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Words matter. Cliche? Perhaps it is.

This is a week that illustrates how words have power.  Remember when then President Clinton responded to a question with the infamous line about the meaning of the word “is”? Presidential words-300x225impeachment dangled on a two letter word which most of us took for granted. President Trump attended a “summit” with Vladimir Putin in Helsinki this week.  That’s if it was a “summit”.  Some said not to use that word.

Now President Trump has claimed that he misspoke when he said the word “would” when he actually meant “wouldn’t”.   What a difference a correction makes.   The word “Would’,  according to some was Treason, whereas the word “Wouldn’t” showed love of country.  Words can be befuddling. They can be misconstrued or weaponized. Words are misinterpreted. They are inadvertently blurted out in the heat of argument and regretted. Words once said cannot be unsaid, particularly in this electronic age.

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Mass shootings in schools, colleges, movie theaters, churches, concerts and other public spaces have been in the news regularly, leading to disputes over gun control and issues involving4168c94f1d5117faacc4fa82b69915a3-300x200

the Second Amendment also in the news, while politicians grapple with how to respond.   It is interesting that after a mass shooting, when those who knew the shooter are interviewed, they commonly indicate that there was no way to predict that the shooter would engage in such violence.   A large portion of mass shooters, however, appear to have in their past abused and/or committed acts of violence towards women in their lives.

For example, in November, 2017 the shooter who killed 26 people (including 8 children) and injured 20 others in First Baptist Church in Sutherland Springs, Texas, had been previously court martialed for physical assault on his first wife and child.  His estranged second wife and her mother attended the church where the shooting occurred and he sent threatening messages to the mother prior to the shooting.   The shooter who attacked Republican congressmen at a basefield field in June, 2017 had been twice accused of domestic battery years prior in Illinois, but the cases against him was dismissed when the victims refused to testify.   The shooter who killed three people at a Planned Parenthood clinic in Colorado Springs had been accused by two former wives of domestic abuse, and had been arrested in 1992 for sexual violence.   In 2016, three people were killed and fourteen injured in an office in Newton, Kansas.  The shooter shot his coworkers after being served with a domestic violence restraining order obtained against him by his girlfriend.  The shooter who committed the largest mass shooting in U.S. history by killing 49 people at the Pulse nightclub in Orlando, Florida abused his wife.  The killer who murdered 6 people and wounded 13 people by stabbing and then opening fire on bystanders in the streets of Isla Vista, California in 2014 out of anger at women who rejected him and refused his advances.  The killer of 32 people at Virginia Tech in 2007 had previously been investigated for stalking two female classmates.  Before killing children in the Sandy Hook Elementary School in Newtown, Connecticut, the mass shooter first killed his own mother.  Just this year, among the thirteen dead at a high school in Santa Fe, Texas was a teenage girl who rejected the romantic advances of the school shooter.

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Kate Spade’s recent suicide has been the subject of widespread speculation in the news. How could it be that this attractive and successful icon of fashion would take her own life? After all she soldfile4801310649783-300x249 her business for billions. She was attractive, popular in the media and in the “right” social circles. She had everything to live for including a 13 year old daughter with whom she had a loving relationship.

The simple answer offered by friends and family was she suffered for years from depression. Depression is an epidemic in this country. One in six Americans report taking some form of psychiatric drug, while it is estimated that sixteen million Americans are severely depressed.   We will never fully know what caused Kate Spade to take her own life however we do know that she was going through a potential divorce.

According to the experts, divorce, the loss of a loved one and leaving a home are the three most powerful stressors or triggers that can lead to a situational or clinical depression. Kate Spade left a suicide note assuring that her death was not her daughter’s fault. I suppose it is fair to say that her suicide was nobody’s fault; perhaps it was inevitable. However, it does offer a cautionary tale.  Whether you are contemplating divorce because you see no other solution to your marital problems, or you are being told by your partner that they want a divorce, you are dealing with life altering, highly emotional issues.  Divorce can offer a fresh start, and some view the prospect of a new beginning positively.  However the prospect of divorce and the actual process can become extremely stressful. Divorce naturally leads to one taking account of physical possessions, the cost of living and triggers economic concerns and uncertainty.  Even in those rarefied matters were economic concerns do not factor into the equation, Divorce causes us to take inventory of our relationships with our: children, families, friends and community. We also tend to take stock of ourselves. This inevitable introspection can easily veer sideways.

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One of the many rights litigants have is the right to be represented by counsel of their own choosing. Simple, right? Well, not really. An attorney of your choosing could be disqualified from file0001869482997-225x300representing you if that attorney had participated in the matter prior to your representation and your adversary does not consent to the attorney representing you.  Additionally, an attorney could be disqualified from representing you if the attorney is likely to be a witness in the matter, under certain circumstances pursuant the Rules of Professional Conduct (“RPC”).  Whether the RPC prevents an individual from being represented by an attorney of their own choosing is a fact sensitive matter.

RPC 1.12 states the following:

“(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

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In 2004, Massachusetts became the first state in the United States to recognize same sex marriage.  Numerous states thus enact differing laws regarding the ability of same sex couples to marry infile000224065590-300x200 their states, with numerous states  passing laws to ban same sex marriage, and various states over the years, voting to allow same sex marriage.  Some states began to allow same sex couples to enter into “civil unions”.  New Jersey did so in 2006.  In 2012, Governor Chris Christie vetoed a potential law in New Jersey that would have allowed same sex marriage.

In 2012, President Obama became the first president to endorse same sex marriage, but stated that the legal decision should be up to the states.  In 2011, however, the Obama Administration had already instructed the Justice Department to stop defending the constitutionality of the 1996 Defense of Marriage Act (“DOMA”), leading to the Supreme Court decision in United States v. Windsor.

As family law practitioners, this blog has followed much of the evolving law on same sex marriage. In 2013, James Yudes wrote a blog about the decision in United States v. Windsor to strike down as unconstitutional provisions in the 1996 Defense of Marriage Act (“DOMA”), which defined “marriage” as only a legal union between on man and one woman as husband and wife , and defined the word “spouse” as referring only to a person of the opposite sex who is a husband or a wife.  In 2013, I also wrote a blog post about the case of Lewis v. Harris, 188 N.J. 415 (2006), in which the Supreme Court of New Jersey  held that the Legislature should afford same sex couples the same rights as married couples, either by allowing same sex couples to marry or creating an alternate solution.  New Jersey became the fourteenth state to recognize the right of same sex couples to marry.   In 2015, my former colleague wrote a blog about the milestone decision of the United States Supreme Court in the case of Obergefell v. Hodges, in which the Supreme Court held that that all states must (a) no longer prohibit same-sex couples from marrying, and (b) must recognize same-sex marriages validly entered into.  The right of same sex couples to marry became the law of the land in the entire country.

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If only for a sliver of time, a joyous occasion made everyone in the world forget all of its trials and tribulations. North Korea, Gaza, the Mueller investigation, MS13 – mere distractions. A dividedRoyal-wedding-300x169

nation, a divided world came together as one to witness the Royal Wedding between Price Harry and Meghan Markle to share in the magic, the pageantry, their unbridled love. Questions like whether there was Russian collusion or if Iran has nukes were insignificant when compared to what kind of wedding gown would Meghan be wearing, who was on the guest list, or what color pocketbook would the Queen be carrying. What else would be important enough to get me up at 4am on a Saturday morning? As I am still basking in the afterglow (i.e. hangover) of the Royal Wedding festivities, the family lawyer in me caused me to ponder some important (although many would say crass and heartless) questions. What is the likelihood that Harry and Meghan will live happily ever after? Did they sign a pre-nup in the tragic event they do not?

Historically, divorce was frowned upon when it came to members of the Royal Family. King Henry VIII went so far as to break away from the Catholic Church and turn to beheadings to rid himself of unsuitable wives. The Church of England’s opposition to divorce among Royals necessitated an Act of Parliament in order for couples to formally divorce. Even after divorce became legal, it was not until the middle of the 20th century that divorce became an accepted reality, and its stigma lessened – mirroring to a larger extent the attitudes toward divorce in this country. The divorce rate in England is similar to that of the United States; however, if the track record of the Royal Family is any guide, the likelihood of Harry and Meghan’s marriage enduring is not very positive. Just look at Queen Elizabeth’s children: Princess Anne – divorced; Prince Charles – divorced; Prince Andrew – divorced. Are there reasons for this – living in a fishbowl; having to conform strict rules and norms; maintaining the jet-set lifestyle? While most of us will never experience these things, their impact upon a relationship and marriage must be significant. Just ask the late Princess Diana. Furthermore, while this is the first time down the aisle for Prince Harry, Meghan Markle’s prior marriage ended in divorce, and statistically, the divorce rate for second marriages is higher than for firsts.

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In modern society, it is common for unmarried couples to live together without being married.  When an unmarried cohabiting couple separates, however, the rights to equitable distribution and6a3146dbdf81597192112ac03d77c7e4-300x200 alimony does not exist.  No matter how long an unmarried couple has lived together, they do not have the legal rights and protection that divorcing couples enjoy.  Cohabitating, unmarried couples also do not enjoy the rights and protections that married couples having during their marriage, such as filing joint tax returns; receiving distributions from estates free of estate tax; receiving survivor’s benefits from retirement plans and Social Security; obtaining “family” health insurance, dental insurance, and other employment benefits; and automatically sharing in his/her partner’s property in the event he or she dies without a will. Continue reading

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On May 3, 2018 the New Jersey Appellate  Division published the case of DCPP VS. T.D., R.C. AND R.G., IN THE MATTER OF THE GUARDIANSHIP OF M.G., B.C. AND A.G. (FG-20-0040-13, UNION COUNTY AND STATEWIDE)(CONSOLIDATED) (RECORD IMPOUNDED) (A-4918-c1b55e653e97997fd3f08500aae0ee83-225x30015T1/A-4923-15T1), an Opinion affirming the trial court’s decision to not terminate the parental rights of T.D., a mother suffering from multiple sclerosis, and R.C., the father of her two youngest children, born in 2012 and 2014, and removed from the care of their parents soon after birth.  The Appellate Division, in denying the appeals of the New Jersey Division of Child Protection and Permanency (Division), and the Law Guardian on behalf of the two young children, stated that the “United States Supreme Court has held that biological parents’ relationships with their children ‘is an interest far more precious than any property right.’ Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). Therefore, New Jersey courts protect that interest by imposing “strict standards for the termination of parental rights.” Continue reading

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For the third time since 2012, the New Jersey lawmakers have passed legislation that would allow persons to enter into gestational carrier agreements; namely for the intended parents to enter into a contract with a woman 21 years of age or older to become pregnant by assisted reproductive technology without the use of her own egg, and to surrender custody of the child to the intended parent immediately upon birth, and considered neither an adoption nor termination of parental rights, as long as the requirements of the statute are strictly adhered to. While two prior legislative attempts were vetoed by then Gov. Christie, it is expected that this Baby-M-movie-300x238current legislation (S482) will be signed by Gov. Murphy soon and become law. Many people continue to refer to the agreements covered by the statute as “surrogacy contracts”, and that they would in effect overturn the Supreme Court ruling in Matter of Baby M, 109 N.J. 396 (1988) which deemed such surrogacy contracts invalid. Continue reading

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In an unpublished decision in the matter of  T.M. v. R.M., A-4724-16T3 (App. Div. April 5, 2018), the Appellate Division considered a plaintiff’s appeal of the trial court’s denial of his motion to modify his alimony and child support obligations based on changed circumstances. At the time of the parties’ divorce, the plaintiff was earning a salary of $100,000 per year as a limited partner with OTR. In 2011, plaintiff lost his job and was unemployed for eighteen months. The plaintiff became employed again in 2012, earning $38,400 per year. Continue reading