Civil Unions and Domestic Partnerships

In the recently published 67-page trial court decision of D.G. and S.H. v. K.S., the trial court dealt with the novel issue of custody and parenting time in a “tri-parenting” relationship. In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. During K.S.’s pregnancy, the parties had two baby showers, one at D.G. and S.H.’s Manhattan apartment, and one at K.S.’s home in Point Pleasant, New Jersey. All three parties attended parenting classes and began preparing both of their homes for the child’s arrival, purchasing everything in duplicate.

After the child, O.S.H., was born in 2009, D.G. and S.H. moved into K.S’s home in Point Pleasant and all three parties co-parented the child. D.G. operated a business at the Jersey Shore and, shortly after giving birth, K.S. returned to her job at her family’s restaurant. S.H., a high-school teacher, undertook the significant portion of the parenting responsibilities as he was on summer recess.

At the end of the summer, D.G. and S.H. rented a home in Point Pleasant to be near K.S. Thereafter, parenting time fluctuated, but was successful. In the summers, D.G. and S.H. undertook the significant portion of parenting time responsibilities due to K.S’s job responsibilities, and in the winters, K.S. undertook the significant portion of parenting time responsibilities, including taking the child to Costa Rica, where she owned a home, for varying amounts of time. In 2012, Superstorm Sandy destroyed D.G. and S.H.’s rental home, so they began enjoying weekend parenting time in New York City.

The parties were able to effectively and efficiently co-parent with one another for most of the child’s early life; however, things broke down when K.S. announced that she had fallen in love with her neighbor in Costa Rica, A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. A.A. could not relocate to New Jersey due to parenting obligations to children he had from a prior marriage.

D.G. and S.H. requested that K.S. prepare parenting time proposal for them so they could determine if the relocation would work together with their idea of “tri-parenting”. K.S. prepared a parenting time proposal and after considerable discussion, D.G. and S.H. rejected it. D.G. and S.H. then filed a Complaint seeking to establish 1.) legal and physical custody of O.S.H.; 2.) parenting time; and 3.) that S.H. was the child’s psychological and legal parent. K.S. filed a counterclaim and answer seeking 1.) to establish a legal custodial relationship between the parties, with physical custody vested in K.S.; 2.) to establish a parenting time arrangement; 3.) child support and medical coverage; and 4.) permission to relocate with the child to California.

A plenary hearing was scheduled and took place over 19 days.paper dolls

Psychological Parentage of S.H.

S.H. sought an order declaring him to be the psychological parent of the O.S.H., which was supported by D.G. K.S. stipulated that S.H. was the child’s psychological parent on the eve of trial and the court found that the undisputed facts of this matter supported such a conclusion.

In order for a person to be considered a child’s psychological parent, there must be a finding of “exceptional circumstances” (See V.C. v. M.J.B., 163 N.J. 200, 219 cert. denied. 531 U.S. 926, (2000)). To find that “exceptional circumstances” exists, the Court must find the existence of four elements:

(1) that the biological or adoptive parent consent to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; the legal parent must have fostered the formation of the parental relationship between the third party and the child;

(2) that the petitioner and the child lived together in the same household’

(3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. (See V.C. v. M.J.B. at 223).

The court detailed at great length, all of the actions undertaken by S.H. and concluded that he is appropriately the child’s psychological parent. Among some of the court’s considerations were the fact that D.G. and K.S. consented to and fostered a parent-like relationship between S.H. and the child,  the idea that all three of the parties would be the child’s parents was formed before the child was even conceived or born, the parties chose to give the child S.H.’s surname, and since the child was born, and over the course of the past six years, S.H. contributed towards the child’s support, both monetarily and otherwise, and established a bond with the child.

Residential and Legal Custody

Once the court has established the existence of a psychological parent, the best interest of the child must be considered when determining custody. The court found that since there was never a written agreement or prior court order regarding custody, the court must determine the custodial relationship that serves the best interests of the child, and evaluate the factors set forth in N.J.S.A. 9:2-4(c). Both Plaintiffs and Defendant hired custody experts, who evaluated each of the parties and the child. The court conducted a detailed, lengthy analysis of the factors set forth in N.J.S.A. 9:2-4(c), and upon doing so, ultimately concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. Although rare, joint residential custody is a suitable alternative to sole custody in family law actions, when “joint custody is likely to foster the best interests of the child in the proper case.” See Beck v. Beck, 86 N.J. 480, 488 (1981). The analysis of the factors set forth in N.J.S.A. 9:2-4(c) is quite expansive and delves deep into the loving and caring relationship the parties share with the child.

Relocation and Removal Application by Defendant

The Court reviewed K.S.’s application to relocate with the child to California under the O’Connor standard for relocation, which applies in this situation as the Court determined that all of the parties shall share joint legal and residential custody. “If, the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the partying seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent. O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

The court opined that K.S.’s reasons for the move to California are at best tentative and speculative, including a major change in her living situation with A.A. (originally K.S. was going to live with A.A. and now is not), her employment and educational plans (K.S. intends to find part-time work and go to school part-time), her availability to care for the child and her lack of family support to help with the child’s care, among other things. Additionally, the child would be uprooted from her long and stable living arrangement with the parties and the distance between California and New Jersey would diminish the child’s ability to maintain her bond with D.G. and S.H., exclude them from her daily life activities and abrogate frequent parenting time. Thus, the court denied K.S.’s application to relocate with the child to California.

Legal Parentage

S.H. also sought to be established as the legal parent of O.S.H., not just the psychological parent. However, this was denied as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

While the court was sympathetic to S.H.’s request to establish legal parentage, same is not supported by statute or case law. Since such a determination would likely have far-reaching implications, the court determined that this issue is best addressed by other branches of government, specifically the Legislature.

In a world where the nuclear family has evolved into many different shapes and sizes, the law (and the courts) quite simply cannot keep up. With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

Romeo and Juliet, Sir Lancelot and Guinevere, Katniss Everdeen and Peeta Mellark – for some of these star-crossed lovers, their journeys ended with hemlock, in exile, or…well…no spoilers.  For Easton and Mercer, their romance ended with an annulment on the grounds of equitable fraud in a lengthy decision delivered by Judge Jones in Ocean County New Jersey in Easton v. Mercer.

The union between Easton and Mercer began like many others.  The parties met in 2008 as young twenty-somethings, and began a dating relationship that lasted 2 years.  At the time, each were still living in their parents’ homes.

In 2010, Easton proposed to Mercer and she initially accepted.  Her parents, however, objected, disapproving of Easton as a “suitable husband” for their daughter.

Even so, over the elder Mercers’ objections, their marriage plans went full steam ahead and the parties planned a small ceremony to take place in 3 months’ time.

In October, 2010, the parties formally applied for a marriage license and the next month they went ahead with their small ceremony, which took place in the home of Easton’s parents.  Mercer’s parents were not invited.

While Easton and Mercer had planned to begin their lives together under the same roof, those plans never came to fruition.  Mercer advised Easton that she intended to remain residing with her parents until she could “break the news of the marriage to her mother and father after the fact.”

Well, the “after the fact” news was not taken well.  Mercer’s parents insisted that she renounce the marriage and remain living with them.  While Eason tried to convince Mercer to resume their relationship, his efforts were unsuccessful, and Mercer remained at her parents’ home, “never returning to [Easton] again.”

Yet, for the next 4 years, the parties stayed married and never took any steps to formally dissolve their marriage.  Finally, in 2014, Easton filed for an annulment of the marriage on the grounds of fraud as to the essentials of the marriage “by bowing to parental pressure and abandoning both him and her marital vows.”

Many people are unfamiliar with the particulars of annulments.  That is for the simple reason that they are not often applied for in our courts, namely because of the limited circumstances that it covers.  Instead, divorce is a far more common cause of action for the dissolution of a marriage.

Copyright: pockygallery / 123RF Stock Photo

The major difference between an annulment and a divorce is that in an annulment, the facts giving rise to grounds for the dissolution of the marriage typically precede the marriage itself, whereas the causes for divorce arise during the marriage.  Annulment also differs radically from divorce in that an annulment legally declares a prior marriage retroactively null and void, as if having never happened in the first place.

The grounds for annulment have historically been very limited; among them are:

(a) Already existing, concurrent marriage of one of the parties

(b) Prohibited degrees of relation

(c) Impotence

(d) Incapacity to Consent, Duress or Fraud

(e) One of the parties was underage at the time of the marriage

In a case of an allegation of fraud, as was the allegation in the Easton case, New Jersey courts have held that there needed to have been some intention to deceive the other party.

For example, marriages have been annulled where there was premarital fraudulent representation of intent to have children; insistence of having children where the party previously indicated they did not wish to have children; belief that other party would practice Orthodox Judaism but really have no intention of doing so; a history of undisclosed hereditary chronic tuberculosis; and, concealment of a severe heroin addiction.

The common thread among all of the above example is that there was clear intent by one party to deceive the other.  However, in the Easton case, such intent could not be found – “on its surface, the evidence does not reasonably support a finding that defendant knowingly intended to deceive plaintiff before the marriage by purposely supplying him with false information.”

But, on the other hand, the Court found that even without this previously required intent to deceive, there was never any real marriage of substance between the parties; the marriage both started and ended with the ceremony itself.

After setting forth the history of equitable fraud as a cause of action, Judge Jones ruled that the marriage could be annulled on the grounds of equitable fraud, even where there is no evidence to suggest that Mercer purposefully sought to lie to or deceive Easton.

He reasoned: “In the present matter, while defendant may not have actually intended to deceive plaintiff, an objectively reasonable analysis of the facts and evidence in this case reflects the undeniable reality that deep down, defendant never truly had a genuine commitment to a marital relationship with plaintiff in the first place.”

While Judge Jones went on to hypothesize at length as to the reasons Mercer could have chosen not to pursue the marriage, he concluded that Easton was deserving of the annulment – “‘I do’ does not mean ‘I do’ after I go home for a few weeks and talk with my parents some more.'”

While this case was one of first impression, Judge Jones reasoned his decision using existing case law and equitable doctrine. This couple never lived together, they were not financially dependent on one another and they never held themselves out as husband and wife. It is important to remember that had these parties undertaken any of the privileges or duties of marriage, the result likely would have been different. However, the facts of the case certainly justified an annulment on equitable grounds.

Judge Jones has been known for his lengthy and well-reasoned decisions, often pioneering areas of family law, and frankly, saying what others are too afraid to put into words, let alone in 20-30 page decisions. In fact, I blogged on 2 such decision in the past: one on college contribution for families with multiple children and another on overseas travel. Easton v. Mercer is yet another decision that may be often cited by practitioners when similar issues arise. It will be interesting to see what Judge Jones has in store next.


head_BaerEliana Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of 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

The recent news concerning social media is all about the service of a divorce complaint via Facebook.  A New York judge recently granted permission to a woman to serve a divorce complaint via her husband’s page on the social media giant. This marks a perhaps first, but not surprising new step in the use of social media. First, the misconception- many people believe that this means that a divorce can be filed via social media.  It doesn’t.  What it means is that after the divorce complaint has been filed, it can be served online.  This method is a natural extension of what is known as substituted service, and in fact may be a more reliable method to getting actual notice to a defendant of an impending divorce.


Once a plaintiff has filed a complaint for divorce, it must be served on the defendant. Typically, this is done by a process server or Sheriff’s officer. Sometimes, the defendant or the defendants attorney will accept service voluntarily. But when the defendant cannot be located, the court can grant permission for something known as ” substituted service.” This typically means publishing a notice in the legal notices section of a newspaper in the geographical area of which the defendant is presumed to be. The likelihood of an absent defendant actually reading the legal notices section of the newspaper can be slim to none.

In the New York matter, the plaintiff wife had no idea where her estranged husband was residing and all efforts to locate him had failed. He did however have a Facebook page and communicated on it regularly. The plaintiff wife successfully argued to the judge that the most likely way to provide notice to her husband of the divorce was to post onto his Facebook wall a notice that the matter was pending. The judge agreed.

Whether we like it or not, social media is here to stay. In this case, it was effectively used to overcome the procedural roadblock which could have prevented or at a minimum delayed a plaintiff’s right to the dissolution of her marriage.  One might expect, however, that people dodging service may start paying more attention to privacy settings.

Following its landmark 2013 decision striking down part of the Defense of Marriage Act as unconstitutional, the Supreme Court earlier today decided to take on what will likely be the definitive ruling on the issue of same-sex marriage.  By addressing the state-by-state divide on same-sex marriage, the Court will determine whether a state-imposed ban on same-sex marriage is unconstitutional.


Specifically, the Court will be reviewing a Sixth Circuit decision upholding same-sex marriage bans from several states, which conflicts with four other circuit court rulings.  Arguments are expected to be heard in late April and a decision by the end of June.

Check back on our blog for more updates as they unfold.


Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or

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Last week, I blogged about the Information Asymmetry and how important it is for you to educate yourself going in to the divorce process so that you can meaningfully assist your attorney with your case.  But what about your attorney? And what about your Judge?  Isn’t it important for them to also be as informed as possible during the course of your case?

That is where experts come in.

ID-10095105 (Photo courtesy of

In divorce cases, there are oftentimes issues that arise that require the input of an expert.  For example, perhaps there is a dispute as to how much money your spouse is able to earn, how much his or her business is worth, or which one of you would be better to assume custody of the children.

Experts can assist your attorney present your case, and it can greatly assist the Court in deciding the case in your favor.  In fact, so important may an expert be in your situation that a Court may take it upon itself to appoint one on your behalf.

Below are the most common types of experts that you should consider when moving forward with your divorce, if appropriate given the facts and circumstances of your case:

1.         Vocational Expert:  This will tell the Court whether one spouse is underemployed and whether he or she is capable of making more money.  This expert will be important for the issue of support, which in New Jersey, is awarded in accordance with your earning capacity rather than your current income.  Also, if you or your spouse has been absent from the workforce for a period of time, a vocational expert will assist the Court in determining how realistic it will be to obtain employment consistent with prior earnings.

2.         Real Estate Appraiser:  If there is a dispute as to the value the marital home – which is typically the largest marital asset – or other property, such as a vacation home, second home, timeshare, etc., a real estate appraiser will be key.  This expert will assign a value to the property so that the equity can be appropriately divided.  He or she will also provide a detailed report outlining comparable sales prices for similar properties in your neighborhood, any improvements to your home which increase its value and make it unique, and an explanation of how the value of the property was decided. If this issue is not too hotly contested, it is typical to use a joint appraiser – that is, the parties will share the expert and the cost, subject, of course, to each party’s right to obtain a second opinion.

3.         Forensic Accountant:  A forensic accountant will take that mess of documents – bank statements, credit card bills, canceled checks – from your filing cabinet and turn it into a report that will tell your attorney and the Court about your marital income, assets, liabilities and expenses.  In short, this is the key document that will elucidate what your marital lifestyle was.  This will be important for the issue of alimony – which, in New Jersey, is awarded based in large part upon the lifestyle of the marriage – and equitable distribution.

4.         Business Valuator:  If one spouse has an interest in a business, it will be important to understand its value for equitable distribution purposes.  This does not only apply to commercial businesses.  It also applies to doctors’ practices, law firms and accounting firms.

5.         Custody Evaluator:  If custody is contested in a divorce, a custody evaluator will almost always be necessary.  The custody evaluator will make a recommendation, usually contained in a lengthy report, as to which parent is better suited to assume custody of the children following a divorce.  We often see cases with three custody experts: a joint or court appointed expert, the father’s expert and the mother’s expert – all with differing opinions.  It is therefore important to choose an expert that is highly qualified, well-respected in his or her field, and will command the attention of the Court.

Experts are not only helpful if your case goes to trial.  They are also helpful in settling your case.  For instance, if one party receives a favorable report, it may be used as a tool to obtain a advantageous settlement.  The opposite is also true.  If a party receives a report that is not as favorable, he or she may be more apt to settle the case rather than proceed to a hearing.

In sum, it is important not to underestimate the importance of experts when it comes to divorce.  They can be a great tool in settlement and a great asset on the stand.


Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of 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

What do divorce and economics have in common?  Well, a lot. But today I am focusing on the unlikely link between the theory of information asymmetry – which deals with the study of decisions in transactions where one party has more or better information than the other – and the New Jersey Divorce App.

Smartphone Info  (photo courtesy of

According to the acclaimed book, Freakonomics, the theory of information asymmetry accounts for why we hire a real estate to sell our house, an insurance broker to purchase long-term health insurance, and a funeral director to purchase a coffin for a loved one that has passed.

So what does the information asymmetry have to do with divorce, you ask?  Well, typically, when getting divorce, you hire an expert – a divorce lawyer – to handle your case.  After all, we are well-versed on all things divorce, custody, alimony, child support, equitable distribution, tax issues, and many other issues with which you may not be familiar.

In other words, the divorce lawyer has an information asymmetry that the client seeks to tap into to achieve the best result possible.

But what if you could bridge the gap between the lawyer’s vast knowledge and your own?  Would you achieve a better result if you could actively participate in the process?


Just like studying up on the housing market may assist the person selling or buying their house when working with a real estate agent, having more information as a litigant during the divorce process may help you inform your attorney as to the issues in your case.

That is where the New Jersey Divorce App can help tremendously.  It is designed specifically for the client.  It takes information regarding the divorce process, synthesizes it, and presents it to the client in a way that they can easily understand.

For example, when you download the app, you will see a section called “Divorce Information,” which covers the following topics:

  • Overview of the Divorce Process;
  • Custody;
  • Child Support;
  • Alimony; and
  • Equitable Distribution.

Click on these larger topic headings, and you will get to a myriad of subtopics; many of which will pertain to your specific case.  This section is a great compliment to the Finance Tracker and Asset Identifier, which allow you to interface with your attorney like never before.

So just like you would not buy or sell a house without doing a little research, don’t go into your divorce without making that information asymmetry a little less asymmetrical.

For more information and to download the New Jersey Divorce App, click here.

______________________________________________________________________________ Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of 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

Today, I am highlighting another feature of our New Jersey Divorce App, the Asset Identifier.  While the “Finance Tracker” gives you the ability to input your more commonly identifiable assets such as your house, car, boat, bank accounts, the Asset Identifier does something a little bit different.


It is important when considering what each party will get in a divorce, to identify all of your assetS. This will guarantee you address all assets when dealing with settlement as well as monthly support payments.  However, many people with oftentimes overlook some less than obvious assets.

With the Asset Identifier, you have the ability to go through a list of assets that some people do not even realize should be divided in equitable distribution.  Eric Solotoff expounded further on what this may include in his February 2008 blog post – Hidden/Forgotten Assets.

For example, did you know that the following could be considered assets subject to equitable distribution in your divorce:

  • Frequent flyer mileage
  • Timeshare property
  • Country club memberships
  • Unused vacation or sick leave
  • Many, many more…

The Asset Identifier provides you with a full list of items that you may not have even considered in checklist form.  Once completed, you can then send it right off to your attorney so that he/she can make sure they are negotiating a complete and comprehensive settlement on your behalf.

For more information and to download the New Jersey Divorce App, click here.

______________________________________________________________________________ Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of 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

And like that, it was over.  As I noted in my post on this blog earlier this morning, same sex marriages in New Jersey were starting today and the arena of that litigation was changing quickly.  Well, as reported by the New York Daily News less than an hour ago, Governor Christie has withdrawn the State’s appeal in Garden State Equality v. Dow As a result, same sex couples can marry without the fear that their marriage licenses will be nullified.

And with that, much to the delight of those who supported marriage equality in New Jersey, the litigation is over.  But is that the end of the issue?  Clearly, the Governor was not in agreement with the Supreme Court’s ruling but seemingly gave up a battle that he did not believe he could win.  As noted by the Daily News:

Christie’s administration said he strongly disagrees with the court substituting “its judgment for the constitutional process of the elected branches or a vote  of the people.” But he said Friday’s ruling showed the Supreme Court was clearly  going to favor same-sex marriage and that he has a constitutional duty to  enforce the law.

So the litigation that came in with a bang, has gone out with a whimper.  But what’s next?  Will the legistlature still try to override the Governor’s veto of the same sex marriage bill?  This seems likely.

And what of existing civil unions and domestic partnerships if they do?  When the civil union law was enacted to confer greater rights than under the domestic partnership law, there was a notice sent to all people that had registered their domestic partnership giving them the opportunity to convert their domestic partnership into a civil union.  Will the same thing occur now, i.e. will someone’s marriage be deemed retroactive to the date that the civil union was registered?

In any event, today’s events mark the end of a chapter of sorts evidencing a sea change, both in New Jersey and nationally.  New Jersey is now the fourteenth state that sanctions same sex marriage.


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 Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

As noted briefly in last Friday’s post that contained a video interview of me discussing the status of same sex marriage in New Jersey that is on LXBN TV, the Supreme Court denied the State’s motion for a stay of Judge Jacobson’s Order that required same sex marriages to take place starting today.

As noted in today’s New York Daily News, Mayor Corey Booker presided over 7 same sex marriage ceremonies some time after midnight.

Getting back to the Supreme Court’s decision, it is not all of the time that you get a lengthy opinion from an appellate court with a decision on a motion.  Very often, you just get an order saying that a motion is granted or denied.  Here, the court, Chief Justice Rabner authored a 20 page opinion that was joined by all of the other justices and the two Appellate Division judges that are temporarily assigned to the Supreme Court.  Though the standards for a stay are different than the standards to consider at the time of the ultimate resolution of the case, there were parts of the opinion which maybe, just maybe, will be a precursor of the ultimate decision. Some of them are as follows.

Cutting right to the heart of the issue at the beginning of the decision, Justice Rabner said:

The State has advanced a number of arguments, but none of them overcome this reality: same-sex couples who cannot marry are not treated equally under the law today. The harm to them is real, not abstract or speculative.

In addressing the State’s claim of irreparable harm, the Court noted:

The State argues that it will suffer irreparable harm in a number of ways if Judge Jacobson’s order is not stayed. First, it claims “an injury to its sovereign interests whenever one of its democratically enacted laws is declared unconstitutional.” The abstract harm the State alleges begs the ultimate question:  if a law is unconstitutional, how is the State harmed by not being able to enforce it?  (Emphasis added).

The Court pointed to California’s steps to nullify same sex marriages after the fact  in response to the claim that once it grants marriages licenses, it would be impossible to undo them letter.  The court concluded, “The State has presented no explanation for how it is tangibly or actually harmed by allowing same-sex couples to marry.”

The next part of the stay analysis is to determine whether the legal claim is settled.  Here, the Court noted:



Crowe standard and argues that plaintiffs’ interpretation of Windsor and its challenge to the Civil Union Act present unsettled questions of constitutional law. As Judge Jacobson correctly observed, the Crowe standard requires the moving party — in this case, the State — to show “that its legal right is settled.” See ibid. Regardless, the State maintains that the premise underlying Windsor means that civil-union partners are entitled to federal benefits. That interpretation of Windsor has not been followed by the United States Department of Justice or any number of federal agencies. The Supreme Court in Windsor, supra, declared that its “opinion and its holding are confined to . . . lawful [same-sex] marriages.” 570 U.S. at , 133 S. Ct. at 2696, 186 L. Ed. 2d at 830 (emphases added). In the wake of that decision, federal agencies have directed that various benefits be made available to same-sex married couples, but not to civil-union partners. That, in turn, deprives partners in a civil union of the rights and benefits they would receive as married couples. The State’s thoughtful position about what federal law should provide cannot substitute for federal action; nor can the State’s views bind the federal government. …. Because State law offers same-sex couples civil
unions but not the option of marriage, same-sex couples in New Jersey are now being deprived of the full rights and benefits the State Constitution guarantees.   (Emphasis added).

In further addressing the State’s argument that it would succeed on the merits, Chief Justice Rabner stated, “The State’s statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners. The trial court therefore correctly found cognizable action by the State.”

The next factor to consider is a balancing of the hardships analysis.  The Court noted that the state noted “abstract harms” while the plaintiffs would suffer real harm including, but not limited to, the denial of federal benefits to them and their children, the inability to ” claim leave under the Family and Medical Leave Act if a partner becomes sick or is injured”; the inability to get health benefits as a “spouse” of a federal employee; the inability to get certain Medicare benefits; the inability to file joint federal income tax returns; the inability to be considered a spouse for immigration purposes; the inability toparticipate in a Survivor Benefit Plan as a spouse of an active or retired member of the military (or for that matter any federal employee).  In conclusion, the court noted that. ”  The balance of hardships does not support the motion for a stay.”

Turning to the public interest because the case presents an issue of significant public importance, the Chief Justice noted, “… we can find no public interest in depriving a group of New Jersey residents of their constitutional right to equal protection while the appeals process unfolds.”  The court further stated, “We find that the compelling public interest in this case is to avoid violations of the constitutional guarantee of equal treatment for same-sex couples.”

In rejecting the state’s argument that the democratic process should play out, the Court held, “But when a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time. Under those circumstances, courts do not have the option to defer.”

As a result of this decision, as noted  in the Star Ledger this weekend, there was discussion again of the attempt by the Legislature to override Governor Christie’s veto of same sex marriage.  If enough votes are obtained for an override, this could make the pending litigation moot.

Stay tuned as this issue is developing quickly and in a fascinating way.


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 Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

Recently I lost a dear client and friend, Bill*, after his long battle with brain cancer.  Bill was a man with a kind-hearted spirit and a gentle disposition – one of those “really nice guys” that you just wanted to bend over backwards to help.

While Bill was fortunate enough to spend his last days with his loving wife, surrounded by her family, he also had the misfortune of spending his last days in a dispute with his former wife, who was still collecting alimony from him, garnished from his Social Security Disability Payments.

A while back, I posted Alimony Modification – A Judge’s Checklist.  Bill had each and every box checked off – there was no doubt that his income was reduced, his former wife’s income had increased exponentially, and it was undisputed that he was disabled permanently and involuntarily.

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We attempted to get the judge to see that Bill could no longer handle his alimony payments from his meager income and that his alimony should be terminated summarily – that is, without a hearing.  After all, according to the seminal alimony modification case in New Jersey, Lepis v. Lepis, the Court need not hold a hearing on every single modification case when there are no facts in dispute, which was the case here.

Nonetheless, the court insisted that a hearing be held. This is an interesting contrast to the cases where judges refuse to hold hearings when denying motions outright which I blogged about previously – Motions to Reduce Support: When Applications Are Denied Without a Plenary Hearing, What’s Next?

However, Bill was too weak and too sick to move forward.  He was dying of brain cancer.  Our only option was mediation.

We settled the case shortly prior to Bill’s passing.  He was able to pass with the knowledge that there would be no litigation for his wife to bear following his death and that the case was behind him.

Because the case was settled, it will never be a published decision, it will not be analyzed by family law experts and it will not be bound in the annals of case law in our State.  But it still begs the question: if this factual scenario did not warrant the termination of support without a hearing, what factual scenario does?

*Name has been changed to protect client confidence.


Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of 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