Attached is the Decision in Temple v. Temple. I previously wrote about the importance of this decision in which this office created a new and easier standard for a payor of alimony to prove a claim of cohabitation. Although not originally published many prominent attorneys, as well as the American Academy of Matrimonial Lawyers, wrote to the Committee on publications asking that the case be published. If you have a cohabitation case we would be happy to review it and discuss your rights. Since in this area as in many issues involving Family Law, “We made the Law.”
Articles Posted in Appeal
Getting A Hearing When Your Spouse Cohabits Just Got Easier
In a previous blog, I promised that the Appellant Division was going to revisit the proof required to be presented before one could obtain discovery of a dependent former spouse’s social and financial circumstances; as of today June 17th, 2021, the case has been decided although not yet approved for publication.
Temple v. Temple ( A-0293-20) is an important decision for anyone seeking to terminate their alimony obligations based on their former spouse’s cohabitation. In Landau v. Landau, the appellant court indicated that before one was entitled to discovery or a hearing, regarding issues of cohabitation the proponent of this change in circumstance needed to prove evidence of said change. The problem with Landau was that it did not address what proofs were needed in order to meet the requirement and move forward with the discovery phase.
The Trial Judge on Temple found that to be successful on an application one needed to prove all six factors set forth in the statute as things to evaluate when determining if a prima facia case was established. The Appellant Court accepted our argument that one needed not to prove all six statutory factors to establish a prima facia case but must only establish sufficient evidence so that the trier of fact may conclude that the parties have “ undertaken duties and privileges that are commonly associated with marriage or civil unions.”
Proof Needed to Prove Cohabitation will soon be Clarified….
On June 8th, I argued a case of significant importance in the Appellant Division. Although I have not received a decision as of yet, I am still of the belief I was heard. The case involved an application from the supporting spouse to terminate alimony based on the cohabitation of his former spouse. Although I did not represent my client at the trial level I believe that my predecessor made the necessary arguments allowing me to present the important issues to the higher court. The Trial Judge had misread the recently decided, Landau decision, believing that the fact in Landau created a litmus test as to what constituted a Prima Facia case allowing discovery and a plenary hearing as to the issue of cohabitation. In fact, Landau provides that before one is entitled to discovery and a plenary hearing one must establish a prima facia case.
A prima facia case is one where the court is to consider the issues presented by the proponent of a proposition in the light most favorable to said, petitioner. In considering the assertions of the petitioner the defenses offered by the opposition are not to be given weight. Since the opposition is not required to give evidence, their election to give selected evidence is should not be considered as the issue is not ultimately a success on the merits but rather the sufficiency of the assertion to justify a full examination of the issue.
The idea of a prima facia case as an entry ticket is based on the privacy right of the dependent spouse who ought not to be forced to divulge intimate details absent the presentation of more than innuendo. In my case, there was significant proof including a private investigator’s report, statements by the paramour of the closeness of the relationship, and some economic proof. The initial problem was that the Trial Court had misread the law, this error of the law was compounded by the trial courts weighing the defenses of the dependent’s former spouse and finding her explanations more credible.
We Just Made the Law regarding Mid-Marriage Agreements
Consistent with our firm’s position of being a leader in the field of Family Law, we have just received a decision on one of our appeals, meaning it is now law that will be binding for trial courts. The case is, Steele V Steele, and it was approved for publication today as I write this on, April 30, 2021.
This case analyzed the types of contracts that engaged and married couples can enter into. It makes clear that contrary to unreported decisions that premarital agreements are creatures of statute and that judges are bound by the statutory scheme and can not vary it. In the Steele case, the trial judge erroneously found that an agreement entered into after the marriage was a prenuptial agreement under the act because the husband had expressed an intent to have such an agreement.
The case then goes on to discuss when and if a marital agreement can become enforceable. Recognizing that divorcing adults are susceptible to entering into agreements that are enforceable because they are adverse to each other. It should also be stated that those with marital trouble on the potential path to divorce can contract so long as the agreement is fair at the time it was entered into and at the time enforcement is sought. In Steele, the wife had just conceived a child and was breastfeeding when she entered into the agreement. Unbeknownst to her, the husband had been preparing an agreement even before the parties were married changing the way he valued assets; ignoring some assets and sources of income altogether. The court indicated that for the post-marital agreement to be enforceable the agreement needed to be fair and equitable. Meaning that the dominant partner needed to make a full and complete disclosure of all assets and income without exception. In the Steele matter the husband who admitted to being worth at least 9 million dollars at the time of the agreement, did not decide to play fair and disclose all assets and used inconsistent means to value assets choosing in each instance the valuation technique that yielded the lowest monetary value. In this matter, the husband did not disclose all sources of income and ignored significant income-producing assets held in trusts. Another condition of enforcing such agreements is that they must be fair and equitable when the agreement is reached as well as when enforcement is sought. In this matter, a home selected and purchased after the parties’ marriage was excluded from property to be shared upon divorce and in the event of the husband’s death, his wife and young child would be left destitute as in the document the wife had waived any claim against the husbands’ estate. The overreaching of the husband is well documented in this exquisitely crafted appellant decision.