What rights do people have to an equitable distribution of assets stemming from a period prior to the marriage itself?  If there is no right to equitable distribution under those circumstances, then what rights exist and what remedies can be implemented to protect those rights?  In Thieme v. Aucoin-Thieme, a post-Judgment dispute involving several interesting issues including the equitable distribution of marital assets, distribution of assets pursuant to equitable principles stemming from a pre-marital cohabitation period, and the remedy of a constructive trust in connection with an ex-husband’s receipt of a bonus, the Supreme Court of New Jersey primarily held that:

  1. said bonus received by the ex-husband (Michael) was subject to equitable distribution to the extent it was earned during the parties’ marriage; and
  2. the matter’s “extraordinary circumstances” merited imposition of a constructive trust to protect the ex-wife’s (Bernice) claim of unjust enrichment and request for a portion of the bonus earned during the parties’ pre-marital cohabitation period.

Before even getting into the details of what happened, what is, perhaps, most interesting about this matter is not the very specific facts and circumstances at issue and how such circumstances led to an understandably fair result but, rather, how this case addresses the sort of equitable claims that may arise in connection with a palimony claim that were kept alive in Maeker v. Ross.  While the 2010 amendment to the statute of frauds requires that all post-amendment palimony agreements be in writing, this case also provides a window to argue around the amendment in certain cases if no writing exists – in other words, even without a written palimony agreement for a post-amendment case, the equitable arguments discussed in Maeker can still be made to procure relief.  The case certainly is not limited to that sort of analysis, and, in because of the unique circumstances at issue it even seems to overcome prior case law suggesting that the rights of cohabitants come to an end once the marriage occurs.  With that being said, let’s take a look into what happened…

Here are the unique facts you should know:

  • Michael and Bernice cohabited for eight years and were then married for a brief time.
  • During the cohabitation period and marriage, Michael was an employee of a company called IBG.  He had no ownership interest in IBG, but the company’s principals made a written commitment to Michael that IBG would compensate him for his contributions to the company if it sold.  A written Statement of Understanding was executed, and Bernice’s knowledge as to same was the subject of dispute at the subject post-Judgment trial.
  • Based on that commitment, Michael and Bernice “made personal and financial decisions” with the expectation of such future compensation including, but not limited to, Michael working and traveling extensively for the company, Bernice foregoing employment to devote her time to the parties’ child, and the parties purchasing a new home.
  • The parties divorced and the resulting settlement agreement distributed their assets.
  • During the divorce negotiations, the parties discussed Michael’s potential receipt of deferred compensation or some form of ownership stake in the company, with Michael representing that it “may never happen,” and that he did not anticipate a “big cash payment.”  He further indicated to Bernice that they could revisit the issue in the future should something transpire with the company.
  • Three months after the divorce concluded, IBG was sold and paid Michael $2.25 million (described as a “closing bonus”) for his contributions to the company.  The bonus was paid in accordance with the earlier Statement of Understanding and was paid “to show our appreciation for [Michael’s] contributions in helping [IBG] grow into the successful organization that it is today.”  During a deposition, a company representative testified that the bonus was based on Michael’s contribution to the company over thirteen years and that Michael did not know about the sale before its completion.
  • Bernice first learned of the bonus payment when Michael deposited the money into a bank account that, unknown to Michael, remained a joint account despite the divorce.  Bernice, without notice to Michael, withdrew the funds from the account.
  • Bernice then filed an application for a share of the closing bonus.
  • The trial held that Bernice was entitled to distribution of the bonus, but only that portion stemming from Michael’s work during the marriage.  The Appellate Division affirmed the trial court.

In affirming in part and reversing in part, the Supreme Court, in a decision authored by Justice Anne Patterson, held as follows:

  • It would contravene New Jersey’s equitable distribution statute to find that the portion of the bonus earned prior to the marriage was a marital asset subject to distribution.  As a result, the Court held that the trial court properly allocated the pre-marital and marital periods in determining what portion of the bonus was subject to equitable distribution.  While arguments can be made that this component of the trial court’s decision should not have been upheld based on how the marital portion of the bonus was calculated, that is not the primary focus of the case or this blog post.
  • As Justice Patterson noted, however, the story was not over.  As for that portion of the bonus earned during the parties’ cohabitation period, the Court addressed whether Bernice had made a claim of unjust enrichment.  Addressing a claim for unjust enrichment and its related remedies, the Court provided:

To prove a claim for unjust enrichment, a party must demonstrate that the opposing party ‘received a benefit and that retention of that benefit without payment would be unjust.’

  • Bernice would also have to show that she “expected remuneration” from Michael at the time she “performed or conferred a benefit” on Michael and that “the failure remuneration” enriched Michael “beyond [his] contractual rights”.
  • In the event of unjust enrichment, a court may impose the remedy of a constructive trust to prevent such enrichment.  Legally speaking, a constructive trust is “the formula through which the conscience of equity finds expression.  When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”  More generally, such a trust is a remedy designed to protect a party harmed by another party’s receipt or retention of property procured through unjust enrichment or some other wrongful means (fraud, mistake, undue influence, and the like).
  • Relying on its prior decision in Carr v. Carr, wherein the trial court equitably imposed a constructive trust awarding a wife a share of the marital assets controlled by the husband’s estate where the husband died during the divorce proceedings, the Court here held:

As the evidence presented at trial made clear, the prospect that [Michael] would be generously compensated was a significant factor in the parties’ personal and financial planning from the early stages of their relationship.  [Michael] and [Bernice] each relied on the expectation of deferred compensation if IBG were sold as they made important decisions for themselves and their family.

The parties’ shared anticipation that [Michael] would be paid deferred compensation was more than wishful thinking.  Given IBG’s written commitment to [Michael], and its owners’ genuine desire to reward their valued employee, both parties had reason to anticipate a significant payment in the event of a sale.

. . .

[I]t is clear that on multiple occasions [Michael] advised [Bernice] about his expectation that any sale of IBG could generate a substantial financial reward for their family.

. . .

[I]BG’s commitment to reward him was an important consideration in the decisions made by the parties throughout their cohabitation and marriage . . . In short, as they planned their finances and personal lives, [Michael] and [Bernice] anticipated that they might someday share in the proceeds of the company’s sale.

During the parties’ eight years of cohabitation, and for most of their brief marriage, [Bernice] undertook significant efforts to support [Michael’s] challenging career.

. . .

Indeed, [Michael] himself recognized that [Bernice’s] contributions to their family should be rewarded.

. . .

Accordingly, the record supports the conclusion that [Bernice’s] decision not to seek further education and employment was made, at least in part, in reliance on [Michael’s] financial commitment to her.

As family law practitioners, Thieme v. Aucoin-Thieme provides guidance as to how to not only bring an equitable claim stemming from a period when parties were not married, but also the sort of appropriate remedy that can be imposed in the event of a viable claim.  In a way, despite its specific factual scenario, it also opens the door to creative lawyering as to when these types of equitable claims could come into play.  Especially in the context of a palimony matter where other related equitable claims are raised, there is, perhaps, more opportunity to overcome an adverse party’s argument that all of the equitable claims are simply palimony claims dressed in different clothes.

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

Connect with Robert: Twitter_64 Linkedin

Suffice it to say, the issue of cohabitation under the amended alimony statute has been a hot topic of late in New Jersey family law. With several recent notable seminars on the topic, and two recently issued Appellate Division decisions (one published and the other unpublished) addressing when the amended law applies, practitioners and potential litigants hungrily consume these new cases looking for any morsel of guidance on how the statutory language will work.

Back when the law originally passed, I wrote an article for the New Jersey Law Journal analyzing cohabitation law past, present and future. A year and a half later, I am not only unable to confirm how a trial judge would apply the new statute, but if the discussions from each of those recent seminars are any indication, different judges may and will likely apply the statute very differently.  In other words, some trial judges may favor applying the pre-amendment legal analysis, some may strictly apply the new statutory language, and some may even implement some sort of combination of the two.

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Thus, as a very strong introductory caveat – We have no idea how the new will be applied given what we have heard judges say about it, and the fact that there is no law to guide us.  Now, with that being said…

Just to briefly refresh, what did the old law say? Well, cohabitation was described by the Supreme Court of New Jersey as:

  • An “intimate,” “close and enduring” relationship that requires “more than a common residence” or mere sexual liaison. The relationship “bears the generic character of a family unit as a relatively permanent household,” is “serious and lasting,” and reflects the “stability, permanency and mutual interdependence” of a single household.
  • It involves conduct whereby “the couple has undertaken duties and privileges that are commonly associated with marriage.”

Indicia may include, but is not limited to, long-term intimate or romantic involvement; living together, intertwined finances such as joint bank accounts, shared living expenses and household chores, and recognition of the relationship in the couple’s social and family circle.  The so-called “economic benefits” test would come into play after the payor made an initial showing of cohabitation, at which time the court would determine if the third party contributed to the dependent spouse’s support, or if the third party resided in the dependent spouse’s home without contributing anything to household expenses.

Now what does the new law have to say? The law defines cohabitation as involving a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” A trial judge presented with a cohabitation allegation is required to consider: (1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities; (2) Sharing or joint responsibility for living expenses; (3) Recognition of the relationship in the couple’s social and family circle; (4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship; (5) Sharing household chores; (6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S. 25:1-5; and – of course, since this is family law that we are dealing with – (7) All other relevant evidence. So we now know that, at the very least – under the amended law – cohabitation does not require the couple to live together on a full time basis, which was unresolved pre-amendment.

Also to clarify what I indicated earlier, some trial judges have suggested that because the family part is one tasked with imparting an equitable result, they may still apply the economic benefits test and potentially modify – rather than suspend or terminate as the statute says – an existing alimony obligation. Notably, as I wrote for the Law Journal, those amended portions of the law addressing an alimony change in the event of the payer’s retirement or down income use the word modify as a possible option, but that word is nowhere to be found in the cohabitation section. Was that deliberate, favoring the notion that the law is more payor friendly, or was it unintentional and not meant to wipe away the old law?  We do not yet know the answer.  Also notable is how a recent case addressing the retirement language section of the amended statute relied upon statutory interpretation and construction, rather than a broader interpretation that perhaps some practitioners were expecting. This does not mean, however, that the cohabitation portion of the statute will be similarly analyzed and applied.

Other trial judges have indicated that the statute requires a suspension or termination, although a separate question exists as to when a suspension would occur. Perhaps as a sign of rulings to come or, perhaps, also inadvertently, the Appellate Division in one of those two cases I mentioned above indicated that alimony “shall” terminate upon cohabitation by the payee. This, however, was neither an issue or holding in the case, and even the statute uses the word “may” rather than “shall.” Also, when should a so-called suspension of alimony even occur? Should it only occur during a cohabitation proceeding and potentially be reinstated if cohabitation is ultimately unproven? Should it occur as a final result and be subject to reinstatement if the cohabitation ends?  The answers are unknown at this point.

What about making the initial cohabitation showing?  As is true with any case, judges are going to look at the same set of facts differently from each other. For instance, while one judge may find it sufficient for the payor to establish that the couple has been living together at least four days per week for a month, another judge may want more. While one judge may deem sufficient intertwined finances via a single joint bank account and the couple holding themselves out as in a relationship on occasion, another judge may disagree. All judges present at the seminars seem to agree, however, that the more information and evidence of cohabitation to be considered in the initial filing, the better. We even discussed a good old fashioned garbage inspection, where you never know what kind of gems may turn up in a payee’s trash bin – in other words, one payee’s trash may be one payor’s Exhibit A to a Certification.

Thus, no matter how the law is to apply once cohabitation is established (suspension, terminate or modify), the process by which a payor spouse is to gather information for a motion to “address” alimony due to cohabitation seems to remain the same. Private investigators will often still be a potentially key part of the puzzle, and, to the extent the couple somehow cannot manage to keep themselves from discussing the relationship on social media, such evidence is often, but not always, the equivalent of the goose that laid the golden egg – in other words, the online version of the garbage can.

It was those recent seminars that really brought back to the forefront for me how much has yet to be determined under the amended law and, perhaps more importantly, how each case leaves unanswered the question of what gets a moving party passed that first litigation hurdle, and what a payee spouse can do to successfully fend it off. For both sides, the picture remains cloudy in some ways and crystal clear in others, and that is without any of the sort of guidance that we have recently seen with the retirement portion of the amended law.  We will all continue to stay tuned as to what this portion of the new law can do once tested.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of mondspeer (Google free images).

While the Appellate Division has yet to address the substantive application and meaning of the cohabitation provisions of the amended alimony law, it has now determined twice when the law may apply.

In October, I wrote about how the Appellate Division in Spangenberg v. Kolakowsi, a reported (precedential) decision, held that the cohabitation portion of the amended law does not apply to post-Judgment Orders finalized prior to the amendment’s September 10, 2014 effective date.  On March 2, 2016, the Appellate Division in the unpublished (not precedential) decision of Chernin v. Chernin, similarly held that the 2014 amendments, “by the specific terms of the statute’s effective date”, are not applicable in a situation where cohabitation was previously established pre-effective date.  The primary point to be taken here is that the change in the law alone is not enough to reopen a previously concluded matter – in this case, a cohabitation matter.

alimony movie poster

Here are the undisputed facts that you need to know:

  • The parties were married in 1958 and divorced in 1992.  The property settlement agreement provided that husband would pay permanent alimony of $100,000 per year until July 1, 1997, at which time the payments would increase to $150,000 annually.
  • In 1996, husband moved to retroactively terminate his alimony based on wife’s cohabitation.  Following a five day trial, the court granted husband’s motion in part by finding cohabitation, ordering wife to reimburse husband in a sum certain for past overpayments retroactive to when alimony commenced, and reducing husband’s annual alimony obligation by $12,000 annually.  There was no modification to the alimony duration.
  • Husband appealed, arguing that alimony should have been terminated pursuant to leading case law at the time.  Husband’s argument was rejected.
  • Following passage of the amended alimony law, husband again moved to be relieved of his alimony obligation based on wife’s cohabitation.  Counsel, during oral argument, confirmed that nothing had changed in the past twenty years following the prior modification other than the amendment’s passage.
  • The trial court found that the amendment’s passage constituted a change in circumstance and terminated alimony based on the trial court’s prior finding of cohabitation.
  • Wife appealed, arguing that the court erred in failing to give effect to the “anti-retroactivity provision” of the amended statute.

In reversing the trial court in wife’s favor, the Appellate Division quoted that anti-retroactivity provision, which provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a.  a final judgment of divorce or dissolution;

b.  a final order that has concluded post-Judgment litigation; or

c.  any enforceable written agreement between the parties.

The Appellate Court determined that the parties’ post-Judgment litigation concluded in 1997 when a final Order was entered reducing the amount of alimony and leaving the permanent duration untouched based on the wife’s cohabitation.  In other words, the cohabitation issue was already addressed and the matter concluded.  As a result, husband could not simply reopen the issue based solely on the law’s amendment.  Citing Spangenberg, the Court concluded:

Because the Legislature has commanded that the 2014 amendments not be construed to modify the duration of alimony ordered or agreed upon, or to modify specifically bargained for contractual provisions incorporated into an enforceable written agreement between the parties, a judgment of divorce, or a final order concluding post-Judgment litigation, all of which applied here, the court plainly erred in relying on the amendments to modify the permanent alimony previously ordered in this case.

So there you have it.  A second decision from the Appellate Division – this one expressly following Spangenberg – addressing when the cohabitation provisions (and, more broadly, the amended law as a whole) may apply to a given set of facts and circumstances.  The new law itself is not a change in circumstances meriting a review of a previously closed case.  Similar to that case, where the Appellate Division used the word “shall” (rather than “may”) when describing whether alimony should terminate in a cohabitation situation under the statute, the Appellate Court did not address whether terminating alimony was the only appropriate measure had application of the new law been deemed appropriate.  Stay tuned for future developments.

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 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

With New Jersey’s amended alimony statute becoming effective on September 10, 2014, many questions have arisen as to how the statute will apply and the meaning of many of the new terms contained therein.  The Appellate Division’s newly reported (precedential) decision in Spangenberg v. Kolakowski provides some insight from the judiciary that we have been waiting for, specifically holding that the new cohabitation provision of the amended statute does not apply to post-Judgment orders finalized before the statute’s effective date.  As detailed below, the decision makes logical and legal sense when considered with a review of the legislature’s intentions as to when the amendments apply.

alimony gauge

Here are the key facts you need to know:

  • The parties were divorced in June, 2012, 20 years after they married and more than 2 years before the statute was amended.
  • A settlement agreement was executed wherein the husband agreed to pay $2,200 in monthly alimony based on the wife earning $45,000 in gross annual income and the husband earning $125,000.  The agreement also provided that alimony would be reviewed “on or about June 7, 2014” based on the “expectation that the [wife’s] income will have increased by that time as a result of additional training or other factors.”
  • Wife was also required to inform husband when she was cohabiting with another, which would trigger a review of alimony “consistent with the Gayet case and evolving caselaw.”  Gayet v. Gayet is one of the seminal cases on the issue of cohabitation and its impact upon alimony in the State of New Jersey.
  • Husband moved to modify his alimony obligation, alleging that wife was cohabiting.  Wife admitted to moving into her boyfriend’s residence in August, 2013.

In an Order dated December 18, 2013, the trial judge found wife to be receiving an economic benefit from the cohabitation, thereby warranting an alimony modification.  Husband subsequently filed a motion for reconsideration of the order, seeking therein a review of wife’s need for alimony.  The motion was deemed premature, with a review to take place in June, 2014, as called for in the settlement agreement.

On July 21, 2014, husband moved to modify or terminate alimony per the settlement agreement’s 2-year review provision.  Without oral argument, the trial judge denied a further reduction in alimony, in part, because he had already reduced alimony based on the wife’s cohabitation, and because husband failed to properly and completely divulge his financial documentation/information.  Husband again filed for reconsideration, but was denied.

On appeal, husband argued, in part, that the trial court improperly ignored the adopted amendments to the alimony statute regarding cohabitation.  The Appellate Court cited to the applicable provisions of the amended statute:

l. When a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, then that party’s application for relief must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.

m. When assessing a temporary remedy, the court may temporarily suspend support, or reduce support on terms; direct that support be paid in some amount from assets pending further proceedings; direct a periodic review; or enter any other order the court finds appropriate to assure fairness and equity to both parties.

n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.

[N.J.S.A. 2A:34-23(l)-(n).]

The Appellate Court limited its review to whether the legislature intended the cohabitation portion of the amendment to apply to the subject situation.  As a potentially important aside, in so limiting, the Court stated, “Accordingly, our review is limited to whether the statute’s cohabitation amendments, requiring alimony to be terminated or suspended, apply.”  The statute’s cohabitation language, however, only provides that alimony “may” be suspended or terminated in the event of cohabitation.  Whether this was intentional is uncertain, but it is consistent with the payor-friendly nature of the amendments and, perhaps, answers one primary question as to whether the previously existing “economic benefits” test still applies (as provided in the above-referenced Gayet matter).

Back to the actual issue before the Court, it then quoted that part of the bill adopting the amendments addressing whether same would apply retroactively, or only prospectively.  Such language provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a. a final judgment of divorce or dissolution;

b. a final order that has concluded post-judgment litigation; or

c. any enforceable written agreement between the parties.

The Court found that such language “signals the legislative recognition of the need to uphold prior agreements executed or final orders filed before adoption of the statutory amendments.”  It also noted how courts generally enforce newly enacted substantive statutes on a prospective basis, “unless the laws clearly expresses a contrary intent.”

Since the trial court conducted a review and issued a final order as to the economic effect of the wife’s cohabitation prior to the enacted amendments, and alimony was reduced at such time based on the prior legal standard applicable in such matters, the new cohabitation provisions of the amended statute did not apply.

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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of freedigitalphotos.net (attributed to Stuart Miles)

Copyright: zimmytws / 123RF Stock Photo
Copyright: zimmytws / 123RF Stock Photo

Health care information (including mental health information) can be very  important in a family law case in many ways and for many different reasons.

In custody matters, the fitness of each parent is front and center of the case.  Often times, a parent’s medical and mental health history will be relevant to the issues that the court is deciding.  For example, does a parent have a medical condition that may impair his or her ability to parent? In one case I had, a parent of a young child suffered from diabetes, and was insulin dependent.  The other parent wanted to take the position that the parent’s risk of going into diabetic shock was so significant, that overnight parenting time should not be permitted by the court.  Certainly, this was an important factor, and obtaining the records was critical.

In a more common situation involving custody, when parents cannot agree on custody, a forensic psychologist is often engaged to evaluate the parties and make a recommendation to the court.  That evaluator will need access to the medical and mental health records of both parties in order to make a thorough assessment.  If one parent knows that the other has  a mental health disorder, or has had counseling for any issue, it is important to be sure that records are obtained. Conversely, often times a parent in a custody dispute will allege that the other suffers from a disorder, and records will be necessary to refute that claim.

In support cases, one party may be taking the position that he or she cannot work at all, or cannot work to full capacity due to a medical condition.  In such a case, medical records will be necessary in order to either substantiate, or refute such a claim.

HIPAA is the federal Health Insurance Portability and Accountability Act of 1996. The primary goal of the law is to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs. Health care providers will need a waiver from the patient prior to releasing any medical records to a third party.  A party to an action cannot hide behind HIPAA and claim his or her right of privacy in order to avoid the records being produced.  The court has the authority to order the release of the records in order to make a decision, particularly when the best interests of minor children are involved.

Generally, the court’s will not order records unless the party whose records are being sought has put his or her health “in issue.” In other words, a litigant cannot use the case to go on a fishing expedition.  On the other hand, a supported spouse cannot claim that he or she needs alimony due to an inability to work full time as a result of a medical condition, and then refuse to release the records.

 

 

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

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.

equality

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.

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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 repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

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.

nj-divorce-app-625x

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.

As frequent readers of this blog may know, earlier this year, we were the winning attorneys in the landmark palimony case, Maeker v. Ross.  My post on that case on this blog was entitled Is Palimomy In New Jersey Over As We Knew It?  Since the Supreme Court recently granted Certification, we will see what they ultimately have to say about this issue some time next year.

In the mean time, a lot has been written about the unreported trial court opinion in the case of Joiner v. Orman  recently decided by Judge Rosenberg in Essex County, suggesting that palimony is alive and well, especially the argument that partial performance is a bar to the statute of frauds (the statute requiring palimony agreements to be in writing was included as an amendment to the Statute of Frauds).  While the palimony opponents could be worried about this decision, it is not precedential (i.e. it doesn’t have to be followed) both because it is a trial court opinion and unreported.  More importantly, the facts of this case seemingly dictated that an equitable result occur.  Some of the more critical facts which were largely not in dispute, are as follows:

  • The parties started dating in 1972 and began cohabiting shortly thereafter
  • During their relationship of approximately 39 years, they celebrated June 11, 1973 as their anniversary
  • The parties maintained a marriage type relationship, holding each other out as husband and wife, raised 4 children and resided together as a family.
  • The parties filed joint tax returns
  • The parties maintained joint accounts
  • The parties purchased real estate together
  • The plaintiff went by the name Joiner-Orman
  • The defendant, who was Gordon on Sesame Street, dedicated his memoir, “To my wife, Sharon Joiner-Orman, thanks for providing this story and my life with true meaning.” A personal copy of the book also bears an inscription, dated June 21, 2006, which states, “To Sharon, thank you for being my wife, my partner, the love of my life. Always and Forever, Roscoe.”
  • Plaintiff provided companionship and social support, took care of the household and raised the parties’ four children.
  • Due in large part to Defendant’s financial success, and Plaintiff’s reliance thereon, Plaintiff never attended college or pursued a career of her own.
  • Plaintiff asserts that it was always her intention to continue residing with the Defendant as husband and wife for the rest of her life as it was their “life plan” to do so.
  • After the parties separated, defendant continued to financially support plaintiff until he remarried

Clearly, these facts are starkly different from Maeker v. Ross.  While Maeker really involved an allegation of an implied promise, here the court found that there was actually an express promise, albeit one that was not in writing.

Further, in addressing the partial performance issue, the court noted:

To date, Maeker is the only reported case to address the partial-performance exception in the context of a post-Amendment palimony claim. In Maeker, the plaintiff brought an action against defendant, which included, among other claims, a claim for palimony…………

Maeker court did not decide whether the partial-performance claim was an exception to the requirements of the Amendment. Instead the court found that, assuming the exception did apply, plaintiff’s pleadings failed to provide a basis for relief. Id. at 94. Specifically, Plaintiff’s pleading alleged that defendant’s performance, not Plaintiff’s, barred defendant from asserting a statute of frauds defense. Id. at 20. Furthermore, the court found that the case was distinguishable from the case relied on by the trial court, Klockner v. Green, 54 N.J. 230 (1969), finding that, unlike Klockner, “there was nothing exceptional or peculiar about the services performed by defendant, and plaintiff, as well as her son, already received the full benefit of those services.” Id. at 22.

Because Maeker was decided on the facts, it does not truly answer whether the exception applies as a matter of law. Moreover, the facts here are different. And it is indeed the facts of this particular case that compel this Court to take a closer look at the issue.  (Emphasis added).

The court then went on to state it’s rationale for finding that palimony was appropriate here:

With these principles in mind, the Court finds there is no good reason why a partial or – at the very least – full performance exception should not apply in the context of palimony  agreements. This case demonstrates the inequities that would result from a denial of the claim. Here, the parties had an oral agreement to reside and work together in marital type relationship. In fact, as far as they were concerned, they were husband and wife. Plaintiff relied on the Defendant’s promises and support for 39 years, gave birth to and raised four children, and generally provided companionship and homemaking. The children are now adults and the parties no longer share the same home. The Court finds the Plaintiff has fully performed her end of the bargain (to put it tersely). In addition, there is no way to quantify the value of the services.  Plaintiff provided over the course of 39 years, much less the value of foregone educational and work related opportunities. What is more, Defendant
does not deny the agreement and even acknowledged the obligation by deeds and words. Where then is the risk of fraud? The Court believes the risk lies in barring Plaintiff’s claim. Therefore, the Court holds that the partial or full performance exception can remove oral palimony agreements from the statute of frauds and further finds the facts satisfy the Plaintiff’s claim.  …..

… Instead, the Court is hopeful that its decision promotes the common mantra of the Chancery Division that “equity regards and treats as done what in good conscience ought to be done.” Gallicchio v. Jarzla, 18 N.J. Super. 206, 214-15 (Ch. Div. 1952).  (Emphasis added)

So there it is.  The parties acted as if they were married in all ways, but for the actual marriage.  The court did what it thought was fair.  End of story.  That said, this case in factually different from most palimony cases that we see, so it is easy to see how this decision, in the context of its specific facts, came to be.  Whether this will survive appellate scrutiny remains to be seen.

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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.

It seems as though a wave of cohabitation cases has recently swept across the Appellate Division in New Jersey. And for good reason. While well-settled is the concept that a supported spouse’s cohabitation typically will constitute a change of circumstances sufficient to justify end of a supporting spouse’s alimony obligation, the nuances of the law can be quite involved. This can been seen from the Appellate Division’s February decision in the case of Wonderlin v. Wonderlin, on which Sandra Fava blogged. That holding came down to evidence of the times and frequency that an unrelated male came and went from a former wife’s home, which, the Appellate Division ruled, entitled a former husband to discovery on the issue of whether the wife was cohabitating.

While the comings and goings of an unrelated male can be one indicia of cohabitation, in the case of Okoshi-Wilson v. Wilson, the Appellate Division examined a different source to prove cohabitation: the wife’s earnings as compared to her expenditures. There, the husband moved for a termination of his alimony obligation on the basis of the wife’s cohabitation with an unrelated male.

It seemed, based on the proofs submitted, that the husband had always earned a significantly greater salary than the wife, with the wife only earning about $47,000 in 2008 after her alimony of $22,500 per year was considered, as compared to the husband’s $164,164 the year prior. Despite this fact, the wife was apparently living in a posh, three-bedroom Upper East Side apartment, which she clearly was unable to afford on her salary alone. As it turned out, also a tenant of the same apartment was an unrelated male by the name of Steven Macy. This revelation led to the husband’s application for a termination of his alimony obligations. During the hearing at the trial level, Okoshi admitted that she had been able to maintain her New York City residence, because she was Macy’s tenant, allegedly paying him only $135 per week in rent and household work such as watering the plants, purchasing food, and collecting the mail. She further testified that Macy and his daughter only stay at the apartment about five times per month. Okoshi had documents to support some of her assertions — a lease signed by her and Macy and receipts for rent she paid in cash. She denied any romantic involvement with Macy and said he does not support her in any way.

Continue Reading Can a landlord-tenant relationship terminate an alimony obligation based upon cohabitation?

On March 10, 2009, the Appellate Division issued a precedential (reported) decision on the issue of the possession of a dog in the case of Houseman v. Dare.  To see the full text of the case, click here.

The parties were together for 13 years.  In 1999 they purchased a house together.  In 2000, they got engaged (but never married).  In 2003, they purchased a pedigree dog for $1,500.  Both parties were listed as the owners on the papers filed with the American Kennel Club.

 

 

In May 2006 Dare decided to end his relationship with Houseman. At that time, he wanted to stay in the house and purchase her interest in the property for $45,000 which was what he represented half of the equity to be. In June 2006, she signed a deed transferring her interest in the house to him.  When she vacated the residence in July 2006, Houseman took the dog and its paraphernalia with her. 

There seems to be little dispute that there was an oral agreement that Houseman was going to take the dog with her as her own when the parties separated.  However, thereafter, she allowed Dare to visit with the dog.  On one occasion in 2007 after watching the dog while Houseman was on vacation, he refused to give the dog back and the lawsuit ensued wherein she sought specific performance of their agreement that she keep the dog.  

Continue Reading IT'S A DOGS LIFE – THE APPELLATE DIVISION ISSUES REPORTED DECISION ON POSSESSION OF A DOG