Sandra C. Fava is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild’s Family Law Practice Group in the Roseland, New Jersey office. Sandra exclusively practices family law throughout New Jersey. She is a former law clerk in the Morris County Superior Court, Family Part and has experience in all areas of family law and family law litigation. You can reach Sandra at (973) 994-7564, or sfava@foxrothschild.com.
Continue Reading In a Long Term Marriage, Length of Marriage May Trump Age in the Alimony Calculus
The Emerging Role of Obesity in Child Custody Cases
I read an interesting article on The Wall Street Journal.com about the ever growing use of a a child’s battle with obesity as a tool for leverage in custody battles
Continue Reading The Emerging Role of Obesity in Child Custody Cases
Recent Developments in the Ever-Changing NJ Law on Palimony
For those of you have have followed the continuum in New Jersey’s palimony law, October has proven to be a busy month, with not one but two opinions.
Nearly one year ago, the NJ legislature passed law that, in sum, prohibited the enforcement of palimony agreements that have not been put in writing. When the new law went into effect, we quickly blogged on the breaking news.
With the passage of N.J.S.A. 25:1-5(h) came many questions. Attorneys and litigants wondered what would happen to those cases already pending before the court; what would happen to those who had valid claims for palimony under what had previously been the law in NJ but did not yet act? Lots had an opinion, but really only time would tell. Botis v. Estate of Kudrick, 421 N.J. Super, 107 (App. Div. 2011) provided some guidance, telling practitioners and litigants alike that the statute applied only to suits filed after its effective date.
On October 6, 2011, a Hudson County Superior Court judge upheld a non-written palimony agreement, finding overwhelming evidence that the parties “lived together, and had made a commitment to each other to support each other, to share with each other, and most of all, as is implicit in every agreement, to treat each other fairly and avoid harm to the other.”
In the matter of Fernandes v. Arantes, this same sex couple had been living together since 1996. In 2005, after 11 years of living together in various locations all over the world, they bought a home in Jersey City, however only Arantes’ name was on the deed (although Fernandes’ was added later). The parties never married or entered a formal union but did exchange vows in an informal setting, shared expenses and investments, and supported each other financially, claimed Fernandes.
In April 2009, Arantes obtained a temporary restraining order against Fernandes. The case was dismissed although a no-contact order was issued, which prevented Fernandes from accessing the Jersey City home. On October 20, 2009, Fernandes filed a motion which sought access to the home to retrieve belongings and replacement of $80,000 Arantes allegedly withdrew from a joint bank account. On February 15, 2011, an amended complaint was filed, alleging palimony and unjust enrichment. In defense, Arantes claimed the relationship ended in 2001 and the parties only continued to live together for financial reasons.
After hearing testimony, the trial judge found that the relationship was that of a marital-type relationship. Finding that “[p]arties who entered into these kinds of relationships usually do not record their understanding in specific legalese”, the trial court awarded Fernandes’ claim of palimony, although the amended complaint was filed after the passage of the statute.
As this is a trial court opinion, it is not binding on other courts.Continue Reading Recent Developments in the Ever-Changing NJ Law on Palimony
Paying Child Support Through Probation – Anticipating a Cost of Living Adjustment (COLA)
When negotiating the payment of child support, I discuss with my clients the implications of paying/receiving support through Probation. One of the major implications of paying child support through Probation
Continue Reading Paying Child Support Through Probation – Anticipating a Cost of Living Adjustment (COLA)
Be Careful What You Bargain For Without the Advice of Counsel
It is common and often unfortunate that I meet with clients who decided, for whatever reason, that they would represent themselves during a divorce proceeding. There are cases where that decision may be perfectly acceptable. More often than not, the people I have met are coming to me because they are totally unsatisfied and/or unhappy with the deal they’ve made for themself and are looking to an attorney to get them a better deal. Sometimes this is a possibility. However, when the ink is dry on that formal agreement, it makes things more complicated.
Recently, the Appellate Division affirmed a lower court’s decision regarding the enforceability and conscionability of an Agreement negotiated and reached by the parties and formalized by husband’s attorney. Wife chose to remain self represented during the negotiations and execution of the Agreement.
After husband made a post-divorce application in the trial court to enforce the Agreement, wife challenged its validity, claiming unconscionability, inequity, unfairness and that it was obtained through fraud. The trial court conducted a two day hearing during which both parties and husband’s attorney testified. Thereafter, the trial court rejected wife’s arguments that the Agreement was invalid, unfair, inequitable and procured through fraud.Continue Reading Be Careful What You Bargain For Without the Advice of Counsel
Modifying Your Support – Show Me the (Lack of) Money
There have been countless occasions when a client, or potential client, asks me – “how can I modify my support?” In these tough economic times, the question usually comes from
Continue Reading Modifying Your Support – Show Me the (Lack of) Money
Modifying Support – Proving Changed Circumstances
If you’re a regular reader of this blog, you’ve seen many a post about changes in circumstances and modifications of support obligations. In fact, Apple Sulit-Paralejo in our Atlantic City office recently published a post on the Ferstenfeld decision. The thing is with changed circumstances, in this economic climate and job market, it is a popular topic for courts and new decisions are being delivered on a fairly frequent basis.
Today’s post is about proving the change in circumstances and stems from the unpublished Appellate Division decision of Romito v. Romito, A-0486-09, decided March 29, 2011. This appeal came from an Essex county trial court decision made after Mr. Romito filed what was at least his second motion to reduce his alimony and child support obligations stemming from a 2002 divorce and property settlement agreement.
Mr. Romito’s application was supported by his Certification attesting to the failure of his remaining businesses and a sworn statement of his ability to earn $52,000/yr working for a friend’s business, similar to what he had previously operated. It was also supported by a current Case Information Statement and copies of income tax returns. Part of the relief sought was a hearing pursuant to Lepis v. Lepis, to prove the changed circumstances.
Ms. Romito filed a cross motion in response opposing this application and seeking other forms of economic and additional relief. Her application was supported by a Certification attesting that she and the children were in desperate financial straits due to Mr. Romito’s failure to pay his support obligations and his unfair competition with her business. She attested that Mr. Romito owned the business of his friend that he claimed to only work at and that he was concealing income and living a lifestyle inconsistent with his alleged reduced economic circumstances. It was also supported by her current Case Information Statement, tax returns and proof of expenses that were not paid.
In response, Mr. Romito denied the allegations made in the cross motion and attested that Ms. Romito’s economic problems were of her own doing and stemmed from her inability to profitably run the business. He proposed that if Ms. Romito would agree to turn the Montclair office over to him, he’d pay her $2,000/month in alimony (still a reduction from the parties’ agreement but more than he’d been paying).Continue Reading Modifying Support – Proving Changed Circumstances
Domestic Violence Post-Divorce
Previously, I have blogged on the issue of domestic violence and the NJ Prevention Of Domestic Violence Act. Our courts have carefully scrutinized this Act and its consequences, even determining whether and under what circumstances the issuance of a final restraining order can violate one’s right to due process. Unfortunately, the issue of domestic violence arises all too often in family courts.
The recently published Appellate Court decision of C.M.F. v. R.G.F. arose from an appeal after the trial court issued a final restraining order against an ex-husband. The act of domestic violence in question was found to be an act of harassment committed against the ex-wife while at their child’s sporting event. The main allegation was that the ex-husband screamed and yelled obscenities and other unpleasantries aimed towards his ex-wife.
These parties had gone through a long and tumultuous divorce. Ironically, in 2007 they agreed to parenting time arrangement for their children. They’d each reside in the marital home on a 50/50 basis, with one party living in the home for 3 1/2 days/week with the children and leaving 1 hour before the other party arrived and then alternating. This system seemed to work and avoided the parties having to see each other for quite some period of time.
In January 2009, after filing motions seeking to each have sole possession of the home with the children, an order was entered granting wife possession. The husband was to continue with the same amount of parenting time but to take place out of the marital home. On the day the order was received, wife text messaged husband to let him know what was ordered and to advise that she’d be taking their children to their basketball game and he could pick them up there. She would also leave the children’s overnight bag on the porch for husband’s retrieval. At some time later that evening, husband appeared at the home and a verbal altercation began between the parties. Wife called the police who seemingly diffused the situation at that time.Continue Reading Domestic Violence Post-Divorce
I Think My Ex Is Cohabitating – Now What?
If you have been through the process of divorce and have a spousal support obligation to your ex, you should have been advised that aside from explicitly stating an end date for your spousal support obligation, there are few ways to end the payments. Death is certainly one of them. If your ex remarries that is a second. What happens when your ex is living with someone else?
The issue of cohabitation has been dealt with by the courts in NJ in case law since the 1970’s. The issue in and of itself is not new. How the courts have dealt with allowing parties to prove the issue has been somewhat fuzzy, until a recent unpublished Appellate Division decision provided what seems like some much needed, long time coming, guidance. If you haven’t already, take a look at Wonderlin v. Wonderlin .
So what’s the guidance- well let’s start with the basic principles cases like Konzelman v. Konzelman, 158 NJ 185 (1999) and Gayet v. Gayet, 92 NJ 149 (1983) have given us. In Gayet, the court told us we need to look at whether the cohabitating couple bears the “generic character of a family unit as a relatively permanent household”. In Konzelman, the court told us that the relationship in question needed to show signs of “stability, permanency and mutual interdependence”. The proof required is that “of an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage” which include but are not limited to “living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple’s social and family circle”. The problem for litigant’s and practitioners alike has been, how do you prove such intimate details at first blush so as to convince a court that you have met your burden of proof and now the alleged cohabitating ex must produce evidence to show there is no economic benefit of the relationship and the spousal support is still needed?Continue Reading I Think My Ex Is Cohabitating – Now What?
Divorced? Have Children? Trying to Move to Another State?
Being a divorced parent and attempting to relocate to another state can be a difficult proposition. N.J.S.A. 9:2-2 provides that children cannot be removed from the state without the consent of both parents unless the court otherwise orders. The statute’s intent is to preserve the rights of the noncustodial parent and to ensure that children are able to maintain their familial relationship. Although the statute is stated simply enough, the process of relocating without the consent of the noncustodial parent can be extremely trying as evidenced in a recent published New Jersey Supreme Court decision, Morgan v. Morgan (n/k/a Leary).
In Morgan, the Court reviewed a decision denying a divorced mother’s request to move with her children to another state after the children’s father objected to the relocation. These parties were married for 13 years and had two children when they divorced in 2005. The final judgment of divorce incorporated the couple’s Property Settlement Agreement (PSA), which provided for joint legal custody of the children and which indicated that mom would be the party of primary residence. Under the PSA, dad would have the children alternate weekends, every Tuesday evening, every Thursday night until Friday morning, and for two weeks of vacation.
In late 2005, in anticipation of an application by mom to move with the children to Massachusetts, dad filed a motion seeking a re-determination of custody based on “a substantial change in circumstances.” He contended that he should be designated the parent of primary residence because he saw the children more than the PSA provided and was very involved in their school and recreational activities. Mom opposed this motion and filed a cross-motion seeking permission to move with their children to Massachusetts or, alternatively, a plenary hearing. In support of her request to relocate, mom pointed to the fact that Massachusetts is her home state; her entire family resides there; she was by then engaged to a Massachusetts resident; that her marriage would enable her to forego employment and become a “stay-at-home” mother; and that the PSA was not based on her promise to remain in New Jersey. As a result of these filings, a plenary hearing was held with both sides presenting fact and expert witnesses.Continue Reading Divorced? Have Children? Trying to Move to Another State?