Here in New Jersey, divorced parents are generally obligated to contribute to the college education expenses for their un-emancipated children.  In virtually every marital settlement agreement where there are un-emancipated children (the agreement the parties to a divorce enter into in resolution of all of their financial and/or parenting time issues), there is some sort of agreement as to how college will be paid for.  Sometimes, it is very general and simply states that the parties’ respective contributions shall “abide the event,” and sometimes it is detailed and specific as to how much each party will contribute.  Virtually always, it should indicate that both parties will take part in the college selection process.

In a recent unpublished Appellate Division decision, Weinman v. Weinman, the trial Court declined to enforce an agreement that called for the parties to each contribute to their children’s college education expenses based on their financial circumstances at the time the children went to college.  In this case, the mother of the children had engaged in a years-long campaign of parental alienation, from the time of the divorce (when the children were infants) all the way through high school.  While claims of alienation are often disputed and can sometimes be hard to prove, in this situation the alienation was well-documented by not only the Father, but many professionals that had been enlisted by the Court over the years to try to help the family, to no avail.  The Court found that, sadly, the Mother’s alienation efforts were a success.  The children adamantly rejected any sort of meaningful relationship with their father, excluded him from their lives, ridiculed him and his new wife, and refused to spend time with him.  As to college specifically, they chose not to involve him in their college selection decisions and rebuffed his advice and other attempts to be involved in the process.  The only knowledge he had about the college search were perfunctory e-mails from the Mother regarding what schools the children were applying to, and requests for payment for college testing and other related expenses.

The trial judge found that the children were “beyond the sphere of influence” of their father and, therefore, emancipated effective on their 18th birthdays, and terminated the Father’s child support obligation as of that date.  This, in and of itself, is an interesting issue.   Normally, in New Jersey, child support continues for the child while he or she is in college (though it is usually adjusted to account for college costs).  Arguably, even if the Court did not require the Father to pay for college, it could have continued child support.  The law is well settled that child support is a parent’s obligation regardless of the quality of the relationship.  That the judge made the finding that the children were over 18 years old and “beyond the sphere of influence” was critical to determining that they were actually emancipated and no longer entitled to support.

As to college, the judge did not enforce the parties’ agreement on this issue, a decision which the Appellate Division upheld.  Referencing the Moss v. Nedas case and the Ricci case that I previously wrote about on this blog, the Court found that circumstances had changed since the entry of the MSA which made it unfair to enforce.  Namely, the campaign of alienation and resulting rejection of the Father by the children made it inequitable to require the Father to contribute to the children’s college education expenses.  The Court then engaged in an analysis of the Newburgh v. Arrigo factors (I wrote about these on our blog here), the analysis the Court must engage in to determine when there is no prior agreement.  One of these factors is “the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance.”

Given the findings of alienation and the many efforts the Father made to be involved in the college decision (including offering parental advice and being baldly rejected by the child), the Court found that the Newburgh factors did not merit the Father’s contribution to college.  While the Mother argued, on appeal, that the trial judge placed too much emphasis on this factor.  The Appellate Division disagreed, finding that emphasis on this factor was not an abuse of discretion – a ruling which suggests that this factor may be elevated in importance in such severe cases of parental alienation and rejection by the child.

headshot_diamond_jessicaJessica C. Diamond is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or

The Appellate Division recently published a decision, Amzler v. Amzler, making it precedent setting on the use of the new alimony statute in a case of a payor’s early retirement, where parties entered into an alimony agreement prior to its enactment in September 2014.  While 2014 may feel like years ago because it was, its relatively recent in the life of law.  This means that we do not have much precedent-setting law on how to interpret each aspect of the statute.  Amzler gives us some new precedent for cases in which alimony was finalized prior to the updated statute and the obligor later seeks to terminate alimony based upon retirement prior to reaching his/her full retirement age.

Specifically, subsection (j) of the statute addresses retirement in three (3) subparts:

  1. The obligor’s rebuttable presumption for the termination of alimony when the obligor retires at full retirement age;
  2. The obligor’s burden of proof by a preponderance of the evidence to show that prospective or actual retirement is in good faith when the obligor seeks to retire before reaching full retirement age;
  3. Retirement applications filed in cases where the parties’ final alimony terms were entered prior to the updated statute.

In Amzler, the parties entered into their divorce agreement, complete with alimony terms, in 2009, which is prior to the updated alimony statute.   Plaintiff/obligor worked for PSE&G where he was required to go up and down descending ladders and use various hand tools.   The parties agreed that Plaintiff would pay Defendant permanent alimony in the amount of $21,600.28 per year,  based on Plaintiff’s income of $110,000 and Defendant’s imputed income of $35,000.  They also included a provision that prohibited modifications to alimony in the event of “1) [t]he voluntary reduction in income of either party; 2) [a]ny voluntary increase or decrease in each party’s cost of living; [and] 3) [t]he dissipation of the assets received by either party as and for equitable distribution.”  This is known as an Anti-Lepis provision because Lepis is the case that allows for alimony modifications in the event of changed circumstances and this provision prohibits such modifications in certain circumstances, which you can read about in a prior blog post.

Plaintiff retired in  2017 at age 59 due to medical problems that prevented him from being able to perform his job duties(i.e.: he could not continue to perform the physical work of going up/down the ladder and the like).  Plaintiff was entitled to his full PSE&G pension benefits at the time of his retirement and Defendant received her share per the equitable distribution agreement.  Plaintiff believed that he and Defendant would receive more money from the pension upon retirement as compared to applying for disability benefits.

Defendant filed to enforce the obligation and Plaintiff filed to terminate same based upon his retirement.  The court scheduled a plenary (evidentiary) hearing.  Plaintiff retained a vocational (employability) expert and met with a rheumatologist to prove his inability to work.  Both parties and Plaintiff’s vocational expert testified at trial.

While Plaintiff’s expert testified that he cannot work in his historical position given his medical issues, he could work as a security guard or autoparts delivery person to allow “freedom of movement” but his income would likely be lower and without benefits.  In response to the Court’s inquiries, the expert testified that Plaintiff would not qualify for a transfer at PSE&G.  However, Plaintiff did not actually apply for any such transfers.

Following the hearing, the Court terminated Plaintiff’s alimony obligation based on subsection (j)(2) as to early retirement rather than (j)(3) as to agreements entered prior to the updated alimony statute.  The Appellate Division reversed for this and other reasons.

In reversing the trial court’s decision, the Appellate Division cited back to Landers, which can be reviewed in our prior blog post.  Basically, the Appellate Divisions in Landers found that j(1) exclusively applies to alimony terms entered after the statute modification date (9/2014) based on the legislature’s intent even though such language is not explicitly found within j(1).    The Appellate Division applied the same logic here:

We now consider subsection (j)(2). Like subsection (j)(1), when read in isolation, subsection (j)(2) appears to apply regardless of whether the order or agreement creating an alimony obligation was established before or after the 2014 amendments.  However, when construed with the entirety of subsection (j), as in Landers, we conclude that the Legislature intended subsection (j)(2) to apply only to orders or agreements established after the 2014 amendments became effective. There is no sound basis to depart from our reasoning in Landers, as this construction conforms to the Legislature’s intent in enacting subsection (j).  Indeed, to hold otherwise would seriously undermine the ability of parties to rely on the otherwise binding agreements entered into under their MSAs based on the law in effect at the time of their entry. (internal citations omitted) (emphasis added).

Given that the Appellate Division clearly determined that the Court utilized the wrong section of the statute, it likewise determined that the Court did not review all relevant factors as now required by j(3).  Specifically, j(3) requires the Court to consider the ability of the Defendant/obligee to have saved adequately for retirement, which the Court did not have to do in its analysis under j(2).  While Plaintiff tried to argue that the Court already did so based on factor (j)(2)(g), which is Defendant’s financial independence,  the Appellate Division did not buy it.  The factors are different and require different review and findings.

The Appellate Division also found that the Court failed by not reviewing the Anti-Lepis position in terms of how it impacts the requested termination.  Specifically, either party’s voluntary reduction of income is not a change of circumstance warranting modification of alimony per the parties’ agreement.  Here, Plaintiff voluntarily retired at age 59.  He experienced medical issues that prevented him from continuing in his current position, but he could have possibly worked in another field in order to supplement his income, as testified by his own expert.  Thus, the Court needs to review whether the Anti-Lepis provision impacts the requested termination given the potential that Plaintiff’s retirement could be deemed a voluntary reductions of income.

If this case does not settle, it will be interesting to see if the trial court’s decision changes based upon the updated review under subsection j(3) and the Anti-Lepis provision.  While the subsections are alike in many ways, the key aspect the differentiates j(1) and j(2) as compared to j(3) is the  trial court’s obligation to review obligee’s ability to save for retirement, which the Appellate Division points out here.  Keep in mind that this does not mean whether they did save for retirement, but whether they had an ability to do so.  This is especially interesting in a case where virtually all of the obligee’s net worth stems from equitable distribution.  The updated alimony statute specifically states: “When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.”  Stay tuned…

Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or

Lindsay A. Heller, Associate, Fox Rothschild LLP

The new unpublished case of Nabbie v. O’Connor is a good review of above-the-guidelines child support, income imputation and counsel fees.  Child support guidelines are only applicable for the total support award when parents earn combined net income of $187,200 per year.  What happens to the remainder of support?  It’s reviewed based upon the child’s best interest and the factors under N.J.S.A. 2A:34-23 as to child support.  What does this mean?  There is a discretion, as compared to the guidelines that are a formula derived within a computer program based on set factors, and the party with the more credible explanation of expenses and proofs to back it up will prevail.

In this matter, the parties had a child together but were not in a relationship at the time of their son’s birth or thereafter.  Plaintiff/mom lived in Bergen County and Defendant/dad lived in New York City.  Defendant stayed with Plaintiff for  few months when their son was first born.  They then operated under an informal “every other weekend” schedule for Defendant, and also alternated holidays and the like.  In 2009, when their son was entering grade school, Defendant purchased and renovated a home in the school district in which Plaintiff resided with their son until 2013 when she moved into a condo.  Defendant lived there for a few months when the home was first purchased and then moved back into the home in 2013.  The parties then began to share equal parenting time, again with an informal schedule.

Throughout the above period, Defendant, a chartered financial analyst, earned significantly more income than Plaintiff, a lawyer (part-time until their son went to school and then full-time).  The parties had an informal child support arrangement but never litigated the issue.  During this time, Plaintiff also borrowed $110,000 from Defendant due to her financial difficulties.

In 2014, Defendant lost his job.  In 2016, still unemployed, Defendant moved back to New York City.  In February 2017, when Defendant sought to collect on the loan to Plaintiff, Plaintiff requested to resolve child support but to no avail.  Thus, Plaintiff filed a complaint in the non-dissolution unit.

In two (2) Case Information Statements, Plaintiff listed child-related expenses of $4,880 per month and then $5,349 per month.  The trial court ordered an interim support amount of $1,750 per month.  Defendant argued for a lesser amount, claiming that his income totaled $57,500 per his 2016 tax return and his imputation should not total more than $91,000 per year – hundreds of thousands of dollars less than what he earned when laid off in September 2014.  The trial court reconsidered its award, increasing it to $3,000 per month.  Defendant filed a separate suit against Plaintiff to collect on the loan.

The court held a plenary hearing for which Plaintiff submitted another Case Information Statement – this time with child-related expenses of $3,278 per month, allocating 45% of shelter and transportation expenses to the child based on the parenting time arrangement.   Plaintiff’s total 2016 income was approximately $170,000 and her net worth was ($4,000) before considering the loan to Defendant.  On the other hand,  Defendant’s income totaled  $833,614 in 2014, which included a $347,638.13 severance package; $535,267 in 2013; $569,291 in 2012; and $564,757 in 2011; and, he had an investment account with a balance of approximately $1,271,000.  Defendant’s 2016 income of $57,538 was comprised of investment income and deferred compensation, which was about half of that amount the following year.  However, Defendant did not produce any credible evidence of a modified lifestyle since losing his job in 2014 (continuing to dine out in New York City and enjoy his country club membership), nor did he present credible evidence of job search efforts from when he lost his job until the litigation commenced, which decreased as the litigation was coming to a close.  The parties’ testimony differed as to the “cordial” relationship and the manner in which child support was paid prior to litigation.

Ultimately, the Court awarded Plaintiff child support in the amount of $2,909.20 per month, comprised of base support in the amount of $1,909.20, plus $1,000 for the supplemental discretionary amount.  Plaintiff was also awarded counsel fees.  Defendant appealed.

Kid counting money
Copyright: sbworld8 / 123RF Stock Photo

Above the Guidelines Support

Given that the support is above the guidelines in light of the high income, the Court first reviewed the minimum award (which is the maximum guidelines award) to be apportioned between the parties, which is $2,474.  The Court apportioned the amount as $1,909.20 to Defendant and the remainder to Plaintiff.  The Court affirmed this method.  Likewise, the Court affirmed the additional $1,000, notwithstanding Defendant’s complaints, including alleging that Plaintiff inflated expenses and did not produce proof that expenses would increase when their son entered high school.

The Appellate Division reiterated that the reasonable needs of the child is the most material factor for an above-the-guidelines award, and the reasonable needs are relative to the parties’ standard of living.  Also, if the child is 12-years-old when the order is first entered, then it should be adjusted upward.  This is material because, while the case doesn’t delve into it, if the initial award is entered before the child is 12-years-old and its based on the guidelines then the adjustment does not occur when support is revisited and the child is over 12-years-old.

The Appellate Division ultimately found that the child support award was reasonable and supported by the record.  Earlier in the decision, the Division noted that Plaintiff produced credit card statements and receipts as attachment to her Certification, to which she testified, in opposition to Defendant challenging expenses.  This is material because the more proofs, the more credible the witness.  Had Plaintiff not produced such documentation the results may have varied.


Defendant also appealed his income imputation of $500,000 gross per year, claiming that he was desperately searching for employment and the imputation was speculative.  Again, the trial court applied the proper law and, specifically, imputed income under Appendix IX-A to the child support Court Rule.  Defendant was unemployed since 2014 – over two years before the litigation commenced – yet did not have proof of a job search until after it commenced and then his efforts reduced as the litigation neared its end.  Ultimately, the Appellate Division found that Defendant was voluntarily unemployed by this point even if his initial job loss was involuntary termination given his lack of effort between 2014 and the litigation, as well as high earning potential and credentials that enable him to earn income consistent with the imputation.

Also important is that Defendant was in his 40’s and not disabled; thus, there is no reason for him to remain out of the workforce.  The Court appropriately considered Defendant’s income prior to his job loss, as well as “work history, occupational qualifications, educational background, and prevailing job opportunities in the region, noting defendant had an extensive employment history in financial portfolio management and investing from 2001 until 2014.”   The Court also noted some difficulty in Defendant gaining employment that may be due to limited high paying positions.

Moreover, Defendant as the obligor had the burden to prove that his actual earnings were consistent with his current earnings.  Defendant failed to do so.   He could have produced an expert report but did not.  He could have produced proofs other than applications/emails from his job search, but did not.

Thus, the decision was far from discretionary as Defendant argued.

Counsel Fees

Both parties requested fees but only Plaintiff’s request was granted.  Plaintiff filed the requisite Affidavit of Services, while Defendant did not.  Considering Plaintiff’s actual income and Defendant’s imputed income, as well as each party’s net worth, Defendant had a greater ability to pay the fees.  Moreover, despite not finding that Defendant demanded a hearing in “bad faith”, the Court did find that his position was wrong and not based in law.  Thus, the counsel fee award was affirmed.


Defendant, in part, failed on each of the above issues because of his lack of proofs and submissions.  Plaintiff had account statements and receipts to back up her charges.  Plaintiff presented proof and testimony of Defendant’s earning potential.  Plaintiff submitted a Certification of Services.  Defendant did none of the foregoing.  The proofs that Defendant did submit regarding his imputation called into question his intentions, i.e.: creating an illusion that he was searching for employment when in fact he only did so after Plaintiff filed the complaint and his efforts dwindled as the litigation came to a close.  Simply put, from Defendant we learn what not to do.  On the other hand, Plaintiff’s position in this case shows the importance of being able to substantiate Case Information Statement expenses particularly when the case falls on the expenses in order to calculate an above-the-guidelines award and other support issues.  Finally, Certification of Services are absolutely required for counsel fees requests and imputed income can be used when considering ability to pay.

Finally, while it sometimes feels simpler and more cost effective to resolve custody and child support issues without counsel and a formal Consent Order, this is a good lesson that years down the road that you can nonetheless find yourself embroiled in protracted litigation years down the road that could have been avoided if the issues were formally addressed head on.


Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or

Lindsay A. Heller, Associate, Fox Rothschild LLP

Over the last several weeks, via emails, attending webinars and otherwise, I have frequently heard that the coronavirus may create significant estate planning opportunities.  In fact, while writing this post, I Googled “coronavirus and estate planning opportunities” and got 544 million results in .46 seconds.  While I am sure that not all of the results were on point, the first several pages of results certainly were.  I am sure that this is music to the ears of our Trust and Estates department.  Aside from certain very technical and some less technical tax reasons given for the estate planning opportunities, another major reason is depressed asset values caused by the pandemic and slowing economy.

For that same reason, I am sure that there will be people out there in a marginal to unhappy marriage that will opt for the opportunistic divorce when the value of their business is down and their income is down.  While the impact of the coronavirus on businesses and the economy in general is too early to gauge at this point, the one universal truth is that everyone is impacted in one way or another.  Unlike the crash in 2008 which hit certain sectors worse than others, there are few businesses that are truly spared now. Unemployment numbers approach 30 million.  Even with PPP loans, CARES act and other government relief, many businesses may never re-open their doors.  Will the businesses that stay open/re-open ever be the same, and if so, how long will that take?  For those business owners who think that they are down, but not out, many will see this as an opportunity to end an unhappy marriage at the lowest possible cost in terms of payment to their spouse in the form of the value of the business if not alimony.

Even those businesses that may be surging now (toilet paper, Clorox wipes, for example), is their enhanced business sustainable, and if so, for how long?  For businesses that were able to pivot from the core business to produce wipes, masks, hand sanitizer, etc., will their core business still be there when the demand for these alternative products/income streams still be there.  Will non-titled spouses see the surge in their spouses business and think that this may be the time to get out when things are at their apex?

The question of exactly how the pandemic will impact value is both presently unknown given that we remain in the throws of the pandemic, and ultimately be determined on a case by case basis.  Will it be a blip on the radar screen that gets attributed little weight, or will it be life and business changing?  Again, facts and circumstances, and industries, and locations, etc. are going to matter more now than ever before when valuing a business.  Gone are the days when someone can look at some tax returns and give a back of the envelope calculation that is “in the ballpark” for discussion purposes.  Experts are going to have to dig in to the specific industries, actual impact, and other economic factors, perhaps in more detail than ever before.

That all said, certainly, we saw opportunistic divorces after 2008.  I am sure that we will see them again in 2020 and 2021.  Just as people are going to seize on estate planning opportunities caused by low asset values, so too will people seize on divorce opportunities caused by the pandemics financial implications.

Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

In a recent published (precedential) decision, Gormley v. Gormley, the Appellate Division cleared up confusion between two prior cases that dealt with the impact of a determination of disability by the Social Security Administration upon support.

In Gormley, the parties were divorcing.  The Wife in this matter had been diagnosed with multiple sclerosis during the marriage.  Also during the marriage, the Wife was declared permanently disabled by the Social Security Administration (“SSA”) and did not work.  The trial court judge made a number of reversible errors when deciding how much alimony and child support should be awarded to the Wife (who was awarded sole custody of the minor child of the marriage).   One critical piece of the puzzle, though, was the question of whether the trial court properly imputed income to the Wife, despite the undisputed fact that she was declared permanently disabled by the SSA.

In the most simple of terms, the concept of imputation of income is used by the New Jersey family courts when there is an unjustifiable reason for a party to be out of work or earning less than they are capable of earning to support the family.  It is generally reserved for situations where a court believes the individual is intentionally or unjustifiably under-earning or under-performing in order to deflate his/her income and pay less support.

In Gormley, the Wife argued that she should not be imputed income for purposes of determining alimony and child support, because she legitimately did not work as a result of her disability, and offered the SSA disability determination as proof.  Relying on a case called Gilligan v. Gilligan, 428 N.J. Super. 69 (Ch. Div. 2012), the trial court judge found that this determination by itself was not enough to establish that the Wife legitimately was unable to work.  In the judge’s opinion,  the Wife did not appear in court to suffer from symptoms that would prevent her from working.  Therefore, the trial court judge imputed income to the Wife over her objection.

The Appellate Division has now reversed this decision, finding that the trial court judge wrongly relied on Gilligan, a trial court decision, when there is a contrary decision on this issue from a higher Court, which controls.  Under the controlling case law set forth in Golian v. Golian, 344 N.J. Super. 337, 338-43 (App. Div. 2001) – which is the case that the trial court should have relied on – it is well settled that:

[W]hen the SSA has determined a party is disabled, a presumption of disability is established and the burden shifts to the opposing party to refute that presumption.

Put another way, in a situation like the Wife’s in Gormley, she is to be presumed unable to work.  It would be up to the other side to show that she can.  For example, persuasive evidence that could rebut the presumption might include proof that the person who is declared disabled under the SSA was actually performing work “off the books,” or volunteering to do work for which they could otherwise earn money.

Not only does this published decision reaffirm the holding of Golian and reject the Gilligan case, a trial court opinion which on which the trial judge improperly relied, but it also serves as an important reminder to all of us attorneys:  before you rely on a case (especially a trial court case!), make sure to check to see if there are any more authoritative cases out there that are contradictory.

headshot_diamond_jessicaJessica C. Diamond is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or

I have written about the requirements of obtaining a domestic violence final restraining order (“FRO”) under the New Jersey Prevention Against Domestic Violence Act (“the Act”) previously on this blog.  One of the three main criteria the Court must look at when determining whether to grant a final restraining order in such cases is the nature of the relationship between the parties.  In most cases, this is the easiest call for the judge.  The parties may be married, or they may have a child in common,  or they might live together, or there is some other clear indicia that a qualifying relationship exists.

In a new published (precedential) decision, C.C. v. J.A.H., the Appellate Division examined one type of qualifying relationship under the Act, namely the “dating relationship.”  The Appellate Division found that, in an age when dating has arguably become application and text message driven – as opposed to the very traditional act of actually going out on a date  – the term “dating relationship” needs an update.

The facts of C.C. show the dire need for such an update.  In C.C., the parties met at a gym where the Plaintiff was an employee, and the Defendant a member.  They interacted flirtatiously, and eventually exchanged phone numbers.  This led to a proliferation of text messages between the parties – approximately 1100 text messages over a period of one month.  The Appellate Division described the text messages as being “exchanged at all hours of the day and night” and as “sexually explicit and suggestive in nature.”  The Appellate Division also found that the Defendant “declar[ed] his romantic interest in [the Plaintiff]” during the course of these text messages.  During this period, the parties continued to interact with one another in person (described as “flirtatious” interaction by the Plaintiff), but both sides agreed that they never went out on a date in the traditional manner.  It was this point that the Defendant emphasized, arguing that because they never went on a date, they were not in a dating relationship.  Accordingly, the Defendant argued, the Plaintiff could not obtain an FRO under the Act.

In assessing the Defendant’s argument, the trial judge referred to the case Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), which identified several facts that the Court should look into when determining whether a relationship qualifies as a “dating relationship” under the Act.  These are:

  1. Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?
  2. How long did the alleged dating activities continue prior to the acts of domestic violence alleged?
  3. What were the nature and frequency of the parties’ interactions?
  4. What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly?
  5. Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?
  6. Are there any other reasons unique to the case that support or detract from a finding that a “dating relationship” exists?


When addressing these factors, and accounting for the State’s strong public policy against domestic violence, the Court concluded that the relationship between the parties was in fact a “dating relationship” as contemplated by the Act.  It appears to me that the critical points that swayed the Court were the sheer volume of the communications, as well as the nature of the content of the communication:

[T]he absence of what might be viewed as traditional dating activities and affirmations does not render insignificant the proliferate and exceedingly intimate communications between the parties that underscored their relationship.  Indeed, it is the nature and proliferation of those communications that constituted the parties’ “dating activities” and transformed theirs into a “dating relationship.”

Interestingly, the Court also seemed to characterize the question of whether one is engaged in a “dating relationship” under the Act as a subjective rather than an objective one.  Put another way, while the interactions between these parties may not bear any semblance to “dating” in the eyes of someone perhaps older and with a more traditional view of what it means to date somebody, for the Plaintiff (who was 22 years old), these interactions were part of a normal 21st century dating life.

This view is carried through by the Court in the manner in which it distinguished the case S.K. v. J.H., 426 N.J. Super. 230 (App. Div. 2012), wherein the Court declined to find that the parties were engaged in a “dating relationship” where it was determined that they went out on one single date and had no other interactions.  The Defendant argued that his relationship to the Plaintiff was even more attenuated because they had not even been out on one single date.  The Court dismissed this argument out of hand, finding that even though they had not been on a single traditional date, they had engaged in “prolific” “dating activities” by virtue of their text message communication and flirtatious interactions at the gym.

While the law is perhaps notorious for being behind the times, technologically speaking, this decision represents an appropriate understanding of what it means to be in a dating relationship in this day and age and goes a long way to protecting victims of domestic violence who may not have been on any traditional dates, but nevertheless were involved in a dating relationship.  It will be interesting to see how this develops, especially given the relatively recent addition of “cyber bullying” to the statute as a qualifying predicate act of domestic violence.


headshot_diamond_jessicaJessica C. Diamond is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or

As we have said before, the 2014 amendments to the alimony statute allegedly made it easier to terminate alimony if the recipient of the alimony was cohabiting.  The statute now provides that alimony may be terminated or suspended if cohabitation was proven.   The statute made clear that the parties didn’t even have to live together full time for their to be cohabitation and provided indicia of cohabitation that had been culled from prior case law that the court must 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 [N.J.S.A.] 25:1-5; and
(7) All other relevant evidence.

Factors one and two are usually hard to prove, at least on an initial application, because one does not typically have access to the other person’s finance’s, absent an occasional lucky find in a “trash audit” conducted by a private investigator.  Moreover, like any other modification application, there is a two step process.  First, you need to make a prima facie showing that cohabitation exists in order to even get two the second step which is discovery, and then a hearing.   As noted in my blog on the Landau case from last year,  if you cannot make a prima facie showing, then you don’t ever get the discovery to bootstrap or prove the allegation of cohabitation.

Typically, you see these motions fail because there is not enough evidence, like in Landau.  You may have a few overnights proven by a private investigator, but not enough in a row, or the surveillance wasn’t for long enough.  Often, you see insufficient surveillance coupled with nominal anecdotal evidence, social media posts and the like.  But what happens when the the PI shows that the alleged cohabitation took place for two months straight.  Surely that would be enough, right?  Well, in the case of Wajda v. Wajda, an unreported (non-precedential) opinion released on April 23, 2020, the trial court said no.  However, the Appellate Division disagreed and said that the payor made a prima facie case.

In Wajda, the parties were divorced in February 2018.  Pursuant to their agreement, the husband was obligated pay limited duration alimony of $425 per week for twelve years with the alimony to
terminate in the event of the wife’s “remarriage or cohabitation” with another person.  In December 2018, the husband sought to terminate alimony based upon cohabitation or in the alternative, get discovery if the wife denied cohabitation.  Given Landau, the alternatively relief was perhaps inartfully drafted.  That said, motion was supported by 148 page private investigator report essentially provide that the alleged cohabitant stayed overnight at the wife’s home nearly every night from October 5 through December 12, 2018.   Moreover,  the report also indicated that alleged cohabitant remained in the home when the wife was not present and when the parties’ daughter was there, kept his car there, often drove the wife’s car, did some household chores, and kept his two dogs there.   In fact, the overnights and these facts were really not in dispute. Rather, the wife provided Certifications and some documents showing that the cohabitant maintained another home somewhere else and also, that he was at her home to convalesce from a surgery.  As note above, the trial judge denied the husband’s motion finding that he did not even make a prima facie showing.

As also noted above, the Appellate Division disagreed, holding:

In this case, it was undisputed that A.S. stayed overnight in defendant’s home nearly every night for almost two months. He kept his dogs there, as well as his car. The bank records defendant furnished demonstrated that A.S. was purchasing items and transacting bank business in the same town where defendant resided. A.S. remained in the home even when defendant left. The judge found that A.S. did not reside with defendant, but he did not find that A.S. resided elsewhere. The investigative report also demonstrated that A.S. and
defendant shared some social media connections. Certainly, without any discovery, plaintiff could not demonstrate that defendant and A.S. shared expenses or intertwined their finances.

We disagree with plaintiff’s assertion that he demonstrated cohabitation — that defendant and A.S. were in “a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage[,]” N.J.S.A. 2A:34-23(n) — based solely on the documents filed by both sides. The question is whether plaintiff made a sufficient showing to warrant further discovery. We think he did.

We, therefore, remand the matter to the Family Part for further proceedings. Recognizing in the first instance that plaintiff is entitled to some discovery.  we leave the scope of the discovery to the sound discretion of the remand judge, and do not necessarily require at this point that he or she order a plenary hearing. Plaintiff or defendant are certainly free to make such a request after discovery is completed. Additionally, “[i]n an abundance of caution, we direct that this matter be remanded to a different judge . . . to avoid the appearance of bias or prejudice based upon the judge’s prior involvement[.]” Entress v. Entress, 376 N.J. Super. 125, 133 (App. Div. 2005).

As stated before, maybe the request in the motion was imprecise.  Maybe the motion seemed too soon for the trial judge as it was made less than 10 months after the divorce.  Who knows why the motion was initially denied given the undisputed facts here.  But while not precedential, this case is a good barometer of what is needed to at least get discovery.

Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

Prior to the current coronavirus pandemic and resulting shelter in place orders, in many counties, there was already serious backlogs.  What that means is that trial dates were hard to come by and even motions were scheduled to be heard months after they were filed.  While the courts are not currently closed, they aren’t exactly “open” and it is far from business as usual.  While some judges are being very active, if not proactive in managing their dockets, doing conferences and hearings via Zoom, Teams and or telephonically, others have completely shut down.  Today we learned of one judge that has adjourned all uncontested, default and Case Management Conferences until a future date even those things can be easily done remotely, if not “on the papers.”

The present situation has gone on for almost a month at this time and will, at best, go one for another 3-4 weeks if we are lucky, but it wouldn’t be crazy to see the current shelter in place/stay at home orders continue through May.  Essentially, the court could be adding several months of light activity or inactivity to an already burdened docket.  If New Jersey is anything like China, as I blogged about last week, there could be many new divorce filings not to mention domestic violence matters to adjudicate due to all of this staying at home.  This is not to mention all of the expected applications for modification and/or enforcement resulting from the layoffs and job loss caused by the pandemic, which I also blogged on last week.  Add to that, the people who were planning on filing for divorce before pandemic hit, and the usual array of pre and post judgment motion practice that would come up in the ordinary course.  Those people are going to file, if nothing else, the get themselves into the queue to have their issue resolved by a court eventually.

While I may have painted a dreary picture or what is or may become of the court system, that is not the only avenue for resolution for many, if not most of the issues issues that are out there.  While clearly, things like domestic violence and the actual granting of a judgment of divorce are within the sole province of the Court system, there are many things that can be done outside of the system (and there are some people that argue everything else should be done outside of the system but that discussion is for a blog of another day.)

We have talked many times in the past about mediation and arbitration.   While those tools are often used to try to resolve the entirety of a case, there is no reason why they cannot be used to resolve motions and other discreet issues.  Just like there are early settlement panels and sometimes, Blue Ribbon panels, within the court system, there is no reason that parties cannot privately hire one or more divorce lawyer (and perhaps even a forensic accountant), to serve as a blue ribbon panel to make settlement recommendations.  Many of the custody experts have a part of their practice that offers divorcing parents an alternative path to try to resolve their parenting/co-parenting/custody issues outside of litigation.  Even in complex financial cases where each party has a forensic accountant of their own, a third expert can be brought in to assist to reconcile the reports and/or provide an opinion on contested issues for purposes of settlement and/or future litigation.  Parties can agree to arbitrate all or part of their matters – even agreeing to an appellate arbitration process – if they are fearful of an arbitrator possibly making an incorrect decision.

The point is, parties are not stuck waiting for the courts to move forward.  Our group at Fox Rothschild has used many of the above methods in trying to resolve our own cases, both before and now during the pandemic.  In addition, many of us have completed mediation training, serve as early settlement panelists, serve as blue ribbon panelists and can serve as an arbitrator too.  In fact, if we expect to give some relief to the court system, both now and until it gets back to “normal”, whenever that may be, it makes sense to consider every available tool towards resolution.  And while all of these tools come with an added cost, what is the cost of delay, both on a financial and/or emotional level?

Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

There has been much news coverage about how China’s divorce filings spiked after their periods of quarantine and lock down ended including in articles and Bloomberg,   the Daily Mail and many other publications.  In fact, in response to our own stay at home orders/working from home/shut down of the courts in large part, in a bit of gallows humor, I have joked that this is the divorce lawyer’s silver lining of corona virus.  As I previously blogged, whether or not the pandemic leads to new divorces, it will likely lead to many motions to modify and/or enforce support orders.

Perhaps this phenomenon has something to do with the old expression “familiarity breeds contempt, the first recorded use of which was in Chaucer’s Tale of Melibee (c. 1386).   Obviously, it is more than that.  We are in unprecedented (that word again) times containing real fears of illness and death;  real sorrow from the loss of acquaintances, friends and family; real fears of economic pain that will no doubt hit everyone in one way or another, while cooped up in a home for day after day, week after week;  and the stress of having to home school your children and try to work from home at the same time.  In a time where even getting groceries now requires wearing a mask and one of the most valuable commodities is toilet paper (though some might say alcohol), despite the bad attempts at humor, there is no downplaying the real stress the people are under.

But sadly, marital discord and divorce are not the only side effects of the pandemic.  Domestic violence is too and I have seen numerous articles about this including an April 6, 2019 New York Times article by Amanda Taub entitled A New Covid-19 Crisis: Domestic Abuse Rises Worldwide.    Like a sledgehammer, her article starts:

Add another public health crisis to the toll of the new coronavirus: Mounting data suggests that domestic abuse is acting like an opportunistic infection, flourishing in the conditions created by the pandemic.

An article by Scott Neuman on NPR entitled, Global Lockdowns Resulting in ‘Horrifying Surge’ in Domestic Violence, U.N. Warns, states:

United Nations Secretary-General António Guterres, citing a sharp rise in domestic violence amid global coronavirus lockdowns, called on governments around the world to make addressing the issue a key part of their response to the pandemic.

Aside from the abuse, because people are with their abuser hour after hour, day after day, the ability to seek help or even confide in friends in family members is all that much more difficult. That said, victims should protect themselves and call the police if necessary to seek a restraining order.  There are also resources such as the New Jersey Domestic Violence Hotline (1 (800) 572-SAFE (7233)available 24/7 and many others.  If a Temporary Restraining Order is granted, the Order can contain other provisions for temporary financial relief, parenting time, etc.  While there was and is a fear that false or flimsy domestic violence complaints could be made to get a leg up in a divorce proceeding where the parties remain in the same home, especially where final hearings were pushed off indefinitely, courts are starting to set up for virtual domestic violence hearings via Zoom.  Also, anecdotally, I have heard that court’s have been hearing emergency applications to, at the very least, address parenting time for a parent put out of a home on a Temporary Restraining Order.

In any event, even though these times are difficult, no one has to accept real domestic violence and resources exist to protect true victims in cases where domestic violence is occuring.

Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

An all too familiar, if not overused, term to describe all thing Covid 19/Corona virus is “unprecedented.”  In an attempt to avoid politics, whether any of this was foreseeable or not, there is no dispute of the absolute financial devastation that the world wide pandemic as created.  The stock market has cratered, many people are out of work, businesses are closed and some may never re-open, etc.  Legislation has been passed to help businesses and citizens alike, but no one knows at this point what the damage will ultimately be.  (And for more information on Corona Virus Resources, our firm has a information packed resource page.  One of the resources is an article written by Jessica Diamond of our group entitled “Family Support Obligations and the Covid-19 Economic Crisis. “

It seems clear that the courts are going to soon be flooded with modification motions by people who have been laid off and/or lost their jobs and/or enforcement motions by people not receiving the full amount (or any) support because their ex has had a reduction and/or elimination of income.  How the courts treat this “unprecedented” catastrophe remains to be seen.  Hopefully, for these people that are affected in this way, this will be short term set-back and that, when the economy re-starts and and life as we knew it resumes, they will go back to work, if not be busier than ever making up for lost time.  That all remains to be seen.  It will be interesting to see if Courts share the pain between both parties are just fervently enforce orders because a litigant may be able to show a substantial but not a continuing change of circumstances.

But what about people who receive alimony and child support in the form of a base amount and then additional support based upon a proportion of income?  This is a not uncommon scenario for someone who is on Wall Street or otherwise has variable income based upon company performance, stock prices, values of deferred compensation, etc.  In many of these cases, the bonuses and/or deferred compensation for the prior year pays out in February or March of the following year.  One would expect that, given the market highs in 2019 and early 2020, people using these types of formulas, in many cases, were very happy to receive their share of the additional support in early 2020.

But what about 2021?  If things continue as they have been and the economy does not fully recover, it is not inconceivable that bonuses in 2021 for 2020, will be less.  What about doctors and dentists that have not been able to work because of the shut down orders?  What about lawyers who cannot litigate because courts for all intents and purposes are closed (not actually closed but not open for trials, etc.)?  Whether or not they pay support based upon a formula, their income picture for 2020 may look markedly different than their 2019 income.  Business owners that had to close their business and/or whose businesses involved  hospitality, conventions, travel, will likely have much different financial statements in 2020 than in 2019.   And what of things like college and unreimbursed expenses divided in proportion to income.  Will there be a need to adjust percentages based upon the financial crisis created by the corona virus

In any event, the pain regarding the financial impact of the corona virus will likely be felt in 2020, 2021 and beyond.  How people negotiate their divorces will likely also be impacted too.  Will people negotiate and litigate based upon economic reality or be opportunistic if the law associated with the “old normal” benefits them?  Will the business owner in a so-so marriage decide to get out now while their income and value of their business may be lower?  This all remains to be seen, but our Family Law Practice Group at Fox Rothschild can assist navigate this “new normal” (another overused phrase.)

Eric S. Solotoff, Partner, Fox Rothschild LLPEric 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or