Civil Unions and Domestic Partnerships

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 freedigitalphotos.net)

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?

Possibly.

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 etbaer@foxrothschild.com.

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.

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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 etbaer@foxrothschild.com.

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.

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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 esolotoff@foxrothschild.com.

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.

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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 esolotoff@foxrothschild.com.

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.

ID-10026029 (Image from freedigitalphotos.net)

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.

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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 etbaer@foxrothschild.com.

Oftentimes I hear from clients that gathering their financial information is the most daunting task they will face during the divorce process. They picture being buried in an avalanche of documents, account numbers and canceled checks.

The New Jersey Divorce App’s Finance Tracker can help.  In fact, I have recommended it to my clients before, with great results.

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The Finance Tracker is designed to help you focus in on the necessary information that you will need throughout the divorce process.

It is split up into 4 categories:

Income

Assets – like your house, car, bank accounts, retirement accounts, etc.

Expenses

Liabilities

Each section is then split into subcategories, which allows you to categorize the information in a way that makes sense.

Here is the best part: you can send the information directly to your attorney – straight from the app!

While the divorce process can be overwhelming at times, the New Jersey Divorce App, along with its Finance Tracker and other great features make things a little bit more manageable.

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

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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 etbaer@foxrothschild.com.

Following up on our recent commentary on New Jersey moving to the cusp of legalizing same-sex marriage, I recently spoke with Colin O’Keefe of LXBN on the issue. In the brief interview, I explain the initial ruling that got us to this point and what’s happened since then.

After this interview,  which took place yesterday, the Supreme Court today denied the State’s motion for a stay which means that marriage licenses for same sex couples can be issued starting on Monday.

As we blogged on September 30th, on September 27, 2013, the Hon. Mary Jacobson, sitting in Mercer County, declared the New Jersey Civil Union law unconstitutional in the case of Garden State Equality v. Dow.  As expected, that was not the end of the case.

Equality Stock Photo*Image courtesy of FreeDigitalPhotos.net

First, the State filed an appeal of the Order.

Next, the State sought a stay of the decision claiming irreperable harm and further claiming that New Jersey courts typically granted stays when presented with cases or first impression and ones of great public importance.  Judge Jacobson denied the request for a stay.  In her statement of reasons,  the judge rejected the claim of irreparable harm.  Moreover, as to granting stays in cases of public importance, Judge Jacobsen noted that none of the cases cited in support of that proposition implicated a person’s civil rights.

Thereafter, the State sought a stay with the Appellate Division and aslo requested that the Supreme Court relax the rules and take direct certification of the case.  Plaintiffs did not oppose direct Certification but do oppose the stay.

On October 11, 2013, the Supreme Court entered an Order granting direct Certification.    The Order further provided that the court would take jurisdiction of the pending stay motion.  Further, the order set forth a briefing schedule and set the matter down for oral argument during the January 6-7, 2014 session.  ‘

We would expect that the stay motion will be decided shortly since the briefs seeking the stay were to be filed on October 11th and the opposition to be filed by tomorrow (October 15th.)  This is especially so since Judge Jacobsen’s Order was to go into effect on October 21st.  If the stay is granted, then same sex couples will have to wait until the final adjudication of the matter before they can marry – assuming Judge Jacobsen’s decision is ultimately upheld.

Stay tuned!

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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 esolotoff@foxrothschild.com.

 

On Friday, September 27, 2013, the Hon. Mary Jacobson, sitting in Mercer County, declared the New Jersey Civil Union law unconstitutional in the case of Garden State Equality v. Dow.  The basis of the decision stems from the United States Supreme Court’s decision is United States v. Windsor, which invalidated article 3 of the Defense of Marriage Act and required federal benefits be provided to people that have entered into valid same sex marriages.  Post Windsor, it became clear that federal benefits would be granted to those in a “marriage” but not a “civil union.”  As such, New Jersey residents in a civil union no longer (if they ever did) have the same rights and benefits that opposite sex couples had which were guaranteed by the New Jersey Supreme Court in Lewis v. Harris.

Judge Jacobson’s conclusion wonderfully summarizes her decision, way better than I could have.  It is as follows:

Plaintiffs’ motion for summary judgment is granted. Under the New Jersey Supreme Court’s opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis  Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey Legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in

United States v. Windsor,      U.S. , 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), invalidated the
Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are

no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

Along with the decision, the Judge entered an Order directing that the ruling go into effect on October 21, 2013.  The judge noted that this ws to give the State “… adequate time to prepare to effectuate this ruling or
to pursue appellate remedies….”

Given the magnitude of the decision and other things going on in the politcal landscape, most people expect an appeal.  If so, the question is whether the matter will bypass the Appellate Division and go directly to the Supremen Court.

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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 esolotoff@foxrothschild.com.

On the immediate heels of the United States Supreme Court decision earlier this summer overturning the Defense of Marriage Act, and in an effort to create a degree of tax certainty following such ruling, the Department of Treasury and Internal Revenue Service announced that all legally married same-sex couples will be treated as married couples for federal tax purposes.

The ruling applies for all tax purposes where marriage is a factor, including income and gift and estate taxes.  It also applies to couples who live in a state that does not recognize same-sex marriage, so long as they were legally married in a state that does.  This provision of the announcement logically and practically allows such married couples to move anywhere in the country without concern that their federal filing status will change.  On the other hand, one person under such circumstances would still have to file as an individual at the state level should he or she live in a state that does not have legalized same-sex marriage.  Such couples will be able to file federal tax returns as “married filing jointly” or “married filing separately” for tax year 2013.

Importantly, however, this ruling does not apply to registered domestic partnerships, civil unions, or similarly formalized relationships recognized under state law.  Thus, residents who entered into a domestic partnership or civil union in New Jersey will not enjoy the same benefit of the ruling.  Ultimately, this announcement, which confirms that people in civil unions do not have protections equal to married couples, will likely come into play in the pending legal challenge to the New Jersey Civil Union law.  Stay tuned to this blog for more information as it unfolds.