Can I do that? (Part 1)

During the initial stages of a divorce action, whether at an initial client conference or early on in the process, I am invariably asked by a client whether they can or can’t do certain things in regards to aspects of their financial or personal affairs. Since many clients ask the same sorts of questions, I thought it made sense to write a blog post addressing some of the more commonly asked questions. I will highlight two or three of these questions in a series of blog posts over the next several months.

Before addressing specific questions, while most clients posit them as to whether they can or can’t do something, I generally respond to them as to whether they should or should not do so. That is what we do as lawyers. Most of these questions do not lend themselves to a simple answer, and our response and advice is dependent upon the facts and circumstances in any given case. That being said, it should also be clear that the thoughts expressed in this blog post should not be construed as being in a 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 confronting with how to respond to them. Now lets get to my first two commonly asked questions.

Can I Change My Will?

During the initial stages of a divorce action, I am often asked by the client whether they can change their Will to eliminate their spouse as a beneficiary, executor, etc thereunder. The last thing they want is for their dreaded, estranged spouse to get their estate and/or from being in charge of their affairs should they die before the divorce is finalized. Excluding for this discussion clients who may have a complex Estate Plan in place, married couples most often may have reciprocal Wills whereby each spouse is designated as the beneficiary of the other’s estate, with any children designated as contingent beneficiaries in the event one spouse were predecease the other. Many people, and even some attorneys, operate under the assumption that the filing of an action for divorce itself either nullifies such Wills or at least revokes the spousal beneficiary rights therein. In reality, until a Judgment of Divorce, whether final or from bed and board, is entered spouses are still considered to be married. The mere filing of an action for divorce does not effect this. Only upon the entry of a Judgment of Divorce or annulment are such spousal beneficiary and/or representative designations in a Will deemed revoked by operation of law. N.J.S.A. 3B:3-14. Such misconceptions may be fueled by seemingly contradictory wording contained in the Elective Share Statute, N.J.S.A. 3B:8-1. Intended to address situations where a surviving spouse may have been minimally provided for and/or left out of the decedent’s Will, said Statute affords that surviving spouse the right of election to take an Elective Share of one-third of the augmented estate “provided that at the time of death the decedent and the surviving spouse or domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit as man and wife, either as a result of judgment of divorce from bed and board or under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his death under the laws of this State.” Note that there is no comparable language under the Probate Laws relative to the enforcement and/or validity of Wills generally, or certainly when a spouse’s estate rights would not call into play an elective share election. With this in mind, how should one respond to a client’s question during the pendency of a divorce as to whether he or she should change their Will? There is no statute or rule which expressly prohibits someone from changing his or her Will during the pendency of a divorce. Therefore, in theory a party could do so and many attorneys may counsel their clients to not only go ahead and do so, but to also revoke and execute new documents such as Living Wills, Health Proxies and/or Power of Attorneys, if applicable. Before doing so, however, consideration must be given to the general precept that during the pendency of a divorce, (i.e., Pendente Lite) the status quo of the marriage is to be maintained to the extent reasonably practical. Would a court view a spouse’s unilateral attempt to change Wills to be an alteration of that status quo? Regardless of the existence of any expressed law restricting same, would such an action cause a court to view that party in a negative light going forward in that case? In most circumstances, is changing Wills even necessary? In many marriages, the bulk of the parties’ assets are held in joint names, be they real estate, bank accounts or investment accounts. As to those joint accounts, same would normally pass to the surviving joint owner upon death by operation of law. The other major asset most people have are pension or retirement accounts which although held in an individual name, their disposition upon death is generally controlled by a beneficiary designation, presumptively in virtually all cases, the spouse. Such assets would pass to the designated beneficiary upon death. In each of these instances, such assets would pass “outside of the Will.” Only assets owned by the decedent at death not falling into these categories would need to pass under the Will. Hence, before advising a client to change their Will or not, one should analyze what would actually be accomplished in doing so and whether this would outweigh altering the “status quo” and the potential adverse impact that this may have in the eyes of the court.

Can I Date?

The easy answer to this question is usually yes, but whether a spouse should or should not date is often more complex and is dependent upon a multitude of factors, in some aspects more emotional and practical than legal in any given case. Lets discuss some legal considerations first. Until an actual Judgment of Divorce is entered, the parties are still technically married. If that is the case, a question which may arise is whether one who dates or enters into a sexual relationship before the divorce is finalized has committed an act of adultery. The New Jersey Statute setting forth the various causes of action for divorce, N.J.S.A. 2A:34-2 continues to include “adultery” as one of the causes of action, but does not define what it is or any time frame within which it must occur. Considered a “fault” ground, over the years “fault” has had diminishing impact in regards to the determination of issues in a divorce case. Certainly, since the advent of the original “no-fault” grounds (18 months separation) and most recently irreconcilable differences, fault grounds such as adultery now have a minimal role in most divorce cases. Indeed, our Supreme Court in Mani v. Mani, 183 N.J. 70 (2005) concluded that there are only two narrow exceptions when “marital fault” may be relevant (i.e., alimony) namely (1) where that fault affects the parties’ economic life and (2) when it constitutes such egregious conduct that it violates societal norms so that continuing the economic bond would confound notions of simple justice. Certainly, a spouse dating after there is a mutual recognition that the marriage is over or after a complaint has already been filed would likely never reach this Mani standard. Even if it were technically considered to be adultery, no court would give it serious, if any consideration. Hence, unless a spouse is consulting with you about the possibility of pursuing divorce at some point way in the future, “adultery” concerns should have little impact upon that decision. However, the nature and scope of that new relationship could have other legal implications. If the case might possibly involve a claim of spousal support or alimony, if the person who may be the recipient of the alimony engages in a relationship which goes beyond mere dating, but evolves into one which involves “a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but that does not necessary maintain a single common household,” a claim of “cohabitation” may arise under N.J.S.A. 2A:34-23 (n). Claims of cohabitation can be made even before an actual divorce is finalized. Rose v. Csapo, 359 N.J. Super 53 (Ch. Div. 2002). Hence, if you represent a potential recipient of alimony, an attorney should advise the client about this issue.

Entering into a dating or other personal relationship may possibly have an impact on custody and parenting time issues, particularly if there are younger children involved. While dating in and of itself may have little bearing, the introduction of a new person into the family dynamics can play a role in some cases. For some litigants they may have an emotional response to the notion of the other spouse dating. There may be jealously or resentments that surface, and which may impact the extent to which they want their children exposed to this new relationship. Questions may arise as to the character of this new person, and/or whether it would be okay to expose the children to this person. While often there is little basis for these concerns, these sorts of reactions should be still considered when deciding whether or not enter a new dating or personal relationship before the actual divorce is concluded. Questions may also arise as to the manner and extent children should be introduced to this new relationship and its potential impact upon them. It goes without saying that seeing their parents break up is traumatic enough for children; introducing a new relationship often compounds and complicates those feelings. Depending upon the circumstances in any given case, a consultation with a mental health professional to address the impact of this new relationship upon the children may be warranted.

Beyond these sorts of legal or practical considerations, one also needs to weigh the overall emotional impact introducing a new relationship they have upon the dynamics of a case. Feelings of jealousy or resentment may impact a spouse’s willingness to negotiate a resolution of the case. One needs to access these sorts of dynamics as well.

Again, while these questions appear simple, their answers are usually anything but, and are truly dependent upon the facts and circumstances of any given case. The attorneys at James P. Yudes, PC are here to assist you in navigating through this process.