An issues that frequently arises is the treatment of an inheritance received by a spouse during the marriage.  The basic rule is that any property received via gift or inheritance during the marriage is exempt from equitable distribution.  When advising people, to the end of that sentence, I usually add something like, “provided that it is kept separate from marital assets.”  Put another way, when an inheritance or any other exempt asset (like a premarital asset) is “commingled” (a legal term) with marital assets, it can lose it’s exempt status.

That is the basic rule, however, it is not absolute.  There is a reported (precedential) decision that held that an inheritance was exempt, even though it was briefly parked in a joint account.  In fact, I had a case, more than a dozen years ago, that I tried, where one of the major issues was the proceeds of a life insurance policy that my client received as a result of his brother’s untimely death.  Because he was too distraught to deal with it when the check was received, his wife took the check and opened a joint bank or investment account with the money.  The money was never touched thereafter but it didn’t stop the wife from seeking 50% of it when the parties divorced a few years later.  In that case, the judge found that the proceeds from the insurance policy were my client’s separate property.

A similar issue arose in the case of Davis v. Davis, an unreported (non-precedential) Appellate Division decision released on October 23, 2019.  In that case, the wife received $162,000 in life insurance proceeds and some other assets after her daughter from a prior marriage, died in January 2010.  The money was initially deposited into a joint checking account and later, the wife opened a CD in the amount of  $154,995.95 in her name alone.  At the time of the divorce, the husband sought distribution of the account.  The trial judge disagreed and awarded it solely to the wife and the Appellate Division agreed.  Specifically, they held that:

Assets exempt from equitable distribution may become subject to equitable distribution if the recipient intends them to become marital assets. See Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div. 1988). The comingling of such assets with marital assets, however, is not necessarily dispositive of the issue. The assets remain the recipient spouse’s property absent evidence the
parties intended them to become marital property. See Wadlow v. Wadlow, 200 N.J. Super. 372, 380 (App. Div. 1985).

Here, the trial court found that the wife was credible that there was no intent to make the inheritance a marital asset.  The concept is one of “donative intent.”  Put another way, did she have the intent to gift the inheritance to the marriage, making it a marital asset.  In this case, the trial court found that there was no such intent and the Appellate Division could not disrupt that credibility finding.

Even in cases when an inheritance is commingled and the court finds and/or the evidence is clear that there was donative intent, that does not mean that the asset should be divided 50-50.  There are a lot of factors at play, including, proximity in time between the inheritance and the divorce.  For instance, if a party deposited an inheritance into a joint account a year or two before the divorce, they could certainly make a claim for a disproportionate distribution of that asset if their argument that they should get back 100% of it doesn’t fly.  The longer you go between the inheritance and the divorce, the harder that argument gets.

Moreover, some people argue that payment of income taxes on an inherited asset represents commingling.  There really is no legal precedent for that.  That said, their may be a claim to recoup some of the marital assets used to pay the taxes on an exempt asset.

Similarly, some people argue that the use of exempt assets during the marriage represents a commingling of the assets themselves.  That too is a difficult argument.  However, the use of the assets may represent marital lifestyle in an alimony analysis.


Eric S. Solotoff, Partner, Fox Rothschild LLP

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or


For decades, when a custodial parent wanted to move out of state, it would not be unusual to hear that if the court or other party won’t let me leave New Jersey, she will just move to Cape May, or some other point far away from North or Central Jersey.  When someone wanted to move just across the river to New York or Pennsylvania, you might hear an exasperated utterance about being able to move to Cherry Hill but not 10 miles away to New York City.

And by and large, that was the law.  That is, while a court could restrict a custodial parent from removing children from the State of New Jersey, there was little stopping them from intrastate moves.  While there was case law that said that that might be a change of circumstances if it impacts the non-custodial parent’s parenting time, by and large people were free to move about the state.  In fact, about a dozen years ago, I had a case where the ex-husband file a motion seeking to prevent my client from moving from Hudson County to Monmouth County.  After getting our brief wherein we presented the law, his story changed from the mother being the parent of primary residence (as set forth in the parties’ Agreement, to him being the “de facto Parent of Primary Residence.”  The trial did not go well for him and my client moved as was her right.

Just as the Bisbing case that we previously blogged on made it much more difficult for the custodial parent to move out of state, the paradigm of the custodial parent being permitted to move, without restriction, was seemingly ended on October 7, 2019, when the Appellate Division rendered the reported (precedential) opinion in A.J. v. R.J. 

In A.J., the parties were divorced in 2013.  They had two children who were 10 and 8.  The mother was the parent of primary residence and the father had alternate weekend (Friday to Sunday)  and Wednesday overnight parenting time – 4 out of 14 overnights which my what is often seen these days, is not much.  The mother remarried and had a third child, with whom she lived with her husband and two other children in a two bedroom apartment in Elizabeth.  She moved in March 2018, because her landlord increased the rent and would not give her additional time to search for another residence before doing so. She searched without success for a suitable residence in Elizabeth,Somerset, and Florence. Prior to the move, the parties only had one text conversation in July 2017, in which the mother stated that she wished to move and was searching locally and as far as Mount Laurel and the father asked her to remain local because it  he claimed would be unfair to him and the children to move far away.

After the move, the father filed an Order to Show Cause seeking to block the move and change custody. The Judge entered an order giving him 3 weekends a month, ordered mediation and scheduled a plenary hearing to determine whether the mother would be permitted to remain in Mount Holly and also ordered that the children remain in school in Elizabeth.  Mediation was unsuccessful and after a plenary hearing, the trial judge ordered the mother had to return with the children and live within 15 miles of Union.   As noted by the Appellate Division:

Significantly, although the judge’s decision recognized “Baures . . . has since been overruled by Bisbing,” his reasoning relied upon our decision in Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), which applied the Baures factors to determine whether a parent could relocate intra-state. Applying a preponderance of the Baures factors, the trial judge explained “[p]laintiff’s decision may not have been solely driven by a desire to alienate the children from their father, but was certainly done in wanton disregard of his rights, with the result being that his relationship with them will clearly suffer.” The judge concluded the distance between the parties’ residences increased the travel time from “minutes away” to “slightly over an hour[.]” The judge noted if the children resided in Mount Holly defendant could no longer leave work early to tend to a sick child, enjoy additional parenting time, or attend extracurricular activities as he had in the past. The judge found the surreptitious nature of the move belied plaintiff’s explanation that she did not inform defendant because she did not have time.

The mother failed to move back, claiming it was impossible for her to break her lease and she could not afford two homes.  The father filed an Order to Show Cause seeking a transfer of custody which was granted and the mother appealed.

As to the mother’s argument that changing custody as a sanction was inappropriate, the Appellate Division disagreed.  However, in this case, additional proceedings and findings were necessary in order to do so.  Specifically, the Court held:

However, we hold Rule 5:3-7(a)(6) requires a separate adjudication, which considers the children’s best interests and findings pursuant to N.J.S.A. 9:2-4, before the sanction is ordered. Additionally, because the relief granted under Rule 5:3-7(a) is coercive in nature and derived from Rule 1:10-3, the sanctioned parent may seek termination of the sanction when the parent complies with the court’s order. The court should be solicitous of such applications.

This is because custody matters directly impact the welfare of children. The designation of a parent of primary residence is a consequential decision because “the primary caretaker has the greater physical and emotional role” in a child’s life. Pascale v. Pascale, 140 N.J. 583, 598 (1995). Where there is already a judgment or an agreement affecting custody in place, it is presumed
it “embodies a best interests determination” and should be modified only where there is a “showing [of] changed circumstances which would affect the welfare of the children.” Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). In the context of a transfer of child custody as a sanction, affording both parents the ability to address whether a transfer of custody is i n
the best interests of the children and requiring the court to make the necessary statutory findings provides the necessary process and a reviewable record. Therefore, a best-interest hearing and findings pursuant to N.J.S.A. 9:2-4 is required where a court transfers custody as a sanction

Here, because the trial court did not consider the best interest facts before changing custody, that part of the Order was reversed and remanded.

The Appellate Division also reversed the relocation decision because the court used the prior standard (Baures) instead of Bisping.  The Appellate Division note: “Because the science and anticipated outcomes undergirding the Baures factors have not borne out as the Court anticipated and no longer apply to interstate removals, they should not apply to the intra-state relocations discussed in Schulze.”

The Appellate Division then set forth the new standard to be followed for intra-state relocations, as follows:

We further hold where a parent of primary residence seeks an intrastate relocation and the parent of alternate residence opposes it, the parent of alternate residence must convince the court the move constitutes a change in circumstance affecting the best interests of the children. If a prima facie case is established, the trial court must assess custody and parenting time, by applying the N.J.S.A. 9:2-4 factors to determine whether the best interests of the children requires a modification of one or both.

It is interesting that the parent of alternate residence bears the burden of showing that the move is not in the children’s best interests even though they aren’t the one seeking the change.  On the other hand, the custodial parent’s ability to move, which may have certain constitutional implications, is being hampered and in fact, a 15 mile radius clause is being imposed on her when the non-custodial parent can move anywhere he wants.   In this case, the non-custodial parent had only minimal parenting time.  The move really only implicated the mid week overnight.  Why wasn’t the interim relief of an extra weekend  per month, or some extra time during the summer, enough to address the issue?  Given that only one day per week was implicated, why wasn’t the radius clause larger given the mother’s clear financial distress?  It is one thing where 50-50 or substantial parenting time (5 or 6 out of 14 overnights every two weeks), but when it is 4 out of 14  – which is the minimum to have technical “shared parenting” as defined by the child support guidelines, or less, should a custodial parent really need court approval?

My guess is that one or both parties will see Certification to the Supreme Court. Stay tuned.


Eric S. Solotoff, Partner, Fox Rothschild LLP

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or


For the second time in about a month, the Appellate Division has reversed improvidently granted discovery when there hadn’t been a showing of a change of circumstance.  As noted by Eliana Baer on this blog on August 12,  2019 (about a case she and I were involved in) in a post entitled Appellate Division Rules: No Custody Evaluation Without Finding of Changed Circumstances , when the trial court found that the father failed to meet his burden of showing a change of circumstances, it was error to allow him to get a custody expert.  In a similar ruling in the case of Landau v. Landau, a reported (precedential) Appellate Division decision from September 12, 2019, the Appellate Division once again prohibited the putting of the cart before the horse – this time in the context of a motion to modify alimony based upon cohabitation.

In this case, in a divorce agreement entered into in late 2014, after the alimony statute was amended, which included a new paradigm about how to deal with cohabitation going forward, the husband agreed to pay substantial alimony to the wife for 7 1/2 years.  Their agreement provided “[n]otwithstanding anything contained herein to the contrary, the Wife’s cohabitation as defined by then current statutory and case law shall be a basis for the Husband to file an application seeking a review and potential  modification, suspension or termination of alimony pursuant to New Jersey law.”   In his reply, he submitted a Certification from a private investigator who asserted that the wife and her boyfriend “cohabit in each other’s residence approximately 75% of the time period examined”, however, he only spotted defendant or her boyfriend leaving the other’s home in the morning on two occasions.

In December 2017, the husband moved to terminate, suspend or modify alimony based upon the wife’s relationship of more than a year.  Specifically, he alleged:

Plaintiff filed a certification in support of the motion alleging the two had traveled together, attended social activities as a couple and posted photos and accounts of their activities on social media sites. Plaintiff alleged the man engaged in many activities with the parties’ children and regularly slept over at defendant’s home, as she did at his home. Plaintiff claimed the man attended events he used to attend with defendant, including family birthday dinners with her parents. He further claimed the man attended the Bar Mitzvah of one of the parties’ sons and was seated next to defendant in the position of honor for a parent of the child being Bar Mitzvahed. At the celebration afterwards, plaintiff alleged defendant publicly acknowledged the man and their relationship in her speech. He also claimed defendant told him she moved her brokerage accounts to the firm where the man works and got a “friends and family discount.”

The Wife’s acknowledged the relationship but denied cohabitation, claiming:

She averred the two had “never discussed [their] ‘future’ with respect to merging [their] lives,” performed no household chores for one another, had no intertwined finances, do not share living expenses and do not  have authority over one another’s children. She noted each of them took separate family vacations, not something that married couples typically do. Defendant also noted she often attended social events alone, and that her boyfriend did not attend her law school graduation or her swearing-in ceremony, something he certainly would have done had they been in a relationship akin to marriage. As to her son’s Bar Mitzvah, defendant noted her boyfriend attended as her “date” and thus sat next to her, but did not participate in the ceremony and his presence was not commemorated by being included in any family photos. She denied she received any discount in connection with moving her brokerage accounts, and noted her boyfriend had nothing to do with her accounts at the firm. Defendant averred that while she
and her boyfriend enjoyed one another’s company, they were simply dating on a regular basis and had “no obligations” to one another.

Generally, to modify either custody or support, the seminal case of Lepis v. Lepis requires the moving party to make a prima facie showing of changed circumstances, before the court will grant discovery.  Prima-Facie legally means that an evidence is sufficient to raise a presumption of fact or to establish the fact in question unless questioned.

In Landau, the trial court did not find that the husband made a prima facie showing of cohabitation. Rather, the court held:

Although acknowledging the “general task for the judge hearing the [cohabitation] motion is to determine whether the moving party has established  a prima facie case of cohabitation,” meaning that plaintiff’s “proffered evidence, if . . . unrebutted would . . . sustain a judgment” in his favor, the judge “decided that [he was] not going to decide whether . . . plaintiff has made out a prima facie case, but [he was] going to allow discovery . . . to allow . . . plaintiff the opportunity to make a showing of a prima facie case, or
not, as the case may be.”

Put another way, the judge allowed the husband to conduct very broad and intrusive discovery to try to be able to make a prima facie showing of cohabitation.  The Appellate Division first stayed and then reversed the trial court’s Order allowing discovery.  In doing so, the Appellate Division rejected the husband’s argument that the new statute altered the Lepis rubric when it came to cohabitation.  The Court’s rationale is boiled down in the following two paragraphs:

There is no question but that a prima facie showing of cohabitation can  be difficult to establish, see Konzelman, 158 N.J. at 191-92 (describing the seven days a week, 127 days of surveillance of Mrs. Konzelman’s residence), precisely for the reason the trial court identified, that the readily available evidence is often “consistent with either a dating relationship or a cohabitation relationship.” But that is hardly a new problem and it cannot justify the invasion of defendant’s privacy represented by the order entered here. We are confident the Lepis paradigm requiring the party seeking modification to establish “[a] prima facie showing of changed circumstances . . . before a court will order discovery of an ex-spouse’s financial status,” 83 N.J. at 157, continues to strike a fair and workable balance between the parties’ competing interests, which was not altered by the 2014 amendments to the alimony

Because the trial court judge found plaintiff had not established a prima facie case of the changed circumstance of defendant’s cohabitation, plaintiff was plainly not entitled to discovery under Lepis. See ibid. As nothing in the 2014 amendments to the alimony statute altered “the procedures that a court should employ when passing upon a modification petition — particularly the allocation of the burdens of proof and the conditions for compelling production of tax returns,” id. at 145, the Court adopted in Lepis, we reverse the order for discovery.

Thus, while the consensus was that the 2014 amendment to the alimony statute made it easier to suspend or eliminate alimony based upon cohabitation in cases the ended after the amendment was signed into law, it is not so easy to allow a person alleging cohabitation to get discovery to try to prove cohabitation.  More importantly, because the rationale of the decision goes back to Lepis, this case should be argued each time someone is seeking discovery to prove a change of circumstances.


Eric S. Solotoff, Partner, Fox Rothschild LLP

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or

Last week, Eric Solotoff and I achieved victory in the Appellate Division in the unreported (non-precedential) decision of Gatto v. Breton, wherein the Court reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation without the requisite finding of changed circumstances.

By way of background, the parties were divorced in 2011 following a brief marriage. They have one son, who is 14 years old. The boy lives primarily with the Defendant mother in Bergen County and spends time with the Plaintiff father every other weekend and alternating Wednesday evenings.

Since the parties’ divorce, they have heavily litigated in the trial court. As of the time of the Appellate Division filings, the parties had been before 5 judges in 2 different counties on various post-judgment applications. All of such applications involved various aspects of custody and parenting time disputes.

About a year before the appeal was filed, the Plaintiff father filed a motion for a custody evaluation and a change in custody. The judge denied the request, finding that the Plaintiff father had not shown a change in circumstances, which a party seeking a change in custody must establish as an initial matter to gain relief according to the seminal case of Lepis v. Lepis.

In so ruling, the judge specifically rejected the Plaintiff father’s argument that the child’s age and alleged statements that he wished to live with his father were sufficient in light of the ample proof that he was thriving under the arrangement then in place.

Less than a year later, a new judge – the parties 5th – heard yet another motion by the Plaintiff father to permit him to obtain a custody evaluation and to transfer custody to him.

The judge denied the request to transfer custody, finding “no prima facie showing that it’s [in] the best interests of this child and there hasn’t been a demonstration that there is a significant change in circumstances.” Despite such finding, however, the judge permitted the Plaintiff father to obtain a custody evaluation. The Defendant mother’s appeal followed.

The Appellate Division reversed the trial court’s order permitting the Plaintiff father to obtain a custody evaluation, stating that such an order went against the well-founded principle that a party seeking a change in custody must demonstrate changed circumstance before being entitled to discovery and an evidentiary hearing.

Yet, in the instant matter, the judge expressly found that the Plaintiff father had failed to establish a change in circumstances. As a result, the Appellate Division determined that the Plaintiff father was not entitled to a custody evaluation, which requires “a very expensive and intrusive investigation into all aspects of the parties’ lives and the best interests of their child.” Permitting such an evaluation “is plainly permitting extensive discovery which…may only be ordered following a prima facie showing of changed circumstances.”

The Appellate Division’s decision in this case makes clear that custody evaluations are not to be ordered lightly and without the initial finding of a change in circumstances. Custody evaluations are serious endeavors, which require a forensic custody evaluator “to assess the personality and cognitive functioning of the person being examined to assist the court in a best interests determination.” A trial court is, therefore, prohibited from skipping the critical step of finding a change in circumstances prior to making its determination to permit such an intrusion into the lives of the parties and the child.

For more information on my Appellate Practice and the process I undertake in preparing you for success in the Appellate Division, see my prior blog: Trying Cases with an Eye Toward Appeal: What Your Lawyer is Thinking and Doing at the Trial Level to Preserve Your Case.


Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a partner in 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

Hot off the press!  A published (precedent setting) trial court decision, E.S. v. C.D. confirms that live-in childcare providers qualify as household members under the Prevention of Domestic Violence Act (“PDVA”).  What does this mean?  A restraining order can be entered against an employee who has lived with their employer even though the parties do not have a familial relationship, the economic relationship has ended, and the employee may not have an expectation of continuing contact or relationship with the employer once the financial relationship ends.  To put it simply:

“That a person receives a monetary benefit from engaging in a relationship does not automatically disqualify that person from seeking relief under the PDVA… Analogously, that a victim had provided an economic benefit to a defendant should not automatically disqualify the victim from seeking relief under the PDVA.”

In E.S. v. C.D., the trial court held that the plaintiff/mother was entitled to a restraining order against the defendant/nanny who she previously employed.  The parties had a financial relationship for approximately seven months during which the defendant resided in the plaintiff’s home.  During that period, the defendant assaulted the plaintiff’s child.  It also turned out that the defendant applied for the nanny position under an alias.  Needless to say, the defendant was fired.  For two months after being fired, the defendant repeatedly called and texted the plaintiff.  The defendant also threatened to lie to the child’s father in order to cause the plaintiff to lose custody.  Thus, the defendant allegedly committed the predicate acts of  harassment, cyberharassment and terroristic threats.  Importantly, nothing happened between the firing and the timing of the restraining order that would have caused this heightened contact on part of defendant.

Even though the above actions sound egregious on their face, the plaintiff may not  have automatically been entitled to a restraining order.  The court first had to determine whether the defendant qualified as a household member under the PDVA.   In doing so, the court reviewed the household member factors listed in a prior Appellate Division decision of Coleman v. Romano, which are:

  1. The nature and duration of the prior relationship;
  2. whether the past domestic violence relationship provided a special opportunity for abuse and controlling behavior;
  3. the passage of time since the end of the relationship;
  4. the extent and nature of any intervening contacts;
  5. the nature of the precipitating incident; and
  6. the likelihood of ongoing contact or relationship

The court found that the defendant resided with plaintiff for seven months and had insight into the child and plaintiff’s nature, making them vulnerable to attacks by the nanny.  The court also noted that “the likelihood of contact has been heightened over the twelve years since the Coleman decision, in light of the use and popularity of cell phones, texting and social media.”  In addition to Coleman, the court turned to S.Z. v. M.C., which we have blogged about, noting that a plaintiff was entitled to a restraining order against a bookkeeper who resided in the home.

Ultimately, the court found:

“Victims of domestic violence come from all social and economic backgrounds. It was the intent of the legislature that victims of domestic violence are afforded the maximum protection from abuse the law can provide. N.J.S.A. 2C:25-18. Notwithstanding the economic relationship of the parties, plaintiff and defendant are former household members. As such, plaintiff is a protected party under the PDVA.”

While this analysis may seem simple, especially in light of the defendant’s actions, the decision leaves us with food for thought.  The court specifically stated that the defendant may not have had an expectation of “ongoing contact or relationship” following her termination by the plaintiff, but noted that the defendant (nanny) was not the victim.  This begs the question of whether the defendant would have been entitled to a restraining order against plaintiff if it was the plaintiff who allegedly committed predicate acts after they stopped residing together (in the plaintiff’s home) and the financial relationship ended.

That question is for another day.  For now, the takeaway is the expansion of the “household member” definition that was previously expanded in Coleman, and which provides victims of abuse with broad protections.

Lindsay A. Heller is an associate 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

One of the more complex issues we see when addressing alimony and equitable distribution relates to inherited assets and the money (distributions, investment experience, interest, etc.) that emanates from them.  Under New Jersey law, inherited assets remain the exempt, separate property of the spouse who inherited same.  It cannot be distributed in whole or in part to the other spouse in the event of a divorce.  See N.J.S.A. 2A:34-23(h).

However, there is an exception to every rule.  If an asset is commingled with a marital asset, then it loses its exempt character.  For example, if Husband received $100,000 from an inheritance and he deposited into the joint bank account he shares with his Wife, then that inherited money is no longer exempt because it was commingled with a marital asset.  Depending on how much time has passed since the inherited money was deposited, and based on other factors, there may be an argument that the account itself should not be split 50/50 based on the deposit of the inherited money.  But by commingling the funds, the Husband has lost the clear-cut argument that the inheritance is not to be shared by his Wife.

Importantly, even if an inherited asset is immune from equitable distribution, this does not mean it is unavailable for support purposes.  A court could consider the existence of the separate, exempt asset, and the income generated therefrom , for purposes of determining appropriate support.

The recent unpublished (non-precedential) decision of Rosen v. Rosen provides a straightforward example of this issue in practice.  In Rosen, the Husband received a significant inheritance during the marriage, in the form of a Trust.  He received this inheritance together with his brothers, and eventually they converted the Trust into an entity they called “Leonard Rosen Family, LLC.”  During the marriage, the Husband took distributions from the entity, which he would at times deposit into accounts he shared with the Wife, or use for expenses he shared with his Wife.  However, the Wife herself held no ownership interest in Leonard Rosen Family, LLC.  This is the critical fact.  While the Husband commingled certain funds generated from the entity, the Wife never obtained an ownership interest and it remained his separate property, or so he believed.  The trial judge did not agree with the Husband, and awarded the Wife an interest in the distributions the Husband would take from the entity in the future, as and for her equitable distribution of this asset.

However, the Husband ultimately and correctly prevailed.  The Appellate Division reversed the trial judge’s ruling and agreed with the Husband that because his ownership interest in the entity was derived from an inheritance, his interest in that entity and in any income generated from it was not subject to equitable distribution.  In reaching its decision, the Appellate Division relied upon one of the seminal New Jersey Equitable Distribution cases, Painter v. Painter, which held that:

[T]he income or other usufruct derived from [exempt] property, as well as any asset for which the original property may be exchanged or into which it, or the proceeds of its sale, may be traceable shall similarly be considered the separate property of the particular spouse.

Painter v. Painter, 65 N.J. 196, 214 (1974).

The Appellate Division (and the Husband himself) did acknowledge that certain income generated from the exempt property had been commingled, and that there were – to put it simply – “no backsies.”  The money that the Husband had placed in joint bank accounts that had emanated from the exempt entity could not be recalled by the Husband, nor did he ask for it to be.

Finally, the Appellate Division acknowledged the prior case law (Miller v. Miller, 160 N.J. 408 (1999) and Aronson v. Aronson, 245 N.J. Super. 354 (App. Div. 1991)), which held that income from separate property can be considered in determining an alimony award.  However, the Court did not delve into this analysis in any greater detail, as the Wife did not seek alimony in this particular case.  One interesting issue that could conceivably arise related to alimony relates to the marital lifestyle.  If you have a case where the recipient of alimony claims that (s)he cannot meet the marital standard of living, but subsequently the payor receives an inheritance, there could be a sufficient change of circumstances that enables the recipient to seek more support to allow him/her to live closer to the marital lifestyle.  After all, the other spouse now has the ability to do so as a result of inheritance.

All of the above are important factors to consider when you or your client is lucky enough to have benefited from an inheritance or a trust during the marriage, or after.

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

We recently received a favorable appellate decision on behalf of our client whose ex-husband tried to manipulate their divorce agreement regarding distribution of his New Jersey PERS pension (“pension”) nearly three decades after the agreement was signed.  We did not represent her at the time of the divorce, but did represent her to defend against this frivolous post-judgment litigation.

The unpublished decision of Tapanes v. Perez is an important reminder to have your Qualified Domestic Relations Orders (“QDRO” – the Order that enables spouses to distribute retirement plans without tax or penalty) prepared and finalized simultaneously with the divorce decree.  QDROs are often the last task performed because you must have a signed agreement or Judgment containing the terms of distribution before the QDRO can be prepared and then implemented.  In this case, letting the QDRO enabled the former husband to collect the former wife’s share of the pension for nearly eight years between his retirement in 2010 and her receipt of benefits in 2018 because the QDRO was not entered and he did not alert the State of her rights when he retired.  Had the QDRO been entered, even decades earlier, it would have been on record.  Even worse, after depriving his former wife of the benefit of her bargain for years, he brought litigation seeking to rewrite the agreement in order to avoid paying the arrears the accrued during that period.  Time finally caught up to him…

The simple facts are as follows.  The parties entered into a divorce agreement in 1993 that provided for equitable distribution of the marital portion of the pension.  The agreement noted that a lump sum payment would be made in limited circumstances, such as his death and/or separation from the plan, which did not occur.  The agreement also noted a pension valuation that the parties never obtained.  The parties did not procure a Qualified Domestic Relations Order (“QDRO”) to distribute the marital portion of the pension following their divorce.

The former husband retired in 2010 and began collecting his benefits.  He did not alert the State of New Jersey that his former wife was entitled to a share of his benefits.  By the time the wife began collecting her share of the benefits in 2017, over $70,000 of arrears had accrued.

In the fall of 2017, the former wife contacted her former husband (he now resides in Florida) to have the appropriate QDRO prepared.  He ignored her.  She hired All Pro QDRO to prepare the draft QDRO and it was sent to both parties for review.  He ignored it.  After her attempts to resolve the issue without the need for litigation, the former wife filed a motion in the trial court seeking to have the QDRO implemented.  He ignored the motion.  Notwithstanding, the trial court gave him more time to sign the QDRO in the initial Order entered in November 2017.  Surprise, he ignored it.  Thus, the trial court entered the QDRO without his signature.

After the Orders were entered, the former husband had two New Jersey attorneys write to the former wife indicating his consent to the form of QDRO but seeking (a) valuation for a lump sum payment that was not applicable and (b) to offset the arrears that accrued because he had wrongfully collected her share of the benefits.

In early 2018, when the former wife finally began receiving her share of the pension, he filed a motion in the trial court to have the QDRO vacated, putting forth arguments that failed for procedural, factual and legal reasons.  Notably, he never appealed or even sought reconsideration of the November Orders even though he was properly served with the underlying motion and the Orders themselves, as well as had two attorneys contact his former wife about the QDRO after it was entered.  Additionally, the language of the parties’ divorce agreement did not permit a lump sum payment except under limited circumstances that did not occur here.  Moreover, while the former husband claimed Anti-Marx language should be read into the agreement, but it simply didn’t exist and Marx (or the coverture fraction) is the appropriate way to distribute the pension.   Even though he filed a Motion under Rule 4:50-1 (that permits vacating  judgments in certain circumstances), the former husband did not meet the standard to have the Orders vacated. Put another way, he did not advance a legal or factual position to have the QDRO vacated. The former husband’s trial court motion was denied in April 2018.

Refusing to just stop there, the former husband then filed an appeal.  In its decision, the Appellate Division stated:

The QDRO fulfilled the terms of the parties’ settlement agreement, whose plain language required an equitable distribution of the value of the marital portion of the pension. The Marx marital coverture formula effectuates a division of the value of a pension. Panetta v. Panetta, 370 N.J. Super. 486, 494- 95 (App. Div. 2004). The settlement agreement did not eschew a Marx formula.

Moreover, other than a self-serving certification authored by his former divorce attorney, defendant provided the motion judge no objective evidence, valuation, or rationale to support his argument why plaintiff should only receive $3,903.21 as her share of equitable distribution from the asset. The settlement agreement’s mention of a lump sum distribution pertained only to defendant in the event he died or separated from the plan. Therefore, notwithstanding defendant’s failure to object to the entry of the QDRO, the record does not support his tortured interpretation of the settlement agreement regarding the pension division.

Our client spent over a year in litigation on this issue that her husband created.  During that time, she was fearful of spending the pension benefits that her former spouse wrongfully deprived her of for approximately eight years.   After defeating her former spouse in the trial court and Appellate Division, she is finally getting the retirement benefits she bargained for over 25 years ago!

Lindsay A. Heller is an associate 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

In one of the earliest posts I did on this blog going back ten years or more, I posited that you can only really settle when the time is right and when both parties are ready.  In fact, I felt then as I feel now, that you can make your best offer, if not an offer that is the other side’s best offer, on day one, and if the other side isn’t ready to settle, the case wont settle.  Worse yet, in those cases, the party rejecting the settlement offer then believes that the offer is just the other side’s starting position – rather than perhaps an overly generous offer meant to get a case over quickly to avoid both the fees and emotional trauma that can be endured during a divorce case.  As a noted then, some times a litigant is just not emotionally prepared for the case to be over and/or be divorced.  I have had several cases of late where one party wanted the divorce and the other wanted to stay married (notwithstanding how horrifically their spouse treated them and/or the kids).  In those cases, if a party is not ready to resolve the case, you need to have patience and at the same time methodically do what is necessary to ultimately settle or try the case, as the case may be.

Sometimes, however, it is the lawyers, not the litigants, that impede settlement.  I recently had a lawyer tell me that she hated to settle cases – not because there was a desire to run up fees – but rather, because she was so fixed in the correctness of her positions, that she would rather have judge decide she was wrong after a trial, then compromise (and I presume in her mind, sell out her client.)  Quite frankly, had I not had several other cases with that lawyer over the years, including a long and ridiculous trial, I would have been shocked though I guess it was still a little surprising to hear out loud what I had surmised all along.  There are other lawyers who, seeing dollar signs when there is money there to pay fees, will either fan the flames and create needless issues, or worse yet, let clients that don’t know better, have them do work, or right letters, or engage unnecessary experts instead of giving the proper advice to avoid unnecessary fees.  There are lawyers that are proud that they try every case – this can’t be good for the client.  There are lawyers who don’t let cases settle until you have prepared for trial and the trial is about to begin.  There are lawyers who take bad positions, way too long, only to sell their clients out on the eve of trial.  I have had complex matters where opposing counsel would not let their forensic accountants concede obvious, objective errors (e.g. they looked at the wrong document/used the wrong number) or even massive math errors.

But what to you do when it is the lawyer, not the litigant, that is the impediment to resolution.   On thing you can do is to try to get a judge to actively case manage the case, get to know the file and weigh in on the issues.  Some judges will do that, many won’t, not because they don’t want matters to resolve, but because there isn’t enough time in the day. Sometimes you can file a strategic motion which may not necessarily provide the desired relief at that moment, but can put the case on the right path.  You can also try to get the case to mediation with a retired judge or respected mediator.   This is often the first setting where a litigant gets an objective, unvarnished assessment of their case (and perhaps finds out for the first time that their entitlements or rights are not how they had been previously sold to them by their attorney.  Sometimes it is the expert that takes over and becomes the problem.  In one case, an expert, when confronted with a multi-million dollar math error, said that it was ok, and that he would just fix that error and change another number to get to the same result.  In that case, a mediator who was also a forensic accountant was helpful in getting the litigant to see that their position was unsustainable.

However, you do it, the goal is to get the case on track where the litigant hears, perhaps for the first time, that they may have to reconsider their position, or get a second opinion, or take control of their own case.

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

I have now blogged a few times about the importance for due process in domestic violence matters.  The Appellate Division just gave us another unpublished case, B.L.F. v. T.G.C., to remind litigants and practitioners that the plaintiff in a domestic violence action is limited to the four corners of the Temporary Restraining Order (“TRO”) and, if the TRO is amended or the plaintiff testifies about incidents outside of those four corners,  the defendant must be given the option to have more time to prepare their defense.  Interestingly, B.L.F. reiterates this requirement even where the Appellate Division affirmed the Final Restraining Order (“FRO”) based on a predicate act that was unrelated to the testimony outside of the TRO,  but reversed the findings of additional predicate acts that may have been impacted by such testimony.  Thus, the net result does not materially impact the defendant because the FRO stands without question.

In B.L.F., a physical altercation occurred in the parking lot of Plaintiff’s gym where Defendant appeared unannounced. Neither party disputes that Plaintiff was in her car and Defendant’s arm was in the car window.  Plaintiff testified that she tried to roll up her car window after telling Defendant she didn’t want to speak to him, Defendant pushed the window down, they screamed at each other, Plaintiff began to back up and then Defendant grabbed her arm leaving bruises on her arm of which she had pictures admitted into evidence.  Defendant testified that Plaintiff rolled up the window while Defendant tried to get his arm out and then she released the window (by a centimeter), he got his arm out and fell to the ground.  The trial court found Plaintiff credible and that Defendant’s version of the incident “defied logic”.  The trial court entered an FRO against Defendant based on the predicate act of assault related to this incident, as well as on harassment and stalking based on other incidents of Defendant appearing unannounced at plaintiff’s home and restaurants – two of which were not included within the TRO.

The Appellate Division stated:

We conclude that it was improper for the trial court to consider testimony concerning these two additional episodes without asking the defendant whether he needed time to prepare a response to those new allegations. It is not clear on this record whether and to what extent plaintiff’s testimony concerning these additional incidents may have affected the trial’s court’s conclusions with respect to the harassment and stalking predicate offenses. It is clear, however, that plaintiff’s testimony about these two additional incidents would have no effect on the trial court’s findings with respect to the assault predicate offense and the need for a FRO based on that assault.


The Appellate Division reiterated a trial court’s duty to pose questions from the bench when one or both litigants are self-represented, but that those questions must be designed to elicit testimony about allegations within the TRO, understanding that testimony may lead to the revelation of other events, as provided by J.D. v. M.D.F., 207 N.J. 458 (2011).  Like contemplated in J.D., the trial court in B.L.F. asked questions of Plaintiff.  However, the issue arose by the trial court asking: “Were there other places and times when the defendant appeared without notice?”, which elicited testimony outside of the TRO and was followed up with: “”Do you have any additional testimony for the Court to consider that you’ve not already provided?”, again eliciting testimony outside of the complaint.  While the Appellate Division did not find fault in the questions themselves, the trial court did not explicitly give Defendant the opportunity to request an adjournment after Plaintiff testified about incidents beyond those listed in the TRO.

Notably, the Appellate Division found in favor of Defendant on this limited issue even though (1) Defendant may have known about his right to request an adjournment because earlier that day Plaintiff amended her TRO and Defendant chose to proceed after the trial court asked him if he was prepared to respond to the new allegations, (2) he didn’t object to the questions and (3) his testimony included a response to one of the two new incidents that Plaintiff testified about.  Reading into this, the Appellate Division opined that Defendant may not have been prepared to defend against both new incidents since he only testified about one.

The Appellate Division also found that the testimony outside of the TRO may have impacted the stalking and harassment findings because the trial court discussed it in the oral decision.  However, the Appellate Division specifically opined that the additional incidents did not impact the assault finding because they were unrelated.

Finding the predicate act is only the first step of a FRO hearing.  We then look to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) to determine whether an FRO is necessary to protect the victim.  The need for protection is presumed when the underlying act is of physical violence.  Therefore, the Appellate Division found that the testimony outside the TRO did not impact the trial court’s Silver analysis as it relates to assault.

B.F.M. emphasizes the need to specifically ensure on the record that the defendant in a domestic violence matter is prepared to proceed whenever a TRO is amended or testimony is given outside the four corners of the TRO – even when the defendant was made aware of this right earlier in the same day but for another matter, when the defendant touched upon some of the new testimony within his/her own testimony and when the plaintiff is entitled to an FRO for other predicate acts.

Lindsay A. Heller is an associate 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

graduation child

A recent Appellate Division case reminds us of the potential pitfalls of negotiating contingent issues in property settlement agreements, specifically as it relates to contribution to future college costs of children born of the marriage.

In Zegarski v. Zegarski, the parties had four children, with the two oldest already attending in-state college at the time of their divorce. Their post judgment litigation stemmed from a disagreement about their respective contributions to the college costs of their third child, four years after their divorce.

The parties’ PSA provided that both parents would contribute equally to “all reasonable and agreed upon college and secondary education costs…after any and all financial aid is received by said children.” The agreement further required the parties to “consult with each other and with the children with a view toward providing each child with the best education possible in view of their particular circumstances, each child’s educational abilities and desires, and the parties’ then existing financial ability.”

During their third child’s college selection process, the child expressed an interest in pursuing engineering and received offers of admission from a private out-of-state university and to Rutgers. When the child expressed a preference for the out-of-state school, his father indicated that he could not afford to pay half of the cost of attendance at the out-of-state school. His father remained steadfast in this position, even during an accepted students tour which he attended with the child and his mother. Over the father’s resistance, the child matriculated to the out-of-state school. When the father refused to pay for 50% of the education costs, the child’s mother sought  contribution and counsel fees.

Following a failed attempt to mediate the issues, the trial court determined that the father was not required to pay for half of the out-of-state education costs because he did not agree to them. However, the trial court found it would be “terribly inequitable” to absolve the father of any financial responsibility.  Accordingly, without a plenary hearing, the trial court surmised that the father’s contribution should be based on the cost of attending Rutgers, where the parties’ oldest two children went to school.  Without creating a record of what that cost would be, the trial court concluded that in-state tuition would likely cost $20,000 per year after financial aid, and ordered the father to contribute that half that amount for the first year, with a 5% inflation adjustment for subsequent years.  Both parties appealed, dissatisfied with the mandated contribution.

First, the Appellate Division concluded that the PSA did not require the father to pay half of the child’s out-of-state costs because he did not agree with them, which was an essential term of the agreement.  The court rejected the mother’s argument that mere consultation about college was sufficient.  The court further held that it would not enforce “an agreement to agree” to the extent one was implied in the agreement by the mother.

The court next determined that the PSA was silent as to allocation of college expenses in the event the parties did not agree. Accordingly, the trial court erroneously failed to address the Newburgh v. Arrigo and statutory factors which apply in the absence of an agreement.

Second, the court found the trial court to ascribe too much weight to its determination of what amount the parties would have likely paid for college in the absence of divorce.  The court warned that such hypotheticals are conjecture and “fraught with uncertainty,” which is why that is but one of many Newburgh factors to consider.

Third, the court held that there cannot be a cap on a party’s contribution at the cost of in-state tuition where the balance of the Newburgh factors favors a private school.  Here, the court found that the trial court did not make an appropriate analysis of this issue. Further, the trial court’s conclusion that in-state tuition would cost $20,000 lacked evidential support in the record.

In sum, the Appellate Division remanded the case for an analysis of the Newburgh and statutory factors in light of the PSA’s silence on this issue under these facts. This decision is illuminating for several reasons. Generally, it is a cautionary tale on an agreement-drafting issue that applies beyond just college contribution.  How can one adequately address future/contingent events in an agreement? If it’s too specific, it cannot account for the number of outcomes which may arise down the line. If it’s too vague, this decision tells us the court must revert to the statutory and case law precedent, regardless of the parties’ intention to resolve the issue by way of a PSA.

With regard to college, this task is even more challenging when the children implicated by the agreement are young. How can one specifically address college contributions  for babies and small children? In Zegarski, negotiating a term which would have applied in the event the parents could not agree on college selection would have given the court something to interpret, and may have spared the reversion to the default, precedential statute and case law. While impossible to account for every possible contingency, the wise and wary drafter should take a step back and ensure the agreement does not include a foregone conclusion that leaves a gap in the agreement if that outcome does not come to pass.

Interestingly, the Appellate Division’s decision made no mention of the child’s actual out-of-state’s education costs. This opinion plainly was not predicated on any dollars and cents inequities of the trial court’s rulings.  The decision offers a helpful reminder to place equal emphasis on the language of the agreement which is to be enforced/set aside and the monetary implications of its implementation.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at