Every now and then, you read a case and just scratch your head. I have been doing this for 30 years and I get how emotional the divorce process canContinue Reading How Not to Act at Trial
Court Sells Vacation Home to Pay Alimony and Equitable Distribution Arrears
When parties settle their cases, many if not most, expect that their agreement that they spent months or years negotiation will finally provide them with some peace. After all, if…
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IS WILLFUL FAILURE TO COMPLY NECESSARY FOR AN ORDER TO BE ENFORCED?
You see it all of the time. In defense of an enforcement motion, a litigant says “I didn’t knowingly violate the Order”, “I didn’t willfully violate the Order”, “it wasn’t…
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Enforceability of Domestic Violence Restraints That Prohibit a Defendant from Attending Any Location Where Plaintiff May Also Be Present
As family law practitioners who frequently represent parties in domestic violence actions, we are often confronted with clients who, having been the victim of domestic violence, seek to prohibit their spouse’s presence at any location where they will also be present. Until just recently, the law remained silent as to whether a restraining order could provide such broad prohibitions. On January 17, 2012, the legal silence ended by way of the matter of State v. S.K., Docket No. A-1488-10T1, which has been approved for publication and is, therefore, binding law upon the trial courts of our state. As established in S.K., a provision in a domestic violence restraining order that prohibits a defendant from “any other place where plaintiff is located” is not generally not enforceable as The Prevention of Domestic Violence Act does not authorize such non-specific restraints. N.J.S.A. 2C:25-17 to -35.
In addition to the more ‘common’ relief of barring defendant from plaintiff’s place of residence and employment, the final restraining order in S.K. went one large step further by prohibiting defendant from “any other place where plaintiff is located”. Over five years after the restraining order was entered, defendant attended the soccer game of the parties’ children at a local high school that plaintiff also attended. While plaintiff sat in the bleachers, defendant stood near the bleachers, watching the game. Upon seeing defendant, plaintiff telephoned the police and advised them that defendant was in violation of the final restraining order. At no time did plaintiff accuse defendant of communicating or contacting her in any way. No action was taken by the police at that time.
The day following the soccer event, plaintiff filed a “citizen’s complaint” against defendant for violation of the restraining order. In response, the police filed a formal complaint, charging defendant with “disorderly persons contempt” in violation of N.J.S.A. 2C:29-9b, as well as “petty disorderly persons harassment”, in violation of N.J.S.A. 2C:33-4a. Accordingly, defendant was arrested and processed and released from custody. Trial was held six months later, wherein the State offered defendant a plea agreement in exchange for serving no jail time. Defendant agreed to plead guilty to the contempt charge conditioned upon the State dismissing the harassment charge.
Finding in favor of plaintiff, the Appellate Court reversed plaintiff’s conviction and remanded to the trial court for dismissal of the complaint filed by the Sate and consideration of an appropriate amendment of the final restraining order to delete the invalid provision.…
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Sanctions Actually Granted for Interference with Parenting Time
One of the hardest questions to answer for a client is why a Court doesn’t enforce their own Orders. The next hardest questions to answer are if they found the other side in violation of litigant’s rights, (1) why weren’t there any real consequences for the violation of the order and (2) why didn’t I get counsel fees. The Court Rules suggest that a litigant is entitled to counsel fees if they are required to come to court to enforce an Order. In addition, the court rules in the family part also include numerous provisions, including the imposition of monetary sanctions and counsel fees, for violation of a parenting time (visitation) Order.
As such, it was interesting to see the unreported decision in the case of Friedman v. Friedman decided on March 7, 2011 wherein an awarded of sanctions for violating a parenting time order was affirmed by the Appellate Division. In this case, the father asserted that the mother violated the parties’ parenting schedule when she "signed both children out of school and drove them to [Virginia]." As a result, the father sought sanctions against the mother "for making unilateral changes" to the parenting schedule "and for failing to cooperate with the recommendations of the Parenting coordinator." The trial judge found that the mother violated the parties’ parenting schedule and the recommendations of the parent coordinator by extending "the children’s time with her, in Virginia." As a result, the mother was ordered ordered to pay the father $500.00 as a sanction plus reimburse him for his costs to file and serve the motion. The decision was based upon the court’s finding that the mother had a history of failing to cooperate with the plaintiff. In addition, the mother’s request to relieve the current parent coordinator was denied.…
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What Happens When an Order Is Violated? Can a Court Impose Sanctions?
Many divorces involve distribution of assets, including pensions. To protect the non-titled party entitled to receive a share of the asset, i.e. pension, the court may mandate or the parties will negotiate security to ensure receipt of the value of the asset. In a recent unpublished post judgment Appellate Division decision, Brown v. Brown, decided January 3, 2011, the court awarded the plaintiff-wife attorneys fees for enforcing defendant-husband’s obligation under the Judgment of Divorce to obtain a life insurance policy that guarantees the wife’s interest in defendant’s pension payments. But the Appellate court refused to uphold the trial court’s Order, which imposed monetary sanctions against the husband for failing to obtain the requisite life insurance policy.
Defendant-husband was required to obtain a life insurance policy and to select a payout option where the wife would receive monthly income if the husband were to predecease the wife. However, the husband failed to obtain the requisite life insurance and attempted to select the pension benefit that would maximize his income during retirement but would preclude the wife from receiving any income should he predecease her. Only through the diligence of the wife was it discovered that husband had attempted to select the incorrect payout option. As a result, the wife filed two motions seeking to enforce her rights under the Judgment of Divorce.…
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Sanctions – A Realistic Punishment
Week after week I find myself reading decisions that deal with the imposition of sanctions against one party in a family law matter and the validity of these sanctions. Oddly…
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