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It is not uncommon as a family law practitioner to experience a difference in the way the family courts handle cases involving the children of divorced or divorcing spouses (where they are 772bcf531a8ff5549f90c16a75fd1d7f-1-300x200matrimonial cases bearing an “FM” docket number) in the dissolution unit, and children of non-married parents in the non-dissolution unit (those bearing a docket number starting in “FD”).  Non-dissolution cases are typically far more summary in fashion and are handled more quickly than they are in the in the cases of divorcing parents.   The good part of this is that the children’s cases may be processed more quickly and there is less uncertainty in their lives because the children are not enduring a longer, more drawn out litigation than children of divorcing parents sometimes have to survive.  In non-dissolution cases, however, because they often are so summary, the court does not have the opportunity to become as familiar with the facts and circumstances.

In the recently published Appellate Division opinion in the matter of J.G. v. J.H., A-1312-17 (App. Div. Jan. 2, 2019) expressed some disagreement over how summarily a family court judge resolved a custody dispute between unmarried parents.

John was born in 2012 to mother Jane and father Joseph.  In 2014 the parties entered into a non-dissolution order that provided for their agreement to share joint legal custody of John, with Jane having primary residential custody and Joseph having liberal visitation with him.  In 2015 the parties attempted to reconcile and vacated that order.  The reconciliation did not last.  Jane became engaged to another man and became pregnant.  Joseph filed an order to show cause accusing Jane and her fiance of drug use and asserting that she should not leave John alone with her fiance, asserting that he was a known drug user and convicted felon.  Joseph was awarded temporary sole custody of John based on the concern for violence in Jane’s home. The court directed that Jane’s visitation with John be supervised and that it occur outside her home.

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It is a social norm for one to state, “I’m sorry to hear that” in response to the hearing the news of a death or divorce among ones friends of family. While it an appropriate response of condolence 607c2384aeca135114c8f77596786655-300x200when a someone dies, is it always appropriate to state the same when there is a divorce?  Maybe not.  In the words of comedian Louis C. K., “Someday, one of your friends is gonna get divorced, it’s gonna happen, and they’re gonna tell you. Don’t go, ‘ohhhh I’m sorry.’ That’s a stupid thing to say. First of all you’re making ‘em feel bad for being really happy, which isn’t fair. And second of all: divorce is always good news. I know that sounds weird, but it’s true, because no good marriage has ever ended in divorce. It’s really that simple.” In my opinion, congratulations may be in order in order.

Deciding to divorce can be an extremely difficult decision to make. Without a doubt, your friend or relative likely experienced the highs and lows associated with a divorce. They have definitely felt the societal induced feeling of failure, especially for women.  Divorce is for many people life altering.  Both parties may not have wanted to divorce.  It can be hard to know what to say to someone who has gone through this.  Instead of ignoring the herculean strength it can take to divorce and dismissively stating, “I’m sorry” thereby potentially resurfacing feelings of loss or failure as a result of your most likely in appropriate and well-intentioned apology, perhaps complimenting your friend or relative on their strength and courage is a better approach. As an attorney, I can tell you that divorce is not something one slipped, tripped and fell on by accident. It takes two to tango, and it takes two to divorce.

Life can be better for everyone involved, including the children, in a divorce and no one should be sorry for that. Staying married for the children is not really for the benefit of the children. How can one think that staying in an unhealthy marriage is something that you should do for yourself or model for your children? Researcher Constance Gager of Montclair State University and her colleagues conducted a national survey involving nearly 7,000 couples and their children, focusing on how harmonious their homes were and whether or not they stayed married. https://www.livescience.com/6648-divorce-bad-kids.html The result was that children who had grown up in high conflict families actually faired better in their own adult relationships whent heir parents divorced and allowed the children to escape that household conflict. The survey also revealed that children of happily married parents did not necessarily go on to have happy marriages.

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For family law attorneys, it’s beginning to look a lot like Christmas . . . fights over holiday parenting time.  The holiday season is often a time of stress, and sometimes of sadness, for everyone.  ForDSC05380-200x300 separating or divorcing parents or newly divorced parents, fighting over how to divide holiday time with their children, there is additional sadness and distress.   Every year as a matrimonial attorney I see the stress on separating couples and their children as they either try to adhere to traditional holiday celebrations for the sake of their  children, or as they try to adjust with their children to the inevitable new traditions that are going to have to be made as parents separate and cannot spend the full holiday season with they traditionally would, but have to share it.  The stress can be additional as grandparents weigh in and wish to spend time with their grandchildren, and when one or both parents begin new relationships that pulls on them or whispers in their ear at holiday time as well.

How can you avoid some of the pitfalls of disputes with your “ex” that can derail the holidays with your children?  Here, are a few tips:

  1.   Consider the stress and worry that you and your ex are putting the children under when you argue about holiday parenting time.   Parents usually want Christmas to be a magical time for the children.   It is not magical when they are aware that their parents are fighting over them.  Also, children often come to feel that they are the cause or the source of what their parents are arguing over.  This can create needless feelings of guilt, worry and unhappiness that can ruin the holidays for them.
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In a number of my divorce cases, a client will complain that the other spouse is a spendthrift or is reckless with finances. They may recount that the other spouse has a gambling problem, has an1bb6f4a4625bab19f775bb1ede4fa94f-300x201 addiction, or has made poor business decisions. They may express concerns that the spouse may have incurred debts and liabilities as a result of these actions. They question the extent they may also be liable for same in the disposition of the divorce matter. They wonder whether their marital assets, and most notably the marital home they own together, is at risk as a result. To the extent the marital home or other assets were owned as “tenancy by the entirety”, the recent case of Jimenez v. Jimenez, 454 NJ Super 432 (App. Div. 2018), appears to protect same, at least from the reach of third-party creditors themselves due to the actions of a “free-wheeling spouse”.

Before discussing this case, what exactly is meant by a tenancy by the entirety. A tenancy by the entirety is a form of joint property ownership available only to spouses that is created when property is held by a husband and wife with each becoming seized and possessed on the entire estate. Each co-tenant enjoys the right of survivorship, meaning that after the death of one, the survivor takes the whole. Historically it was predicated on the presumed unity of spouses, and was a means of protecting marital assets during the marriage and to serve as security for one spouse on the death of the other. A tenancy by the entirety is created when a husband and wife together take title to an interest in real or personal property under a written instrument designating both of their names as husband and wife. It is also created when a husband and wife become lessees of property containing an option to purchase it, or when an owner spouse conveys or transfers and interest in that property to the non-owner spouse and the former jointly, in both circumstances there being a written instrument and a designation of both of their names as husband and wife.

The Jimenez case involves third-party creditor rights in regards to real estate held by spouses as tenants by the entirety. In this matter, a husband and wife had purchased a tract of vacant land in Mansfield, New Jersey. Subsequently, persons related to the spouses filed a complaint in the Law Division against the husband seeking repayment on a line of credit they allegedly extended to him as well as repayment of additional funds he allegedly owed them. A Consent Judgment was ultimately entered into between the creditors and the husband. When other efforts to make collection on this judgment failed, the creditors moved to compel the partition sale of the Mansfield property. The trial court declined to do so relying upon the provisions of N.J.S.A. 46:3-17.4. The creditors appealed. The Appellate Division affirmed.

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It is not unusual for a parent to claim that they are paying too much in child support or for a parent to claim that they are not receiving enough child support.  In recent celebrity news, Robert8f5242a257ea4322359f564d02a4afc1-300x200 Kardashian is claiming the former.  According to an article in People Magazine, Mr. Kardashian claims that he can no longer afford his $20,000 per month child support payments to Blac Chyna, the mother of his child, and he is asking for a modification in his child support obligation. He also claims that his volatile relationship with Blac Chyna and the domestic violence complaint that she filed against him last year damaged his career and is preventing him from earning money.  Mr. Kardashian claims that his monthly income has been reduced from nearly $100,000 per month to less than $10,000 per month since their split as he is no longer appearing on episodes of Keeping up With the Kardashians. He claims, however, that Ms. Chyna’s monthly income has increased, and that her monthly income is nearly $60,000.00. Mr. Kardashian is asking that Ms. Chyna pay him child support of $2,864 per month on behalf of their daughter, Dream, with whom he shares equal custody and parenting time.  According to the article, Mr. Kardashian and Ms. Chyna are in the process of exchanging financial documents.

I have blogged before about calculating child support in high income cases, including a blog about another celebrity, Angelina Jolie, seeking “Meaningful Child Support” in which I pointed out that child support orders are modifiable, even in high income cases. The seminal case in New Jersey on modification of support obligations is Lepis v. Lepis, 83 N.J. 139, 151 (1980), which allows for a potential modification of support based on “changed circumstances”.  Among the changed circumstances that can result in a review or modification of child support obligations is a decline in the income of the parent who is paying child support.  Conversely, the parent paying child support is entitled to a reconsideration of child support where there has been a significant change for the better in the circumstances of the parent receiving child support.  A change for the better or worse in one of the parent’s incomes is not the only kind of change in circumstance that a court can consider.  For instance, maturation of the child may result in a modification of support, some change in the need of the child, or some change in overnight parenting time arrangements.   The change in support should not, however, be only temporary.

Either parent can file a motion to increase or decrease child support.The party seeking to modify support (either to increase child support or decrease it) bears the burden of establishing a threshold (a “prima facie”) case of changed circumstances.  Lepis, 83 N.J. 139 (1980).  If the moving party does not establish at least a threshold burden, then the moving party will lose.  If that “prima facie” case of changed circumstance is presented, however, then the court will order the parties to exchange documents as to their financial circumstances and the needs of the child.  If there is a substantial issue of genuine fact that is in dispute, the court may order a hearing or trial, but will not do so in all cases.

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The Appellate Division in the recently published case of Bermeo v. Bermeo, A-1312-17, addressed a post-judgment application by a supported spouse seeking to modify alimony based  on her inability to maintain the marital lifestylefile000142175851-300x230 after entering into a marital Property Settlement Agreement and the lack of findings by the court of what the marital lifestyle was pursuant to Crews v. Crews, 164 N.J. 11 (2000).

In this matter, the parties divorced in 2015 after entering into a Property Settlement Agreement that was incorporated into their Final Judgment of Divorce.  The issue raised post-judgment by the Plaintiff, the supported spouse, was the extent of alimony that she was receiving and her inability to maintain a lifestyle comparable to the marital lifestyle.   During the marriage, the parties had a middle class lifestyle.  The Plaintiff was a homemaker while the Defendant earned an average income of $471,000 in the last several years of the marriage.  By the time of the divorce, however, the Defendant had changed jobs.  The parties negotiated a property settlement agreement through counsel that provided that the Husband would pay $4,000 per month in alimony.  The Plaintiff was earning $6,000 at the time of the divorce but the Agreement was based on an imputed income to her of $25,000 per year.  The Agreement also was based on an imputed income of $160,000 to the Defendant.  In addition, the Agreement required the Defendant to pay a percentage of supplemental income earned by the Defendant in the form of commissions, deferred compensation, stock options and bonuses.   The Agreement expressly stated that neither party would be able to maintain a lifestyle that was reasonable comparable to their marital lifestyle and that the parties “freely and voluntarily waive determination of the joint marital lifestyle at this time.”

Plaintiff in 2017 filed a post-judgment application seeking an increase in alimony to $6,000 per month, arguing that the Defendant was voluntarily underemployed and that alimony should be based on imputed annual income of $220,000 to Defendant.  After the divorce, Plaintiff had not received supplemental alimony because the Defendant earned $120,000 which was less than the $160,000 of imputed income upon which alimony was based.  The family court judge denied the Plaintiff’s application without ordering a plenary hearing or additional discovery and without making a finding as to marital lifestyle pursuant to Crews v. Crews.  The Plaintiff appealed.

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In the third and final blog post of this series, I will conclude my summary and discussion of the current 2018 Rule Amendments which have a direct or indirect impact upon Family Part practice in some fashion.

In this blog post, I will discuss a new New Jersey court rule which was adopted, Rule 4:86-7A, which addresses the financial maintenance of incapacitated adults who had been subject to prior Family Part support orders. The purpose of this rule was to give further effect to the terms of N.J.S.A. 2A:17-56.67, et seq. which went into effect in February of 2017. Commonly referred to as the “emancipation” statute, its focus was actually the modification of current law relating to the duration and termination of child support obligations. Under this law, the obligation to pay child support would terminate by “operation of law” and without order by the court on a date that a child marries, dies, enters the military service, or reaches 19 years of age, unless (1) another age for the termination of child support is specified in a court order, but in no event beyond the date the child reaches 23 years of age, or (2) upon written request seeking the continuation of child support beyond the age of 19 for a child (a) who is still enrolled in high school or other secondary education program, (b) was a student in a post-secondary educational program and enrolled for what the school considers to be full-time attendance during part of at least five (5) calendar months of the year, or (c) has a physical or mental disability as determined by the federal or state governmental agency existing prior to the child reaching age 19 and requiring continued child support. Absent this, a parent could only seek to extend child support beyond the age of 19 by motion (due to exceptional circumstances as may be approved by the court); however, the statute also provided that it was not intended to prevent a child who is beyond 23 years of age and/or his parent from seeking a court order requiring the payment of other forms of financial maintenance or reimbursement from a parent as authorized by law to the extent same was not payable or enforceable “child support” as defined in N.J.S.A. 2A:17-56.52, or prevent the court upon application due to exceptional circumstance including but not limited to a mental or physical disability, from converting a child support obligation to another form of financial maintenance for a child who had reached the age of 23.

The purpose of Rule 4:86-7A was to set forth the process and procedure to be filed for an application for conversion of a child support obligation for an alleged or adjudicated incapacitated person who has reached the age of 23 to another form of financial maintenance pursuant to the aforementioned statute. First, the Rule distinguishes between whether there has or has not been an adjudication of incapacity of the person for whom financial maintenance is being sought. If there has not already been an adjudication of incapacity, the plaintiff filing a complaint for adjudication of incapacity and the appointment of a guardian pursuant to Rule 4:86-2 may request such conversion in a separate count of the complaint. If there has already been an adjudication of incapacity, a guardian or custodial parent of that adjudicated incapacitated person may request such conversion by filing a motion on notice to the parent responsible for paying child support and any interested parties setting forth the basis for relief requested pursuant to Rule 4:86-7. In either event, the application shall set forth the exceptional circumstances pursuant to which such conversion is requested and shall annex thereto copies of any Chancery Division, Family Part orders relating to to the child support obligation, as well as a financial maintenance statement in such form as may be promulgated by the Administrative Director of the Courts.

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In the published Appellate Division opinion in NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O. and M.C.D. A-1871-16, (App. Div.  Oct. 30, 2018), the AppellateIMG_1930-1-300x225 Division addressed the 2011 emergency removal of two children, ages 7 and 2, from their undocumented immigrant parents. While the two children remained in resource homes, the parents were removed from the United States. The mother was prohibited from returning to the U.S. for 10 years and the father was prohibited from returning to the U.S. for 20 years. In 2013, the parents appeared by telephone, represented by counsel, and entered into an identified voluntary surrender of their parental rights to a family they had identified to the Division as a potential resource placement. Both of the parents confirmed that in the event the family whom they identified for resource placement did not adopt their children, then  their parental rights would be reinstated and litigation would be reopened. Ten months later, the trial court ruled against moving the children to the family identified as a potential resource placement. Without notice to the parents, the trial court vacated the identified voluntary surrenders, reinstated the biological parents’ parental rights and reopened the guardianship litigation. Thereafter, the father was provided with services needed for reunification with the children.  The mother could not be provided with reunification services because she could not be located.  She failed to keep in contact with the Division after leaving the U.S.   She ultimately resumed living with the children’s father, but both parents were inconsistent in maintaining contact with the Division.

Neither of the children speak Spanish. One of the children had a language disorder that would make it difficult for him to learn Spanish if he were sent to live with his parents. Additionally, the children had bonded with the resource parents and wanted to be adopted by them. The trial court found that termination of parental rights was in the best interest of the children.

The parents appealed the trial court’s decision, arguing that their due process rights were violated because they did not receive notice of the pending dissolution of the identified surrender and because many of the hearings that were before the termination trial and were not held on the record. Even though the parties did not raise these arguments in the trial court, the Appellate Division agreed that the parties should have been notified before the identified surrender judgment was vacated. More importantly, the Appellate Division stated that every proceeding should have been placed on the record even when the parents were in agreement with the provisions of the order being entered. All Children In Court proceedings resulting in orders should be on the record. Particularly when the parents, who have not unconditionally abandoned their rights, are not parties to the proceedings. Nevertheless, the failure to do so in this case was not fatal because the parents rights were restored and they were parties to a full trial on the merits.

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In the published opinion in the matter of T.M. v. R.M.W., FV-15-0506-18, the Family Court in Ocean County addressed a domestic violence case that included some interesting facts and issues offile000799318829-300x200 first impression.

In 2017, the plaintiff filed a domestic violence complaint against the defendant based on allegations of harassment and simple assault.  On her request for a restraining order she indicated that she and the defendant had a sexual relationship over the course of eight years.  The course of their relationship was limited to sporadic, casual encounters of consensual rough sex.  The parties never held themselves out as boyfriend or girlfriend, never developed an interpersonal relationship, never had expectations as to the future of their relationship or the permanence of their relationship. On the night in question, she invited the defendant over and while they were having sex, he laughed at her, told her he hated her, and punched her in the face.  She stated that she agreed to have consensual rough sex, and that this included slapping, choking and hair pulling, but that she did not consent to being punched in the face with a closed fist.  She repeatedly brought up to defendant that he had punched, her but she said he “brushed it off”.  She admitted the parties had never verbalized what their limits were.  She testified that she feared his impulsivity, that she feared he would show up again to the store where she worked, and that she wanted “other women” protected from him.  The defendant seemed to admit to their encounter, stating that she had messaged him at his job in a bar to have sex with her. They had sex, and he admitted to hitting her with a closed fist on the jaw, but stated that it was a playful and not designed to hurt her.  When she asked him about it afterward, he told her that he had meant it playfully and would not do it again.  Defendant denied that a restraining order was necessary as he had never come to the plaintiff’s home uninvited.  He added that after their last sexual encounter, the plaintiff sent a text message to his girlfriend to tell her that he had cheated on her, which led him to go to the store where she worked to talk to her about that.  He had only ever been there before to make an actual purchase. She told him to leave and he never returned there.  The court found that the defendant, who did not minimize his actions, more credible than the plaintiff, who was inconsistent in testifying about whether she had been punched more than once, and whether there was a history of domestic violence.

The court first assessed whether the plaintiff could be considered a “victim” under the Domestic Violence Act given that the parties did not really have a “dating” relationship, as defined by Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch.Div. 2003). The judge noted that the statute includes as a victim “any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship”, but the statute does not define “dating relationship”.  Moreover,  the statute states that its purpose is “to assure the victims of domestic violence the maximum protection from abuse the law can provide.” N.J.S.A. 2C:25-18.  The court concluded that this secret, sexual relationship was sufficient to be considered a “dating” relationship.  The  judge felt the purpose of the domestic violence statute would be thwarted when it protected plaintiffs in non-sexual dating relationships if it did not also apply to plaintiffs who engaged in relationships that were only sexual with the defendant.  The judge did not base his decision on moral judgments on plaintiff’s decisions.

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