that they feel comfortable that they know enough about the income, assets, etc. to make a knowing and reasoned decision.  Often, in complicated cases, people even seek to bypass ESP completely and go right to mediation.  Some judges/counties allow this – other do not or cannot.

There are some cases that simply cannot settle, either because of the difficulty of the issues and/or the difficulty of one or both parties.  At that point, people can wait for a trial date.  That said, I have heard some judges say that they are scheduling now for 2022.  I have one matter that I have been waiting for a trial date to be assigned since the summer of 2019 – pre-Covid.

If you don’t want to wait for a trial date but want the matter concluded, the parties can agree (they cannot be compelled) to go to binding arbitration, with or without a right of appeal.  We have talked about arbitration a lot on this blog, and in a lot of ways, it can be very much like a trial, with testimony of witnesses, presentation of evidence, strict adherence (or less so if you agree) to the Rules of Evidence, a court reporter taking a verbatim records, etc.  And when it’s done, its done.  Even people who want a right of appeal can build in an appellate arbitration process into their arbitration agreement which will be light years faster than trying a case in the Family Part and then appealing it to the Appellate Division.

Personally, I have arbitrated many cases and last summer, completed the AAML Arbitration course allowing me to serve as an arbitrator.  Many in our group, myself included, have completed the 40 hour mediation training as well.  In this day an age, we are nimble enough to litigate, mediate and/or arbitrate cases, either representing a party or as the neutral.  Quite frankly, given the backlog and the shortage of judges, all of these tools should be considered to try to bring cases to conclusions.

Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

Many people think that palimony is just alimony with a “P” and that the mere existence of a long term unmarried relationship, where the people live together, is enough to convey some right of support.  Having argued the landmark Maeker v. Ross case regarding palimony in the New Jersey Supreme Court, I have made clear on this blog in the past that that is not the case.  Rather, for relationships that existed before 2010, their had to be a promise, express, or implied by conduct, made by the supporting party that he/she intended to support the other person for life.  After 2010, a palimony agreement had to be in writing, which, for all intents and purposes have eliminated palimony for post-statute relationships.

That said, we still see cases after the end of long term relationships that predated the 2010 statute, where the parties lived together, and litigation ensues after the relationship ends.  One of those cases in the unreported case of Lernihan v. Revolinsky, an unreported (non-precedential) Appellate Division decision released on February 22, 2021.  Remarkable about the decision is it’s brevity, a mere 6 1/2 pages.  Notwithstanding the brevity, there are interesting things that can be gleaned from the the case.

Here are the relevant facts.  The parties met in 1996, later became engaged, but never got married.  They lived together in a marital-type relationship from 2002 to 2016 and had two children. They bought and sold two houses, each contributing to the deposit from his or her own earnings and savings. Both worked during the majority of the years they lived together and the only time that the plaintiff was financially dependent on defendant was for the brief periods of time  after the birth of their children.  That said, even then, she paid from her own funds a portion of the children’s expenses as well as her own.  Other than jointly owning their homes, the parties did not commingle their assets. Rather, they maintained separate bank accounts and made defined contributions to their joint expenses.  In fact,  other than jointly owning their homes, they never commingled their assets or  their earnings.  At the time of the proposal, the plaintiff was earning approximately $49,250 and the defendant was earning $57,083 – less than an $8,000 difference.  By the time of the trial, plaintiff, who obtained a graduate degree while engaged to defendant, was earning approximately $104,301 and defendant was earning $174,147.  The only thing in the opinion relative to the promise of support for life that would be required to sustain a claim for palimony was plaintiff’s testimony that she interpreted the engagement   “… to mean defendant had committed to support her financially for life.”

The trial court rejected this interpretation finding that plaintiff was not entitled to palimony and the Appellate Division affirmed.  The Appellate Division noted the trial court’s rationale, as follows:

Judge Espinales-Maloney found defendant’s denial that he ever committed to support plaintiff for life more credible than plaintiff’s assertion that he had. Indeed, the judge opined that plaintiff was a self-sufficient professional who could “support herself in a reasonable degree of comfort.” In the judge’s view, the facts necessary to establish a successful claim for palimony were entirely absent. Not only was plaintiff defendant’s financial equal when the relationship began, any belief she may have had regarding defendant’s alleged commitment to support her for life was entirely refuted by the manner in which the parties lived and managed their money.

The Appellate Division gave a brief primer on the law on palimony – at least it existed pre-statute, as follows:

The palimony right to support “does not derive from the relationship itself but rather is a right created by contract.” In re Estate of Roccamonte, 174 N.J. 381, 389 (2002). The promise of support can be express, “implied by conduct[,] or both.” Id. at 394. The existence of a contract is determined primarily by the parties’ “acts and conduct in the light of the subject matter and the  surrounding circumstances.” Kozlowski v. Kozlowski, 80 N.J. 378, 384 (1979).

For a palimony claim, “there must be a showing of economic inequality and an inability by the party seeking palimony to live independently at a reasonable level of support.” Bayne v. Johnson, 403 N.J. Super. 125, 142 (App. Div. 2008); see also Roccamonte 174 N.J. at 393-94. Courts may also consider other factors, such as whether a party detrimentally relied on the express or implied promise, or whether a party’s decision to move in with their partner was primarily motivated by financial support. Bayne, 403 N.J. Super. at 141-42. However, “palimony is not an economic substitute for opportunities that may have been lost or expectations that were unfulfilled.” Id. at 143.

Plaintiff’s additional requests for relief based upon certain equitable theories –  partial performance, unjust enrichment and quantum meruit, quasi-contract, estoppel, specific performance of implied contract, fraud/misrepresentation, and joint venture – also failed because the judge found that defendant never made promises of lifetime support to plaintiff, and plaintiff was financially independent. Thus, the equitable claims
based on alleged promises had no merit.  Now too often, I have seen these claims fail because, instead of pleading the specific element of each of these causes of action, parties typically tie them to the alleged promise or implied promise , making them one and the same.  Essentially, all of the relief comes down to the alleged promise, as opposed to the conduct/facts necessary to establish each cause of action.  That seemingly is what happened in this case.

The take away from this case is that while palimony and equitable remedies still exist for pre-statute relationships, however, the facts need to be there.  Before engaging in an expensive and potential fruitless litigation, critical analysis of all of the facts are required.


Eric S. Solotoff, Partner, Fox Rothschild LLPEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

One thing this pandemic has taught me about my fellow lawyers: we are adaptable.

Just take the lawyer trapped in a cat filter as an example. Despite his adorable faux pas, his reaction was not to jump off the Zoom call in shame. No – he said to the judge that he was willing to proceed with his case. AS. A. CAT. (If you ask me, the most astounding part was that opposing counsel and the kept their composure the entire time). If that doesn’t tell you what you need to know about this profession, I don’t know what will.

In New Jersey, within weeks of the pandemic hitting, a full system was put in place to keep us all moving forward. From criminal arraignments, to child support hearings, the Court system just picked up where it left off, albeit with some changes that we’ve needed to quickly adapt to as lawyers.

The family part, in particular, rose to the occasion. Whereas our prior filings were all paper-based, we now can simply upload our filings to the Judiciary Electronic Document System (JEDS). We engage with email and our cell phones. We haven’t missed a beat.

Our motions are now heard via Zoom, with even the most seasoned judges and lawyers having become familiar with the program (although apparently some still get stuck in the kitten filter). I’ve even participated in several Zoom trials.

While remote proceedings are not without their pitfalls, the rate and fluidity with which our courts have adapted is astounding. At this point, almost 11 months in to the pandemic, we can file a complaint via JEDS, attend a Case Management Conference via Zoom, have a conference call with opposing counsel on our cell phones, email motions to the judge’s staff from our home computers, attend mediation without ever shaking hands with the mediator, and get you divorced never having stepped foot in to a courthouse.

So while the pandemic has brought many industries to a grinding halt, lawyers are still here, adapting in ways we never thought possible. And yes, we are even prepared to move forward when we get stuck in a kitten filter.


Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or