New Jersey Family Law Blog

Top New Jersey Family Law Cases

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It is always a pleasure to find other blogs that provide insightful commentary on New Jersey law and one of these is the blog of Donald Vanarelli.  In a recent post, he reviews the top ten family law cases of 2008 that were discussed on January 31st at the annual family law symposium run by the New Jersey Institute for Continuing Legal Education (ICLE).

I'm just going to mention the top 5 decisions of 2008 which were:

1. Clark. v. Pomponio, 397 N.J. Super. 630 (App. Div.), certif. denied, 195 N.J. 420 (2008)(bankruptcy proceedings temporarily put a stop to any divorce and the court cannot go ahead with a default judgment of divorce and equitable distribution)
2. Devaney v. L’Esperance, 195 N.J. Super. 247 (2008) (cohabitation is no longer an essential requirement for a palimony claim). As reported in a previous post on this blog, this case has prompted the New Jersey legislature to introduce a bill requiring any palimony agreements to be in writing to be enforceable.
3. Connell v. Diehl, 397 N.J. Super. 477 (App. Div.), certif. denied, 195 N.J. 518 (2008) (in a palimony case, the life expectancy of the recipient should have been used in calculating the award amount, not the life expectancy of the payor)
4. Brundage v. Estate of Carambio, 195 N.J. 575 (2008) (a party should not have their settlement agreement overturned as a result of the unethical conduct of their attorney as this penalizes the client and not the attorney.
5. Fawzy v. Fawzy, 400 N.J. Super. 567 (App. Div.), certif. denied, 196 N.J. 595 (2008) (an arbritator cannot make a child custody determination, this can only be done by a Superior Court Judge, as to do otherwise offends the court’s parens patriae obligation to protect the best interests of children).

In addition to the legal take home of each case, what they collectively highlight is that New Jersey law is constantly changing and being refined, and that any legal writing whether published in a blog, book or magazine article may be out of date and should not be relied upon for accuracy.

What is the value of your home in a divorce ?

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One of the major assets in any divorce is usually the marital home.  Sam Hasler in a  post on his excellent Indiana Divorce & Family Law Blog, that is well worth a read, discusses the three main methods for valuing property:

1.  Hiring a Certififed Real Estate Appraiser.  This is the method that Judge's in New Jersey favor when it comes to setting value. An appraiser is a neutral, third-party expert who is paid a fee for an appraisal. Usually the parties agree on a joint appraiser to keep costs down.  Appraisers who know that the property valuation is for a divorce may charge a higher fee because they know their report could be contested or used in evidence in court.

2.  Obtaining a market evaluation from a realtor or licensed real estate sales professional. Someone selling homes in your area should have a good idea of value and what a home may sell for, and if you are looking for a quick, free, indication of approximate value then this is a good starting point.  There is no guarantee that a home will sell for what a realtor advises the listing price should be.  At the end of the day, the price you obtain is what a buyer is willing to pay and in today's market that can be difficult to predict.

3. Property tax records.  These tend to be less reliable and depending on when the municipality revalued property or how it calculates property taxes, may not be indicative of actual value.

Value can also be what the parties agree it to be. As part of an overall divorce settlement that may involve dividing up pensions, child support and alimony, the parties can arbitrarily agree a property value. Unless there is a trial, a settlement agreement involves negotiation and compromise, and reflects what both parties consider to be fair and reasonable. 

If you want to divorce but cannot afford to due to the depressed housing market, then a post-nuptial agreement may be worth considering

Image via WikipediaThat’s the advice of leading family lawyers according to a recent Avvo survey that showed divorce rates are down in several parts of the country. People’s homes are often their main asset and in today’s turbulent and difficult economic times, there may be little or no money left in the house to share after a divorce.

Instead of going through a divorce and having to sell at fire sale prices or alternatively give one partner a low buy-out value that may be a bargain in future years, those with assets are thinking twice about divorce. The problems of divorcing in today’s depressed housing market were recently highlighted in a “New York Times” article, “Breaking Up Is Harder to Do After Housing Fall."

If the economic crisis has put strains on your marriage such that a divorce is likely at some point in the future then consider a post-nuptial agreement while you ride out the current economic crisis. This agreement would allow you to work out the financial terms of any future divorce and at the same time focus the parties on constructive ways of handling money and assets until then.

However, some people will still want to divorce and while money is something that can always be replaced, time cannot. For those that decide to cut their losses and go ahead with a divorce, think carefully about the financial aspects but don't let that deter you if that is what you want to do. Attorneys, financial planners and other professionals are available to offer advice and counsel.

If you donate a kidney to your spouse you can't claim it back if you divorce

Image via WikipediaIn a situation that is reminiscent of Shakespeare's "Merchant of Venice", according to a recent BBC News article, a New York doctor going through a divorce wants the kidney back he donated to his wife or alternatively to receive $1.5M in compensation from her.

Selling any organ is illegal in the United States under the National Organ Transplant Act of 1984. Therefore, if Dr Batista were to receive the $1.5M he claims, he would have broken the law and be subject to prosecution and if found guilty would most likely loose his medical license.

Ignoring the fact that the doctor may be violating his own ethical obligations, he donated the kidney as a gift and it is not a marital asset subject to equitable distribution. No court would ever order its removal.

There is no mileage in being vindictive in a divorce. It is better, to quote Shakespeare to "Wrest once the law to your authority: To do a great right, do a little wrong."

A condominium bought during marriage is still subject to equitable distribution even though bought by one party and titled just in their name.

Image via WikipediaThe August 29, 2008 unpublished appellate opinion in Leclair v. Khairzada highlights a misconception that the name on the title matters when it comes to dividing up assets during a divorce.

The parties in Leclair married in 2001, then in 2002 the Wife bought a condominium in which the couple lived, paying the deposit out of her money and putting the title and mortgage solely in her name. At time of divorce in 2007 she argued that her Husband was not entitled to any share of the condominium because she used her own money for the deposit and he contributed nothing to its maintenance.

In New Jersey there is a presumption that all property acquired during marriage is subject to equitable distribution, irrespective of whose name is on the title. A party who claims that an asset is immune from equitable distribution has the burden of proof to show otherwise. In this case the Wife failed to carry her burden of proof as having title just in her name did not take away the Husband’s interest.

The appellate decision affirmed the trial court judge’s decision that the Husband was entitled to a share of the condominium with the Wife to be reimbursed for the initial deposit she paid.

To avoid future Motion Practice make sure your Divorce Settlement Agreement clearly states what you think it means.

Often during a divorce, there is pressure to settle, make the deal and move on. The result is that a settlement agreement may be hastily prepared or signed with little time for review. However, a poorly drafted agreement may result in future motion practice.

An example of this is described in the September 3 unpublished appellate opinion in Quatse. Sixteen years after they divorced in 1991, the parties filed a motion with the Court to determine the wife’s share of her husband’s pension. The wife believed she was entitled to a share of her husband’s pension from when they married until he retired, while he contended she was only entitled to a share for the time they were married. The parties settlement agreement was ambiguous, and did not provide the answer as to whose understanding was correct.

In New Jersey, assets acquired during marriage are subject to equitable distribution. Typically, the pension benefit subject to equitable distribution is the value from date of marriage to date of filing of the divorce complaint.

The appellate division upheld the motion judge’s determination that in the absence of a specific agreement in writing to the contrary, the wife was only entitled to her share of the husband’s pension acquired during marriage i.e. she was not entitled to benefit in the fruit of the husband’s labor post-divorce.

Obtaining a well-drafted settlement agreement is key to avoiding future motion practice. Even if there is a rush to settlement, carefully read your agreement and make sure you understand what it says and that it accurately reflects your understanding of what has been agreed.

Navigating through Divorce - Understanding Legal Jargon

Image via WikipediaAll professionals fall into the habit of using language that only they understand; lawyers are no different. As you navigate through the divorce process it is important to understand what common legal terms mean. If you are ever in any doubt, don't be afraid to ask your attorney to explain them until you understand.

Here are some common legal terms that you will encounter during a divorce. Your attorney will be able to guide you on the terms that apply based on the facts in your case, and how the Court system has interpreted them.

Alimony
This is the payment of periodic financial support from one party to the other after a divorce. Usually it is paid to maintain the lifestyle of the party in financial need as close as possible to that achieved during the marriage. Alimony can be of varying lengths from a couple of years to indefinite. Although the word “permanent” is often used, that doesn’t mean it is forever, as if circumstances change e.g. ill health, retirement it may be reduced or ended. In New Jersey, alimony can also be rehabilitative e.g. to allow a party to complete an education or training for a new job or career. It may also be used to reimburse a party for the support they gave the other to obtain a qualification or professional license e.g. while they went to law school or medical school. Alimony is very fact specific. There are no bright line rules. Generally, the longer your marriage and the more imbalanced the financial earning power between the parties, the higher the likelihood of alimony.

Child Support
A child has a right to be supported by both parents. Child support is the mechanism by which the parent with whom the child lives most of the time receives a financial contribution from the other parent to offset their expenses. The New Jersey court system publishes a set of child support guidelines that take into account the income of the parties and time the child spends with each parent. For high income earners, child support in excess of the guidelines may be payable.

COBRA
Following divorce you will be responsible for your own health insurance. So if your health insurance is through your ex-spouse's employment and you have no employment based health insurance in your own right, you may need to consider COBRA coverage. COBRA stands for the federal government regulations that allow you to continue health coverage in a group insurance plan for 36 months following a divorce so long as you pay the required premium and elect to do so within 60 days of the Judgment of Divorce.

Cohabitation
Living together without being married is cohabitation. The definition of what constitutes cohabitation is again very fact sensitive and may require a “marital” type relationship with a shared inter-twining of finances. Cohabitation post-divorce can have legal consequences e.g. a lowering or termination of alimony. When writing a settlement agreement where alimony is involved, it is important to discuss whether alimony terminates upon cohabitation and the definition of cohabitation to be used.

Complaint
This is the formal set of legal papers that starts off the divorce process. Either party may file a complaint with the court.

Custody
This is used to define who has the care of the children and the right to make decisions for them. It can be further divided into “legal” custody – who has the right to make decisions on the health, welfare, education of the child and “physical” custody – who has primary care of the child i.e. who is the everyday parent or primary caretaker. It is not uncommon for divorced parents to have joint legal custody and one parent having physical custody. In some cases true “shared” custody can take place where a child spends equal time with both parents, but this is less common.

Discovery
This is the process in which attorneys “discover” or seek information from the other party. It can involve requests for documents and the answering of questions. It is time consuming and expensive but is an essential tool in ensuring that fair settlements are reached based on full knowledge of all the assets (investment, pension, savings, property etc) both parties have in their possession.

Equitable Distribution
This is the distribution of all the property and assets acquired during the marriage in a way that is fair to both parties. It involves the valuation and division of the joint marital assets (home, pension funds, stock options, furniture and furnishings, cars etc acquired during the marriage). It also involves the division of liabilities too e.g. credit card debt. The parties’ agreement as to equitable distribution is usually memorialized in a Settlement Agreement.

Imputation of Income
If you are not working but could work, or you are earning significantly less than you could, the Court will impute or assign a $ income to you (typically used in connection with child support/alimony calculations) based on your qualifications, skills and work experience irrespective of the fact you are not actually earning that amount at the time. As an example, ex-Governor McGreevy was imputed income of $175,000 (Governor's salary). The court reasoned that he could still earn $175,000 as a lobbyist or consultant if he had not voluntarily chosen to become a Priest.

Judgment of Divorce
This is the legal piece of paper that says you are divorced.

Motion
This is a request to the court to resolve issues the parties cannot agree on or to require the other party to do something. Motions made prior to divorce are known as "pendente lite" motions. Motions made after you are divorced are post-judgment motions.

Pendente Lite
This is a latin term that means “while the law case is pending” and is used to describe Court Orders and Motions for financial support during the divorce process. It is a mechanism that allows the maintenance of the financial status-quo before a Settlement Agreement is reached.

QDRO
A Qualified Domestic Relations Order (QDRO) is a legal document that allows a pension fund administrator to divide pension benefits.

Settlement Agreement
The end result of the divorce process is typically two things: a Judgment of Divorce (the legal paper that says you are divorced) and a Settlement Agreement (often called a Property Settlement Agreement or Marital Settlement Agreement) that specifies how the parties will divide up their assets, what financial support should be paid, and if they have children, what the parties agree to as to custody and parenting time.

Removal
This is a term frequently used in the context of permanently relocating (or “removing”) your children to another State or Country post-divorce. If you want to move to a new State or Country post-divorce for a new job, to be closer to family or a new marriage and you don’t have the consent of the other parent, you will have to go to Court for permission.

A modified version of this post was first published on First Wives World.

If you didn't make a pre-nuptial agreement, it's not too late to consider a post-nuptial agreement

Thanks to Christine Bauer for an interesting post on her Florida Divorce & Family Law Blog discussing a Palm Beach Daily News article about the rise in post-nuptial agreements. Christine comments that “many couples in their second or third marriages are finding them to be a useful tool to insure that their estates are passed onto their own children when they die.”

One example of where a post-nuptial agreement could be important is if you start a new business and want to protect the ownership of this from equitable distribution in the event of divorce or to ensure it passes on to your children. Another example cited in the Palm Beach Daily News article is to protect an inheritance.

Both parties would be required to provide full financial disclosure and each would need to have separate legal representation. A post-nuptial agreement might sound unromantic and is not something for everyone, but it is not unreasonable if you have children from another marriage and want to protect their inheritance or you have partners in a new business venture who are worried about business ownership in the event of a divorce. If you didn’t make a pre-nuptial agreement, it’s not too late to consider a post-nuptial agreement.

Seven year marriage too short for Permanent Alimony

Image via WikipediaIn the recent unpublished opinion in Dubois v. Brodeur, the appellate division reversed the award of $500,000 a year in permanent alimony to Melanie Dubois after her divorce from NJ Devils hockey player, Martin Brodeur, and remanded the case back to the trial judge to enter an award of limited duration alimony instead.

In New Jersey there are four types of alimony awards possible: rehabilitative, reimbursement, limited duration, and permanent. “[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000).

Limited duration alimony is awarded in recognition of a dependent spouse's contributions to a relatively short-term marriage that demonstrated attributes of a "marital partnership." Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000). The distinction between permanent and limited duration alimony is the length of the marriage.

In the case of Brodeur, the parties lived together for three years before they were married and their marriage lasted seven and a half years during which they had four children.

In reversing the award of permanent alimony, the appellate division found that although Brodeur’s wife would never be able to earn sufficient money to independently pay for the luxurious lifestyle she had become used to, that did not justify an award of permanent alimony. The parties were saving up for the day when Brodeur would not be able to play, so it was foreseeable that he would not continue to earn forever at the level he currently does. The opinion went on to say:

“[t]he alimony analysis in a case such as this must reflect the transitory nature of defendant's capacity to earn a very substantial income and the transitory nature of the extent of plaintiff's dependency.”

Marital infidelity can be costly - not only will Brodeur have to pay limited duration alimony of $500,000 for several years, possibly until his children are emancipated, but his wife obtained equitable distribution in excess of $5 million.

Is property owned before marriage subject to equitable distribution ?

In New Jersey any property owned by a spouse prior to marriage remains their property and is exempt from equitable distribution (the economic division of assets acquired during the marriage) at time of divorce. Painter v. Painter, 65 N.J. 196, 214 (1974). (The increase in value during the marriage of pre-owned property may be subject to equitable distribution if the non-owner contributed to its appreciation).

However, if the property was purchased in contemplation of marriage then even though it was bought by one spouse individually before the marriage, it is subject to equitable distribution. Weiss v. Weiss, 266 N.J. Super. 281 (App. Div. 1988). “[A] marital partnership may be found to have commenced prior to the marriage ceremony, where the parties have adequately expressed that intention and have acquired assets in specific contemplation of their marriage.” Id. at 287.

That was the case in the unpublished opinion earlier this year in Shine v. Shine. The parties began dating in April 1997; became engaged in April 1998; and married on September 11, 1999. The husband bought, as sole owner, what would become the marital home on February 3, 1999.

At the time of purchase the parties were engaged, were married 7 months later and went on to live in the home while married. At the divorce trial, the Judge concluded that the home was purchased in contemplation of marriage and therefore subject to equitable distribution. The appellate division affirmed, finding that“[t]he judge's determinations concerning the marital home were primarily based on findings of credibility. On the issue of whether the home had been purchased in contemplation of marriage, the judge determined that plaintiff was not credible, and defendant was.”

If you are planning on getting married and have significant assets then taking legal advice early, to consider options such as a prenuptial agreement, may be a good long-term investment.