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Valentines Day was this week, a Hallmark holiday created by the card maker to create a demand for its product. This Hallmark holiday resonates with us because we want to feel good aboutPART_1432489208837-2usa-225x300

our loved ones, and celebrating them and our relationship makes us feel good. Most humans love to love. I suppose that is a funny observation for a divorce lawyer but my profession does not immune me from a human’s fundamental drive to love and be loved.

This is a funny year to celebrate Love. Our nation is polarized philosophically and that polarization is drawn down the middle of the marital bed. There are arguments about “fake news” and “very fake news”.  Major new outlets have taken sides, openly endorsing the ouster of the President whom they call Mr. Trump, while other outlets revel in the courage of the President and his willingness to take on partisan news reporting.  All this is a lot to digest. It was similar in the first year of Reagan’s Presidency but Reagan’s style was smoother and he was more able to quell the surrounding storm. The point is that regardless of your view of the President, Hillary Clinton and Conservatism versus Liberalism there is a lot of ammunition available on TV for you to garner and use in an argument about the correctness of your position.  I know people feel passionately about their views.

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Reiterating the opening to my colleague, Padraic F.X. Dugan, Esq.’s blog outlining the history of U.S. file0002135280483-214x300Supreme Court decisions regarding the fundamental right to parent one’s child, he wrote:  “United States Supreme Court Justice Sandra Day O’Connor wrote on behalf of the Court in the case of Troxel v. Granville, 530 U.S. 57 (2000), that ‘the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.’ Justice O’Connor went on to cite other decisions like Meyer v. Nebraska, 262 U.S. 390 (1923), wherein the Court recognized ‘that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ In Wisconsin v. Yoder, 406 U.S. 205(1972), the Court noted: ‘The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition’. Justice O’Connor ultimately held: ‘It cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

On February 9, 2017, the New Jersey Appellate Division handed down a decision in Ricci v. Ricci, A-1832-14T1 While not factually identical to the Rachel Canning case discussed by Mr. Dugan referenced above (where a New Jersey student sued her nondivorced parents for contribution towards her college expenses), the Ricci’s are divorced and were sued by their emancipated daughter for payment of college tuition.

The relevant facts are as follows: the Ricci’s daughter, who is now 23 years old, left her mother’s home at the age of 19 to reside with her paternal grandparents. Consequently, the Ricci’s executed a consent order terminating child support. Thereafter, their daughter sought to intervene in the matrimonial matter, seeking to vacate the emancipation order. The trial court entered an Order on October 11, 2013, permitting the daughter to intervene, finding the daughter unemancipated for the purpose of college payment without discussion and required the parents to pay the tuition cost for community college for the 2013-2014 school year, which was less than $2,000.00. However, prior to completing her degree at community college, the Ricci’s daughter transferred to Temple University without discussing the decision with her parents and afterward sought that her parents pay the significantly larger tuition. On October 31, 2014, a new judge, without the benefit of a plenary hearing or review of financial documentation enforced the October 11, 2013 Order and required the Ricci’s to pay their daughter’s outstanding tuition, fees, and the cost of books at Temple University. The Ricci’s sought reconsideration of the October 31, 2014 Order but the judge did not examine whether and to what extent the Ricci’s could and should pay tuition and ordered the parties to pay their daughter’s outstanding tuition at Temple University. The Ricci’s appealed the resulting Order.

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On February 1, 2017, the New Jersey Appellate Division published its opinion in the case of New Jersey Division of Child Protection and Permanency v. V.E., A-0586-15T4 — A.3d —- (2017). V.E.file000626018085-300x225 is the mother of R.S. now age nine.  V.E. appealed an administrative finding of the New Jersey Division of Child Protection and Permanency  (“DCPP) that “established” a finding of abuse or neglect without her first being given an evidentiary hearing. The Appellate Division reversed the decision of the trial court to not afford V.E. a plenary hearing “because an established finding is a finding of child abuse or neglect under N.J.S.A. 9:6–8.21(c)(4), subject to disclosure as permitted by N.J.S.A. 9:6–8.11a(b) and other statutes, due process considerations require a party against whom abuse or neglect is established be afforded plenary administrative review. The agency’s denial of an administrative hearing is reversed.”

V.E. and  R.S. resided in a multi-family home where, allegedly unbeknownst to V.E., a sophisticated marijuana growing operation was underway in the basement apartment. V.E. and R.S. lived on the first floor of the two-family home. One day a kitchen grease fire occurred on the second floor while R.S. was at school. The fire department forcibly entered the basement through a back door while searching for the gas line and discovered the marijuana growing operation. The police described the scene as a “’sophisticated … growing operation,’ which included a makeshift irrigation system, fans, fluorescent lights, and heat lamps. The entire building was evacuated after the Hackensack Building Department condemned the structure because of the possible gas leak and an ‘unsafe overload of the electric panel.’ Narcotics Detective Alexander Lopez–Arenas took over the criminal investigation. He noted the “entire home smelled like marijuana” and valued the growing operation at approximately $2,000,000.”

As a result, V.E. was charged with child endangerment and various drug-related offenses and sent to the county jail. R.S. was placed with his Godmother, and the DCPP moved forward with filing a verified complaint for custody of R.S., pursuant to N.J.S.A. 9:6–8.21 and N.J.S.A. 30:4C–12.  The trial court upheld R.S.’s emergency removal and placement outside his home. As a result,  DCPP was granted legal and physical custody of the child with provisions for supervised visitation, substance abuse evaluations, and random urine screenings for the parents.  DCPP then interviewed V.E. and learned that she knew nothing of the growing operation. The child’s father also confirmed that another individual rented the basement and he denied knowledge that drugs were in the home. During DCPP’s interview with the child, R.S., he appeared “happy and talkative” during his interview. He also confirmed that he and his mother only entered the laundry room in basement and did not see any plants.

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I understand why you might not want to read this but . . . tax season is upon us.   While I am an attorney specializing in family law, I frequently come into contact with other areas of law, such as irs-300x225criminal law, school law, health law, real estate law, elder law, bankruptcy law, and so on.  While I am not a tax attorney, tax considerations do come into play in family law, especially divorces, sometimes by circumstance and sometimes by necessity.   Please note that I am not an accountant, and your divorce attorney is probably also not an accountant.  I do not intend this blog to be legal or accounting advice.  If you have any questions about your tax obligations you should definitely consult an accountant.

A this annual time of year when we are gathering our tax forms and receipts, it did get me thinking about ways in which some tax considerations intersect with divorces, and things that a divorcing person might want to think about.  Here are a few:

Support considerations:

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New Jersey Govenor Christie has signed into law N.J.S.A. 2A:17-56.67 which significantly modifies the current law related to the duration and termination of child support obligations.

Specifically Section (a) of the new statute provides that unless a court order or judgment provides to the contrary, child support terminates by  file6771267335956-300x204

“operation of law” when the child either: (1) dies, (2) marries, (3) enters military service or (4) reaches 19 years of age. Emancipation traditionally occurred upon: death, marriage or military service. However prior to the modification of this statute, emancipation presumptively occurred at age 18.

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More than ever it is not that unusual for a father to learn that the child he has been ordered to provide child support for is not his biological child. Instinctively, it would be equitable to assume that a man who is not the biological father of the child should not have to pay child support once paternity is negated. Concerns of paternity fraud are easier than ever to confirm because DNA testing kits are now available for purchase in most major drug stores. However, having a DNA test revealing the biological father of a child does not necessarily mean that a court ordered child support obligation is going to dissolved by the family court.

In New Jersey, paternity may be established by a certificate of parentage, or by a signed voluntary acknowledgment of paternity which is considered a legal finding of paternity subject to the right of the signatory to rescind the acknowledgment within 60 days of the date of signing, or by the date of establishment of a support order to which the signatory is a party, whichever is earlier. N.J.S.A. 9:17–41(b). Once there is a court order of paternity, as well as a signed, sworn admission of paternity, the issue of paternity, as adjudicated, can only be voided “upon a finding that there exists clear and convincing evidence of fraud, duress or a material mistake of fact, with the burden of proof upon the challenger . . . ” N.J.S.A. 9:17–41(b).

Just as it is not unusual for a man to be led to believe he is the father of a child that is not biologically his, it is not unusual for a man to voluntarily assume the role of a child’s father that is not biologically his. For example a man may choose to sign the birth certificate of his wife’s/girlfriend’s child knowing he is not the father, thereby preventing the child from knowing the biological father. In cases such as this, the doctrine of equitable estoppel can be used in parentage actions to prevent a party from denying child support, where he has voluntarily acted as a parent to the child. See M.H.B. v. H.T.B., 100 N.J. 567 (1985); Miller v. Miller, 97 N.J. 154 (1984); A.K. v. S.K., 264 N.J.Super. 79 (App. Div.1993); M.F. v. N.H., 252 N.J. Super.420 (App. Div. 1991); Savoie v. Savoie, 245 N.J. Super. 1 (App. Div.1990). Equitable estoppel requires “representation, reliance, and detriment.” Miller, 97 N.J. at 167. It arises “when one party is led to change its position in reliance on the course of conduct followed by another, and in that case, the doctrine of estoppel will be applied to bar the second party from altering that conduct if, to do so, would prejudice the first party.” C.R. v. J.G., 306 N.J. Super., 214, 235 (Ch. Div. 1997).

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Domestic-violenceThe time period in the lead up to and immediately after a couple separates is more likely than not rife with conflict. Unfortunately, the conflicts, whether verbal and/or physical, can rise to the level of abuse that is tantamount to domestic violence. Recently, a New Jersey family court in Ocean County issued an unpublished opinion is the case of AS-v-VS, FM-15-923-17, which is illustrative about how a family court judge handles a domestic violence complaint, especially in proximity to the filing of another family court matter.

In this case, the parties were estranged parents of two minor children.  In October, 2016, the parties appeared in family court under the non-dissolution domestic relations (FD) docket to address disputes over child custody and parenting time and child support.  An interim order was entered on October 31, 2016 pending receipt of further information and the proceedings were set to continue on December 14, 2016. Five days before the continuance of a final order the non-dissolution FD proceedings, the mother filed a domestic violence complaint against the father. She claimed that he had slapped her face during an argument about the children.  The mother was granted a temporary restraining order, and the court scheduled a domestic violence hearing for December 15th.  Meanwhile, due to the pending domestic violence matter, the court canceled the hearing in the non-dissolution FD matter.

During the domestic violence trial, the judge was faced with a “he said vs. she said” situation, as family court judges often are in domestic violence trials.  The only evidence of what occurred is what each party stated without any other witnesses or evidence.    The court ultimately ruled:

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On December 12, 2016 the Supreme Court of New Jersey decided the case of Thieme-v-Aucoin-Thieme, regarding equitable distribution and/or the use of a constructive trust in a post-judgmentDSC04154-B-300x225 dispute over deferred compensation paid to one spouse after the parties’ divorce.

In this case, the Plaintiff/Husband had been employed by a friend’s biotechnology consulting business since 1999, initially as a consultant and then as a “Director of Special Projects”.  The Plaintiff had no stock or ownership interest in the company, but worked grueling hours and traveled all over the world to make the company a success.  His salary reached $180,000 per year by the time that the parties’ divorced.

The parties in this case met in 2001 when the Defendant was then employed in a retail job.  The parties began to cohabit in 2002 when the Defendant became pregnant with the parties’ daughter.   Also in 2002, the Plaintiff approached his employer to discuss his compensation.   Plaintiff and his employer signed a “Statement of Understanding” in which his employer agreed to compensate Plaintiff should the company be sold in the future. This compensation could include an equity position in the company, salary or other tangible method of compensation.   The Husband, however, later argued that this agreement was not enforceable because the additional compensation was not quantified.  The parties also disputed when it was that Plaintiff informed Defendant of this Statement of Understanding.

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This is another of a series of blog posts in which I will be highlighting some of the more commonly asked questions of divorcing clients as to whether they can or can’t do certain things in regards to aspects of their financial or personal affairs. Once again, the thoughts expressed in this blog post should not be construed as being in the nature of legal advice, but merely serves as an overview of things to consider if you are a client asking these questions or a lawyer confronted with how to respond to them. Now let’s get to my next two commonly asked questions.questions-300x225

Can I change the beneficiary on my life insurance?

As with wanting to know if they can change their Wills, the last thing divorcing clients want is for their dreaded spouse to receive the proceeds of any life insurance policies they may have should the client die before the divorce is finalized. Unlike the situation with a Will discussed in my last blog post where the response involved more of whether one should than whether one can, when it comes to life insurance the answer is much more straight forward. The easy answer is that a spouse should not change beneficiary designations of life insurance during the pendency of a divorce proceeding in the absence of agreement or court order. While there is no law expressly regulating the beneficiary designation of privately held or maintained life insurance benefits, Rule 5:4-2(f) establishes the underlying policy that during the pendency of a divorce litigation, insurance coverages existing as of the time of filing, including the identification of named beneficiaries, are not to be cancelled or modified. Similarly, New Jersey statute N.J.S.A. 2A:34-23d provides: