The newly unreported (does not set precedent) decision of Covone v. Curreri makes two bold moves: (1) asserting that the passage of time is not a change in circumstance warranting a modification to child support and (2) confirming that the trial court has authority to allocate expenses between parents even without proof of their financial circumstances.  When rendering this decision, affirmed by the Appellate Court, it seems that the trial court inadvertently gave some tips for couples with young children who are divorcing/setting child support.

Kid counting money

In this matter, the parties had a child in 2002 and then divorced in 2003.  In their divorce agreement, the parties set the former husband’s child support obligation and agreed to review it in April 2005.  The parties then entered into a Consent Order with an updated child support amount in 2005, and included cost of living adjustments (COLA) to increase child support in the years that followed, which they did.

In 2010, the parties agreed to retain a Parent Coordinator (“PC”), which is a professional (usually a family law attorney) who helps resolve custody/parenting time related disputes between parties, with the goal of reducing litigation.  Unless otherwise authorized by agreement of the parties, a PC’s recommendations are not binding.  Thus, if one party does not agree to the recommendation, it does not take effect.  The other party can file an application with the Court seeking to incorporate the recommendations into a Court Order, which is what happened here when the former husband refused to sign a Consent Order that the PC drafted with respect to parenting time and child support.

As should be expected, after the former husband refused to sign the Consent Order, the former wife filed a motion with the Court seeking:

  •  Adopting the PC’s recommendations;
  • Compelling the former husband to attend therapy with their daughter;
  • Compelling the former husband to file an updated Case Information Statement (setting forth income, budget, assets and liabilities) in order to recalculate child support, arguing that the passage of time (13 years) is a change in circumstance warranting such recalculation; and,
  • Compelling  the former husband to contribute to educational and extraordinary expenses on behalf of their daughter, such as SAT costs, driving lessons, college visits, prom costs and senior class trip. Practice tip: the sharing of these expenses are often outlined in the divorce agreement even when a child is so young that the actual allocation cannot be defined.  The agreement can simply list that extraordinary expenses will be shared at the relevant time based upon the parties’ financial circumstances, which would have required the financial circumstance/Case Information Statement exchange that the former wife sought.

Close up of wooden gavel isolated on white background

After a hearing and updated briefs from each party, the Court denied the former wife’s request for the former husband to file an updated Case Information Statement and for the recalculation of child support simply because 13 years had passed since the present obligation was set.  The Court did not seem to care that the former husband was driving a Maserati and had other luxury assets.

Citing to Martin v. Martin, the Court reiterated that the passage of time is not a change in circumstance warranting a child support modification and, in fact, that is why we have COLAs.  Here, the parties had implemented COLAs since the last time child support was determined, resulting in an increase of over $2,000 over those 13 years.

On the other hand, the Court did find that the child’s status as a high school senior did result in the parents having to incur additional expenses that are not covered by child support, thereby ordering that the parties equally share the expenses requested by the former wife and for the parties to confer before incurring any such expense above $500.

In a somewhat surprising fashion, the Appellate Division affirmed the decision.  While the child support order seems on point because there was no evidence of a change in circumstance  with respect to child support that would open up discovery of the party’s financial circumstances (required for post-divorce financial issues), it is questionable as to how the trial court could have determined that the extraordinary expenses should be equally shared without proof of financial circumstances.  Even the Child Support Guidelines state that extraordinary expenses are to be shared pro rata, i.e.: in proportion to income.  If using the Guidelines to calculate child support, which the parties did here, there is even a specific line in the Guidelines that demonstrates each party’s percentage share of income.  Moreover, generally in order to have a court compel the sharing of expenses, the cost (or estimated) cost must be provided.  In fact, the Case Information Statement, addressed above, asks for an attachment when seeking contribution toward college expenses.

The Appellate Division, in affirming the decision with respect to equal allocation for the child’s expenses, said that the Court exercised its discretion in the absence of accurate financial circumstances of either party.  This ignores that the former wife asked for the former husband to be required to produce such proofs (and presumably she would have had to also), and rewards the former husband for refusing to do so.  If his obligation would have otherwise been more than 50% upon such discovery exchange, the former wife is the one making up the difference out of pocket.

Thus, even if the law is correct to deny a discovery exchange with respect to base child support, it should have required financial circumstance proofs before allocating child-related expenses – understanding that it could have opened the door to a child support recalculation. Even if it did, child support is for the child – not a reward or punishment for the parents – so if ultimately a recalculation resulted, where is the harm?

Beyond the takeaway of never being so sure what the court or Appellate Division will decide, a good tip is for couples divorcing with young child.  In many of those circumstances (unless one part is significantly more wealthy than the other), you may want to build in reviews over time with required disclosures, and confirm an agreement to share extraordinary expenses at the relevant time based on financial circumstances at the time.  Both of those agreements will likely require a financial disclosure and you will not be left without modifying child support while your former spouse is driving a Maserati and equally paying for expenses when your share perhaps should have been less.

Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or

Lindsay A. Heller, Associate, Fox Rothschild LLP

Two common questions I hear from potential clients, as well as the general public, are (1) are the courts open and (2) can people even file new matters (divorce, enforcement, modification, etc.) Some express shock when then learn that the Courts never actually closed – well sort of.

In March and early April, there was, let’s say, a hiccup of sorts as both the courts, attorneys and litigants got used to working remotely and dealing with court business remotely.  The Court buildings were basically closed to the public and judges and court staff had only limited access (some said once a week to pick up papers).  At some point, we would hear, anecdotally of some limited people returning the the courts.  Accordingly, many events that had been scheduled were delayed, some for a few weeks, others significantly longer.   At first, courts were supposed to have drop boxes for filing, but some counties didn’t have them and we were told to mail in filings.  Once they arrived at the court, they would sit for a few days until they were deemed safe to open.  Also, faxes were pointless because it could take days/weeks until anyone saw a fax.

That said, it didn’t take long for new systems and technologies to be rolled out so that we could get back to some semblance of business as usual.  While most of the other parts of the the court, including the Appellate Division, use an e-filing system called E-Courts which is attached to the Judiciary web site, most of the family part did not.  We still don’t.  But, we were given access to a system called JEDS that was used for other things so that Complaints, Motions, even letters to the Court can be filed and/or transmitted to the judges.  JEDS, which continues to improve, has been a real game changes in terms of both efficiency, cost and getting documents into a judge’s hand much sooner than in the past.

In addition, even though most court staff are working remotely, either the calls ring to wherever they are and/or they return calls promptly – perhaps even more promptly than before.  Further, pre-COVID, emails directly with court staff (secretaries and law clerks), was on a judge by judge basis, and I would say that for many judges, you had to call, fax, mail or hand deliver letters.  Post-COVID, most if not all email addresses are available.

Pre-Covid, you would usually have to appear in court for settled/uncontested divorce cases to put through the divorce.  I say usually because there were are few counties that allowed for divorce by written submission.  In at least one of those counties, they would only do that if the defendant didn’t file an answer and it was a default judgment, meaning, if the matter was originally litigated at any level and then settled, you had to come to court to put through the divorce.  Post-Covid, any settled case can be put through via written submission.  In the first one that I did, I literally had the signed Judgment of Divorce emailed back to me within the hour.  In addition, Judges are handling uncontested hearings via Zoom, where the parties can testify about their causes of action and assent to the divorce agreement, and the court places the findings on the record then emails the Judgment of Divorce.  The only minor delay is getting the gold sealed/certified copy of the Judgment because, typically, those are only mailed out on the one day a week that the Judges and their staff are typically in the Court house.

Instead of going to court for Case Management and other conferences, they are now done via Zoom, Teams or via telephone.  This eliminates the costs of travel time and a lot of the hurry up and wait that occurred in the past.   Put another way, in the past, a 15 minute court appearance, including travel and wait time , could total several hours that were billed to a client.  Now it is often much more economical.  That does not mean that there isn’t virtual hurry up and wait, as I have languished in Zoom waiting rooms for hours, but generally, things are specifically scheduled for a block of time now and the wait times are more infrequent.

Early Settlement Panels are also being done remotely via Zoom and because each one is scheduled for a time slot, the travel and wait times are also eliminated.

One of the things that has relatively stayed on track from the beginning of the pandemic has been the hearing of motions.  I have argued motions via phone, Zoom and Teams and quite frankly, I am not sure that I don’t prefer it.  When via Zoom or Teams, sadly these are some of the few times that I have had to put a suit on since March, but I have drawn the line at shoes and socks since no one sees your feet.  I do however, wear pants, especially after seeing many Zoom “fails” on social media.

As to trials,  the Court system is in their Phase 2 and supposedly, the court house can be occupied by 10% of the judges on any day.  Originally, we were told that cases that were complicated and that had substantial exhibits would not be done via Zoom.  That seems to have gone out the window pretty quickly and essentially, most trials are going to be done via Zoom.  We have quickly learned how to best prepare how to present/share exhibits via Zoom.  The only case that I had where the Judge wanted to and will be scheduling an in person trial is one that commenced in 2017 and had been tried over 59 days between 2017 and the summer of 2019.  The reason that that case won’t be via Zoom is that there are probably close to 700 exhibits between the two sides and it would be impractical for the judge, and quite frankly the rest of us, to bring the boxes and boxes of binders home.

Now, for the most part, trials were the big casualty of COVID and weren’t being held, until recently.  However, in late July, the judges were told that trials had to get going again and all of a sudden, trial dates were being given out out of the blue.  Given the 10% rule and the need to accommodate jury trials in the criminal and civil part, and other matters that require in person trials/court appearances, I would imagine that most divorce, custody and post-judgment trials and plenary hearings will be done remotely until further notice.  This may also make it easier to hear from witnesses that are out of the jurisdiction, provided that they are willing to appear.

Even Domestic Violence trials are being done remotely, though it is my understanding that defendants can request in person Final Restraining Order hearings.  That said, that may delay the actual hearing.

The other thing that is delaying some of these virtual trials is that each county has a limited number of Zoom licenses/Zoom virtual courtrooms that they share among the judges in the Vicinage.  For one trial which will be continuing next week, the Judge has only had a few hours of Zoom time on the morning of the three trial dates.

Outside of court, we have met with many new clients for consultations via video conference or phone.  I can’t comment them from the client perspective, but from my perspective, they have been seamless and you forget that you are not in the same room.

Similarly, we have participated in many mediations remotely via Zoom.  By now, most mediators are adept at Zoom and can use the breakout rooms, moving people in and out so that you have the same privacy that you would have as if in an in person mediation.

We are even taking depositions remotely, which, after an initial learning curve, seems to be going reasonably well.

Though we have not done one, you can do arbitration remotely, essentially in the same way that you would do a trial remotely.

Finally, during the Spring, I mentioned in a prior blog post that after the end of quarantine, China saw an uptick in divorce filings. anecdotally, that seems to be happening in New Jersey, as well – getting back to the answer to the original question – yes the courts are open.  While I hate the phrase, “the new normal”, I will say that the family law bench and bar have adapted to dealing with family law cases, post-COVID.  Obviously, COVID accelerated by several years the courts and many attorneys use of technology.  While eventually, I would expect that trials and other court appearances may return to normal, COVID has probably exposed certain systemic inefficiencies that may be forever corrected using technology.  In any event, we remain open for business as usual – or at least the new “usual.”

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

In a recent decision, E.H. v. K.H., the Appellate Division made clear that a finding of harassment in connection with the entry of a domestic violence restraining order must be based upon a judge’s findings on all elements of the criminal statute incorporated in the New Jersey Prevention Against Domestic Violence Act, qualified by any subsequent decisional law narrowing or clarifying the statute.

In E.H., the trial judge found that the Defendant had committed harassment against the Plaintiff and that there was a need for the protection of a domestic violence restraining order to prevent against the further acts of domestic violence.  The Defendant had, among other acts of violence, anonymously circulated copies of his Counterclaim for Divorce (which were filled with embarrassing allegations about the Plaintiff including allegations that she had affairs with her co-workers) to multiple individuals unrelated to the divorce litigation between the parties such as Plaintiff’s supervisor and parents.

The Defendant argued that he had a right to disseminate his Counterclaim for Divorce and that the trial Judge’s decision to enter a restraining order against him on this basis was an infringement on his First Amendment rights.  This issue came up several years ago in a New Jersey Supreme Court decision, State v. Burkert.  In Burkert, the Supreme Court narrowed the scope of what it viewed as an overbroad and vague definition of harassment set forth by the legislature.  That definition was:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so;  or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

N.J.S.A. 2C:33-4.

In Burkert, the Supreme Court narrowed the definition of “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as “repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.”

In E.H., the trial judge failed to consider the narrowing of the definition of harassment in Burkert.  As a result, the Appellate Division held that the enumerated potential acts of domestic violence contained in the New Jersey Prevention of Domestic Violence Act not only incorporate, by reference, the statutorily defined elements, but also any modifications made to those elements by the Supreme Court to satisfy constitutional requirements.

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

It is important to understand the requirements to obtain a Final Restraining Order or to defend against the entry of one.  Through case law and the New Jersey legislature, there are specific requirements that need to be met.  In the recent unpublished decision, the Court reaffirms that both litigants and attorneys cannot stray away from the basic tenets to obtain a Final Restraining Order (“FRO”).   In M.H. v. J.B., the Appellate Division reversed the entry of the FRO because none of the requirements were met.

In M.H. v. J.B., an unpublished decision, meaning non-precedential, the parties are sisters-in-laws – the Plaintiff is married to the Defendant’s brother, but had apparently never lived together. The two parties argued via text message over the Plaintiff’s son’s (the Defendant’s nephew’s) birthday party. The Plaintiff failed to answer the Defendant’s phone calls and the Defendant proceeded to text the Plaintiff and the Plaintiff immediately responded. This continued for a period of twenty minutes. A couple of hours later, the Plaintiff reinitiated the conversation where the Defendant responded to “stop harassing [her] and [her] family”. Then, the Plaintiff, once again, reinitiated further conversation and the Defendant asked in six different messages for the Plaintiff to stop texting her.

Both parties obtained Temporary Restraining Orders against the other the next day, alleging harassment. Both parties submitted that they were former household members pursuant to the PDVA. The trial court entered a Final Restraining Order against the Defendant, finding that although there was no prior history of domestic violence between the two parties, found that the Defendant or through a third person attempted to contact the Plaintiff “repeatedly”. Additionally, the court found that the FRO was necessary “to protect the welfare and safety of the victim” as the parties had “bad blood” between them. The Plaintiff’s only allegation was that she feared  the Defendant.

Here, the Appellate Court found that none of the factors were present for a FRO to be entered.  To obtain a FRO the following must all be met: (1) a relationship within the meaning of the Protection Against Domestic Violence Act (“PDVA”); (2) a finding that an act of domestic violence occurred as listed within the PDVA; and (3) that a restraining order is necessary to protect the victim “from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006).

First, the Plaintiff’s testimony was clear that the parties never lived in the same household at the same time as the Defendant. Although the Defendant contended that the Plaintiff lived at the Defendant’s mother’s house, this does not equate that the two parties resided there at the same time. Therefore, the parties did not meet the definition as former household members under the PDVA. Although the parties’ allegations may have been sufficient for the court to entertain the parties’ applications, the trial court failed to engage in any jurisdictional analysis to determine whether these parties met the definition of former household members.  This was a fatal flaw.

Second, the Appellate Division did not find that the text messages constituted as a predicate act of harassment as contemplated under the PDVA for entry of a FRO. Without a finding of a predicate act, the court cannot move to the second prong of Silver to determine whether a restraining order is necessary to protect the victim. Notwithstanding this factor, the trial court failed to engage in any analysis that a restraining order was necessary to protect the Plaintiff from immediate danger or future harm from the Defendant. In fact, the parties agreed that they had a good relationship prior to the texting incident. There were no prior incidents of domestic violence between the parties; the Plaintiff made no claims that she was in physical fear or danger of the Defendant; and the Plaintiff’s sole allegation was fear of the Defendant. Thus, the Appellate Division found that a restraining order was not necessary to protect the Plaintiff and reversed the entry of the FRO.

A new reported trial court decision, S.N. v. C.R.was released today, confirming that the remedy of partition is still available when non-married parties purchase a home together and there is evidence that the purchase is a joint venture, even if they do not have a writing as required by the 2010 amendment regarding palimony (addressing support for non-married cohabitants).  In other words, there is still an equitable remedy available for unmarried couples with a joint property (exclusive of title) notwithstanding the writing requirement for palimony.

It’s not often that trial court decisions are reported so when they are, we know it’s important!  As the court notes, this is an issue of first impression:

“Whether, in the absence of a writing, partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture.”

As always, the facts are important.  Here:

  • The parties began their romantic relationship in 2010 and moved in together.
  • They purchased a home in 2012.  The home and mortgage were titled individually to the plaintiff, but the defendant was heavily involved, including:

“He selected and communicated with the realtor. He provided $10,000 of the $15,000 down payment. He chose and paid the inspector. He received the inspection report, which listed him solely as the client. He chose the closing attorney. He negotiated a $10,000 seller’s concession. Finally, both C.N. and S.R. were, and remain, named insureds on the homeowners’ insurance policy. On closing, C.N. thought he and S.R. ‘would live there forever.'”

  • They became engaged in 2016.
  • They had a destination wedding “ceremony” in 2018 with guests.
  • Despite the “ceremony”, they were never legally married.
  • They broke up in 2019.
  • While they lived together, the mortgage payments were drawn directly from the plaintiff’s bank account, having made a majority of the payments (87-90 of 96 total) and the defendant paid the remaining payments when the plaintiff was out of work.
  • In 2019, the defendant took a 401(k) loan to reduce the principal on the mortgage in order to eliminate the private mortgage insurance and reduce the monthly payment amount.
  • The defendant paid for the upkeep for the home (utilities, security, landscaping, pest control, and the like), purchased furniture for the home and oversaw contractors working on the home, as well as worked with a lawyer to appeal a tax assessment.

In July 2019, the plaintiff filed a complaint in the non-dissolution unit of the family part, which is dedicated to separating couples who were never married (i.e.: not eligible for marriage “dissolution”).  The plaintiff initially sought only child-related relief.  The defendant filed a counterclaim for child-related and financial relief and, in September 2019, amended the counterclaim to seek partition of their residence.  Following a failed mediation process, the court held a trial on the limited issue of partition, which lasted for two days, included testimony from both parties and “voluminous exhibits”, and the above facts were found by the court.

Notably, during trial, the plaintiff present testimony that was not credible, including that she perceived the home as her individual investment (even though she delegated significant tasks to the defendant) and she was evasive about the source of the down payment for the home.   Moreover, despite the claims about her “own” investment, when she completed her Case Information Statement, the plaintiff listed March 2012 as “date of marriage” and listed an engagement and wedding ring under personal property.

So, what is the court to do when one party to a relationship is heavily involved in the purchase, maintenance and increased equity to an asset titled in the other party’s name and they were never married?  Partition.

As the trial court noted here, “‘[p]alimony is the enforcement of a broken promise made for future support’ made between unmarried parties involved in a marriage-like relationship. ”  As of the 2010 amended statute (section (h) of N.J.S.A. 25:1-5) all palimony agreements entered after the amendment must be in writing and comply with the Statute of Frauds.

While S.N. and C.R. did not have such a “promise”, and they certainly did not have a writing, the court found that it didn’t matter because palimony is different than partition.  As compared to palimony,  a party to a partnership or joint venture is entitled to accumulated assets, as demonstrated by the following from Connell v. Diehl, a 2008 palimony case before the Statute of Frauds applied to post-amendment palimony agreements:

“Generally, a mere promise to provide lifetime support does not extend to a claim against assets owned solely by the promissor. However, unmarried cohabitating persons “who have engaged in a joint venture to purchase property in which they reside, are entitled to seek a partition.” Joint venturers are entitled to seek a partition of their property when their joint enterprise comes to an end.”  

Going a step further, the court reviewed the amendment to the statute and specifically found it does not apply to partition.  Upon making this precedential finding, the court moved on from palimony analysis to partition analysis, relying upon Mitchell v. Oksienik, a partition case with facts similar to the instant matter (they purchased a home during their relationship titled in only one party’s name and the mortgage in the name of the same party, received a loan from the other party’s parents for the down payment, and ultimately separated).  There, the Appellate Division found that partition is appropriate for unmarried cohabitants who engage in a joint partnership to purchase property and that formal agreements are not required because “a joint enterprise can be ‘inferred from conduct of the parties'”, and that title is “‘essentially irrelevant to an equitable action'”.

Not only did the trial court equate Mitchell to this case, but it further found that the current facts are even more compelling because the defendant contributed $10,000 of the $15,000 down payment and he resided in the home longer than the non-titled partner in Mitchell, as well as took charge in all of the processes leasing to the closing of sale, he is named on the insurance policy and made 10% of the mortgage payments, as well as paid most of the other house-related expenses.

To close the loop in the decision, the court reviewed the law of joint venture, which is defined as a “limited-purpose partnership” with “some or all of the following elements”:

  1. contribution “of money, property, effort, knowledge, skill, or other asset to a common undertaking”;
  2. joint property interest;
  3. right of mutual control or management;
  4. expectation of profit, or presence of an adventure;
  5. right to participate in profits; and
  6. “limitation of the objective to a single undertaking.”

Based on all of the above, the court found that even without a writing, the defendant is entitled to the equitable remedy of partition, which survived/is not impacted by the palimony amendment, for “unmarried, cohabitating intimates engaged in a joint venture.”

The takeaway from this case carries a lot of weight.  We are equipped to prepare Cohabitation Agreements outlining each party’s expectations in a signed writing and I still recommend that parties are always safer to have a writing to rely upon.  However, when you do not have such a writing, this case tells us that unmarried cohabitants can still achieve equitable relief and receive their share of an asset without the ability to pursue equitable distribution had they been married.

Notably, the case did not address what would have happened if one party was seeking support from the other, which would fall under palimony.  There, the support request without a writing that meets the Statute of Frauds would still fail as the relationship began after 2010 (thus, so too would have been the promise to provide support in the future), while the partition action could survive.

Final tip – pay attention to your documents.  Note how that trial court made a point to reference the plaintiff’s Case Information Statement, use of the “date of marriage” and listing engagement/wedding bands, which contributed to the lack of credibility finding.

For more reading, here is a link the prior palimony blog posts:

Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or

Lindsay A. Heller, Associate, Fox Rothschild LLP

Most of our cases dealing with enforceability of prenuptial agreements stem from marriages that end by divorce and involve one party seeking to enforce the agreement and the other party seeking to invalidate the same document, or vice versa.   You can read about many of those cases on our NJ Family Law Blog.  However, the recent unpublished (non-precedential) decision of In the Matter of the Estate of James J. Gillette, addresses the enforcement of a prenupital agreement upon the husband’s death, when the wife sought to invalidate the agreement in order to claim her elective share from his estate in lieu of the terms of the agreement.  The case tells us that the rules for prenuptial agreement enforcement upon a spouse’s death are the same as they would be in the event of divorce.  Interestingly, both prenuptial agreements and a spouse’s waive of his/her right to elective share require the same financial disclosure as described in N.J.S.A. 37:2-38(c)(1) (for prenuptial agreements) and N.J.S.A. 3b:8-10 (for waiving right to elective share).

In this case, the parties entered into a prenuptial agreement on August 29, 2013 prior to their marriage in November 2013.  Both parties had independent counsel.  They affixed schedules of their full financial disclosure to the prenuptial agreement and acknowledged within the document they had time to review the agreement  with their respective counsel.  The parties agreed to share in certain assets, to keep premarital assets separate and to waive their right to elective share of the other spouse’s estate.

The husband passed away on April 21, 2017.  The wife received the proper notice of probate on May 11, 2017.  Pursuant to the relevant statute, she had six months to seek to enforce her elective share.  The wife, through counsel, provided letter notice of such intent on September 18, 2017.  However, she did not file the complaint until July 12, 2018 – fourteen months after the probate notice and, thus, out of time.  As part of her complaint, the wife sought to invalidate the prenuptial agreement, claiming that the husband did not provide full financial disclosure, which is the relevant issue for this post.

The wife was unsuccessful both in her initial application and her reconsideration application.   Note that in her reconsideration application, the wife claimed to have “newly discovered evidence” as to the husband’s financial circumstances that she claimed demonstrated his failure to provide full financial disclosure for the prenuptial agreement, but the evidence was not new because the wife/her daughter had the documents for over a year before she even filed the complaint and, even if it was new, the court found that it did not demonstrate what the wife claimed.  This appeal followed.

As noted by the Appellate Division, the plaintiff/wife bears the burden to demonstrate that the prenuptial agreement is unenforceable based upon the factors within N.J.S.A. 37:2-38(c)(1), which provides:

The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable. A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:a.The party executed the agreement involuntarily; or
b.(Deleted by amendment, P.L.2013, c.72)
c.The agreement was unconscionable when it was executed because that party, before execution of the agreement:

(1)Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
(2)Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
(3)Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
(4)Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

d.The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.

Regarding subsection (c)(1), the husband’s financial statement was attached to the prenuptial agreement and, importantly, Article X of the agreement explicitly stated that the wife reviewed the husband’s financial statement and “retained independent counsel ‘to review and represent her in conjunction with’
the Agreement prior to signing it.”

In order to support her claim that the financial disclosure was insufficient, the wife relied on the unpublished (non-precedential) decision of Orgler v. Orgler, claiming that the husband was required to produce proof of how the value of his assets were established and provide supporting documentation for same.  The Appellate Division specifically rejected this argument, stating:

In Orgler, the court noted that the “‘easiest device’ to evidence” knowledge of a party’s financial condition “is by annexing to the agreement a list of assets and their approximate values.” Id. at 349 (quoting Marschall v. Marschall, 195 N.J. Super. 16, 33 (Ch. Div. 1984)). The court found the prenuptial agreement unenforceable in part because “the parties appended no schedule of their respective assets to the agreement.” Ibid.

However, in the matter at hand:

  • The wife had the benefit of the husband’s financial statement attached to the agreement;
  • The financial statement identified a list of assets with approximate values, as set forth in Orgler;
  • The wife had independent counsel before signing the prenuptial agreement;
  • Within the agreement, the wife acknowledged that she read and understood the agreement and had the necessary time to discuss same with counsel.
  • The wife, nor her attorney, ever asked for additional financial information before the agreement was finalized.

The lesson here is similar to many of our prenuptial agreement cases and the guiding statute, above – always, always, always be sure to affix the financial statement of each party to the prenuptial agreement, ensure that each party has independent counsel and, here, we learn the importance of including language within the agreement acknowledging that each party had sufficient time to review the agreement and financial disclosure with respective counsel prior to signing the agreement.  When dealing with a prenup, you want to be extra careful to follow these directives because you have to assume that at some point in the future, one party will be unhappy with the agreement at the time of divorce, or death.  To protect yourself against what may be the inevitable, you need to make sure that the agreement can withstand efforts to invalidate the document.

Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or

Lindsay A. Heller, Associate, Fox Rothschild LLP

In Z.A. v. R.V., Jr., an unpublished Appellate Division case, meaning not precedential, the Appellate Division ruled that the best interests of the child governs a surname change. This rationale falls squarely with the court’s previous cases that a child’s name change must be evaluated under the best interest standard. Emma v. Evans, 215 N.J. 197 (2013); Gubernat v. Deremer, 140 N.J. 120 (1995). You can read our prior blog post on Emma here: What we can gather is litigation over a child’s name or surname continues to be a contested issue. The analysis is fact-sensitive and will vary from case to case. In this case, the mother was permitted to change her son’s last name to be hyphenated with both hers and the father’s last names.

Defendant-father appeals the trial court’s decision to change the parties’ son surname. Plaintiff-mother made an application to change the parties’ son surname from Defendant’s surname to the hyphenated surnames of both Plaintiff and Defendant.

Plaintiff and Defendant were not married, but were in a dating relationship since February 2012. Plaintiff became a foster parent to a four-day old boy in April 2012 and lived solely with Plaintiff until November 2012, when Defendant moved in with Plaintiff. When the parties’ adoption was finalized in December 2014 and they agreed that their son would take Defendant’s surname.

In September 2017, the parties separated. At this time, Plaintiff wished for the parties’ son to the hyphenated surnames of both her and Defendant, which Defendant opposed. The parties proceeded to a name change hearing after entering into an agreement regarding custody, parenting time, and child support. After conducting the hearing, the trial court granted Plaintiff’s application for the child’s name changed. Defendant requested a stay of the ruling pending appeal.

On appeal, Defendant argued that the trial court failed to apply the factors as set forth in Emma 215 N.J. 197 (2013) and the trial court abused its discretion by “focusing on whether the proposed name change would be contrary to the child’s best interests.” Z.A., at *3 Specifically, Defendant argued that the trial court impermissibly considered in factor three (3) consideration of Plaintiff’s potential anxiety, embarrassment or discomfort as opposed to a “child-centric” analysis. Z.A. at *6.

When a party makes a name change application, the burden is on the moving party to show by a preponderance of the evidence that the name change is in the best interest of the child. Emma, 215 N.J. at 222. The court in Emma listed several factors that bear on whether the name change is in the child’s best interests, some of which were originally articulated by Gubernat v. Deremer, 140 N.J. 120, 141-42 (1995):

  1. The length of time the child has used his or her given surname.
  2. Identification of the child with a particular family unit.
  3. Potential anxiety, embarrassment, or discomfort that may result from having a different surname from that of the custodial parent.
  4. The child’s preference if the child is mature enough to express a preference.
  5. Parental misconduct or neglect, such as failure to provide support or maintain contact with the child.
  6. Degree of community respect, or lack thereof, associated with either parental or maternal name.
  7. Improper motivation on the part of the parent seeking the name change.
  8. Whether the mother has changed or intends to change her name upon remarriage.
  9. Whether the child has a strong relationship with any siblings with different names.
  10. Whether the surname has important ties to family heritage or ethnic identity.
  11. The effect of a name change on the relationship between the child and each parent.

Emma, 215 N.J. at 223.

The Appellate Division found the trial court appropriately applied the above factors. As to Defendant’s argument that the trial court considered Plaintiff’s potential anxiety, embarrassment, or discomfort, the trial court only acknowledged that this factor could apply to parents. However, the trial court emphasized the need to focus on the child’s best interest and further found that Plaintiff’s testimony as to her potential anxiety, embarrassment, or discomfort not compelling. The trial court found the hyphenated name would promote “important ties to family heritage or ethnic heritage” to both sides of the child’s family. Therefore, the Appellate Division affirmed the granting of the name change application.

The primary focus of a name change application is what is in the best interests of the child. While all factors do not need to be present, a trial court still must consider all the factors and determine which are applicable to the facts of the case.


Sofia M. Ucles, Associate, Fox Rothschild LLP   Sofia M. Ucles is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Sofia at (973) 548.3349 or

Last summer, Eliana Baer and Eric Solotoff of our Family Law Department achieved an Appellate Division victory when a trial court’s decision to allow our client’s ex-husband to obtain a custody evaluation without the requisite finding that there had been a change of circumstances.  In that case, the Appellate Division took issue with the trial court’s choice to put the child through a taxing best interests evaluation because there are two elements that must be met before a change of custody or parenting time can occur:  1) a change of circumstances; and 2) a finding that the proposed change of custody or parenting time is in the best interests of the child.  The judge in that case had ordered an inquiry into the second factor vis a vis the best interests evaluation, but had expressly found that there was no change of circumstances warranting a modification.  Without a change of circumstances finding, there should not have been such an inquiry.

A recent unpublished (non-precedential) decision, CSS v. ATE, serves as a reminder that both of these findings must be made before a change of custody and/or parenting time can occur.  In this case, the father claimed to have suffered a physical injury that would prevent him from working, making him available for more parenting time. The father did not present any information about how long his injury would keep him from working or how he might handle recovering from this injury while increasing his childcare responsibilities.  The Court made no findings whatsoever with regard to whether or not the proposed change in the parenting time schedule was in the best interests of the child.  Nevertheless, the trial court increased the father’s parenting time.

The mother appealed.  The Appellate Division found that:

A.T.E. introduced no evidence of changed circumstances other than his testimony that he will have more time off from work while recuperating from an injury.  This alone is insufficient to constitute a change in circumstances.  In addition, the court did not undertake an analysis of the child’s best interests.  No testimony or other evidence was elicited with respect to how a change in custody and parenting would affect the child.

On this basis, the Appellate Division reversed the trial court’s decision.  In doing so, it reminded us that “Custody orders are subject to revision based on the changed circumstances standard,” citing Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).

Modification of an existing child custody order is a “two-step process.”  R.K. v. F.K., 437 N.J. Super. 58, 62 (App. Div. 2014 (quoting Crews v. Crews, 164 N.J. 11, 28 (2000)).  First, a party must show “a change of circumstances warranting modification” of custodial arrangements.  Id. at 63 (quoting Beck v. Beck, 86 N.J. 480, 496 n.8 (1981)).  If the party makes that showing, the party is “‘entitled to a plenary hearing as to disputed material facts regarding the child’s best interests, and whether those best interests are served by modification of the existing custody order.'”  Id. at 62-63 (citation omitted).  Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015)

These standards are in place because it shouldn’t be easy to disrupt a child routine, lifestyle, and household – and it isn’t.  At least not when the proper benchmarks for modification of custody and parenting time are followed.

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

In Orr v. Johnson, an unpublished decision (meaning not precedential), the Appellate Division reviewed a jurisdictional issue between two parents – one living in New Jersey and one living in Virginia – and whether the written agreement between them was conclusive of jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”).  Because the trial court did not determine whether New Jersey was the “home state” under the UCCJEA, the Appellate Division reversed and remanded the matter.  An agreement alone is not determinative of jurisdiction under the UCCJEA.

In this case, the parties entered a Custody and Parenting Time Agreement in February 2018, which designated the father as the parent of primary residence and the mother as the parent of alternate residence, with both parties sharing joint legal custody.  The agreement also provided that “jurisdiction shall lie in the State of New Jersey” with the mother’s parenting time to be “arranged and agreed upon by both parties.”

The parties engaged in significant litigation starting in April 2018, when the father filed an emergent ex-parte application with the court, stating the mother had not returned the parties’ son after the mother’s parenting time ended eleven days prior.  In father’s application, he requested the court enforce the parties’ Custody and Parenting Time Agreement and order the mother to return their son back to New Jersey.  On April 11, 2018, the court granted father’s relief that he had primary residential custody of the child and ordered the mother to bring the child back immediately.  The court set a return date for April 18, 2018.  The mother argued that because the child was born in Virginia, received his immunizations in Virginia, was enrolled in daycare in Virginia and resided in Virginia, Virginia was the home state and not New Jersey.  She also argued that paternity was never established and the reason the parties entered in the Custody and Parenting Time Agreement was so the child’s father could “cancel a year-long care contract.”   On April 18, 2018, the court determined that New Jersey had jurisdiction and awarded the father “temporary sole, legal and physical custody.”  A paternity test was also ordered and the mother was ordered to return the child to the father.  The parties were to return for a subsequent hearing in May 2018.

In the interim, the mother filed a motion requesting to modify the court’s April 18, 2018 order and also filed an emergent application, declaring Virginia had jurisdiction and returning the parties’ son to her.  There, the mother claimed that she was forced to the sign the Custody and Parenting Time Agreement and that the father was emotionally abusive.  The mother claimed the child had spent 263 nights in Virginia as opposed to only 100 nights in New Jersey.  The mother also attempted to file a stay pending an appeal and file an application in Virginia.  The court denied the emergent application, finding that her requests could await the May 30, 2018 hearing.

On May 30, 2018, before a different Family Part judge, the court entered a paternity order between the father and the parties’ child with parenting time with the mother.  The court assumed that the prior judge based jurisdiction upon the parties’ Custody and Parenting Time Agreement.  Specifically, the court stated that whether the mother believed there was a “jurisdictional dispute”, she submitted voluntarily to New Jersey.  The court determined that the April 18, 2018 Order to be a “final order” under the UCCJEA and therefore, New Jersey had continuing and exclusive jurisdiction of the child.  The parties also attended another hearing in September 2018, where the parties were ordered to attend custody and parenting time mediation.

The mother, once again, filed an application in October 2018, seeking to modify the April 11, 2018 and April 18, 2018 Orders, to change custody, relocate to Virginia, and that New Jersey should relinquish jurisdiction as the “Agreement was not determinative of the court’s subject matter jurisdiction.”  Father opposed the application and the court heard the applications in January 2019 before a third Family Part judge.  The court found that based upon the May 30, 2018 order, the court found the child had spent significant time in New Jersey and the Agreement stated that New Jersey was the child’s home state.  The court also found that the first judge entered an order relating to custody based upon the parties’ agreement, which was neither appealed nor was relief from the order sought.  The court ordered that the parties would have joint legal and residential custody of the child and alternate parenting time month to month.

In a subsequent order, the court clarified that the parties’ agreement was being enforced and the father was deemed the “primary residential custodian of the child.”  The court found the agreement was unambiguous, that the parties voluntarily entered into the agreement, and did not find the mother’s arguments that she was coerced credible.  The mother subjected herself to the jurisdiction by raising the paternity issue, and the mother should have known an action could have been instated in New Jersey given the language of the agreement.  Under the UCCJEA, the court found that the child had not lived with either parent for six months consecutively before the New Jersey action was commenced.  Additionally, the court found that while either New Jersey or Virginia could have been deemed the child’s “home state”, based upon the intent of the parties in entering the agreement, New Jersey was the “home state” for jurisdiction.

The purpose of the UCCJEA is to avoid jurisdictional disputes in favor of cooperation between the states.  There are two parts of the UCCJEA: an initial custody determination (the first custody order) and a modification of a custody determination (any determination made subsequent to the first custody order).  Here, the issue was whether New Jersey made an initial custody determination order and providing New Jersey with subject matter jurisdiction.

To determine whether a state can make an initial custody determination, the court must evaluate what is the “home state” of the child.  A child’s “home state” is the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” – this also includes a temporary absence from the state.  Once a state who has jurisdiction to make an initial custody determination enters an order, that state has continuing and exclusive jurisdiction over the matter.  However, if there is no home state, New Jersey may exercise jurisdiction if: “no other court has home-state jurisdiction, or a court with home-state jurisdiction declines to exercise it,” and two other factors are present:

(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with the 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.

N.J.S.A. 2A:34-65(a)(2).  Here, the trial court did not make a determination of whether New Jersey was the home state for the child.  Rather, the trial court found that either New Jersey or Virginia could be the child’s home state.  The trial court therefore relied upon the agreement between the parties to determine jurisdiction, because either state could have been the home state.

The Appellate Division found that the trial court erred in relying upon the agreement as a basis for jurisdiction.  An agreement determining jurisdiction is only a factor if a court is deciding whether to decline jurisdiction as an inconvenient forum.  The trial court could have determined New Jersey had jurisdiction based upon the significant connection and substantial evidence tests as outlined under  N.J.S.A. 2A:34-65(a)(2).  The Appellate Court reversed the May 30, 2018 Order and remanded for a hearing as to whether there was a significant connection to either New Jersey or Virginia and whether there is substantial evidence relating to the child’s care, protection, training and personal relationships in Virginia or New Jersey.

If you are experiencing a multi-state custody, or other family-related, issue Fox Rothschild has the benefit of offices throughout the country to assist in your multi-jurisdictional dispute.  We can garner the experience of these attorneys to provide you with the knowledge and support in such complex matters.  We can assist you in evaluating these jurisdictional issues prior to commencing an application and drafting an agreement relating to the care and custody of your child.


Sofia M. Ucles, Associate, Fox Rothschild LLP   Sofia M. Ucles is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Sofia at (973) 548.3349 or

The issue in the published trial court decision, S.C. v. J.D., reviewed what is a “household member” under the Prevention of Domestic Violence Act (“PDVA”) pursuant to N.J.S.A. 2C:25-17 to -35.  The plaintiff, “Samantha”, filed a temporary restraining order against her half-sibling, “Jake”, alleging assault and terroristic threats.  The two share the same father.  Jake filed a motion to dismiss, arguing that jurisdiction had not been established under the PDVA.  Jake claimed that his “sporadic relationship” of sharing weekends, holidays, and an occasional family vacation was insufficient to establish jurisdiction.  The trial court set a hearing to determine jurisdiction in March 2019.

Jake’s parents were divorced and established a custodial arrangement for Jake under a marital settlement agreement (“MSA”).  Under the MSA, Jake’s mother had “custody” of Jake, but Jake’s father had “free and liberal visitation . . . as often as possible.”  Jake’s mother obtained a final restraining order against Jake’s father, wherein Samantha’s mother would supervise Jake and his father’s parenting time.  Samantha’s mother was also designated as Jake’s driver during parenting time with his father.  Until college, Samantha lived with her mother and father.  Jake and Samantha would spend time together with their father, Samantha’s mother, and Samantha’s brother consistently during the school year and summer breaks.  While Jake attended a different school district than Samantha, the two had a meaningful and “substantially integrated sibling relationship . . . not dissimilar from siblings in a singular household.”  Jake was not a mere sporadic visitor, but a part of the family.

The PDVA is meant to assure “victims of domestic violence the maximum protection from abuse the law can provide.”  N.J.S.A. 2C:25-18.  The law is meant to be read liberally, but “[t]he PDVA specifies jurisdictional relationships that must exist.”  The PDVA defines a “victim of domestic violence” as “any person who is 18 years or older . . . who has been subjected to domestic violence by . . . any other person who is a present household member or was at any time a household member.”  N.J.S.A. 2C:25-19(d) (emphasis added).

The PDVA was amended in 2015 to include prior household members.  The analysis shifted from the amount of time that passed since the parties shared a household to whether the current conflict arose from the parties’ prior domestic relationship.  See N.G. v. J.P., 426 N.J. Super. 398, 411 (App. Div. 2012).  Even prior to the 2015 amendment, the term “household member” had been construed liberally.  See e.g., S.P. v. Newark Police Dep’t, 428 N.J. Super. 210 (App. Div. 2012) (boarders in a rooming house who shared bathroom, kitchen, and communal appliances); S.Z. v. M.C., 417 N.J. Super. 622 (App. Div. 2011) (unrelated tenant); Hamilton v. Ali, 350 N.J. Super. 479 (Ch. Div. 2001) (college suitemates).

Judge Aquaviva found that the facts give rise to the notion of a modern family.  The fact that Jake’s primary residence was at his mother’s and his alternate residence was at his and Samantha’s father, does not mean Jake cannot be a part of two households under the PDVA.  Jake spent meaningful and significant parenting time with Samantha and their father as a family under one household.  To state that Jake is not a member of Samantha’s “household” would undermine the purpose of the PDVA and the public policy of assuring minor children of “frequent and continuing contact with both parents after the parents have separated or dissolved their marriage”.  N.J.S.A. 9:2-4.  Under Jake’s argument, a child of separated or divorced parents could only file a restraining order against one set of step-siblings, but not the other if he only has one “household” under the PDVA.  Therefore, the Appellate Court found that the PDVA must be extended to include “modern, blended households.”  Jurisdiction had been established and the trial court could resume the final restraining order hearing.

Sofia M. Ucles, Associate, Fox Rothschild LLP   Sofia M. Ucles is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Sofia at (973) 548.3349 or