Interspousal Agreements

As a matter of public policy, New Jersey Courts favor the enforcement of agreements reached between parties. Since Marital Settlement Agreements (“MSA”) are entered into consensually and voluntarily, they are often approached with a predisposition in favor of their validity and enforceability.  That notwithstanding, these agreements are enforceable only if they are fair and equitable. A bedrock principle of New Jersey divorce jurisprudence is that parties may be able to modify support provisions within their divorce agreements if they are able to show a continuing change of circumstances.

Although the ability to modify agreements based on a change of circumstances is essentially the default so to speak, parties are free to contract around same. Often times in exchange for additional financial considerations, such as unequal asset division or a “discount” on alimony, parties will agree that the amount of years alimony is paid and/or the actual amount of alimony paid each year is non-modifiable regardless of a change of circumstances, foreseeable or otherwise.

Unfortunately all too often parties are entering into agreements that are “non-modifiable” without really thinking through the consequences of same in an effort to “get the deal done” only to have it come back to haunt them.  This is exactly what happened to Mr. Fiorenza in the recent unpublished (non-precedential) case of Fiorenza v. Fiorenza.

In Fiorenza, the parties were married for 24 years and had three children. At the time of their divorce, they were able to come to a resolution regarding the Husband’s alimony and child support payments and agreed that Husband would pay $100,000 per year in alimony ($8,333/per month) and $833.00 per month in child support. Shortly after the divorce however, Husband stopped paying support and Wife filed an application to enforce the support provisions of the parties’ divorce agreement.

The parties were able to resolve their differences and entered into a Consent Order, which lowered Husband’s total support obligation to $5,000 per month ($833.00 of which would be considered child support), included an escalation clause that support would go up if his income did and vacated $10,000 in support arrears.  The parties also agreed however that the new support amount would be non-modifiable and included that if there was a default on this new payment structure, that the total support amount would revert back the original amount under the parties initial MSA. Specifically, the parties agreed:

No matter defendant’s annual gross income, at no time shall monthly support be lower than $5,000, except after the emancipation of [the parties’ youngest child] when the child support component may be reduced”.

After the entry of the Consent Order, Husband made the new support payments for a period of one year but then again stop paying altogether.  Wife immediately filed an application to enforce the terms of the Consent Order and asked that the initial amount of support be reinstated.  In response, Husband cross-moved for a reduction in alimony.

Both the trial Court and Appellate Court upheld the parties’ agreement and increased the support payment back to the original amount in the parties’ MSA (due to Husband’s default on the new support payments) noting that each party got the “expected benefit and burden of the contract”. Because of Husband’s current inability to pay the full support amount however, the Court set a reduced alimony and child support figure of $2,500 per month and allowed the difference between the MSA support award of $8,333 and the $2,500 to accrue as arrears.

The take away from this case is that you should think long and hard before you include any non-modifiable provision in your divorce agreements and consult with an experienced attorney to discuss the ramifications of same. Although you might feel you are getting a tangible benefit in the present by agreeing to a non-modifiable provision, it is important to think through all the circumstances that may occur in the future that would complicate your ability to comply with same (such as loss of income/employment) as you cannot expect a Court to simply invalidate the terms of your settlement agreement because you now view them as unfair with the benefit of hindsight.

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Lauren Koster Beaver is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Lauren 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, premarital agreements and Appellate Practice. You can reach Lauren at (609) 844-3027, or lbeaver@foxrothschild.com.

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 Easton 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.

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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.

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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 etbaer@foxrothschild.com.

The Importance of the Filing Date of the Complaint

A recent unpublished decision from the Appellate Division, McNamara v. McNamara, serves as a reminder that, when it comes to marriages, the old saying is true: it ain’t over ’til it’s over.  In McNamara, the parties separated in 2006, but the husband did not file the complaint for divorce until 2008.  However, in his first attempt to file the complaint, he failed to properly serve his wife.  He filed two other complaints in a similarly deficient manner, until finally he filed a complaint that stuck – in February 2013, about seven years after the parties’ separation.

The parties were able to settle all of the issues except one: when did the marriage end?  As family attorneys know, this question is critical because the end date of the marriage serves as the cut-off date for purposes of equitable distribution of marital assets and debts.  For example, at issue in the McNamara case, the husband held a pension during the marriage, to which the wife was  entitled an equitable share.  The question was whether she would be entitled to a share of the pension’s value as of December 2006 (the date of separation), as of June 13, 2008 (the date the husband filed his first complaint for divorce), or as of February 13, 2013 (the date the husband filed a complaint for divorce that commenced a proceeding that led to a final judgment of divorce).

If you ask the parties to a marriage when their marriage ended, you will inevitably get different answers from each spouse.  The question is, truly, a subjective one.  When I was a law clerk, I saw a trial during which the husband testified that he knew the marriage was over while the parties were on their honeymoon – and they were married for more than twenty years.

Because the question of the end date of the marriage is a thorny and subjective one, our courts have long instituted a presumption that the end date – and therefore the cut-off date for equitable distribution purposes – is the date on which the Complaint for Divorce was filed.  Not only must the complaint be filed, but the complaint must commence a proceeding that culminates in the entry of a Judgment of Divorce.  This caveat is a logical one.  I can imagine a scenario where a complaint is filed, the parties reconcile for a period of time, and then later decide to go through with a divorce.  The marriage couldn’t be considered “irretrievably broken” the first time the complaint was filed, since the parties ended up giving it a second try.

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Using a Date other than the Filing Date of the Complaint to Establish the End Date of the Marriage

So, if your client wants to use a different date than the filing of the complaint for divorce to establish the end date of the marriage, he or she better be prepared to prove it.  As the Court in  observed, the only way to really do so – under the current law –  is to show that the parties have not supported one another for some time, and to show that a complete distribution of the assets/debts has already been made.  If the parties have truly ended the commingling of their assets and live independent lives, then the presumption can be overcome.

And of course, one way to get around the problem entirely is to enter into a cut-off agreement, or an agreement to utilize a specific date as the end date of the marriage for purposes of equitable distribution.  This probably would have helped Mr. McNamara, whose pension was ultimately divided as of February 2013 rather than December 2006.

Practice Tip

As all litigators know, timing is everything.  A conversation with your clients about the timing of the filing of the complaint or entering into a cut-off agreement is critical to effectively representing your client with respect to his or her financial interests.

As matrimonial lawyers, we often come across cases involving a pension that is subject to equitable distribution.  While New Jersey’s equitable distribution statute involves several factors for consideration in dividing assets, the most common way by which a pension is divided is, in legal speak, “50/50 of the marital portion.”  On its face, that seems easy enough, right?  The Order that is required to divide the pension, usually known as a Qualified Domestic Relations Order (QDRO), however, contains so many paragraphs of technical language that litigants generally assume is boilerplate, when it is anything but.

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In fact, the nuances can be such that lawyers often find themselves being disagreeable about provisions that they don’t even understand simply because it is easier to say “no” rather than take the risk that the division of the pension may be more equitable in favor of the other party.  To that point, while divorcing spouses are usually of the mind that they are equally dividing what accrued during the marriage, they do not usually understand terms like “survivorship,” or “early retirement supplements,” or “vested” or “unvested,” and on and on.  All they typically understand is that money will be paid out to them later in life from this asset.

That being said, if the goal is to really divide the marital portion 50/50 and ensure that each spouse gets his or her share, then why does this become such a heated discussion between lawyers.  Other than the “just say no” mantra that I discussed above, there are so many perils and pitfalls that can come into play.  I list a few of them here just as a guide for the unwitting, the unknowing, and, of course, the lawyers in the audience.  This blog entry does not go into great detail on each of the following terms, risks and rewards, but it certainly a primer:

1.  Accrued benefit – What is the accrued benefit?  Usually the QDRO will provide a formula to determine what it is, so it is important to determine what will be considered, how long the participating spouse has been in the pension plan, when the alternate payee is eligible to receive pension payments, and so on and so forth.

2.  Loans – Are there any pension loans?  If so, how are those loans going to be divided – is the alternate payee’s (the spouse who was not in the participant in the pension plan) share going to be impacted?

3.  Cost of Living Adjustments – Oftentimes the QDRO will provide that the alternate payee will receive a pro-rata share of any cost of living adjustments or other economic improvements made to the participant’s benefits.

4.  Commencement date of the benefits to the alternate payee – Certain limitations on the alternate payee spouse’s ability to receive payments may impact upon her overall benefit.  For instance, is the alternate payee limited to receiving benefits only when the participating spouse hits retirement age, or is there more flexibility afforded under the plan and the QDRO.

5.  Early retirement subsidies, interim supplements, temporary benefits – I often hear other lawyers take the position that this is a negotiable issue.  Ultimately, however, if the alternate payee is not entitled to this form of benefit, her payments could very well be negatively impacted should the other spouse retire early.  In other words, the alternate payee would not be receiving the full benefit of the bargain contained in the settlement agreement within the inclusion of this form of payment.

6.  Survivorship rights – Language regarding survivorship rights is perhaps the most important part of the QDRO.  What happens to the alternate payee’s benefit if the participant dies before he retires?  What about after he retires?  Are the alternate payee’s rights to the pension secured, or is all lost once the participant dies?  Oftentimes there is also a cost associated with ensuring survivorship payments in the form of an annuity.  Who is paying?  How much?

7.  Death of the alternate payee – What happens if the alternate payee dies after he or she starts receiving payments?  Does the benefit revert back to the participating spouse?  Does it go to the alternate payee’s beneficiary?

These are just a few points to consider, and I cannot tell you how many times they come up in negotiation.  Ultimately the alternate payee is simply looking to protect him or herself to ensure that the benefit agreed to in the settlement agreement is actually received, rather than reduced, lost, or whatever the case may be.  In fact, considering the amount of argument that occurs between lawyers over some of these issues, it is almost as if the phrase “50/50 division of the marital portion” is nothing more than a misnomer.

 

*photo courtesy of freedigitalphotos.net

In the spirit of New Years resolutions, I thought I would give my top 10 resolutions on how to be a good divorce client.

  1. Give me the information I am asking for in a timely manner.  I realize your time is valuable. I realize that it takes a significant amount of time to compile the documents and answer the discovery questions that I am requesting you to. I realize that the court ordered forms are heinous. However I am not asking you for information for the sake of doing so. I need that information; whether the financial or otherwise. And typically I need that information at a specific time in order to comply with a court mandated deadline. I can only represent you well if you give me the tools to do so.
  2. Don’t keep secrets from me. Trust me. Please. I am not going to judge you. However it is not in your best interest that I find out about the skeletons in your closet from the other side. Understanding the problems in your situation at the very beginning will only help me help you, do damage control if necessary, and plan a course of action to help you meet your reasonable goals.
  3. Listen to me. I know that you are not always going to like what I have to say to you. But I have many years of experience and I have dealt with many situations like yours. While I can never predict exactly what is going to happen in any given case, I can certainly let you know a likely outcome of your matter. Also, when I tell you that you should or should not do something, it is for your own best interests.
  4. If you don’t like what I say to you, get a second opinion. Like any good relationship, ours is based on trust and respect. I fully understand that this is the rest of your life that you are dealing with and it is a monumental time in your life. If you do not have confidence in what I say, you will have difficulty moving forward.
  5. Don’t make unreasonable requests of my time. I understand that you need me to be there for you. If you have an emergency, I am prepared to drop everything for you. I will call you from the beach on vacation if necessary. However when you call me 14 times in one day to make sure that I received some paperwork that you sent in the mail, this is not reasonable. I give you my promise: I will call you back as soon as I can. Feel free, of course, to send me an email about this type of thing
  6. Don’t take out your frustrations on my Legal Assistant. My legal assistant works very hard and does a phenomenal job for me. He or she will try to help you when you call but what you are asking may be something that they can’t answer or cannot do. Also, my legal assistant has no control over the fact that I am not sitting at my desk able to take your call.  More often than not a judge does.
  7. Help me manage your expectations. There are certain unchangeable rules in life. We get older. What comes up must come down. And in the vast majority of cases, two households simply cannot live on the price of one. And both parties deserve to move on. So don’t get angry at me when your soon to be ex-spouse has net income of $10,000 a month and I tell you that you’re not going to get support of $11,000 a month that you think you need to meet your budget. Conversely, don’t get angry at me when I tell you you’re going to have to support your soon-to-be former spouse of 20 years who has never worked since high school while you have built a successful business during the marriage.
  8. Think before you act. While it might be tempting to go out and cancel all your spouse’s credit cards, this is typically not a good idea. And don’t go on a Caribbean vacation while taking the position that you can’t afford the mortgage on the house that your spouse and children are living in. Absent very compelling circumstances I can assure you things like this are really good ways to get a judge very angry at you. If there is an ongoing problem, talk to me and let’s figure out the best way to handle it in order to protect your interests.
  9. Remember that I don’t write the laws. I merely argue as to how they are applied. Many times, my client believes a law that applies to their cases unfair. Many times I agree with them. However, we live in a democracy, and until such time as either the legislature acts or the courts interpret something differently, we have to do the best we can. So don’t blow up at me when I tell you that the retirement account in your name alone that was built up during the marriage is subject to equitable distribution.
  10. Don’t badmouth your spouse in front of your children. They love you both. They don’t see the faults of your spouse that you do. We like to say that children are resilient, and they are. But you need to keep in mind that their world is crumbling for reasons that they have absolutely no control of and this is terrifying to them. They did nothing wrong. The one thing that children do need to know is that both parents love them and will care for them. When you have children and get divorced, your relationship with your spouse doesn’t end. It just changes.

Happy New Year!

In the days of my childhood, formal education began in Kindergarten when, finally, I got to ride the bus with the big kids.  Not so much any more.  The vast majority of children now go to some type of pre-Kindergarten program during which they have the opportunity to learn the basics of the alphabet, numbers and the like. Given the fact that many intact families have two working parents, and that in most single parent households, the parent works outside the home, work related child care and pre-school often simultaneous.  So then, in the case of two parents who are apart, who gets to decide where the child goes?

This issue recently arose in the published trial court decision of Madison v. Davis. The parties in that matter had recently divorced-the parties shared legal custody and the mother was the primary custodial parent. Both parents were both working. At the time the parties divorced, the child attended “Pre-School A.”  The parties’ settlement agreement provided that they would equally share the cost of work related day care and that they would both be listed as emergency contacts on any school or day care provider.  There were no restrictions on the mother to use any particular day care provider, and the agreement further provided that once the child was of school age, the father would be able to obtain all information about the child’s progress and both parties were to receive information from the school.

Shortly after the divorce, the mother moved the child to “pre-School B.” The father objected, stating that the change was a major educational decision, which, under the joint custody agreement, should have been decided jointly.  The mother responded, stating that this was a nothing more than a change in work related day care, and as such, a decision which she had the authority to make as custodial parent.

Recognizing that pre-school is a bit of a hybrid situation, the court fashioned a seven prong analysis to apply when this type of question comes up:

First, when a pre-school program is being used in substantial part to fill a need for work-related day care, the primary residential custodian, has the initial right to select the  program for the child, or to transfer a child from one program to another one.

Second, the residential custodian’s authority on this issue is not absolute and unlimited. Rather, the choice must be reasonable. Reasonableness includes consideration not only of cost, but of other factors as well, such as location and accessibility, hours and dates of operation, curriculum, and ancillary services (transportation, lunches, etc.). The court specifically noted that as an example, if a custodial parent seeks to move a child from an existing pre-school to another pre-school which substantially increases the cost to the non-custodial parent or the travel time of the non-custodial parent, then such selection may potentially be deemed unreasonable and contrary to the child’s best interests, under the totality of the circumstances.

Third, absent a restraining order or other court order keeping information regarding the pre-school confidential, the residential custodian, has an obligation to supply the non-custodial parent, with notice of any proposed change in provider in a reasonably timely fashion.

Fourth, a joint legal custodian, has a right to investigate and evaluate information about a new proposed pre-school.  If the non-custodial parent believes the selection of pre-school or day care provider is unreasonable and contrary to the child’s best interests, a motion can be filed. At that time, the non-custodial parent carries the burden of proof of convincing the court, by a preponderance of the evidence, that the custodial parent’s selection or change of the child’s pre-school or child care provider is unreasonable and contrary to the child’s health, education, general welfare and best interests.

Fifth, if the non-custodial parent is challenging the reasonableness of plaintiff’s choice of pre-school, merely complaining about the choice is not enough. Rather, there must be a demonstration that there is a specific, more reasonable alternate plan available for providing work-related day care for the child.

Sixth, if the court finds that the selected pre-school selected by the custodial parent is unreasonable, the court may override the custodial parent’s decision and order different day care arrangements including placement at a different pre-school. Alternatively, if the court finds the custodial parent’s choice of pre-school day care plan is in fact reasonable, the court may approve same and may order both parties to contribute to same in the same manner as the cost of any other reasonable day care expense.

Seventh, if the court finds that either party is acting unreasonably on the issue, counsel fees and/or other financial sanctions may be issued by the court in its discretion.

A fair reading of this decision demonstrates that what the courts are really looking for is to make sure that decisions are being made by custodial parents for children in their best interests, and that best interests include a consideration as to the effect on both parents.  To be sure, the issue of pre-school will be one which is added to the list of items to be negotiated in a settlement.

In the third installment of our New Jersey Family Law Podcast Series, we are proud to present – Stop.  Collaborate.  Listen.  Based on one of our earlier blog posts, Eliana Baer and I discuss why these three words are so critical to a successful outcome in divorce mediations, while highlighting the perils that can occur when divorcing spouses refuse to heed this advice during settlement talks.

Listen to the Podcast.

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The above link will allow you to listen to the podcast, while the you can also  Download the Transcript  here for your reading pleasure. Enjoy!

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Robert Epstein and Eliana T. Baer are associates in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com. Eliana practices in the firm’s Princeton, New Jersey office and can be reached at (609) 895-3344, or etbaer@foxrothschild.com.

Decisions involving New Jersey’s Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) are often very complicated matters that require courts to undertake an extremely detailed, fact-specific analysis to ensure that the issue of jurisdiction – what state or country should hear the matter – is properly made.  As a result, before you review this blog post discussing S.B. v. G.M.B., the Appellate Division’s recently published (precedential) decision that I have broken down below, you may want to sit down and relax with a cup of coffee, and perhaps some Tylenol in case your head starts spinning.

Here are the pertinent facts that you need to know:

  • In May, 2011, wife obtained a final restraining order against husband.  Husband pleaded guilty to a third degree offense as to the event that gave rise to the FRO and, in July, 2012, he began a 3 year probationary term.
  • Shortly before the probationary period began, the parties were divorced, incorporating a settlement agreement into a dual judgment of divorce.
  • 4 children were born of the marriage.  The PSA stated that wife could remove the children from New Jersey to Ontario, Canada.  Husband’s consent to such removal was expressly conditioned on wife’s “express[ed] and irrevocabl[e] consent[]” that, until the youngest child was emancipated, New Jersey would retain continuing, exclusive jurisdiction over all matters pertaining to child custody, child support, and parenting time.
  • Wife also agreed that any orders regarding custody, support or parenting time entered by New Jersey courts would “supersede any such orders entered in Canada”, that by entering into the settlement agreement, she “expressly and irrevocably assent[ed] and submit[ted]” to personal jurisdiction in New Jersey courts, that she “irrevocably consent[ed]” to receiving service of any pleadings at her residence in Canada, and that she “expressly and irrevocably waive[d] any claim or defense of improper service, lack of personal jurisdiction, improper venue or forum non conveniens or any similar basis.”
  • Wife moved with the kids to Canada in August, 2012.
  • In mid-September, 2012 (merely 4 months after execution of the settlement agreement), husband filed a motion asserting that wife had failed to provide him with parenting time over the Labor Day weekend.
  • In addressing the motion, the trial judge indicated that he would “sua sponte [consider] whether Ontario was a more appropriate forum under relevant statute and case law.  Upon such consideration, the trial judge determined that New Jersey was an “inconvenient forum” and that Ontario should exercise jurisdiction.
  • Husband argued in seeking enforcement of the agreement’s parenting time provisions that Canada as the location for the exercise of some of his parenting time was no longer feasible because his criminal conviction barred his entry into Canada.  In fact, the settlement agreement provided,
  • “If, for any reason, the Husband is refused entry into Canada and prevented from exercising the parenting time set forth in subparagraphs (h) through (j) above, the parties shall agree on reasonable equivalent parenting time for the Husband at an agreed upon location in the United States.  The parties reserve the right to apply to the [c]ourt for a determination of this issue in the event that they cannot reach an agreement.”
  • As a result, husband sought wife to bring the children to Cortland, New York (approximately half way between the parties’ respective residences) for his parenting time as delineated in the settlement agreement.
  • While wife opposed the motion, she did not argue that Canada assume jurisdiction over the matter – the issue was raised and determined by the trial judge, who rendered such determination without a hearing.

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On appeal, the Appellate Division analyzed the matter in connection with New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):

  • New Jersey acquired “exclusive, continuing jurisdiction” over custody determinations when the initial order was entered because the parties and children resided in New Jersey when the judgment defining custody and parenting issues was entered by the trial court.
  • New Jersey did not lose jurisdiction based on a lack of a “significant connection” or “substantial evidence”.  The move to Canada occurred only a few months before the agreement was signed, and husband remained a New Jersey resident and was still entitled to meaningful parenting time with the children in this State.
  • Based on the record below, Canada was not “an appropriate forum,” let alone “a more appropriate forum,” in part, because husband was denied entry into Canada because of his criminal record, where the trial court’s determination that Canada could permit his entry ran directly contrary to husband’s allegations.  Unlike the trial court, the Appellate Division did not believe that entry into Canada was as “readily available” as suggested by the trial court, recognized that husband would have to undergo an application process for Canada to consider such entry, and noted that Canada could still deny entry.  “By the same token, it is premature to assume he will be permitted entry.”
  • The Appellate Division further took the trial court to task for its unsupported indication that, even if husband was denied entry, he could appear at Canadian proceedings by video conference.  The trial court, thus, concluded that the husband’s physical presence at a proceeding in New Jersey was less appropriate than his video appearance at a Canadian proceeding.  The trial court also seemingly disregarded the indication of husband’s probation officer that someone in husband’s situation would normally be barred from leaving the United States (although it was noted that a court could allow him to leave for the purpose of appearing in a foreign court).  The Court definitively provided:

“We find the trial judge’s declination of jurisdiction to be highly inequitable because it relegates [husband] to an attempt to litigate his parenting-time issues in a forum that may not be accessible, instead of in a jurisdiction the parties expressly and unequivocally stipulated as the forum for such disputes – a forum that unquestionably possesses jurisdiction over the disputes.  Because Canada has not been shown to be an ‘appropriate’ forum, we reverse.”

While this component of its decision was enough for the Court, it then added that, even if Canada was an appropriate forum, it was improper for New Jersey to decline jurisdiction.  In so doing, the Appellate Division analyzed the 8 factors to address such issue under the UCCJEA:

1.  Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child:  Here, wife had an FRO and husband was serving a probationary term in New Jersey, stemming from the same incident.  The Court concluded that the trial judge gave no weight to the fact that wife stipulated to a New Jersey forum after entry of the FRO, after husband pleaded guilty, after wife planned to move to Canada, and that no other episodes of domestic violence had occurred since the first FRO was granted.

2.  Length of time the children have resided outside of New Jersey:  Wife and children lived in New Jersey throughout the marriage, and the move to Canada only occurred one month prior to the husband filing the motion at issue.  The Court concluded that the trial judge mistakenly converted the second factor into the sixth factor (addressing the children’s present circumstances, and the location of evidence and witnesses to address the issue).  Since only a month had passed from when the children moved to when the motion was filed, the Appellate Division held, “This factor highly favors New Jersey’s retention of jurisdiction.”

3.  Distance between the New Jersey court and the court in the location that would assume jurisdiction:  Similar to factor 2, the trial court improperly considered this factor 6 as to the location of evidence and witnesses.  Analyzing this factor, the Court concluded that Canada was more convenient for wife and New jersey was more convenient for husband.

4.  The relative financial circumstances of the parties:  Wife was in a financially inferior position to husband and, as a result, this factor properly favored the Canadian forum.

5.  Any agreement of the parties as to which state should assume jurisdiction:  The parties agreed in the settlement agreement that New Jersey would retain jurisdiction, and that this agreement was made in exchange for the husband’s agreement that the wife could move to Canada with the children.  The Appellate Division, in contrast to the trial court, gave far greater weight to this factor and circumstance, finding that “The judge was greatly mistaken in this regard.”

6.  Nature and location of the evidence required to resolve the pending litigation, including the testimony of the children:  While the trial judge focused on the lack of accessibility/availability of evidence and witnesses in Canada, the Appellate Court found that the judge “overlooked” that the dispute concerned an alternative to the agreement’s indication that husband had a right to parenting time at certain times in Canada.  The Court concluded that the issue was simply how could the “parenting time precluded by [husband’s] ostensible inability to enter Canada be equitably replaced?”  The Court further questioned what evidence in Canada was necessary to address the issue, or if a hearing was even necessary (and, if a hearing was necessary, an analysis of difficulties a Canadian court would encounter as to examining New Jersey evidence would be required).  Ultimately the Court determined that this factor favored New Jersey because both locations had similar issues, but the children had spent their entire lives (prior to the recent move) in New Jersey.

7.  The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidenceWhile the trial judge noted that both courts address such issues in an expeditious manner, the Canadian court would face potential additional hurdles due to the above-issues with husband’s entry into the country.  The potential additional litigation would only prolong the process.

8.  The familiarity of the court of each state with the facts and issues of the pending litigationNo Canadian court was familiar with the case, and the New Jersey court certainly was in having presided over the domestic violence matter and uncontested hearing.

In finding that New Jersey should not decline jurisdiction, the Appellate Division concluded:

Those statutory factors that may suggest New Jersey’s declination of jurisdiction or are in equipoise represent only the foreseeable consequences of the parties’ free and voluntary agreement and should not have more weight than the agreement itself.  When viewed in that context, there are very little, if any, arguable reasons for New Jersey’s declination of jurisdiction at this time.

Interestingly, in reversing the trial court’s decision and directing the trial court to expeditiously resolve the parenting time issues, the Appellate Division exercised original jurisdiction, “Because of the time that has elapsed since the order was entered,” and, in so doing, directed that, pending the trial court hearing from the parties on such issues, any future visitation pursuant to certain provisions of the settlement agreement occur in Niagara Falls, New York, or any other location to which the parties agreed.

Cases involving the UCCJEA are typically very fact specific and, as a result, the analysis can become quite complicated to ensure that the issue of jurisdiction is properly decided.  As a litigant, be sure to navigate through these waters with matrimonial counsel experienced in such issues.

 

 

While I never thought that I would be quoting Adam Sandler on this blog, now is as good a time as any.  As he once famously sang, “Hanukkah is the festival of lights.  Instead of one day of presents, we have eight crazy nights.”  My kids are certainly ready to go, already asking what presents they are going to receive starting tonight, which is the first night of the holiday.  In honor of the holiday, I thought of eight things that, of course, divorce litigants should hope to receive.  While Hanukkah is obviously a Jewish holiday, certainly all of these gifts can be placed under the Christmas tree as well.

 

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1.  Peace and quiet during the holiday season As I recently blogged about, there is nothing worse than divorce-related conflict during the holiday season, whether it relates to parenting time or otherwise.  Oftentimes litigation results from what many consider the most emotional time of the year.

2.  A fast and amicable divorce – This is one of those gifts that you, as the litigant, have a lot of control over.  After everything that you have been through, working with your spouse towards an amicable divorce will benefit everyone involvfed.

3.  An attorney who is your right “fit” – I have previously preached about the importance of working with an attorney who only practices in the area of family law, and with who you work well with.

4.  A fair and equitable settlement agreement – Rather than being pressured into signing something with which you do not agree, your agreement should, at the very least, be fair for both parties involved.

5.  Uninterrupted receipt of your support payments – One of the basic gifts should be your receipt of support when it is due, and in the amount agreed upon or ordered.  You would be surprised (or maybe not), at how often this does not occur.  Probation and related wage garnishments can certainly help this process to ensure that payment is received, which is why the payor spouse often does not want it to happen.

6.  Parenting time with the kids without interference with the other parent – Consistent with the first gift, parenting time with the kids should be uninterrupted, should occur as scheduled, and you should be able to enjoy your time with your kids.

7.  Money in your pocket Spending every penny that you have ever saved on your divorce litigation may leave you feeling empty once the case is over, especially when you determine where and how you are going to live, and raise the children.

8.  Tasty latkes – It may not be divorce related, but it sure is important on Hanukkah to have only the best potato latkes with applesauce on the side.

For divorce litigants, I hope that you experience some, if not all of the above.  With that, I wish our readers a happy and healthy holiday.

 

 

In the unpublished (non-precedential) recent case of N.G. v. N.B.G., the Appellate Court declined to enforce a provision in the parties’ Marital Settlement Agreement that permitted the parties to retain a Parenting Coordinator to resolve co-parenting issues, due to the existence of a Final Restraining Order  (I note that the FRO was in existence at the time the parties agreed to the language of their MSA).

The Court reasoned that although the pilot program appointing Parenting Coordinators was discontinued in New Jersey on November 26, 2012, the guidelines for the pilot program prohibited the appointment of a Parenting Coordinator in instances of a Temporary or Final Restraining Order pursuant to the Prevention of Domestic Violence Act.

The takeaway from this case is that before you negotiate certain provisions that you feel are instrumental to your divorce agreement, it is wise to consult with an experienced attorney to ensure that such provisions are not contrary to the public policy of our state.  In this case, someone did not get the benefit of their bargain.

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Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution.  Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.