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In September 2014, the New Jersey Legislature amended this State’s statute on alimony.   Among thefile0001270953716 changes that the new alimony statute contains was a provision related to retirement.    The addition that the Legislature made to the alimony statute to include a provision for alimony is lengthy.  N.J.S.A. 2A:34-23(j) now provides that alimony may be modified or terminated “upon the prospective or actual retirement of the obligor.”  With any new amendment to a statute, the family court then may have to interpret the statute in order to apply it to family law cases and the legal issues presented to it.  Thus was the case in the recently published family court opinion of the Hon. L.R. Jones, J.S.C. in Mueller-v-Mueller, in which Judge Jones was presented with a family dispute that required him to apply the alimony statute and answer what the term “prospective retirement” means, whether an obligor spouse may  make an application to terminate or modify alimony based upon a future retirement, and when such an application should be made.

In this case, the parties were married in 1986 and divorced in 2006.  At the time of the divorce the parties entered into a settlement agreement in which the plaintiff agreed to pay the defendant permanent alimony of $300 per week.    The agreement was silent on the issue of the plaintiff’s future retirement.   Plaintiff filed a post-judgment motion.  He certified that he is now 57 years old, and that he plans to retire in five years when he turns 62, when he would be entitled to retire and receive his full employment related pension benefit.   He asked Judge Jones for an order that would allow his alimony to terminate in five years upon his retirement, explaining that if his alimony obligation did not terminate, he would not be able to afford to retire at that age.  The Plaintiff thus was asking the family court to terminate alimony based on a prospective future retirement, and based on an early retirement given that the plaintiff’s full retirement age to receive Social Security retirement benefits is 66, not 62.

Judge Jones first turned to the new alimony statute as it relates to retirement.   N.J.S.A.(j)(1) relates to termination of an alimony obligation established by an order entered after the new statute was entered in September, 2014, which would not apply to this case.  Subsection (j)(2) relates to modification of alimony based on early retirement, and subsection (j)(3) relates to modification of an alimony obligation that was established before September, 2014, which was the case in Mueller.

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IMG_1930On August 9, 2016, the New Jersey Appellate Division Committee on Opinions approved for publication the Trial Court opinion of the Hon. L.R. Jones, J.S.C. in the case of Harrington-v-Harrington, in which the court analyzed the situation divorced families face when one of multiple children is emancipated and the effect that emancipation has on child support due on behalf of the unemancipated children. The Court held:

1) When parties have multiple children covered under an unallocated child support order, and a child becomes emancipated, such emancipation is a change of circumstance, for which either party may seek review and modification of the existing unallocated child support order;

2) In a situation where a parent seeks a retroactive modification of unallocated child support for multiple children based upon a child’s emancipation, while there are still other unemancipated children, the court has the discretion to retroactively modify, or not modify, child support back to the date of a child’s emancipation, depending upon certain equitable factors set forth in this opinion.

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It is a well settled proposition in New Jersey that the “goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed

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while living with the supporting spouse during the marriage.”  Weishaus v. Weishaus, 180 N.J. 131, 140, 849 A.2d 171, 177 (2004); see also Lepis v. Lepis, 83 N.J. 139 (1980); Crews v. Crews, 164 N.J. 11 (2000).

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Periodically I digress in this blog from topics exclusively dealing with Family Law to issues involving the broader world. We are living in a time when history is being made. The world is in turmoil file000652921227from Brexit to Syrian refugees to radical Islam. The world is afire in controversy and the political out-shoot from these primarily manmade disasters. Over the last two weeks we have been presented with the condensed view of both of our political parties related to the current level of world angst and how the other party and their candidate contributed to any calamity, be it global warming to the Arab Spring. The truth is the world we live in is a mess.  I not sure if it has always been such a mess and we did not know it or if the world has digressed.  I firmly believe it is the latter but that belief is non-empirical.

We see in these times that many world leaders are being blamed or banned by their party or people for the horrible state of the world. No political figure on the world stage more appropriately embodies this state of world malaise than Donald Trump. The rise of Trump is certainly built on this feeling that the world is out of control and we need something radically different to fix a broken world.  Trump is the “no trust” candidate. He is popular because we do not trust politicians who it is felt only lie to us, promise us Hope and Change but deliver only the same old same old. We do not trust the press. We see them telling us what to think but we no longer think them right.  I remember when Walter Cronkite told us what to think, and we thought it.  So much for the lost power of the press whose every deviation from the truth is instantly fact checked. We don’t trust the Clintons who lie and cheat with each other and then tell the same lies to the American people. We knew Hillary would not be indicted, not because she was not guilty, but because she was powerful enough to thwart justice just like her Husband, who was found by the Arkansas Bar to lack the ethics required to be a practicing attorney (when did the media tell you about that?).   We know that the Clintons got rich selling power and giving short talks to people who could financially benefit from their power. They are crooks and the question is:  Do we vote for the crook we know, Hillary Clinton, or the businessman who used or took advantage of the system to make billions?

It is a tough choice. Trump comes with no real political credentials which, to a segment of the electorate is a plus, but which also means he is not experienced at sitting at a table and making political deals. He argues that “a deal is a deal”. Hillary asks you to look at her track record, hoping you do not recognize her record is abysmal.  Eisenhower was the last man running for president without political credentials. He was a Republican as well. He came at a time that we wanted a commanding take charge leader who would make us feel safe.  We were tired of the bought and paid for politician, the red threat and inflation. We liked Ike. He spoke to us and we trusted him. People like Donald too. He talks straight and is not afraid to say what he thinks, and even if said in an abrasive way at least we know what he thinks and is not told what to say by the latest poll.

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In February, 2015, Chief Justice Rabner convened a Supreme Court Ad Hoc Committee on Domestic_DSC4819 Violence. Whether given that 24 years had passed since the “Prevention of Domestic Violence Act,” (N.J.S.A. 2C:25-17 et. seq.) was enacted, or perhaps even in response to the public backlash and uproar over the handling of the Ray Rice situation and its spotlight directed upon domestic violence laws, the Committee was charged with examining the current system and to conduct an in-depth review of New Jersey’s domestic violence procedures and laws and to make recommendations to strengthen New Jersey’s response to domestic violence. That Committee recently issued a report which contained thirty (30) recommendations.  While the Committee found that overall the actual process of case management and adjudication of domestic violence cases in the court system was not in need of significant amendment, many of their recommendations focused on aspects such as training, education and the availability of services.  The nature of these recommendations was obviously designed to enhance and improve the process, and also to reflect the systemic societal and technological changes which have evolved since the domestic violence statute was originally enacted. While these recommendations were approved by the entire Ad Hoc Committee, they were the product of three distinct but admittedly interrelated subcommittees looking at differing aspects of the domestic violence process.

The Resources Subcommittee was charged with determining the availability of domestic violence resources for both victims and batterers, and to make recommendations for the improvement the availability of same. The Education and Training Subcommittee was charged with making a systematic review of applicable legislation and available agency protocols associated with domestic violence training for law enforcement, judiciary staff and judges, prosecutors, service providers, attorneys and others, and to make recommendations for the improvement of such training. Finally, the Interaction between Municipal and Superior Courts/Level and Degree of Offenses Subcommittee focused on a variety of issues regarding the handling and scheduling of domestic violence cases in both the Municipal and Superior courts, as well as current domestic violence laws and to make recommendations to improve those processes or laws.

The Resources Subcommittee’s recommendations included encouraging the Bar Association to develop referral procedures to provide low or no cost legal assistance as well the expanded use of law students for parties litigating civil domestic violence cases (as opposed to criminal and/or violation of restraining order cases); the expanded access to and use of translation and interpreting services; updating risk assessment forms where children are involved as well as developing criteria for determining the necessary expertise and training for court appointed or referred risk assessors; the expansion and standardization of supervised visitation services, facilities and resources, including where there may be a concurrent Division of Child Protection & Permanency (DCP&P) investigation; the expansion of therapeutic programs for children exposed to domestic violence; and, reviewing policies for Domestic Violence Response Teams, revisiting the use of County Domestic Violence Working Groups, and the creation of a Technology subcommittee in regards to domestic violence issues.

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The Second Amendment of the Constitution of the United States of America, more commonly referred to as “the right to bear arms,” can GunControl_12_2at times conflict with society’s ability to protect other citizens from those same citizens that have taken up their right bear arms. Nowhere is this more evident than in the tragic events that occurred in Dallas, TX this week where five police officers were killed by sniper fire coming from Micah Johnson who was later killed in a standoff with the police. The news reports are filled with stories of police being shot by citizens, citizens being shot by the police and fellow citizens being shot by their fellow citizens.  Many people like to think that gun violence is limited to organized gangs; however, consider these statistics from the National Domestic Violence Hotline:

  1. Women in the U.S. are 11 times more likely to be murdered with guns than women in other high-income countries. [D. Hemenway and E.G. Richardson, “Homicide, Suicide, and Unintentional Firearm Fatality: Comparing the United States With Other High Income Countries, 2003,” 70 Journal of Trauma 238-42 (2011)].
  2. Female intimate partners are more likely to be murdered with a firearm than all other means combined. [When Men Murder Women: An Analysis of 2010 Homicide Data: Females Murdered by Males in Single Victim/Single Offender Incidents Violence Policy Center. Washington, DC, January 17, 2013].
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When contemplating divorce many people fail to consider other causes of action that should be raised in a Complaint for Divorce and risk being barred from making a claim in the future.  In file000799318829addition to asserting one or more of the statutory grounds for divorce, such as irreconcilable differences, a Complaint for Divorce may contain tort claims, including those of marital tort.  A marital tort encompasses various differences for which a complainant may seek monetary damages.  Such torts may include being infected with a sexually transmitted disease by one’s spouse, physical assault and battery, marital rape, wrongful death, intentional infliction of emotional distress, false imprisonment, use of excessive force, defamation, wiretapping, battered women’s syndrome or attempted murder. However, “marital tort” is a broad term which may include injuries not listed. Raising these claims in the divorce action could result in a monetary award to the victim to be paid in addition to equitable distribution, spousal and child support.

Rule 5:1-2(a) directs that the following actions shall be cognizable in the Family Part: “Civil Family Actions Generally. All civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Family Part. Such actions shall include all actions and proceedings provided for in Chapters II and III of Part V: all civil actions and proceedings formerly designated as matrimonial actions; all civil actions and proceedings formerly cognizable in the Juvenile and Domestic Relations Court; and all other civil actions and proceedings unique to and arising out of a family or family-type relationship.”   The language in Rule 5:1-2 parallels the language in Rule 4:3-1(a)(2), but neither rule defines “… all civil actions in which the principal claim is unique to and arises out of a family or family-type relationship.”

In New Jersey, the polestar case governing martial torts is Tevis v. Tevis, 79 N.J. 422 (1979). In Tevis, the wife sued the husband for damages resulting from the husband physical beating the wife. Prior to the decision in Tevis, the New Jersey Supreme Court in Merenoff v. Merenoff, 76 N.J. 535 (1978) overturned the doctrine of spousal immunity which previously prevented one from suing  one’s spouse for injuries proximately caused by the conduct of that spouse.  In Tevis, the Supreme Court held that “that the abolition of the doctrine [of interspousal immunity] pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of intentional behavior such as gross negligence, recklessness, wantonness, and the like.” However, the Court applied the single controversy doctrine to bar the ex-wife’s claim. The “single controversy doctrine” requires a spouse going through a divorce in New Jersey to raise all claims including a marital tort within the Complaint for Divorce. Failure to do so could result in losing the right to raise that claim later. Even if the marital tort is raised in the Complaint for Divorce, it does not mean that the family court will resolve the tort claim. The marital tort must be sufficiently related to the underlying divorce action so as to require joint resolution. However, even then, the court could sever the claims and try the tort claim, which may require a trial in front of a jury, to be tried separately from the divorce.

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Clearly the period of one’s separation and divorce is one of transition where one must adapt to a plethora of life changes, some within one’s control and some foisted upon one by the views andAMBULANCE 3 rules of others. Although statistics indicate that as many marriages end in divorce as end in death, there are still lingering prejudices about divorce and the people who are divorced or divorcing that can vary in their impact on one’s life from the vexatious to the life altering. There is no doubt that there are situations in which separated or divorced people experience stigmatization, such as in houses of worship where the status of divorce or remarriage after a divorce may result in a change in status or even a pronouncement that one is unholy. Depending on one’s dedication to one’s faith, these reactions to one’s status as divorced can be annoying or devastating and certainly life altering. One may also experience social stigma in less organized ways with friends who chose sides or simply are not interested in inviting a “plus one” to a particular outing or event.  These social prejudices can seep over into the work place. The result can be again trivial or extreme. It seems strange that people could in the 21st Century face economic penalties in workplaces based on their status as separated or divorced, but the reality is that such discrimination happens.

On June 21st of this year, our New Jersey Supreme Court in the matter of Smith-v-Millville Rescue Squad, — N.J. — (June 27, 2016), took up the issue of work place discrimination. In this matter the Plaintiff was employed by the Millville Rescue Squad, as was his wife. The Husband engaged in an extramarital affair with a rescue squad volunteer and advised his supervisor of that fact. The affair continued, and the marriage of the Husband with his employee Wife obviously did not reconcile. The Husband was advised by his supervisor that the board of the rescue squad anticipated that the pending divorce would be acrimonious, and a day later the rescue squad terminated the husband, allegedly for cause.

The question presented to the Supreme Court of New Jersey was whether the state’s Law Against Discrimination (LAD), embodied in N.J.S.A. 10:5-1 to -42 and which prohibits discrimination based on marital status, prohibits discrimination not only based on the status of being single or married, but also the status of being separated or divorced.  Our Supreme Court found that the LAD should be interpreted liberally so as to prevent employers from resorting to “invidious stereotypes as the purpose of LAD is eradicate discrimination in the workplace. It was noted by the Court that the LAD prohibits the uses of stereotypes by employers in making employment related decisions, but the LAD does not prohibit remedial action if an individual’s separation or divorce has a determined effect on workplace performance.  In this regard the Supreme Court specifically stated: “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 life decisions, 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 …”.

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Allocation of higher education expenses for the children of divorced or non-married parents continues to be an area of litigation and developing law.  This week, the Appellate Division approved for publication the case of  Avelino-Catabran v. Catabran, in which the Appellate Division addressed the interpretation and enforcement of a Property Settlement Agreement between divorcedfile000195499258 parents that provided for allocation of college expenses not covered by a student’s financial aid package, where a parent had taken out PLUS loans.  The Court also addressed the support of college age unemancipated children where one child resided with one party outside of the U.S., and the other child resided at college in New York.

In this case, the parties married in 1993 and had two daughters.  After entering into a Property Settlement Agreement (PSA), that provided for the parties to share legal custody and that gave primary residential custody of the children to the Plaintiff, the parties divorced in 2002.   The PSA required Defendant to pay child support of roughly $600 per month on behalf of the two children, which was increased to $800 per month in 2009.   The custodial and parenting time arrangements also changed after the divorce when Plaintiff and the two children moved to Switzerland, with the consent of Defendant.  The parties’ PSA also included a provision requiring the parties to equally pay “net college expenses” of their children, with such expenses defined as those not covered by the children’s financial packages, scholarships, student loans and grants.

After completing high school, the parties’ elder daughter, Catherine, enrolled in college at New York University (NYU).  The cost for her to attend NYU was $62,768.  Catherine received a financial aid package that included $12,720 in scholarships, $3,000 in work study and $7,900 in student loans, not including the availability of $39,148 in PLUS loans.  PLUS loans are the maximum amount that a parent may borrow.  Plaintiff asked Defendant how much of the PLUS loans he thought they should borrow, and then asked him to borrow $12,770 to cover Plaintiff’s share of the balance owed for college. She asked Defendant to borrow this money “on behalf of” Catherine, which Defendant did. By this point, both parties were earning more than they were at the time of the divorce, with Plaintiff earning approximately $225,000 per year and Defendant earning approximately $113,000 per year.

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The 18th century educational writer, W.E. Hickson, is credited with popularizing the proverb: “’Tis a lesson you should heed: Try, try, try again. If at first you don’t succeed, Try, try, try again.”  On IMG_0187June 10, 2016 the New Jersey Appellate Division decided the case of KL-v-DL, in which after nearly three years of continuous litigation, a father succeeded in having the trial court reconsider its prior order relating to additional visitation with his daughter.  The protracted litigation began not long after the divorce complaint was filed on June 14, 2013.  The parties filed restraining orders against each other; the trial court dismissed the husband’s restraining order and granted the wife a final restraining order on October 18, 2013 relating to an incident involving the husband striking the wife in the face with a bottle.  At the time of the hearing, the husband sought visitation with the parties’ eleven year old daughter, and the court restricted his visitation to Saturdays from 1:30 p.m. to 9:30 p.m.

Soon after the court’s order, the parties filed respective motions, with the wife seeking child support and the husband seeking alternate weekend overnight visitation with the parties’ daughter. An Order was entered on February 21, 2014 which denied the husband’s request for overnight visitation but “expanded” his parenting time to an additional three hours on Wednesday afternoons, conditioned on his submission of signed and notarized letters from mental health professionals. The Court’s decision failed to explain why the Court “did not grant overnight visitation, in light of the wife’s failure to contest that the husband was a fit parent.”

The husband then filed a motion for reconsideration, and on June 10, 2014 the Court issued an order that denied his motion seeking alternate weekend overnight visitation. Soon after, the husband filed a motion for reconsideration of that June 10th order, again requesting overnight visitation.  The issue in contention was that on June 10, 2014, a Final Judgment of Divorce (FJOD) was entered, which contained agreed upon provisions for overnight visitation, but not on the days that the husband wanted.  The husband’s application was again denied. He later appealed, arguing that the trial court “improperly denied the ability of appellant to have overnight parenting time with his daughter by considering objections raised by respondent that were not a part of respondent’s motion papers and by using them as the basis of the denial of the overnight parenting time, as well as by making other mistakes of fact not supported by the record.”  The information that the husband alleged were not in the record were that the wife complained at oral argument, but not in her pleadings, that the husband had a roommate, a contention that the husband denied.  The Appellate Division ultimately concluded the trial court erred in failing to reconsider the issue of visitation.  The orders were vacated to the extent they addressed visitation and the Appellate Division directed that on remand “both sides should be given an opportunity to submit additional legally competent, relevant evidence, concerning the visitation issue. We strongly suggest that on remand the judge interview the daughter, who is now a teenager, to determine her wishes.”