Bergen County Divorce Attorneys

Every family uses its money in different ways. Some families spend every cent they have on everything imaginable, others save every last possible cent for the proverbial “rainy day”, and many families fall somewhere in between. Once a marriage comes to an end, however, will both spouses be able to continue spending or saving in the same way they did during the marriage as part of the lifestyle lived?

New Jersey case law has long held that a trial court may consider a savings component as part of an alimony award to protect a dependent spouse from the potential future loss of income by allowing her to accumulate a post-Judgment safety net. One question that has never been answered until now, however, is whether a history of regular savings during the marriage as part of the marital lifestyle should be considered in setting an initial alimony award even when there is no need to protect the dependent spouse.

According to the Appellate Division in the newly published, precedential decision of Lombardi v. Lombardi, the answer is a resounding yes.

Kid counting money
Copyright: sbworld8 / 123RF Stock Photo


During the parties’ marriage, savings was the largest component of the parties’ lifestyle, but the trial judge rejected inclusion of a savings component when awarding alimony because the payee-wife did not need such funds to protect herself from a potential future loss of alimony. The parties jointly decided to live a comfortable lifestyle during which they saved approximately $70,000 per month, and budgeted most of the earned collective income so that the parties would have no worries about finances when paying for college and entering into retirement. In fact, the parties budgeted so efficiently that the payor-husband could retire at age 45 with an accumulation of $5 million in assets that could generate sufficient income to help fulfill the family’s lifestyle.


At trial, the wife indicated that she needed approximately $16,000 per month for herself and the three children to live a standard of living comparable to that lived during the marriage, exclusive of a savings component that she requested in the monthly amount of $30,000. She also sought $5,000 in monthly child support and for the husband to be responsible for all child-related supplemental expenses.

The trial judge acknowledged the existence of savings component during the marriage, but awarded a monthly permanent alimony payment of $7,600 based on a finding that the parties lived an undisputed “modest middle-class lifestyle” with a monthly budget of $14,516 (excluding savings). The $7,600 was calculated as sufficient to cover the shortfall in the wife’s budget after accounting for child support, monthly after-tax income estimated she could generate by investment of her share of equitable distribution (each party was receiving half of the roughly $5.5 million estate), and her after tax net income from part-time work.

Based on each party’s anticipated share of equitable distribution, the trial court found that each party had a significant opportunity to save and invest, even though the husband’s substantial income provided him with a far greater opportunity than the wife. Specifically, the court noted that the parties monthly average savings of approximately $87,000 was a “component of lifestyle” (whether for an early retirement or to enhance the parties’ economic security), but should be included in an alimony award “only [ ] to the extent it was necessary to ensure a dependent spouse’s economic security in the face of a later modification or cessation of support, which were not issues here.”

Even without a higher amount of alimony (inclusive of a savings component) the court noted that the wife could save (albeit at a lesser extent than that seen during the marriage) when considering:

  1. some “overlap” in the presented alimony and child support budgets;
  2. the wife’s right to claim the children as exemptions for tax purposes; and
  3. her “ability to work and retain earnings to use for savings . . . because of the maturation of the children . . . such that she would have more time to spend working if she chose to do so.”

The court also noted the wife would have no obligation to pay for college or any unreimbursed medical expense, the cost of extracurricular activities was covered by the “above guidelines” child support award, and if she wanted to work more she would be “protected against any claim that her alimony should be reduced or that she has lesser need,” and the alimony would likely never be reduced because of the husband’s income and assets. Summarizing its determination to exclude a savings component, the court held:

The [c]ourt finds that a permissible savings component which it elected not to do or not to include was because there are potentials for [plaintiff] to accumulate, earn, and otherwise be protected from a reduction by virtue of, one, reasons having to do with the current budget and the room in the budget to still save, the ability to work more without worry about a reduction in alimony, the investment opportunity that might enhance the return on the over $2 million that she will receive, the life insurance to protect against the death of the defendant, and the likelihood of a continued appreciation and increase in assets and earnings that . . . would protect her against any arbitrary . . . reduction in alimony based upon early retirement or otherwise.

The wife’s appeal followed.


On appeal, the Appellate Division agreed with the wife’s position that the subject award allowed only the husband to maintain the standard of living experienced during the marriage, and that required Case Information Statement form, on its face, suggests that a savings component is a “fundamental element of the family lifestyle” because the savings category was specifically added to the budget portion of the form after its initial issuance.

Reviewing seminal New Jersey alimony law, the Court reminded that each party is entitled post-divorce to live a lifestyle reasonably comparable to that lived during the marriage, with neither party having a greater entitlement to do so than the other (as codified in the 2014 statutory amendments to the alimony law). As a result, the alimony award designed for the supported spouse to achieve such lifestyle that is ultimately the “touchstone for the initial alimony award.”

While noting how case law has long recognized that a savings component in an alimony award can protect a dependent spouse against the potential future termination of alimony, or to provide for future events such as retirement, the Court provided:

The most “appropriate case” in which to include a savings component is where the parties’ lifestyle included regular savings. Because it is the manner in which the parties use their income that is determinative when establishing a marital lifestyle, see Weishaus, supra, 180 N.J. at 145, there is no demonstrable difference between one family’s habitual use of its income to fund savings and another family’s use of its income to regularly purchase luxury cars or enjoy extravagant vacations. The use of family income for either purpose over the course of a long-term marriage requires the court to consider how the money is spent in determining the parties’ lifestyle, regardless of whether it was saved or spent on expensive purchases. The fact that the payment of the support ultimately is protected by life insurance or other financial tools, does not make the consideration of the savings component any less appropriate.

Rejecting the husband’s argument that the court appropriately considering savings through its equitable distribution award, the Appellate Division held:

The argument runs afoul of the rule that “equitable distribution determinations are intended to be in addition to, and not as substitutes for, alimony awards,” which are awarded to provide for the maintenance of the marital lifestyle post-dissolution. Steneken, supra, 183 N.J. at 299. Moreover, it is not equitable to require plaintiff to rely solely on the assets she received through equitable distribution to support the standard of living while defendant is not confronted with the same burden. As expressed under the alimony statute’s current version, the court must recognize that “neither party ha[s] a greater entitlement to that standard of living than the other.” N.J.S.A. 2A:34-23(b)(4).

In finding that its holding went beyond what most other jurisdictions provided regarding the savings component issue, the Court concluded:

We therefore hold that the Family Part must in its assessment of a marital lifestyle give due consideration to evidence of regular savings adhered to by the parties during the marriage, even if there is no concern about protecting an alimony award from future modification or cessation upon the death of the supporting spouse.

The issue of how to treat savings as part of the marital lifestyle under the type of circumstances present in Lombardi has long been discussed amongst family law attorneys without definitive judicial guidance.  Now that such guidance is here, this may not be the last we hear from the Lombardi family as perhaps the Supremes will ultimately weigh in.


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

Connect with Robert: Twitter_64 Linkedin

I previously blogged on economic abuse as a form of domestic violence in a post titled Financial Abuse: The Invisible Wounds of Domestic Violence. Although occurring in approximately 98% of all domestic violence situations according to National Network to End Domestic Violence, economic abuse is not what most people think about when they hear the term “domestic violence”.

Recently, the unpublished decision of C.G. v. E.G. addressed interference with employment as a harassing and coercive form of domestic violence. In this matter, the defendant intentionally attempted to obstruct and interfere with plaintiff’s new employment by calling her place of work without her consent, bothering her employer as well as her employer’s wife, and embarrassing plaintiff by alleging that she and her employer were having an affair.

Judge Jones defined economic harassment as “including purposeful acts which a defendant perpetrates while intending that such acts either (a) impair or obstruct a plaintiff’s actual or prospective job or job-related duties, or (b) threaten to do so with the purpose of controlling [someone], and/or pressuring or intimidating [someone] into submitting to [their] demands or wishes.” Judge Jones went on to describe this behavior as “fear-inducing to a victim of physical abuse” and that “there are arguable few threats more potentially harassing and coercive than threatening one’s livelihood or employment.”

20143619 - illustration depicting a sign with a victim concept

So what encompasses purposefully interfering with another’s employment?

(1)        Directly threatening to contact the victim’s place of employment and attempting to get the victim fired, either by making false allegations, or improperly publicizing private, personal and embarrassing information about the victim;

(2)        Actually contacting the place of employment and following through with actions designed to damage the victim’s status, and stability at his/her job; and

(3)        Repeatedly appearing uninvited at the victim’s place of employment and causing a disturbance, or otherwise acting in a manner which is disrespectful of, and/or embarrassing to, the victim, and disruptive to the victim’s job responsibilities and performance, and/or standard business operations.

The abusers underlying behavior, while an obvious form of harassment, is often times done as a way to corner the victim into either interacting with the aggressor or submitting to certain demands. Often times the victim, in order to avoid embarrassment gives in to the aggressor’s behaviors to their detriment.

Such interference with employment may constitute both harassment and coercion. The National Coalition Against Domestic Violence has reported that between 35% and 65% of victims of domestic violence are harassed at work by their abusers.

The New Jersey Supreme Court has recognized the right to be left alone in State v. Hoffmann, 149 N.J. 564, 585-85 (1997). Thus, “a person has a basic right to be left alone by an estranged or former spouse or dating partner at his or her place of employment.”

The Court concluded in C.G. v. E.G. that by phoning “plaintiff’s place of employment against plaintiff’s wishes, with the purpose and tactic of causing her harm as expressed and desired in his text message, and/or otherwise wearing plaintiff down into submission”, defendant “knew or should have known that he was improperly encroaching on Plaintiff’s new employment, while potentially subjecting her to public embarrassment in front of her employer and co-workers” and that these actions constitute harassment.

Additionally, defendant’s actions constitute a new form of domestic violence, coercion. In August 2015, the New Jersey Legislature amended the Domestic Violence Act to include “coercion”.

Coercion is defined as “threats made to unlawfully restrict another’s freedom of action to engage or refrain from engaging in conduct by threatening to:

(1)        Inflict bodily injury on anyone or commit any other offense;

(2)        Accuse anyone of an offense;

(3)        Expose any secret which would tend to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute;

(4)        Take or withhold action as an official, or cause an official to take or withhold action;

(5)        Bring about or continue a strike, boycott or other collective action, except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the actor acts;

(6)        Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

(7)        Perform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

Interference with one’s employment can be considered both harassment and coercion, the latter expanding the prior definition of domestic violence to give victims more alternatives for protection against their abusers.

If you or someone you know is a victim of domestic violence, contact your local law enforcement and/or the confidential and anonymous National Coalition Against Domestic Violence Hotline at 1-800-572-7233.

Perhaps Kurt Cobain knew when writing the song “All Apologies” that one day his daughter would be embroiled in a nasty divorce battle.  While the lyrics, “Married, Buried, Married, Buried”, may not sound uplifting, they are undeniably classic Nirvana.  Fans of the band would largely agree that the most well known live performance of the song was the acoustic version played during the band’s “Unplugged in New York”, which took place shortly before Cobain’s death.  Now it is the guitar used by Kurt during that performance which lies at the center of Frances Bean Cobain’s divorce from her husband.


Specifically, Frances’s husband is in possession of the guitar – thought to be worth several million dollars – and refuses to return it to her while alleging that she gave it to him as a wedding present.  Not surprisingly, Frances denies ever giving it to him at the start of their short-term marriage, and is taking the position that he has no right to any money from her fortune (Kurt’s estate is valued at approximately $450 million).

With that said, and straight from Seattle to the swamps of New Jersey, how would a court here potentially address the issue?

I Think I’m Dumb, or Maybe Just Happy:  Well, for starters, is there a prenup protecting Frances’s rights and interests in Kurt’s estate and, as part of the estate, the subject guitar?  I don’t know the answer, but even if Frances was blinded by her love for her now soon to be ex-husband, she would hopefully be smart enough to have had some sort of agreement drafted and signed protecting her from the claim now being made (unlike Paul McCartney in his divorce from Heather Mills, for example).  Such agreements often have language addressing so-called separate property and whether separate property is exempt from equitable distribution.  Language regarding interspousal gifts is also common and can be crafted in a way to ensure that even if she did gift the guitar to him during the marriage, it could still remain separate property exempt from distribution.

And For This Gift, I Feel Blessed:  At the heart-shaped box of this matter is whether the guitar was an interspousal gift from Frances to husband during the marriage.  This is essentially what husband is claiming.  In New Jersey, an interspousal gift is subject to equitable distribution.  Husband can take the position that even if the guitar was originally a non-marital asset exempt from equitable distribution (for instance, as an inheritance or gift to Frances, or by agreement), it lost that exempt status and became marital property subject to distribution once she gifted it to him.  If proven, Frances loses the right to claim that the guitar is exempt from equitable distribution at the time of the divorce.  With a guitar worth several million dollars, husband may look at his share of the guitar as the proverbial meal ticket in a short-term marriage where his rights are likely otherwise limited.

Hey!  Wait!  I’ve Got a New Complaint:  To rebut husband’s claim and supporting evidence/testimony that Frances gifted him the guitar, Frances would have to establish that there never was any gift.  In other words, there was no intent by Frances to gift him the guitar – a fact that perhaps she could establish by testifying about how she told husband at the time, and/or at other times during the marriage, that it was her/her family’s guitar, rather than husband’s guitar.  Maybe husband simply took it from the home and is now fabricating the entire story.  Credibility and the surrounding factual circumstances will play a large part in the final result.  Also, even if the guitar was ultimately deemed to be an interspousal gift, Frances may be aided in the actual allocation of the asset by New Jersey’s equitable distribution factors, especially that regarding who brought the subject property to the marriage.  Keeping the guitar in the Cobain family would seemingly be an important consideration for a family court judge, and may sway any determination regarding whether Frances could ever have intended it to be a gift.

It will be interesting to see how this matter unfolds and ultimately concludes.  Whether the litigant is Frances or anyone else similarly in her shoes, learning the law regarding gifts and equitable distribution may leave the litigant forever in debt to such priceless advice.


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

Connect with Robert: Twitter_64 Linkedin

*image courtesy of google free images.

While we do not often, if ever, blog about decisions in the area of employment law, the Supreme Court of New Jersey earlier this week in the decision of Smith v. Millville Rescue Squad held that our state’s Law Against Discrimination precludes discrimination and retaliation against an employee based on “marital status.  The meaning of “marital status” was found to include not only being single or married, but also “employees who have declared that they will marry, have separated from their spouse, have initiated divorce proceedings, or have obtained a divorce”.


The case involved an employee who was terminated from his employment after he told his supervisor that he was having an affair with a co-worker, he was separated from his wife (who was also a co-worker), and was about to commence divorce proceedings.  Notably, the supervisor’s response to learning of such information was that he could not promise it would not have an impact on the employee’s job, and he later indicated his belief that the divorce would be “ugly.”

Written documentation regarding the termination, however, referred only to a corporate restructuring and the employee’s allegedly poor performance.  Notably, the employee testified that during his term of employment he was never subjected to formal discipline, was promoted twice, and received annual raises.

The trial court granted employer’s motion for an involuntary dismissal and, in so doing, found that employee failed to present evidence that he was terminated because of his marital status.  In finding that management properly acted out of concern that the divorce would likely be contentious, the trial judge found that such action did not constitute discrimination pursuant to marital status under the NJ LAD.

The Appellate Division disagreed, finding that “marital status” included being separated and involved in a divorce proceeding.  The Supreme Court agreed.  In so holding, the High Court provided:

The LAD prohibits an employer from imposing conditions of employment that have no relationship to the tasks assigned to and expected of an employee.  It also prohibits an employer from resorting to stereotypes to discipline, block from advancement, or terminate an employee due to a life decision, such as deciding to marry or divorce.  The LAD does not bar an employer from making a legitimate business decision to discipline or terminate an employee whose personal life decisions, such as a marital separation or divorce, have disrupted the workplace or hindered the ability of the employee or others to do their job.  However, an employer may not assume, based on invidious stereotypes, that an employee will be disruptive or ineffective simply because of life decisions such as a marriage or divorce.

The decision makes substantive and practical sense in defining the term “marital status,” which is not defined in the terms of the LAD, itself.  Separately, as noted in a post on this case from our Employment Discrimination Report blog, employers may not rely upon any religious exception for this prohibition.


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

Connect with Robert: Twitter_64 Linkedin

*image courtesy of google free images.

Family law practitioners know that in this area of practice, perhaps more so than in any other practice, hearsay statements are often an important part of motions brought before the trial court for every kind of relief imaginable.  A hearsay statement is a statement made outside of the court that is offered for the truth of the matter asserted.  Unless one of many exceptions apply, hearsay statements are inadmissible.  For example, if mom in her certification filed with a motion asking the court to address parenting time includes statements from the parties’ daughter that mom is asking the court to consider as truth, the daughter’s statements constitute inadmissible hearsay.  In other words, the court should not consider the daughter’s statements when rendering its decision.

Evidence pic

As we have frequently written, however, oftentimes anything goes in family law.  Hearsay statements are commonly no exception.  I have heard many times from Family Part trial judges that the rules of evidence will often be relaxed, including the hearsay rule, especially when issues of custody and parenting time are before the court to ensure that the best interests of the child are fulfilled.  It is for that reason why practitioners and litigants often put whatever they can before the trial court to convince the judge to rule in his or her favor.

In Arrowood v. DiBenedetto, a recently unpublished (not precedential) Appellate Division decision, the Court addressed the trial court’s rejection of various hearsay statements from the subject child provided by mom in denying mom’s motion to terminate overnight parenting time with dad because he continued to smoke in the child’s presence against doctor’s orders.  Addressing mom’s application, the Court noted:

What we glean from the record provided is defendant’s most recent motion relied on her daughter’s hearsay statements and a certification from [dad], the content of which is not before us. A trial court generally does not abuse its discretion by not relying on hearsay statements, because there is always a question about the exact content of such statements, especially when they are recounted by a party with an interest of the outcome of a decision. The law controlling the presentation of evidence in our courts excludes hearsay in numerous contexts. We certainly cannot conclude from the scant record before us that the trial court here abused its discretion by not imposing the drastic sanction of terminating parenting time based on hearsay.

Notably, however, the Court suggested that there still may not have been an abuse of discretion had the trial court considered the subject hearsay statements, especially since the matter involved the subject child’s health:

That is not to say we are insensitive to either defendant’s arguments or her frustration. Although she has not provided us with the transcripts or the statement of reasons for the court’s previous orders, at least one order appears to have been based on her firsthand observation. Notions of fairness and confidence in our system of justice often dictate that a court enforce its orders. That would appear to be especially so when a child’s health is at issue. But enforcement motions generally present competing versions of events and often require courts to balance profound competing interests. That is particularly so in family matters involving children and parental rights. That is also why Family Part judges are vested with broad discretion, and why we review their discretionary decisions with deference. Here, the record does not establish such an abuse of discretion.

So what is the takeaway here.  Sometimes the Rules of Evidence apply and sometimes they do not, although there is no specific rule indicating that the evidence rules should not always apply.  In practice, it depends on the factual circumstances, the litigants, the trial judge, and the like.  Especially when a child is at the center of the dispute, as opposed to more straightforward financial issues, a court is more likely to stretch its discretionary muscles to protect the child’s best interests above all else.


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

Connect with Robert: Twitter_64 Linkedin

*image courtesy of

In many custody disputes, a primary area of concern is one parent’s ability to relocate with the children after the divorce is over.  Relocation requests have been characterized as often resulting in “heart-wrenching” decisions.  As we have previously discussed on this blog, the legal standard to be applied to a parent’s interstate removal application differs if the parent is the primary caretaker as compared to an equal/”shared” physical and legal custodian with the other parent.  The two standards are briefly explained below:


Equal/”Shared” custodial parents:  If the parents “truly share both physical and legal custody,” then the moving parent must prove that the best interests of the children would be better served by residential custody being primarily vested with the relocating parent.

One primary custodial parent:  On the other hand, if one parent is the primary caretaker, that parent’s request to relocate with the children is governed by the two-prong Baures test – specifically, the moving party has to prove by a preponderance of the evidence that (1) there is a good faith reason for the move; and (2) the move will not be inimical to the children’s interests.  The Baures test is analyzed in the context of twelve (12) factors set forth in that case, and is more favorable to the primary custodian seeking relocation.  In fact, it is this favorable standard that often sees non-custodial parents claiming “de facto” equal custodial status in response to a primary custodian’s relocation motion so as to convince the trial judge to utilize the best interests standard.  As an aside, there exists pending legislation that would alter this favorable legal standard.

What happens, then, if there exists a so-called non-relocation agreement and a primary custodian seeks to relocate interstate?  The Appellate Division was faced with that issue in the newly published (precedential) decision of Taormina Bisbing v. Bisbing.  Here are the facts that you need to know:

  • The parties were married in 2005 and the children were born in 2006.  Both parties were highly-paid professional employees, with wife earning more than husband.
  • In early 2013, husband investigated job opportunities in Colorado and California.  The parties separated in August, 2013 and, in November, wife began a long distance relationship with a Utah resident who had children from a prior marriage.  The Utah resident owned a business in Idaho and had business interests requiring him to frequently travel to California and Louisiana.
  • On March 8, 2014, the parties entered into a marital settlement agreement wherein they agreed to joint legal custody, and that wife would have primary residential custody under the condition that she would not relocate outside of New Jersey.  The MSA also provided that dad would have “broad, reasonable and liberal timesharing” of the children – Father’s Day, his birthday, every other weekend and on one weeknight during the weeks when he did not have parenting time, every other Thanksgiving, Christmas Eve, Christmas Day, New Year’s Eve, New Year’s Day, and school breaks.  Each parent was entitled to attend all sporting events and activities regardless of which parent was scheduled to have parenting time.
  • As to relocation, the agreement provided:

The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said   minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move, the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children outside of the United States without the prior written consent of the other party.

The parties hereby acknowledge that the Children’s quality of life and style of life are provided equally by Husband and Wife.

The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children’s contact with both parties and the quality of the relationship of the Children and each party.

The parties hereby acknowledge that any proposed move that relocates the Children any further away from either party may have a detrimental impact upon the frequency and duration of the contact between the Children and the non-moving party.

  • On April 16, 2014, a final judgment was entered that incorporated the terms of the settlement agreement.  Husband represented that, after the divorce, he was very involved in the children’s lives, coached their teams, took them to activities, and attended school events.
  • One month after the divorce, wife sent an email to husband telling him that, although she received no alimony, she was planning to leave her job on July 1, 2014 to be a full-time stay-at-home parent, which she did.
  • On January 8, 2015, wife called husband to tell him of her intention to get married to the Utah resident and relocate to Utah.  Wife asked for husband’s permission to relocate with the children.  Husband refused, indicating that she could move and leave the children with him.
  • On March 16, 2015, wife filed a motion to relocate with the children to Utah without the need for a plenary hearing.  The court granted the motion – without a hearing – so long as a visitation schedule could be established through mediation.
  • On July 14, 2015, after unsuccessful mediation, with only wife suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule using most of wife’s suggestions.  Eleven days later, wife and the children “left for a vacation to Utah.”  Three days thereafter, she permanently relocated with the children in Utah.

In reversing and remanding for a plenary hearing, the court found:

  1. The best interests of the child standard should be applied if wife was found to have negotiated the settlement agreement in bad faith.
  2. If no bad faith finding is made, the court is to consider whether wife proved a substantial unanticipated change in circumstances “warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis.”
  3. If the settlement agreement was deemed to have been negotiated in good faith, but wife fails to prove a substantial unanticipated change in circumstances, the court is to apply the above-referenced best interests of the child standard.
  4. In other words, wife could only receive the “benefit” of the Baures standard if wife was found to have negotiated in good faith and proved a substantial unanticipated change in circumstances.

Under such guidance, the Court distinguished from the notable prior trial court decision of Shea v. Shea,wherein the father accused the mother of of manipulating the Baures procedure by settling the divorce, and immediately thereafter filing for removal so as to reply upon the more favorable burden of proof.  Here, the Court critically found that husband was entitled to a hearing to prove whether wife manipulated the situation to obtain “favorable Baures removal procedures” that:

  1.  When wife entered into the agreement, she may not have definitely known of the “material facts and circumstances forming the good faith reason for the removal request” (i.e., moving to Utah to marry her boyfriend).
  2. The non-relocation provision did not exist in the earlier matter.

In so holding, the court found:

Similar to the situation in Shea, the close proximity between the parties’ agreement and [wife’s] plans to relocate provides evidence of suspicious circumstances requiring a plenary hearing.  If, after holding a hearing, the family court finds that [wife] negotiated in bad faith, it should then analyze the relocation request under a “best interests” analysis.

The non-relocation was to be considered even if wife is found to have negotiated in good faith, “without manipulative intent” premised on New Jersey’s strong public policy favoring agreements that resolve marital disputes.  In damning tone, the Court found:

Thus, [wife], in a written and voluntarily agreed-upon contract, specifically surrendered her “freedom to seek a better life” in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.

While the relocation language of the agreement considered new employment as a basis for moving, it did not mention remarriage, thereby leading the Court to suggest that testimony would reveal whether remarriage was a considered eventuality at the time of the agreement and, thus, not an unanticipated substantial change in circumstance.  The Court also noted that, if the Baures standard was to ultimately apply, the trial judge would be charged with analyzing the effect on the children of moving away from both parents’ extended families.

When I first read the facts, I was saddened, but not at all shocked at what seemed to be a clear manipulation of the prevailing legal standards discussed above.  I have been involved in many cases on both sides of the relocation argument, and have seen the devastation that can result.  A difficult situation becomes all the more tragic when it is clear that one party is not proceeding in good faith.  What wife seemingly did here is just as bad as the non-custodial parent who claims de facto equal custodial status just to have the best interests standard applied.  It is for these reasons, in part, why the pending legislation mentioned above makes sense in some form – to remove this sort of gamesmanship from the equation when children are involved and the relationships with one or both of their parents is potentially at stake.  The Appellate Division certainly got it right here with a just result.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

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

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


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

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

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

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

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

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

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

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

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

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


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of mondspeer (Google free images).

In the recently published 67-page trial court decision of D.G. and S.H. v. K.S., the trial court dealt with the novel issue of custody and parenting time in a “tri-parenting” relationship. In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. During K.S.’s pregnancy, the parties had two baby showers, one at D.G. and S.H.’s Manhattan apartment, and one at K.S.’s home in Point Pleasant, New Jersey. All three parties attended parenting classes and began preparing both of their homes for the child’s arrival, purchasing everything in duplicate.

After the child, O.S.H., was born in 2009, D.G. and S.H. moved into K.S’s home in Point Pleasant and all three parties co-parented the child. D.G. operated a business at the Jersey Shore and, shortly after giving birth, K.S. returned to her job at her family’s restaurant. S.H., a high-school teacher, undertook the significant portion of the parenting responsibilities as he was on summer recess.

At the end of the summer, D.G. and S.H. rented a home in Point Pleasant to be near K.S. Thereafter, parenting time fluctuated, but was successful. In the summers, D.G. and S.H. undertook the significant portion of parenting time responsibilities due to K.S’s job responsibilities, and in the winters, K.S. undertook the significant portion of parenting time responsibilities, including taking the child to Costa Rica, where she owned a home, for varying amounts of time. In 2012, Superstorm Sandy destroyed D.G. and S.H.’s rental home, so they began enjoying weekend parenting time in New York City.

The parties were able to effectively and efficiently co-parent with one another for most of the child’s early life; however, things broke down when K.S. announced that she had fallen in love with her neighbor in Costa Rica, A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. A.A. could not relocate to New Jersey due to parenting obligations to children he had from a prior marriage.

D.G. and S.H. requested that K.S. prepare parenting time proposal for them so they could determine if the relocation would work together with their idea of “tri-parenting”. K.S. prepared a parenting time proposal and after considerable discussion, D.G. and S.H. rejected it. D.G. and S.H. then filed a Complaint seeking to establish 1.) legal and physical custody of O.S.H.; 2.) parenting time; and 3.) that S.H. was the child’s psychological and legal parent. K.S. filed a counterclaim and answer seeking 1.) to establish a legal custodial relationship between the parties, with physical custody vested in K.S.; 2.) to establish a parenting time arrangement; 3.) child support and medical coverage; and 4.) permission to relocate with the child to California.

A plenary hearing was scheduled and took place over 19 days.paper dolls

Psychological Parentage of S.H.

S.H. sought an order declaring him to be the psychological parent of the O.S.H., which was supported by D.G. K.S. stipulated that S.H. was the child’s psychological parent on the eve of trial and the court found that the undisputed facts of this matter supported such a conclusion.

In order for a person to be considered a child’s psychological parent, there must be a finding of “exceptional circumstances” (See V.C. v. M.J.B., 163 N.J. 200, 219 cert. denied. 531 U.S. 926, (2000)). To find that “exceptional circumstances” exists, the Court must find the existence of four elements:

(1) that the biological or adoptive parent consent to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; the legal parent must have fostered the formation of the parental relationship between the third party and the child;

(2) that the petitioner and the child lived together in the same household’

(3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. (See V.C. v. M.J.B. at 223).

The court detailed at great length, all of the actions undertaken by S.H. and concluded that he is appropriately the child’s psychological parent. Among some of the court’s considerations were the fact that D.G. and K.S. consented to and fostered a parent-like relationship between S.H. and the child,  the idea that all three of the parties would be the child’s parents was formed before the child was even conceived or born, the parties chose to give the child S.H.’s surname, and since the child was born, and over the course of the past six years, S.H. contributed towards the child’s support, both monetarily and otherwise, and established a bond with the child.

Residential and Legal Custody

Once the court has established the existence of a psychological parent, the best interest of the child must be considered when determining custody. The court found that since there was never a written agreement or prior court order regarding custody, the court must determine the custodial relationship that serves the best interests of the child, and evaluate the factors set forth in N.J.S.A. 9:2-4(c). Both Plaintiffs and Defendant hired custody experts, who evaluated each of the parties and the child. The court conducted a detailed, lengthy analysis of the factors set forth in N.J.S.A. 9:2-4(c), and upon doing so, ultimately concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. Although rare, joint residential custody is a suitable alternative to sole custody in family law actions, when “joint custody is likely to foster the best interests of the child in the proper case.” See Beck v. Beck, 86 N.J. 480, 488 (1981). The analysis of the factors set forth in N.J.S.A. 9:2-4(c) is quite expansive and delves deep into the loving and caring relationship the parties share with the child.

Relocation and Removal Application by Defendant

The Court reviewed K.S.’s application to relocate with the child to California under the O’Connor standard for relocation, which applies in this situation as the Court determined that all of the parties shall share joint legal and residential custody. “If, the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the partying seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent. O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

The court opined that K.S.’s reasons for the move to California are at best tentative and speculative, including a major change in her living situation with A.A. (originally K.S. was going to live with A.A. and now is not), her employment and educational plans (K.S. intends to find part-time work and go to school part-time), her availability to care for the child and her lack of family support to help with the child’s care, among other things. Additionally, the child would be uprooted from her long and stable living arrangement with the parties and the distance between California and New Jersey would diminish the child’s ability to maintain her bond with D.G. and S.H., exclude them from her daily life activities and abrogate frequent parenting time. Thus, the court denied K.S.’s application to relocate with the child to California.

Legal Parentage

S.H. also sought to be established as the legal parent of O.S.H., not just the psychological parent. However, this was denied as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

While the court was sympathetic to S.H.’s request to establish legal parentage, same is not supported by statute or case law. Since such a determination would likely have far-reaching implications, the court determined that this issue is best addressed by other branches of government, specifically the Legislature.

In a world where the nuclear family has evolved into many different shapes and sizes, the law (and the courts) quite simply cannot keep up. With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey’s pending emancipation statute that impacts upon child support and when/how it terminates.  The new law, which takes effect 180 days after its signing, is applicable to all child support orders issued prior to, or, or after its effective date.  Much of it codifies existing case law, but alters, in part, the prior rebuttable presumption that child support terminates when a child reaches age 18.  The language specifics and nuances will most certainly in a manner similar to the amended alimony law, future litigation over what such language means and how it should be applied.

bill becomes law

With that said, let’s take a look at the important components of the new emancipation law and what it means:

Termination of Child Support

The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child – who is less than 19 years of age – marries, dies or enters into military service.

Child support shall also terminate when a child reaches 19 years of age unless:

  1.  another age for such termination is specified in a court order;
  2. the parties consent and the court approves the continuation of support until after a predetermined date; or
  3. child support is extended by the court based on an application filed by a parent or the child prior to reaching age 19.

A parent or child may also seek the continuation of child support beyond 19 years of age under the following circumstances:

  1.  the child is still enrolled in high school or other secondary program;
  2. the child is participating full-time in a post-secondary education program;
  3. the child has a physical or mental disability that existed prior to the child reaching the age of 19 and requires continued child support; or
  4. other exceptional circumstances as may be approved by the court.

Interestingly, if a court orders the continuation of child support, it must also provide in the order “a future date upon which the child support obligation will terminate or a date upon which the court will review the circumstances of the parties and children.”

Matters involving child support obligations supervised by the Probation Division will require Probation (and the State IV-D agency) to provide both parents with at least one notice of proposed termination and instructions on how to seek a continuation of child support.  Such notice is to be provided no less than 90 days prior to the termination of support under the new law.

Unallocated Child Support for Two or More Children

The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue until modified by court order.  Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.

If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.

Arrears Existing at Termination

If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable.  The new law provides how payment for such arrears will be made, as the “sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination” unless otherwise ordered.

Impact on Foreign Support Orders

The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act (“UIFSA”), or a law substantially similar to New Jersey’s prior Uniform Reciprocal Enforcement of Support Act (“URESA”).

Impact on Support While Child in College/Post-Secondary Educational Institution

The law unambiguously provides that it does not require or relieve a parent from paying “support or other costs while a child is enrolled full-time in a post-secondary education program.”

Important Miscellaneous Points

Any party may also still seek to terminate child support for any reason other than that provided in the new law.  Also, the law confirms that it does not “prohibit the parties from consenting to a specific termination date subject to the approval of the court.”  Prior language that did not make its way into the final law focused on utilizing “capped” age of 23 to terminate support, which is often found in settlement agreements as a sort of “catch all” provision as to when child support will end.  I have had adversaries argue to me – when, of course, it suits their client’s position – that using the age of 23 as a cap to end child support is unenforceable as against public policy.  The new law confirms, however, that such a cap could be enforceable, and that it – like any other agreed upon language regarding a support termination date – is subject to the court’s approval.   Hopefully that will limit litigation that can occur surrounding such provisions in a settlement agreement.  To that end, practitioners should also consider incorporating references to the new law in the emancipation portions of their settlement agreements.


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

Connect with Robert: Twitter_64 Linkedin

*Photo courtesy of Google free images.

The doctrine of fugitive disentitlement bars a fugitive from seeking relief in the judicial system whose authority he or she evades, i.e. one cannot flee the country and evade a court order and simultaneously seek the court’s protection.

Justice Virginia Long (now retired from the Supreme Court and Counsel at this firm) set forth the standards for the application of the doctrine in Matsumoto v. Matsumoto, 171 N.J. 11, 120 (2002):

[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceedings; his or her fugitive status must have a significant connection to the issues with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and invocation of the doctrine cannot be an excessive response. Id. at 129.

In the realm of family law, this doctrine poses a unique question to Courts who are required to balance (1) their power to enforce their orders against those who have evaded them, against (2) a fugitive’s parental rights, duty of support and, most importantly, the best interest of the child(ren) whose parent is evading the law.

Recently, the Appellate Division in Matison v. Lisnyansky, held that “[a] father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant.”

There, the defendant father, Mark Lisyansky and plaintiff mother Yvietta Matison, had twin children in 2004. Sometime thereafter, defendant came to the United States and purchased an approximately $1.9 million dollar home in Franklin Lakes, which was substantially renovated. In March 2006, the plaintiff and the parties’ two children then came to the United States and moved into the Franklin Lakes home. Defendant also provided a nanny, interior decorator and secretary. Defendant then returned to Europe to conduct business and plaintiff and the children remained in Franklin Lakes until defendant sold the home. Thereafter, plaintiff and the children moved to Tenafly and defendant continued to provide financial support from abroad.

This arrangement continued until 2012, when defendant stopped supporting the children. Plaintiff obtained a court order for child support (the parties were never married so this was not a divorce proceeding), which stated that, “[a] writ of Ne Exeat [which in Latin means, ‘that he not depart’] shall remain against defendant” and a bond or alternate security was required to be posted. The order also stated that “[t]he Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”


The matter was set for trial and defendant discharged his attorney and failed to appear. The Court entered a default against defendant and held a four-day hearing on plaintiff’s claims, ultimately entering a default judgment on May 1, 2013. One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment (through counsel as he could not appear due to the still outstanding bench warrant), which was denied. Defendant then appealed this Order.

The Appellate Division noted that defendant has been avoiding his court-ordered responsibility to support his two children, while at the same time, he sought to appeal the issues of palimony and custody resulting from the same litigation.

In its opinion, the Appellate Court acknowledged that, as set forth in Matsumoto, “whatever limits the fugitive disentitlement doctrine might impose in other settings would not be applicable in a custody case in which no enforcement issue exists”. Thus, if child custody is a substantial issue the doctrine would not apply. However, the Court concluded here that custody was not an actually an issue. The Appellate Division noted that, curiously, defendant did not raise custody as an issue throughout the litigation, raising it only for the first time in his motion to vacate the default judgment (almost a year after its entry). Further, Defendant did not offer a custodial alternative and the Court recognized that Defendant had been afforded contact with his children through supervised parenting time that was to be arranged between the parties.

Thus, since custody was clearly not an issue in the underlying litigation, the Court declined “to afford [defendant] the protection of the court while he flaunts the court’s authority from overseas.” Should custody reemerge in this matter, same is always modifiable upon a showing of changed circumstances.

Thus, the Court’s ultimate decision in this case balanced the fugitive disentitlement doctrine in favor of defendant’s facetious argument for custody. Though it might seem obvious that a person cannot flee our county and then seek the protections of the Court, that may not always be the case in family law matters. With today’s ever mobile society, it will be interesting to see in what instances, if any, a fugitive’s parental rights and the best interests of the child may outweigh the doctrine of fugitive disentitlement.