A recent unpublished (non-precedential) decision, Steffens v. Steffens, suggests that the answer to the above question is “no.”

In Steffens, the Wife sought to set aside a prenuptial agreement, arguing that it was unconscionable, in large part because the alimony payments she was to receive under the agreement would not allow her to maintain the marital lifestyle.  At trial, the Court excluded evidence of the marital lifestyle.  On appeal, the Wife argued that the Court erred by excluding such evidence which, she claimed, should have been a part of the analysis when the Court decided whether enforcement would leave her “without a means of reasonable support.”

The trial court, however, had good reason to exclude this evidence, because the parties had specified in the prenuptial agreement itself that neither of them would have the right to assert a claim against the other to maintain the marital standard of leaving.  Therefore, the trial court only considered the question of whether the Wife would have a means of “reasonable” support if the agreement were enforced – not whether she would have a means of support that would enable her to continue to leave at or reasonably close to the marital lifestyle.  Put another way, she made her deal as to the specific amounts of support she would be entitled to in the event of a divorce at the time of the prenuptial agreement, and because she had means of support vis a vis the agreement and other financial resources, the Court enforced; it did not matter that her lifestyle would be diminished.  The Appellate Division found that this analysis was proper.

Interestingly, the Appellate Division touched upon the relatively recent amendments to the New Jersey statute related to prenuptial agreements, noting that for agreements executed after the effective date of the amendments (June 27, 2013), the question of whether a spouse will be left with a reasonable means of support is no longer relevant.  The prenuptial agreement in Steffen pre-dated the effective date.  However, for later agreements, these amendments make it even harder to set aside prenuptial agreements because those who seek to set them aside can no longer argue that they will be left without reasonable means of support if the agreement is enforced.  Instead, they can only advance arguments about the agreement being unconscionable from inception as a result of lack of full and fair disclosure, involuntariness, or lack of independent counsel.

This recent decision serves as food for thought for anyone considering entering into a prenuptial agreement applying New Jersey law.  Absent a future change in the law, the level of fairness of the result of enforcement of the prenuptial agreement matters little, if at all, and as the supported spouse you may have no recourse if the prenuptial agreement leads you to live a dramatically lessor lifestyle post-divorce than you enjoyed during the marriage.

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

The recent unpublished decision of Gormley v. Gormley serves as a good reminder for four polestar issues in matrimonial litigation, below, as well as to put on your best evidence in an effort to ensure that the trial court enters the appropriate decision and, ultimately, to not stop litigating up the ladder when it fails to do so:

  • Imputation of income to a party who receives Social Security Disability Income;
  • Imputation of income to a party who is voluntarily under or unemployed;
  • Determining the need for support;
  • Deviating from the Child Support Guidelines particularly in a case where the child does not have a relationship with the non-custodial parent

Relevant to each issue are the following facts:

  • The parties married in 2000, separated in 2012 and the divorce complaint was filed by Plaintiff/husband in 2015.  They had one child born in 2004, who did not have a relationship with Plaintiff at the time of trial in or around 2018.
  • Defendant/wife received Social Security Disability (SSD) benefits due to her diagnosis of Multiple Sclerosis, which diagnoses she had since prior to the parties’ marriage.  Defendant was determined disabled by the Social Security Administration (SSA) in 2002 and was out of the workforce since that time.
  • Plaintiff earned $150,000 gross per year in the two years leading up to the divorce trial through his commission-based employment, but then purposefully reduced his hours in order to study psychology and parental alienation, and to prepare for trial.

Based upon these facts, the trial court imputed income to Defendant because she did not produce further evidence of her disability beyond her SSA determination and testimony, and because of the court’s observations of Defendant during trial; did not impute income to Plaintiff for his admitted voluntary underemployment and, rather, used a six-year average of his pre-separation income – which was five years prior to trial – and totaled less than $100,000 per year as compared to $150,000 he earned in the two years leading to trial; reduced Defendant’s budget without any reasoning on the record; and, entered child support deviating from the New Jersey Child Support Guidelines primarily because Plaintiff did not have a relationship with the child.  All of the foregoing was subject to a Motion for Reconsideration that the trial court denied and then became subject of this appeal, which lead to reversal, remand and vacating those aspects of the decision.

The Appellate Division reviewed each area of the trial court’s decision and correctly found flaws in all, as follows:

  • Imputation of income to a litigant who receives Social Security Disability Income – Golian v. Golian remains the controlling case on this issue and holds that the litigant who was declared disabled is subject to a rebuttable presumption that he/she is unable to work, and the opposing party then bears the burden to rebut that presumption.  The court in the instant matter confirmed that to the extent the trial court decision of Gilligan v. Gilligan has contrary holdings to GolianGolian prevails.  Specifically, Gilligan requires the disabled party to first produce more evidence beyond the SSA disability determination before the adverse party is required to rebut the presumption.   In Gormley, the Plaintiff failed to rebut Defendant’s disability and, thus, the Appellate Division found the the trial court erred in imputing income to Defendant based upon its own observations of Defendant.
  • Imputation of income to an underemployed litigant – The Appellate Division again found error in the trial court’s decision, this time by calculating Plaintiff’s income for purposes of paying support using a six-year, pre-separation average – ending five years prior to trial – and ignoring his last two years of income prior to trial, when failing to consider whether Plaintiff was earning at his full capacity.  The Appellate Division, citing to Lynn v. Lynn, specifically noted that it is a fatal error to leave out the amount of the payor’s income leading to the trial when averaging income to determine an ability to pay support.  Thus, it is an obvious error to average income over the six years prior to separation, particularly when that time period was five years prior to trial, and to ignore his income for the two years leading to trial.
  • Need for Support – In the third error in this matter, the trial court failed to explain why it reduced Defendant’s budget from $7,700 per month for $4,300 per month, which is undoubtedly erroneous and leaves the Appellate Division without a specified decision to review.  This issue was remanded (sent back) to the trial court for an explanation as to is calculation for this budget reduction.
  • Deviating from the Child Support Guidelines – To add icing on the cake, the trial court deviated from the Child Support Guidelines because Plaintiff did not have parenting time with the child (noting, however, that prior to the reconsideration decision the trial court did not place any findings on the record as to why it deviated from the Guidelines).  First, the Guidelines include the amount of overnights a parent does/does not have so this should not even be an issue.  Moreover, as the Appellate Division reiterated, the Guidelines allow for deviation when the non-custodial parent spends more time with the child than contemplated in the Guidelines calculation but not in the manner as the trial court ordered in Gormley.  Most Notably, the Appellate Division found error by the trial court’s failure to consider the best interests of the child when deviating from the Guidelines, which is arguably the material consideration when determining a child support award and, frankly, when evaluating any child-related issue.

Gormley serves as another lesson regarding the importance to lay out all relevant facts for the trial court to absorb and have at the ready to incorporate into a decision (including in pre- and post-trial memoranda) and to not stop litigating upon receipt of a poor decision when the trial court has provided the groundwork for a successful appeal.

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

For many divorce attorneys, the busy season starts after the first of the year. For the last several years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again, updated slightly for the new year.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Before writing this article for the first time, out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. There are even more results when you do the same search now. While not all of the search results are on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. In some recent years, the calls started in November at a pace more robust than in prior years. Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse.

Those who divorced in 2019 were the first to test the new tax laws eliminating the deductibility of alimony.  That created new support paradigms that attorneys and divorcing parties are working with.  Those who divorce in 2020 may still enjoy a booming economy and not the  slowing economy that many predicted for 2019 and some still predict for 2020.  Bad economies historically mean more divorces, either because of the stress it creates or because one or both parties is being opportunistic.  On the other hand, someone who might be a support recipient might be opportunistic on the other end of the spectrum – getting out while incomes and asset values are high.

Whatever the reason, we await those who see 2020 as a chance for happiness or a fresh start. Happy New Year?!?!

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 esolotoff@foxrothschild.com.

The holiday season is here, which means your inbox is probably flooded with e-mails about sales, promotions and must-have purchases. If you are unhappy with your current counsel and a new divorce attorney is on your shopping list this year, here are some important considerations to remember selecting new legal representation:

  1. Don’t be afraid to browse. Any seasoned consumer knows you have to shop around a bit before making a purchase. The same principle applies when picking a new attorney. Ask for referrals and then speak to several attorneys before making your decision. You will spend a significant amount of time working with your selected counsel, so it is important that it’s a good fit. A  trustworthy attorney should encourage you to explore your options before making a choice, so you are confident in your decision and feel comfortable with your new counsel.
  2. Read the reviews. Once you find someone you like, do some research! Your new attorney should have experience in handling matters similar to your own. While any lawyer can tell you they have the necessary qualifications, the right one will have examples to back it up. Reviewing their bio, LinkedIn, blog posts and articles will help you do your homework.
  3. Make a shopping list. You should identify and write down your objectives at the outset of your search. Why are you unhappy with your current counsel? Is your current lawyer too easy-going? Too aggressive? Unresponsive to your inquiries? When consulting with a potential new lawyer, explain your dissatisfaction and ask targeted questions to ensure that the switch will remedy those concerns.
  4. Don’t miss the sale. Timing is critical. Whenever an attorney takes over a case in the middle, it takes time to get up to speed. Your new attorney will need to review the file and become knowledgeable about what has happened in your case to best assist you. If you think you want to change counsel, don’t hesitate and wait until you have an upcoming trial date or other big court appearance. Unless the court will grant an extension or adjournment, the right attorney for you may not have the capacity to get on board so quickly.

Happy shopping!


Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.


In a recent published (i.e. precedential) decision, C.R. v. M.T., the New Jersey Appellate Division elaborated upon the legal standard proving that a sexual encounter during which one party was intoxicated was non-consensual under the Sexual Assault Survivor Protection Act (SASPA) N.J.S.A. 2C:14-13 to -21.

Although we have blogged frequently on domestic violence restraining orders obtained under the New Jersey Prevention of Domestic Violence Act, SASPA offers another avenue to obtain restraining orders for victims of sexual assault.  In C.R., the plaintiff commenced an action under SASPA in order to restrain the defendant from having any contact or communication with her.  The question in dispute was not whether a sexual encounter occurred – both parties agreed that it had – but rather whether the plaintiff was capable of providing her consent for the encounter and, if so, whether she had in fact done so.

Under SASPA, the first factual hurdle that a plaintiff must overcome is proof of “the occurrence of one or more acts of nonconsensual sexual contact sexual penetration, or lewdness, or any attempt at such conduct.” This must be proven by a preponderance of the evidence, meaning that the plaintiff must convince the finder of fact that it is more likely than not that there was a sexual encounter that was non-consensual.  Furthermore, as the trial court acknowledged, consent given out of fear and/or consent that is ultimately revoked is treated under the statute as a lack of consent.  As stated in the decision In re MTS, 129 N.J. 422, 444 (1992), “Permission to engage in sexual relations must be freely given and that willingness may be inferred from acts or statements reasonably viewed in light of the circumstances.”

The second prong that the plaintiff must establish in order to obtain a restraining order is that such protection is needed due to “the possibility of future risk to the safety or well-being of the alleged victim.”

The Appellate Division decision addresses the first prong, namely the question of adequate proof that the sexual encounter was non-consensual. One way in which the statute permits a lack of consent to be established is via temporary mental incapacity, which can be generated by the victim’s intoxication. In this case, the plaintiff argued that she was so intoxicated from drinking alcohol that she temporarily lacked the capacity to provide her consent to the sexual encounter.  The trial judge agreed.

The Appellate Division described this issue as having two components.  First, whether the plaintiff expressed or conveyed her consent to engage in the encounter and, second, whether, if not, she was too intoxicated to be capable of consent.  The trial judge correctly found that both parties presented versions of events from the encounter in question that were equally plausible.  On the plaintiff’s side, she testified that her original consent was provided only out of fear and that, eventually, she revoked it.  She further argued that, regardless, she was not capable of providing consent because she was temporarily mentally incapacitated.  It is that terminology that the Appellate Division focused on in its analysis.

SASPA defines a sexual assault victim as “one who the actor knew or should have known” was, among other things, “mentally incapacitated” at the time of the encounter.  The statute defines mental incapacitation as:

that condition in which a person is rendered temporarily incapable of understanding or controlling his conduct due to the influence of a narcotic, anesthetic, intoxicant, or other substance administered to that person without his prior knowledge or consent . . . .  N.J.S.A. 2C:14-1(i).

The Appellate Division interpreted this statute as saying that a victim may prove the lack of consent a mental incapacity brought on by either voluntary or involuntary intoxication.  Put another way, whether the victim voluntarily drank to the point of intoxication (which, in this case, it was not disputed that she did this) or was involuntarily intoxicated (i.e. forced to become intoxicated or given something which would cause intoxication without her knowledge) is of no moment.

The Appellate Division next considered the level of intoxication necessary to establish mental incapacity, or an inability to consent.  The Appellate Division found that in order to establish this, “[a]n alleged SASPA victim must prove intoxication to such a degree that her faculties were prostrated to the point of being incapable of consenting to the sexual encounter,” which may be established by a preponderance of the evidence.

Undoubtedly, the Appellate Divisions’ examination of these issues provides some important clarification.  However, when considering the required proofs, it is all too clear that in many cases, the ability to establish these facts by a preponderance of the evidence will often  come down to the comparative credibility of the parties and their respective versions of events, as it did in this case where the trial judge believed both parties’ recitations of the events of the night in question to be “equally plausible.”

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

One of the hardest lessons I learned in my early days of practicing family law is that a case is never really over when we think it’s over.  I remember walking out of my first uncontested hearing so proud that I helped finalize a client’s divorce, emotional for their loss (yes, it happened to be a case where each party cried and hugged) and hopeful for their future.  I still have those feelings but, over time (and it didn’t take long), have become less blinded by the proverbial success of “putting through” a divorce because it’s never really over, especially when children are involved.  Instead of focusing on getting across the finish line sooner rather than later, the focus shifts to preparing agreements that will hopefully enable the parties to have their uncontested hearing as the last piece of the puzzle, and not the start of a new jigsaw.  Admittedly, this is not always easy.  Sometimes in that 3rd, 4th, 5th mediation session, when it’s 8:00 at night,  stomachs are rumbling and the caffeine is wearing off, and agreements are complete but for certain issues that seem minor at the time, it’s hard for clients to walk away without a signed writing just because of an ancillary thought that, in the moment, may seem resolvable down the road.  What if the parties are amicable and you are trying to convince a client to open up an issue that he/she may not want to address with their spouse because they know it’s a trigger and doubt they will ever become acrimonious down the road?  However, the price to pay in the days, months or years to come is worth the extra time to resolve issues now to the extent that they are ready for resolution.  But, as hard as we try, we have all been there!

In a recent unpublished (non-precedential) decision Soler v. Stark,  the issue at first glance appears to be the children’s religious upbringing when each parent observes a different faith.  However, when reading between the lines, the crux of the case is really the importance of comprehensive settlement agreements without leaving ripe issues for future resolution down the road.  Put another way, it seems apparent that a difficult, and possibly impossible to resolve issue was kicked down the road, even though it was foreseeable that future litigation would ensue.

In Soler, the parties entered into a marital settlement agreement, with an incorporated custody parenting time agreement.   Plaintiff was designated as the parent of primary residence for school enrollment only.  The parties explicitly agreed to share equal decision making rights regarding all integral decisions for their children.  The parties acknowledged in their agreements that they each have different religious and cultural backgrounds (plaintiff/mom is Catholic and defendant/dad is Jewish).  They  agreed to later submit to mediation any unresolved issues regarding the cultural and religious upbringing of their children.  It seems that they did allocate parenting time for holidays of both religions because, as relevant to this decision, Defendant had parenting time for Easter Break every year but Plaintiff had parenting time on Easter so long as Defendant was not traveling with their children.  All seems standard and not unlike many agreements that I have reviewed/drafted.  So, what comes next?  The parties disagree about their children’s religious upbringing.

In 2018, Defendant filed an application seeking to complete their youngest child’s conversion to Judaism, to enroll the twins in Hebrew School and also enroll their youngest child at the relevant age, as well as to compel Plaintiff to bring their children to Hebrew School during her parenting time and restrain her from making derogatory comments about the religion to their children.  In opposition, Plaintiff sought to have their children exposed to both religions/cultures and for Easter Sunday parenting time every year.  The trial court heard oral argument but did not require a hearing.  Briefly, in support of his application, Defendant certified that Plaintiff took classes in Judaism before their marriage, that they agreed to raise their children in the Jewish faith and that their son was circumcised in a Jewish ceremony but his conversion was not complete.  In opposition, Plaintiff certified that she went to the class to support her then soon-to-be husband, that she never agreed to raise their children in the Jewish faith/send them to Hebrew School and only partook in certain rituals during their marriage due to Plaintiff’s pressure to do so, as well as claimed that Defendant wrongfully withheld Easter parenting time from her in 2018 when he brought their children to a local amusement park.

Ultimately, the trial court determined that their youngest child would complete his conversion to Judaism, that Defendant may bring their children to Hebrew School during his parenting time but that Plaintiff need not do so during her parenting time, and granted Plaintiff’s request for Easter Sunday parenting time every year commencing in 2020, as well as permitted her to educate their children with her religious and moral values.  This appeal followed.

The Appellate Division ultimately held that (1)  Each party was free to raise their children in their own religious beliefs during his/her parenting time; thus, the trial court’s decision allowing Plaintiff to do so was affirmed; and, (2) The trial court improperly modified Easter parenting time with a showing of changed circumstances and the court did not conduct a hearing to determine if the modification was in their children’s best interests; thus, the modified Easter parenting time schedule was reversed.  The Appellate Division noted that Plaintiff may be entitled to compensatory parenting time for her loss of Easter parenting time, but even if Defendant violated the schedule, one violation does not equate to changed circumstances warranting a modification to their parenting time schedule.

Notably, the Appellate Division reviewed case law regarding superior rights bestowed upon primary/custodial parents to make decisions on behalf of their children, which was not relevant here given the language of Plaintiff’s designation being for school enrollment only, as well as case law regarding disputes for religious upbringing and each party’s constitutional right to religious freedom.  This was all required because the contractual agreement lacked a decision with respect to their children’s religious upbringing.  The Appellate Division also reviewed the parties’ conflicting certifications but could not determine whether they had an agreement to raise their children in the Jewish faith because the trial court did not conduct a plenary hearing.  Of note, had the court done so, each party would have spent a substantial amount of time and money litigating this issue that was held in abeyance.

While the case law history is interesting, and I recommend a read to brush up on who gets to determine a child’s religion, the puzzle is really solved by addressing all relevant issues to the extent we can at the time the agreement is finalized.  This also enables you to be the person who chooses the outcome, rather than asking the trial court or Appellate Division to determine material child-rearing issues on behalf of your family.

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

An issues that frequently arises is the treatment of an inheritance received by a spouse during the marriage.  The basic rule is that any property received via gift or inheritance during the marriage is exempt from equitable distribution.  When advising people, to the end of that sentence, I usually add something like, “provided that it is kept separate from marital assets.”  Put another way, when an inheritance or any other exempt asset (like a premarital asset) is “commingled” (a legal term) with marital assets, it can lose it’s exempt status.

That is the basic rule, however, it is not absolute.  There is a reported (precedential) decision that held that an inheritance was exempt, even though it was briefly parked in a joint account.  In fact, I had a case, more than a dozen years ago, that I tried, where one of the major issues was the proceeds of a life insurance policy that my client received as a result of his brother’s untimely death.  Because he was too distraught to deal with it when the check was received, his wife took the check and opened a joint bank or investment account with the money.  The money was never touched thereafter but it didn’t stop the wife from seeking 50% of it when the parties divorced a few years later.  In that case, the judge found that the proceeds from the insurance policy were my client’s separate property.

A similar issue arose in the case of Davis v. Davis, an unreported (non-precedential) Appellate Division decision released on October 23, 2019.  In that case, the wife received $162,000 in life insurance proceeds and some other assets after her daughter from a prior marriage, died in January 2010.  The money was initially deposited into a joint checking account and later, the wife opened a CD in the amount of  $154,995.95 in her name alone.  At the time of the divorce, the husband sought distribution of the account.  The trial judge disagreed and awarded it solely to the wife and the Appellate Division agreed.  Specifically, they held that:

Assets exempt from equitable distribution may become subject to equitable distribution if the recipient intends them to become marital assets. See Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div. 1988). The comingling of such assets with marital assets, however, is not necessarily dispositive of the issue. The assets remain the recipient spouse’s property absent evidence the
parties intended them to become marital property. See Wadlow v. Wadlow, 200 N.J. Super. 372, 380 (App. Div. 1985).

Here, the trial court found that the wife was credible that there was no intent to make the inheritance a marital asset.  The concept is one of “donative intent.”  Put another way, did she have the intent to gift the inheritance to the marriage, making it a marital asset.  In this case, the trial court found that there was no such intent and the Appellate Division could not disrupt that credibility finding.

Even in cases when an inheritance is commingled and the court finds and/or the evidence is clear that there was donative intent, that does not mean that the asset should be divided 50-50.  There are a lot of factors at play, including, proximity in time between the inheritance and the divorce.  For instance, if a party deposited an inheritance into a joint account a year or two before the divorce, they could certainly make a claim for a disproportionate distribution of that asset if their argument that they should get back 100% of it doesn’t fly.  The longer you go between the inheritance and the divorce, the harder that argument gets.

Moreover, some people argue that payment of income taxes on an inherited asset represents commingling.  There really is no legal precedent for that.  That said, their may be a claim to recoup some of the marital assets used to pay the taxes on an exempt asset.

Similarly, some people argue that the use of exempt assets during the marriage represents a commingling of the assets themselves.  That too is a difficult argument.  However, the use of the assets may represent marital lifestyle in an alimony analysis.


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 esolotoff@foxrothschild.com.


For decades, when a custodial parent wanted to move out of state, it would not be unusual to hear that if the court or other party won’t let me leave New Jersey, she will just move to Cape May, or some other point far away from North or Central Jersey.  When someone wanted to move just across the river to New York or Pennsylvania, you might hear an exasperated utterance about being able to move to Cherry Hill but not 10 miles away to New York City.

And by and large, that was the law.  That is, while a court could restrict a custodial parent from removing children from the State of New Jersey, there was little stopping them from intrastate moves.  While there was case law that said that that might be a change of circumstances if it impacts the non-custodial parent’s parenting time, by and large people were free to move about the state.  In fact, about a dozen years ago, I had a case where the ex-husband file a motion seeking to prevent my client from moving from Hudson County to Monmouth County.  After getting our brief wherein we presented the law, his story changed from the mother being the parent of primary residence (as set forth in the parties’ Agreement, to him being the “de facto Parent of Primary Residence.”  The trial did not go well for him and my client moved as was her right.

Just as the Bisbing case that we previously blogged on made it much more difficult for the custodial parent to move out of state, the paradigm of the custodial parent being permitted to move, without restriction, was seemingly ended on October 7, 2019, when the Appellate Division rendered the reported (precedential) opinion in A.J. v. R.J. 

In A.J., the parties were divorced in 2013.  They had two children who were 10 and 8.  The mother was the parent of primary residence and the father had alternate weekend (Friday to Sunday)  and Wednesday overnight parenting time – 4 out of 14 overnights which my what is often seen these days, is not much.  The mother remarried and had a third child, with whom she lived with her husband and two other children in a two bedroom apartment in Elizabeth.  She moved in March 2018, because her landlord increased the rent and would not give her additional time to search for another residence before doing so. She searched without success for a suitable residence in Elizabeth,Somerset, and Florence. Prior to the move, the parties only had one text conversation in July 2017, in which the mother stated that she wished to move and was searching locally and as far as Mount Laurel and the father asked her to remain local because it  he claimed would be unfair to him and the children to move far away.

After the move, the father filed an Order to Show Cause seeking to block the move and change custody. The Judge entered an order giving him 3 weekends a month, ordered mediation and scheduled a plenary hearing to determine whether the mother would be permitted to remain in Mount Holly and also ordered that the children remain in school in Elizabeth.  Mediation was unsuccessful and after a plenary hearing, the trial judge ordered the mother had to return with the children and live within 15 miles of Union.   As noted by the Appellate Division:

Significantly, although the judge’s decision recognized “Baures . . . has since been overruled by Bisbing,” his reasoning relied upon our decision in Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), which applied the Baures factors to determine whether a parent could relocate intra-state. Applying a preponderance of the Baures factors, the trial judge explained “[p]laintiff’s decision may not have been solely driven by a desire to alienate the children from their father, but was certainly done in wanton disregard of his rights, with the result being that his relationship with them will clearly suffer.” The judge concluded the distance between the parties’ residences increased the travel time from “minutes away” to “slightly over an hour[.]” The judge noted if the children resided in Mount Holly defendant could no longer leave work early to tend to a sick child, enjoy additional parenting time, or attend extracurricular activities as he had in the past. The judge found the surreptitious nature of the move belied plaintiff’s explanation that she did not inform defendant because she did not have time.

The mother failed to move back, claiming it was impossible for her to break her lease and she could not afford two homes.  The father filed an Order to Show Cause seeking a transfer of custody which was granted and the mother appealed.

As to the mother’s argument that changing custody as a sanction was inappropriate, the Appellate Division disagreed.  However, in this case, additional proceedings and findings were necessary in order to do so.  Specifically, the Court held:

However, we hold Rule 5:3-7(a)(6) requires a separate adjudication, which considers the children’s best interests and findings pursuant to N.J.S.A. 9:2-4, before the sanction is ordered. Additionally, because the relief granted under Rule 5:3-7(a) is coercive in nature and derived from Rule 1:10-3, the sanctioned parent may seek termination of the sanction when the parent complies with the court’s order. The court should be solicitous of such applications.

This is because custody matters directly impact the welfare of children. The designation of a parent of primary residence is a consequential decision because “the primary caretaker has the greater physical and emotional role” in a child’s life. Pascale v. Pascale, 140 N.J. 583, 598 (1995). Where there is already a judgment or an agreement affecting custody in place, it is presumed
it “embodies a best interests determination” and should be modified only where there is a “showing [of] changed circumstances which would affect the welfare of the children.” Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). In the context of a transfer of child custody as a sanction, affording both parents the ability to address whether a transfer of custody is i n
the best interests of the children and requiring the court to make the necessary statutory findings provides the necessary process and a reviewable record. Therefore, a best-interest hearing and findings pursuant to N.J.S.A. 9:2-4 is required where a court transfers custody as a sanction

Here, because the trial court did not consider the best interest facts before changing custody, that part of the Order was reversed and remanded.

The Appellate Division also reversed the relocation decision because the court used the prior standard (Baures) instead of Bisping.  The Appellate Division note: “Because the science and anticipated outcomes undergirding the Baures factors have not borne out as the Court anticipated and no longer apply to interstate removals, they should not apply to the intra-state relocations discussed in Schulze.”

The Appellate Division then set forth the new standard to be followed for intra-state relocations, as follows:

We further hold where a parent of primary residence seeks an intrastate relocation and the parent of alternate residence opposes it, the parent of alternate residence must convince the court the move constitutes a change in circumstance affecting the best interests of the children. If a prima facie case is established, the trial court must assess custody and parenting time, by applying the N.J.S.A. 9:2-4 factors to determine whether the best interests of the children requires a modification of one or both.

It is interesting that the parent of alternate residence bears the burden of showing that the move is not in the children’s best interests even though they aren’t the one seeking the change.  On the other hand, the custodial parent’s ability to move, which may have certain constitutional implications, is being hampered and in fact, a 15 mile radius clause is being imposed on her when the non-custodial parent can move anywhere he wants.   In this case, the non-custodial parent had only minimal parenting time.  The move really only implicated the mid week overnight.  Why wasn’t the interim relief of an extra weekend  per month, or some extra time during the summer, enough to address the issue?  Given that only one day per week was implicated, why wasn’t the radius clause larger given the mother’s clear financial distress?  It is one thing where 50-50 or substantial parenting time (5 or 6 out of 14 overnights every two weeks), but when it is 4 out of 14  – which is the minimum to have technical “shared parenting” as defined by the child support guidelines, or less, should a custodial parent really need court approval?

My guess is that one or both parties will see Certification to the Supreme Court. Stay tuned.


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 esolotoff@foxrothschild.com.


For the second time in about a month, the Appellate Division has reversed improvidently granted discovery when there hadn’t been a showing of a change of circumstance.  As noted by Eliana Baer on this blog on August 12,  2019 (about a case she and I were involved in) in a post entitled Appellate Division Rules: No Custody Evaluation Without Finding of Changed Circumstances , when the trial court found that the father failed to meet his burden of showing a change of circumstances, it was error to allow him to get a custody expert.  In a similar ruling in the case of Landau v. Landau, a reported (precedential) Appellate Division decision from September 12, 2019, the Appellate Division once again prohibited the putting of the cart before the horse – this time in the context of a motion to modify alimony based upon cohabitation.

In this case, in a divorce agreement entered into in late 2014, after the alimony statute was amended, which included a new paradigm about how to deal with cohabitation going forward, the husband agreed to pay substantial alimony to the wife for 7 1/2 years.  Their agreement provided “[n]otwithstanding anything contained herein to the contrary, the Wife’s cohabitation as defined by then current statutory and case law shall be a basis for the Husband to file an application seeking a review and potential  modification, suspension or termination of alimony pursuant to New Jersey law.”   In his reply, he submitted a Certification from a private investigator who asserted that the wife and her boyfriend “cohabit in each other’s residence approximately 75% of the time period examined”, however, he only spotted defendant or her boyfriend leaving the other’s home in the morning on two occasions.

In December 2017, the husband moved to terminate, suspend or modify alimony based upon the wife’s relationship of more than a year.  Specifically, he alleged:

Plaintiff filed a certification in support of the motion alleging the two had traveled together, attended social activities as a couple and posted photos and accounts of their activities on social media sites. Plaintiff alleged the man engaged in many activities with the parties’ children and regularly slept over at defendant’s home, as she did at his home. Plaintiff claimed the man attended events he used to attend with defendant, including family birthday dinners with her parents. He further claimed the man attended the Bar Mitzvah of one of the parties’ sons and was seated next to defendant in the position of honor for a parent of the child being Bar Mitzvahed. At the celebration afterwards, plaintiff alleged defendant publicly acknowledged the man and their relationship in her speech. He also claimed defendant told him she moved her brokerage accounts to the firm where the man works and got a “friends and family discount.”

The Wife’s acknowledged the relationship but denied cohabitation, claiming:

She averred the two had “never discussed [their] ‘future’ with respect to merging [their] lives,” performed no household chores for one another, had no intertwined finances, do not share living expenses and do not  have authority over one another’s children. She noted each of them took separate family vacations, not something that married couples typically do. Defendant also noted she often attended social events alone, and that her boyfriend did not attend her law school graduation or her swearing-in ceremony, something he certainly would have done had they been in a relationship akin to marriage. As to her son’s Bar Mitzvah, defendant noted her boyfriend attended as her “date” and thus sat next to her, but did not participate in the ceremony and his presence was not commemorated by being included in any family photos. She denied she received any discount in connection with moving her brokerage accounts, and noted her boyfriend had nothing to do with her accounts at the firm. Defendant averred that while she
and her boyfriend enjoyed one another’s company, they were simply dating on a regular basis and had “no obligations” to one another.

Generally, to modify either custody or support, the seminal case of Lepis v. Lepis requires the moving party to make a prima facie showing of changed circumstances, before the court will grant discovery.  Prima-Facie legally means that an evidence is sufficient to raise a presumption of fact or to establish the fact in question unless questioned.

In Landau, the trial court did not find that the husband made a prima facie showing of cohabitation. Rather, the court held:

Although acknowledging the “general task for the judge hearing the [cohabitation] motion is to determine whether the moving party has established  a prima facie case of cohabitation,” meaning that plaintiff’s “proffered evidence, if . . . unrebutted would . . . sustain a judgment” in his favor, the judge “decided that [he was] not going to decide whether . . . plaintiff has made out a prima facie case, but [he was] going to allow discovery . . . to allow . . . plaintiff the opportunity to make a showing of a prima facie case, or
not, as the case may be.”

Put another way, the judge allowed the husband to conduct very broad and intrusive discovery to try to be able to make a prima facie showing of cohabitation.  The Appellate Division first stayed and then reversed the trial court’s Order allowing discovery.  In doing so, the Appellate Division rejected the husband’s argument that the new statute altered the Lepis rubric when it came to cohabitation.  The Court’s rationale is boiled down in the following two paragraphs:

There is no question but that a prima facie showing of cohabitation can  be difficult to establish, see Konzelman, 158 N.J. at 191-92 (describing the seven days a week, 127 days of surveillance of Mrs. Konzelman’s residence), precisely for the reason the trial court identified, that the readily available evidence is often “consistent with either a dating relationship or a cohabitation relationship.” But that is hardly a new problem and it cannot justify the invasion of defendant’s privacy represented by the order entered here. We are confident the Lepis paradigm requiring the party seeking modification to establish “[a] prima facie showing of changed circumstances . . . before a court will order discovery of an ex-spouse’s financial status,” 83 N.J. at 157, continues to strike a fair and workable balance between the parties’ competing interests, which was not altered by the 2014 amendments to the alimony

Because the trial court judge found plaintiff had not established a prima facie case of the changed circumstance of defendant’s cohabitation, plaintiff was plainly not entitled to discovery under Lepis. See ibid. As nothing in the 2014 amendments to the alimony statute altered “the procedures that a court should employ when passing upon a modification petition — particularly the allocation of the burdens of proof and the conditions for compelling production of tax returns,” id. at 145, the Court adopted in Lepis, we reverse the order for discovery.

Thus, while the consensus was that the 2014 amendment to the alimony statute made it easier to suspend or eliminate alimony based upon cohabitation in cases the ended after the amendment was signed into law, it is not so easy to allow a person alleging cohabitation to get discovery to try to prove cohabitation.  More importantly, because the rationale of the decision goes back to Lepis, this case should be argued each time someone is seeking discovery to prove a change of circumstances.


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 esolotoff@foxrothschild.com.

Last week, Eric Solotoff and I achieved victory in the Appellate Division in the unreported (non-precedential) decision of Gatto v. Breton, wherein the Court reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation without the requisite finding of changed circumstances.

By way of background, the parties were divorced in 2011 following a brief marriage. They have one son, who is 14 years old. The boy lives primarily with the Defendant mother in Bergen County and spends time with the Plaintiff father every other weekend and alternating Wednesday evenings.

Since the parties’ divorce, they have heavily litigated in the trial court. As of the time of the Appellate Division filings, the parties had been before 5 judges in 2 different counties on various post-judgment applications. All of such applications involved various aspects of custody and parenting time disputes.

About a year before the appeal was filed, the Plaintiff father filed a motion for a custody evaluation and a change in custody. The judge denied the request, finding that the Plaintiff father had not shown a change in circumstances, which a party seeking a change in custody must establish as an initial matter to gain relief according to the seminal case of Lepis v. Lepis.

In so ruling, the judge specifically rejected the Plaintiff father’s argument that the child’s age and alleged statements that he wished to live with his father were sufficient in light of the ample proof that he was thriving under the arrangement then in place.

Less than a year later, a new judge – the parties 5th – heard yet another motion by the Plaintiff father to permit him to obtain a custody evaluation and to transfer custody to him.

The judge denied the request to transfer custody, finding “no prima facie showing that it’s [in] the best interests of this child and there hasn’t been a demonstration that there is a significant change in circumstances.” Despite such finding, however, the judge permitted the Plaintiff father to obtain a custody evaluation. The Defendant mother’s appeal followed.

The Appellate Division reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation, stating that such an order went against the well-founded principle that a party seeking a change in custody must demonstrate changed circumstance before being entitled to discovery and an evidentiary hearing.

Yet, in the instant matter, the judge expressly found that the Plaintiff father had failed to establish a change in circumstances. As a result, the Appellate Division determined that the Plaintiff father was not entitled to a custody evaluation, which requires “a very expensive and intrusive investigation into all aspects of the parties’ lives and the best interests of their child.” Permitting such an evaluation “is plainly permitting extensive discovery which…may only be ordered following a prima facie showing of changed circumstances.”

The Appellate Division’s decision in this case makes clear that custody evaluations are not to be ordered lightly and without the initial finding of a change in circumstances. Custody evaluations are serious endeavors, which require a forensic custody evaluator “to assess the personality and cognitive functioning of the person being examined to assist the court in a best interests determination.” A trial court is, therefore, prohibited from skipping the critical step of finding a change in circumstances prior to making its determination to permit such an intrusion into the lives of the parties and the child.

For more information on my Appellate Practice and the process I undertake in preparing you for success in the Appellate Division, see my prior blog: Trying Cases with an Eye Toward Appeal: What Your Lawyer is Thinking and Doing at the Trial Level to Preserve Your Case.


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 etbaer@foxrothschild.com.