Articles Posted in Marriage

Valentines Day. A day that couples celebrate their love. Sending flowers with a card to one’s significant other is a common way of expressing that love. And to not be disappointed, people are encouraged to order their flowers as soon as possible to assure delivery by Valentine’s Day. One does so. But after the order is placed, the lovers become fighters and someone obtains a Domestic Violence Restraining Order against the other. In the meantime, the flower and card get delivered and the sender gets arrested and charged with criminal contempt. Was this a crime? That was the situation presented in the case of State v. J.T., 470 N.J. Super 106(Ch. Div. 2020) which was recently approved for publication.

In this case, the defendant had been charged with a contempt of a domestic violence TRO. The issues addressed by the Court was whether the defendant could be found to have “purposely or knowingly” violated the TRO by having initiated communication to a protected party prior to the entry and service if the TRO, and secondarily, whether a defendant was subject to a TRO has an affirmative obligation to attempt to recall or withdraw such communication. The Court found the answer to both questions to be negative and accordingly, dismissed the Contempt Complaint against the defendant.

In this matter, the parties had been in a dating relationship. The plaintiff had obtained a TRO against the defendant on January 31, 2020, which the defendant acknowledged had been served upon him on that date. However, one (1) week prior to the entry of the TRO, the defendant had ordered a floral arrangement for the plaintiff which was scheduled to be delivered to the plaintiff along with a card the day before Valentine’s Day, February 13, 2020. Although he had been served with a TRO which prohibited him from having any contact or communication with the plaintiff, the defendant did not stop, or take any action to stop, the floral delivery from occurring, nor did he inquire as to whether such delivery could be stopped. The flowers and card were in fact delivered to the plaintiff on February 13th resulting in the contempt charges being brought against the defendant.

Palimony Agreements. As our societal norms changed, it became more common place for couples to live together without the benefit of marriage. However, in most jurisdictions, New Jersey included, the laws and statutes favored marriage. Hence, when a relationship ended, the law only recognized the financial rights and obligations-i.e. spousal support or division of property-arising out of a marriage or other legally recognized relationship ( i.e. civil union, domestic partnership). These laws did not apply to “living together” relationships or their breakup, even if the couple had been together for many years. A financially dependent party could be jettisoned to fend for themselves without any recourse. Then came the case of the actor Lee Marvin and his longtime girlfriend. She sued him, claiming he had promised to support her for the rest of her life. The Court recognized that such promises could create an enforceable contract or agreement for which compensatory “damages” could be awarded. Since spousal support or alimony was only statutorily allowed upon divorce, the term “Palimony” was born to describe such damages. Following Kozlowski v. Kozlowski, N.J. 378 (1979), New Jersey recognized the enforceability of such

“ Palimony Agreements” arising out of such marital-type relationships. However, rarely were such “promises” reduced to writing. They were generally premised on statements orally made, or expressed or implied from the actions of the parties.

Perhaps concerned that the Courts had gone too far in enforcing such “Palimony Agreements”, the New Jersey Legislature in 2010 chose to amend the Statute of Frauds, N.J.S.A. 25:1-5(h), so as to require that any such contract must be in writing and signed by the person making the promise. However, the amendment went on to provide that “ no such written promise is binding unless it was made with the independent advice of counsel for both parties”.

For most people going through a divorce, their interests in real estate are often the primary assets that need to be divided. Whether it is the marital home, a vacation property, or commercial real estate, most litigants question how they are addressed in a divorce. Like all other assets acquired during the marriage, the law requires that they first be identified and then valued, after which the court (or the parties by Agreement) can effectuate their “ equitable distribution”. However, dealing with real estate in divorce has become more challenging given the ever-changing market. This blog post will attempt to briefly address some of these issues.pexels-karolina-grabowska-4506270-300x200

The first task is to identify those real estate holdings that may be subject to equitable distribution. To be subject to equitable distribution, they usually need to have been acquired “ during the marriage”, which is generally defined as between the date of marriage and the date the divorce complaint is filed. However, as with most things in divorce, there are some exceptions. Real Estate acquired “in contemplation of marriage”, often the marital home, may be considered subject to equitable distribution even though purchased prior to the date of marriage, if certain elements are established ( a topic for another blog post perhaps). Furthermore, sometimes real estate may change in value, not due solely to market forces, but through the “active” efforts of the owner or financial contributions towards improvements. If those “active” efforts or contributions occurred during the marriage, even if the property itself was originally acquired prior to the marriage, any change in value attributable to same may be considered a marital asset subject to equitable distribution.

Once marital real estate assets have been identified, they need to be valued. Often the parties may decide that they want to simply sell the real estate and divide any “net proceeds” in some fashion. In this case, the property may not need to be valued as the market itself will establish its “value” when it is sold. However, in other instances, real estate may not get sold either because one or both parties want to retain it (i.e. the marital home) or it may not be amenable to be sold ( i.e. commercial property housing a business). In these instances, its value will need to be established by way of appraisal done by a professional real estate appraiser. Sometimes to save the cost of an appraisal, the parties may go to a local realtor for a CMA or Comparative Market Analysis. This is not the same thing as an appraisal but is usually just an estimate based upon recent listings or sales in the area to support a possible listing price. Hence, courts generally do not accept CMA’s as proof of value. That is not to say that parties may also attempt to“stipulate” or agree as to a property’s value, but in today’s market that can be a challenging task. And frequently parties have different motivations concerning the disposition of the property which may lead them to either want to minimize or maximize its value in a case. While parties may also secure competing appraisals, discrepancies are usually small and generally reconciled between the appraisers or during discovery or at trial.

Let’s talk about polarization, which can now be considered a commonly used catchphrase. We see the destructive effects of it everywhere in our culture. Conservatives against liberals, Democrats versus Republicans, Pro-choice versus Pro-life. The list is endless but the rhetoric is similar, “we are right they are wrong,” “we have God and free will, and with that comes the right of humanity, which is on our side, and those who do not agree are just plain evil.” No one recognizes merit in the other’s thoughts, words, ideology, or position we have become quick to jump to the conclusion if you don’t see it my way you are in the wrong.pexels-snapwire-38870-300x199

The attitude and conclusions mentioned above can be seen on an amplified platform through news channels, specifically through Fox vs CNN, which is only contributing to the slow but steady pulling our Nation apart. This concept that there is only one right view or approach to a problem or a way of life is not just political it has seeped into our culture. From movies to video games, sports to ballroom dancing we pit groups against each other take sides and cheer for our team. Unfortunately in marriage, this idea of right or wrong, my way or the highway is poisonous. Unlike in politics or a Rambo movie, marriages only work if there is compromise. I am frequently asked at events what is the biggest cause of divorce to which I respond marriage and move on. No one really wants a dissertation on the problems of our society with their martini.

Looking back over the decades of divorces numbering in the tens of thousands I would say the primary reason people get divorced is a lack of communication. That same rigid preconception that I am right and you are wrong that infects our public discourse often infects the more intimate discussion between spouses. The idea that there is one right way and that way is mine may work in the Senate ( not really ) but it does not work in the bedroom or for that matter in the kitchen. Marriages that work have open communication a sharing of ideas and goals and the flexibility to see the other side and make room in your brain and your heart to consider the alternative.

During one of my recent commutes, I heard a commercial on the radio for a New York law firm talking about people’s “fear” of the divorce process. When I hear the term “fear”, it brings to mind the phrase uttered by FDR to the effect that “the only thing we have to fear is fear itself”. I believe that this expression rings true when it comes to divorce. When I consult with a prospective client, one of my most important jobs is to reassure that person that there should be nothing to fear from the divorce process and of making the leap of moving on from an unhappy, unhealthy, and/or destructive relationship.

Perhaps fear is too strong a word. Apprehension. Trepidation. Nervousness. Embarrassment. Concern. Ignorance (i.e. a lack of knowledge). These seem to better reflect the range of feelings and emotions that I see from most of my prospective clients when they first meet with me. Whether these consultations are conducted in person, virtually, or over the phone, my experience is generally the same. Regardless of whether the person is a man or a woman, their voice is full of emotion. Their voice may crack. They have trouble finding the right words or even getting the words out. They may tear up. Often they feel the need to apologize. But no apology is needed. I assure them that what they are feeling is real, is normal, and to assure them that I am there to help them and to listen to what they have to say. Gradually, those acute emotional feelings begin to subside. They become more comfortable in opening up as to what is going on in their lives and why they are considering the possibility of divorce. After having done this work for almost 40 years, the reasons why people are considering divorce are often similar; however, everyone’s life story is personal to them and is entitled to respect and understanding. It is not only important to hear but to listen. And when someone senses this, a client will not only lose their apprehension in speaking to whom only minutes ago was a perfect stranger, but will be receptive to answering the questions us attorneys must ask to learn exactly what the issues are in a given case and to provide the appropriate advice and knowledge to the client to move forward with whichever course of action they may want to pursue.

When it comes to divorce, fear can be a most negative emotion. Fear can be paralyzing. Fear can cloud one’s judgment. Fear can lead to rash and imprudent decisions. Fear can lead to harm to oneself or others. This destructive side of fear can arise at any time. Hence my job is not only to temper it at the outset but to prevent it from infiltrating my client’s psyche throughout the process. At the outset of a representation, it is important for a client to know that they have someone that listens, that has explained the law, their rights, and the divorce process. However, as the disputes surface, and the reality of the marriage’s end arise, an attorney’s job is to provide a constant state of assurance and not allow one’s emotions to take over. Being there, listening, explaining, and advocating hopefully serve as an antidote from destructive emotions such as fear overrunning a case.

In many divorce cases, obligations for the payment of alimony and/or child support are established. Whether the result of an agreement between the parties or an order of the Court, such support obligations are generally determined based upon the relative financial circumstances of the parties at the time the agreement was made or the order was entered. However, as has clearly been reinforced by the pandemic, the financial circumstances of either party can substantially or dramatically change. Incomes can increase or decrease. People can lose their jobs or obtain new ones. Someone can suffer from a disabling illness or injury. Needs and expenses may increase or decrease. A recipient of support may enter into a new relationship. Generically referred to as “changed circumstances” they can be many and varied. The issue is whether they are significant enough that it would render continued enforcement of an existing support obligation to no longer be fair and equitable, and in some instances, perhaps even unconscionable. As a divorce lawyer, a significant percentage of our practice are litigants looking to either modify existing support obligations or defending against requests for same. When someone meets with me and believes they have a basis upon which to modify support, whether they are seeking an increase in the amount they are receiving or a decrease in the amount that they are paying, the first hurdle to determine is whether the circumstances which they allege have changed are sufficient, either factually or legally, to support a possible modification. While in some instances the changes proffered may be convincing and irrefutable, the real test is whether the changes claimed, and the proofs substantiating same, would at least rise to the level of making out a threshold showing of changed circumstances. Often when parties come in to discuss these issues they focus less on what their circumstances are and focus more on what they believe the other party’s financial circumstances may be, and feel a right and entitlement to obtain information from them regarding same. When that occurs, I need to explain to the party that before you may have the ability to obtain financial information from the other side they must first establish to a Court’s satisfaction that they have met their own threshold, what the law refers to as a “prima facie” showing of changed circumstances. What does “prima facie” mean?

Black’s Law Dictionary defines a prima facie case as either (1) the establishment of a legally required rebuttable presumption or (2) a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor. The New Jersey Supreme Court has defined prima facie evidence as that which, “if unrebutted, would sustain a judgment in the proponent’s favor” Baures v. Lewis, 167 NJ 91, 96 (2001). Similarly, the United States Supreme Court has previously defined prima facie evidence as “such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.” Bailey v. Alabama, 219 US 219, 234 (1911) (quoting Kelly v. Jackson, 6 Peters, 632)

In establishing a prima facie case, the “evidentiary burden is modest” and the Court should evaluate the prima facie case “solely on the basis of the evidence presented by the plaintiff, regardless of the defendant’s efforts to dispute that evidence”. Zive v. Stanley Roberts, Inc., 182 NJ 436, 441 (2005) “As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim”. State v. Preciose, 129 NJ 451, 462 (1992) A movant seeking to establish a prima facie case should further be given the benefit of all reasonable inferences that can be drawn from the evidence presented. See Kant v. Seton Hall Univ., 210 NJ Super. Unpub. LEXIS 2469, *7(App. Div. 2010); Teilhaber v. Greene, 320 NJ Super. 453, 464 (App. Div. 1999)

I recently argued a case via Zoom in the appellate division that could have far-reaching implications in this new pandemic world. The issue dealt with an agreement that resolved marital rights in divorce entered into while the parties were happily married. We know that prior to getting married, engaged couples can enter into a prenuptial agreement resolving certain marital issues. The ability for couples to enter into such an agreement has existed since 1988 when it was codified into a Uniform Statutory Law.

Divorcing couples must face and resolve a myriad of issues involving support, property distributions, and, where applicable, the care and custody of children. What ability then do parties have after they are married to contract for and away marital rights and obligations? Before yesterday the law was pretty clear. Mid-Marriage agreements were suspect. Two separate courts have found these types of Mid-Marriage agreements are inherently coercive and as such held that they needed to be seriously scrutinized. Since happily married people are not adverse to each other as they are when they are divorcing and, unlike people contemplating marriage, have already committed to the marriage, it was generally held that the courts needed to examine such mid-marriage agreements to determine if they are fair and fairly entered into. The burden to overcome the presumption of compulsion by circumstance was, these cases opined, monumental. The maxim that to obtain equity one must do equity, rings loudly when questioning such agreements.

In my recent appeal, my adversary argued that the Mid-Marriage agreement should be governed by simple contract law. A deal is a deal he would argue. The protections of those two cases where divorce is threatened should not apply to happily married people. These people, he argued, should be free to contract without restriction. In fact, he argued the dominant financial spouse had no duty of fair dealing or full disclosure. If the subservient spouse did not ask the right questions or seek more information, that person is an adult and should suffer the consequences of the bad deal they chose to make. Spouses should be free Mid-Marriage to give away their rights so long as they have a lawyer, even if that lawyer was hand-selected by the dominant spouse.

With the COVID-19 pandemic raging, I have spent a lot of time thinking about what the holidays will be like this year. Of course, the holidays are supposed to be a time filled with love and joy; a time spent with family and friends. This is true no matter what holiday you celebrate at this time of year. After all, that is what we see in all the holiday movies and hear in all the holiday songs. But, as most grownups know, even in normal times, as special as this time of year is, it is also a time that is inevitably more hectic and more stressful. But this year is different. Many are facing the loss of a loved one, in some cases, more than one loved one. So many people are separated from family members – in hospitals, nursing homes, or just keeping their distance to stay safe. Those who live alone are feeling the solitude even more while those who live with others are feeling the added pressure of the extra time couped up inside because while time together is wonderful, most of us are not accustomed to quite this much “time together.” And then there is the absence of so many of the holiday activities and traditions which we have come to treasure. As an Italian American from Brooklyn, for me, this means foregoing Christmas Eve in Brooklyn with extended family. As the mom of a two-year-old, it means no visit to see Santa this year. But I consider myself lucky. My family is healthy and I have not had to suffer the loss that so many have.pexels-nicole-michalou-5765727-200x300

Yet even as the pandemic drags on, we are striving to make the holidays a time of happiness. These are unusual circumstances, we tell ourselves. It is only one year and next year we will be able to celebrate again like we once did. These feelings of loss, loneliness, sadness, and hopelessness are not usual for this time of year and this too shall pass. But of course, this is not true for everyone. For some, the holidays are not a happy time, even when there is no pandemic. This is true for so many including those who are recently divorced or in the middle of a divorce.

Certainly, it is hard to be happy when the life you knew changes. Suddenly you find yourself dealing with the magnification of loneliness and navigating the stress and the hectic of the holidays alone. Maybe you are struggling with old traditions. Perhaps it is the first year that you will spend the holidays without your children. And added to the normal stress that always comes with the holidays is the need to manage parenting time schedules and feeling like you need to keep everything the same for the kids, while so much has changed.

Dear Santa:pexels-cottonbro-6140236-200x300

I know I wrote to you in October asking you for just a few things for Christmas. I know you are busy and that kids all over the world need you more than ever. I was looking forward to Christmas when Uncle Harry always come dress like you and my sister plays carols on the piano. I just want to let you know that I would like to change my Christmas list. It’s not that I do not like Transformers or Batman. I love them! It’s just that things have changed around here. Mom and Dad’s fighting has gotten a lot worse. I know they think they are keeping it from me but I hear them fighting and I see the way they look at each other. I heard Dad say he wants a Divorce and mom said she did too. I know what Divorce is My friend Tom’s parents got divorced last year. Tom did not see his Dad for a long time until he was asked a lot of questions by some Doctors. He was scared. I don’t mind if Mom and Dad divorce. If they Divorce like my friend June. Her parents divorced but did not fight over her and were nice to each other. June sees her mom and dad all the time and they even go to her soccer games. She says nothing is that different she sees her mom and dad and she likes that there is no more fighting in the house. So here is what I would like. I want mom and Dad to stop fighting. I want them to be happy. I do not want them to fight over me and I want to see both of them Dad was sick this year and Dad said mom was the best nurse and told me what a great mother I had. Mom said that Dad was a hard worker and I should appreciate all the things he did to make our family better. Could you please remind them about that? I know that usually, you give kids like me toys and that you have a magical workshop. It’s

really the magic I am looking for this year. So what I really want for Christmas is for my mom and dad to calm down. When I get upset my Dad always says calm down buddy and my mom gives me a hug. That really works. Maybe you could give my mom a magic hug and tell my dad to calm down. I figure they would listen to you. I told my sister who is really big that I was going to write to you. She said it was a great idea and she would get it to you or your elves. She said she would like mom and dad to calm down too. I see her cry sometimes so I know she is sad. We are usually happy this time of year even mom and dad. We didn’t decorate the tree together we did it with mom and dad sat in the room by himself. I could see mom was being brave like she tells me to be when I get a shot. Every year we drive around the neighborhood looking for tacky lights this year mom had a headache and didn’t go. It wasn’t as much fun cause mom laughs through her nose when things get funny. I know things will be different now. But it could be nice different that would be best. And if you think I should have the transformers and batman too that would be great. I have been very good.

pexels-ketut-subiyanto-4308054-300x200People are always asking me if they should divorce. My stock answer is that the decision to divorce is personal and that I am not qualified to make that decision for the client or even make a recommendation. Everybody has a different view of what a good marriage should look at and it is not mine to Judge. I do when the reasons for divorce seem like an argument that will blow over or the parties are older ask the client to think about options and give it a week to let things settle down and the realities of Divorce hit home. I am aware that not all marriages are built to last and that happiness like beauty is in the eyes of the beholder. Having said that I do have some views of my own about when a Divorce makes sense and when it does not. I am not a mental health professional. I am a lawyer who has practiced in this field for most of my career after a near-death experience ( from boredom) as a tax lawyer.

Often the decision to Divorce has been made by your spouse and you really have no option but if the choice is yours here are some things to think about. If you are in a destructive relationship and your spouse is physically or mentally abusing you should get out. Abusive people do not change. It is not your fault. If your spouse cheats on you and you will only reconcile if they don’t stop cheating now and forever and you can not live with a spouse who keeps cheating, get a divorce. My experience shows that once a cheater always a cheater.

If your marriage leaves you so unhappy that each day is drudgery or you find yourself wishing you were dead so the marriage can be over get the divorce. There is life on the other side.