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Cohabitation of a dependent spouse with another in a relationship tantamount to marriage may lead to the suspension or termination of a payer’s obligation. During COVID many people have begun nesting for companionship and resource sharing. Ma

ny of these new “quasi-family” unions are built upon established long term relationships; others are built on less firm footing. The question arises: do these arrangements give rise to the right of the payer to examine the nature of the relationship and the appropriateness of some financial relief?

An application to terminate or suspend alimony based on cohabitation is provided for by  Statute and Case Law and is frequently refined and defined by Property Settlement Agreements. Generally if one believes their spouse is cohabiting and the spouse is not conceding the fact, a  motion must be made to the Family Part seeking relief or a hearing regarding the payee’s status.

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Although Covid has dramatically affected how the Courts operate day to day divorce cases are still moving forward efficiently. Most matters are proceeding with e-filing of pleadings and motions while appearances are being hosted on Zoom as well as several other internet platforms.

The court buildings are also open to attorneys and litigants specifically involved in a matter on a limited basis. Through a combination of internet and limited physical appearance, matters are

moving through the courts efficiently.

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Ahhhh, the Coronavirus pandemic. As I write this blog post, most people are torn between feelings of fatigue and fear. After more than eight months since this pandemic began, most people are understandably weary over the personal, emotional, financial, and societal upheaval that this has caused. To say that this situation has put one’s coping skills to the test would be an understatement. People yearn for a return to some sense of “normalcy”. At the same time, that yearning has been tempered by the predicted “second wave” of this pandemic, with increasing infection rates and the return of lockdowns and restrictions that had been previously eased. At the early stages of this pandemic, I had written a blog post highlighting the significant economic impacts this pandemic was having (i.e. loss of jobs, diminished incomes, reduction in asset values and net worth, increasing debt, etc.) and how all of this was complicating the ability to resolve divorce matters. Between the economic upheaval and the uncertainty over what the future would bring, negotiating settlements was becoming a daunting task.

One of the topics which I had touched upon in my earlier blog post was the extent to which this pandemic might impact a family’s most valuable asset – their home. Prior to the pandemic, the housing market was looking strong. Homes were moving, prices were rising and everyone was looking forward to a robust spring market. However, when the pandemic hit everything, including the housing market, essentially came to a grinding halt. The number of new home listings, as well as mortgage applications, dramatically declined as stay home requirements took hold and the uncertainties made people leery of moving or taking on new financial commitments. While it was too early to tell how this pandemic would impact real estate values, this uncertainty would likely complicate how to approach the disposition of the marital home for purposes of equitable distribution in a divorce.

Jump forward seven months. The pandemic has resulted in a flight of people out of urban areas and choosing to movepexels-pixabay-164522-300x215 to the suburbs or country. Rather than living like sardines in close quarters with other people where the virus could more easily spread, people sought the openness and space. Further, the restrictions and lockdowns evaporated much of the quality of life living in a city would bring. The racial and societal upheaval following the death of George Floyd only exacerbated and reinforced people’s decision to move. The consequence? The housing market throughout much of New Jersey has exploded. Houses are getting snapped up as soon as they hit the market. Bidding wars are prevalent. Home values have risen dramatically. To say that it has become a buyers market would be an understatement. What impact has this had on divorce matters?

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The holiday season is upon us and with it comes the joy and at times the tribulation and challenges of family gatherings. This year the holidays might be configured a bit differently than in past years. Uncle Charlie might be participating by Zoom and Aunt Ruth may be sporting her signature mask. This year offers new challenges both because of the pandemic and the Presidential election. Very few of us are neutral regarding issues of: voter fraud, election interference, or the quality and character of candidates. Some of us are Republican, others Depexels-olya-kobruseva-5842243-200x300mocrats or perhaps Independents. We all have an opinion and most of us have voted. In a democracy, our job as citizens is to vote. Once we have voted the outcome of the election is left to the States and if contested to the Courts and the Legislature.

As ordinary citizens, we really have nothing after voting to add to the process. No matter how loud you yell at FOX or CBS nothing Is going to change. It is like a football game you may get caught up in cheering on your team but your cheers have very little to do with the outcome. Biden or Trump will ultimately prevail because of the vote and whatever legal process follows. By Christmas, the die will clearly be irrevocably cast and your support or distress or discourse at family gatherings will not move the needle even a little bit.

Out Republic has been around 244 years and will survive the incumbency of either candidate. Politicians and the Press always say this is the most important election of our time. Maybe they are right this time that is a question to debate just not at the Holiday table.

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It happens in family and matrimonial disputes that litigants are investigated by the Department of abuse-300x198Children and Families, which investigate claims of child abuse and neglect.  In a recently published decision in S.C. v. New Jersey Department of Children and Families, the Supreme Court of New Jersey addressed whether findings of “not established” by he Department of Children and Families (DCF) without a hearing and without informing the investigated person of the opportunity to challenge and supplement DCF’s record violates due process.

The Supreme Court explained that since 2013, DCF could make one of four findings: that an allegation of abuse or neglect was “substantiated”, “established”, “not established” or “unfounded” pursuant to N.J.A.C. 3A:10-7.3(c).   A finding of “not established” would mean that findings are based on some evidence of a child being harmed or placed at risk of harm, but not necessarily by a preponderance of the evidence. A finding that an allegation is “unfounded” is subject to expunction.   A record has to be retained for any of the other findings. While DCF records are intended to be confidential, N.J.S.A. 9:6-810a(a) provides for circumstances in which the release of information about reports to other agencies.

In this case, a mother was accused of abusing one of her children by engaging in corporal punishment.  The incident was reported to the Department of Children and Families (DCF) after the 7 year old boy refused to make a Mother’s Day card for his mother at school, claiming that she hit him with an open hand and with a spatula.   When DCF interviewed the boy, he said that his mother “smacks” him, and that she has hit him on the bottom with a spatula, although he could not remember when that had last happened.  He also said that his father hit him with his hand.  The child’s sisters told DCF that their parents sometimes hit them with an open hand but denied that their parents hit them with a spatula.  None of the children had marks or injuries.  The children’s school principle stated that the boy’s parents were involved, that school personnel had not had concerns about the family, and that the boy had behavioral problems in the past but that his behavior had improved. The boy’s mother admitted to hitting the children with an open hand but denied hitting them with a spatula. She said she smacks a spatula on the counter to get the children’s attention.  The boy’s father admitted to spanking the children lightly, but denied hitting the children or seeing his wife hit the children with any objects.  He had seen her smack the counter with a spatula.

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When a client retains an attorney to represent him or her in a divorce or other family law dispute, agreement2-300x200usually the goal is to try and settle the matter. Trying a case is viewed as a last resort when all efforts to reach an amicable resolution have failed. From the outset, the courts do everything they can to encourage parties to reach an agreement, and participation in various forms of alternate dispute resolution, including Early Settlement Panels and Custody/Economic Mediation, are mandated in hopes of accomplishing that goal. The parties reach an agreement. They enter into a “contract’ memorializing same. The court may even “approve” it and close the case as “settled”. That’s the end of it, i.e. a contract is a contract – right? Not so fast! When it comes to family law “contracts” it is clear that the court has the last word if it is enforceable or not. “Equitable considerations” often trump “contract principles”. However, what is “equitable” seems to turn on what result is the most fair and reasonable one given the circumstances of that given case.

The extent of family law contracts being enforceable as a matter of interpretation was highlighted in the recent Appellate Division case of Holtham v. Lucas, 460 NJ Super. 380 (App. Div. 2019). In Holtham, the parties entered into a marital settlement agreement in resolution of their divorce. The agreement provided for the enforcement of a previously entered Prenuptial Agreement, as well as for the husband making certain payments and property transfers to the wife, including the payoff of an auto loan and transfer of the car title by July of 2017. The Agreement also included a provision that if the husband defaulted in any of it’s obligations, the wife would not only be entitled to reasonable counsel fees incurred to enforce, but that the husband would be subject to a per diem penalty of $150.00 for every day he failed to comply. The husband did not pay off the car loan or transfer title by the required date; rather, he asserted various offsetting claims as his reason for not doing so. He finally paid off the car loan and transferred title (although wife had always enjoyed its use and possession) but not until 4-5 months later, and after receiving wife’s enforcement motion. The trial court not only ordered the husband to pay over $6,000.00 towards wife’s attorney fees, it enforced the per diem penalty provision by ordering husband to pay $18,450.00 (for each day of non – compliance between July 9 and November 8, 2017), noting that although the husband had the ability to comply, he had unjustifiably delayed by interposing offsetting claims he had already forfeited under the Agreement’s mutual release provision. The husband appealed arguing that the $150 daily charge constituted an unenforceable penalty.

Simply applying traditional contract principles, the Appellate Division actually agreed with the husband that a $150 per diem charge would constitute an unenforceable penalty. The court noted that according to well – settled contract law, a provision that stipulates an unreasonably large amount of damages for a future breach would be an unenforceable penalty. Also referred to as the “Penalty Rule”, it was intended to avoid oppression, excessive recovery (that is recovery that far exceeds the economic losses normally recoverable for breach of contract), and the deterrence of efficient breach. Such stipulated damage provisions must be scrutinized for reasonableness and their enforceability turning primarily on the extent the stipulated amount is within a plausible range of actual damages and the difficulty of calculating damages upon breach. Analyzing these principles, the court found that the husband had met his burden to demonstrate that the $150 per diem charge was a penalty, noting that the “harm” suffered by the wife for the 4-5 month delay fell short of $18,450, that she had been able to retain full use of the vehicle, and that the “damage” under this penalty provision would have been the same regardless of the number, nature or amount of the obligation husband was deemed to be in default of. However, this did not end the court’s analysis, concluding that this “Penalty Rule” would not apply with equal force to marital settlement agreements embodied in final divorce judgments.

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money-300x200When calculating child support obligation, the courts first look to the Child Support Guidelines established by the Supreme Court of New Jersey. The Guidelines factor in income from all sources of both parents in order to determine the parents’ respective child support obligations.   However, when it comes to income that is available for support purposes, what is important to consider is not merely what someone’s actual, earned wages are, but what the parents’ income capacities are.  If a parent is voluntarily underemployed or unemployed and earning less than what he or she is capable of earning, the Child Support Guidelines allows the court to impute income to the parent who could or should be earning more.   Child support would be calculated based on what a parent is capable of earning, rather than what the parent is actually earning.

It is not, however, always clear what a person is capable of earning or whether a person is voluntarily underemployed. Some people have sporadic or variable income.  Some people earn income from second jobs or from overtime hours.

In the recently published case of the Superior Court of New Jersey in Ferrer v. Colon, FD-2392-07 (Ch. Div. 2020), the family court assessed whether to impute income to a parent for child support purposes because overtime hours were available to her that she did not utilize.  Should the court impute income to her based on income available to her even if she did not take advantage of all of those hours?

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I previously blogged about the ever expanding definition of “household member” as it relates to  who canfist-blow-power-wrestling-163431-300x200 meet the definition to be considered a “victim” under the Prevention of Domestic Violence Act” (PVDA) in order to obtain a restraining order.   New Jersey courts have continued to expand the circumstances in which the PDVA can be utilized.

In a recently published decision from the Honorable Gregory L. Acquaviva, J.S.C. in Monmouth County in the matter of  S.C. v. J.D., the family court addressed the definition of a “household member” in the context of a modern, blended family.  In this case case, the parties were half-siblings who did not reside together, but who spent regular time together as part of their blended family.

The Prevention of Domestic Violence requires that certain relationships exists before the statute can apply to them.    Relevant here, “victim of domestic violence” is defined as: “any person who is 18 years of age or older . . . who has been subjected to domestic violence by . . . any other person who is a present household member or was at any time a household member.” N.J.S.A. 2C:25-19(d). The PVDA does not define “household.”

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Last month I wrote a blog post highlighting many of the practical considerations in trying to negotiate a divorce2-300x200 resolution of a divorce given the dramatic and significant impacts caused by the coronavirus pandemic. The loss of jobs. The reduction of income. The decline in the value of assets. Even more important was the uncertainty of how long this situation would continue. I wrote that blog post during the peak of the crisis. As I write this blog post, things have stabilized somewhat. The curve was flattened and the rate of new infections have declined. SLOWLY some of the restrictions have been relaxed and some businesses are reopening and activities being allowed – with strict guidelines. Optimism remains tempered with trepidation over the extent to which things will return to some level of “normal”. However, most people seem resigned to the reality that things will not be returning to the way things were anytime soon, if at all. Confronted with this uncertainty, and the considerations raised in my earlier blog post, one might conclude now is not the right time to pursue a divorce. I submit this should not be the determiner of one’s decision.

There is no question that the decision to terminate one’s marriage is a major, life-altering one. It is not one to be made rashly, on the spur of the moment, or as an emotional reaction to a given situation. When I meet with a prospective client for the first time, I always inquire as to the reasons why they are considering divorce and the extent they have considered or pursued all reasonable efforts to save their marriage. Hopefully having weighed all these considerations carefully, the decision to divorce remains a highly personal one. It is a purely subjective one. Once counseled as to the legal consequences of that decision, it is one to be respected. One point of caution, however. The pandemic itself should not be the sole reason why someone decides to end the marriage. This situation is as “novel” as the virus itself. To one degree or the other, everyone has been impacted by it – stress, fear, uncertainty – be it emotional, health-wise, or financial. Parties to an otherwise solid marriage should be able to work together to overcome these consequences, or make every effort to do so. It is the marriage that is already on shaky ground that the pandemic and its impact can be the straw that broke the camel’s back.

Once a spouse comes to the decision that the marriage is over and can no longer be saved, the question is whether now is the time to commence the divorce process. I submit that the decision to do so or not should be the same now as before the pandemic arrived.

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This month, the Appellate Division approved for publication the case of Gormley v. Gormley, A-1428-18, disability-200x300(App.Div. 2019) which addressed the standard to apply in determining the income of a litigant who has been determined by the Social Security Administration to be disabled and whether the Court should impute income for someone who has been adjudicated disabled and does not work.

In this case, the parties married in 2000, had one child, and the plaintiff filed a Complaint for Divorce in 2015.  The Defendant had already been diagnosed with multiple sclerosis at the time of the marriage. In 2002, also during the marriage, the Social Security Administration determined that the Defendant was disabled by multiple sclerosis. As such, she did not work and was receiving $2,023 per month in social security disability benefits. The Plaintiff was employed full-time and earned a commission based income.  In the two years before the trial, he had been earning approximately $150,000 per year.   However, in the year of the trial, he was working fewer hours in order to represent himself at trial, and to study psychology and parental alienation.  As such, he was earning approximately $112,000 per year.

The family court judge imputed $240 per week of earned income to the Defendant even though the Social Security Administration had determined that she was disabled and had been paying monthly social security disability benefits since 2002.  The judge reasoned that she did not visibly observe Defendant exhibit in court disabling symptoms from multiple sclerosis such as fatigue, bladder issues, tremors , difficulty in concentration or any other difficulties that the judge felt would prevent her from working.   No income was imputed to the plaintiff.

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