Articles Posted in Procedure

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The rumor is we did have a summer this year. Besides what seemed like a few nice days, what passed for summer flew by like a flash. Suddenly it was Labor Day, which for most people signals theRule-Book-225x300 arrival of Fall. What else arrives each Fall? The annual Amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey arrive. Historically, any significant changes in the Part V Rules affecting Family Part practice are made every other year. This was an off-cycle year, meaning there was a paucity of amendments to the Family Part Rules this year. However, there were a number of Rule amendments in other sections of the Rules that either have a direct impact upon Family Part practice in some fashion, or may have some general application to aspects of this practice. I will summarize and discuss these Amendments over the course of several blog posts.

Besides an addition to Rule 5:22 involving juvenile matters, the only actual Amendment in Part V dealing with Family Part Practice is in regards to Rule5:1-2.  Rule 5:1-2(a) generally defines what types of “Family Actions” are to be filed and heard in the Chancery Division, Family Part. The prior version of this Rule, after delineating certain specific types of actions, included not once but twice catch-all language to include “all civil actions in which the principal claim”, as well as “all other civil actions and proceedings” which were “unique to and arising out of a family or family-type relationship”. Very broad language indeed. While the recent Amendments to this Rule may seem subtle, they represent an attempt to better define what types of Family Actions are cognizable in the Family Part. While continuing to include reference “all actions in which the principal claim is unique to and arises out of a family or family-type relationship”, the recent Amendment deleted reference to the term “civil” actions, and deleted the catch-all “all other civil actions and proceedings” language at the conclusion of the Rule. Palimony actions were added to those which should be filed and heard in the Family Part. Most importantly while the amended rule continues to include reference that “such action shall include all actions and proceedings referenced in Chapters II and III of Part V”, the language “unless otherwise provided in Rule 4:3-1(a)(4)” was added. What does this mean? This language was added for the purpose of cross-referencing those actions excepted from Family Part jurisdiction in light of the contemporaneous adoption of Rule 4:3-1(a)(4).

Please remember that the Part IV Rules are intended to govern Civil Actions generally, and which includes most Family Actions unless otherwise specifically addressed in the Part V Rules. Before turning our attention to Rule 4:3-1(a)(4), Rule 4:3-1(a) delineates generally which Court or Division a certain type of action should be instituted. Rule 4:3-1(a)(3) delineated the types of actions which were to be instituted in the Chancery Division, Family Part. However, it is curious to note that the language of this Rule was also subtlety amended to track some of the language changes to Rule 5:1-2(a), i.e. deleting the reference to “civil” and adding a reference to palimony actions, yet curiously continued to include the catch-all “all other actions and proceedings unique to and arising out of a family or family-type relationship” although deleted from Rule 5:1-2. What this means or whether it was an oversight or intentional is unclear. However, the language of the Rule referencing actions cognizable in the Family Part to “include all actions and proceedings referenced in Part V of these rules” is now followed by the limiting language “unless otherwise provided in sub-paragraphs (a)(4) of this rule”, referring in this instance to the newly enacted Rule 4:3-1(a)(4). This new rule sub-paragraph specifically refers to variety of actions named therein which may be associated with Family Actions, but which constitute exceptions from the normal Family Part practice. Said another way, while they may generally arise out of a family or family-type relationship, Rule 4:3-1(a)(4) attempts to delineate which Division or Part certain types of actions should be filed and heard, and not necessarily in the Family Part. Rule 4:3-1(a)(4) identifies nine (9) such types of actions. I will briefly comment on each of them.

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It is not uncommon for a litigant to be dissatisfied with a court’s order. Even if you think you have a solid case, there is no guarantee that the court will see things your way.  Additionally, judges dofile7001246481267-300x225 not always get it right.  When a court makes a legal error, the typical way to address that error is to file an appeal.  But a case has to be decided with finality on all issues to get to the Appellate Division as of right, without having to ask for permission to appeal, which is difficult to get.  Continue reading

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On January 17, 2018, the New Jersey Appellate Division decided the case of G.M. v. C.V. (A4820-15). The case involved the appeal of a May 6, 2016 order that denied the defendant’s request to vacate a final restraining order (FRO) entered in 2004. The reason for the denial that Trial Court gave was that the defendant’s motion did not include the transcript of the underlying 2004 FRO hearing. Continue reading

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Despite the recent heat wave, Fall has arrived. Besides the presumably cooler weather, when the calendar hits September, we can always look forward to a number of things – school starts, rush hour traffic resumes, shorter days, etc. However, for us lawyers September brings with it the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey. Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part Practice. A number were in response to statutory changes that recently went into effect. In light of the number involved, I will summarize and discuss these Amendments over the course of several blog posts. Continue reading

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e3bc10d77963468f2705f7119c049b73-300x199On September 20, 2017 the New Jersey Appellate Division approved a domestic violence case for publication the matter of L.C. v. M.A.J. (A4933-15T2), in which the Appellate Division addressed the use of pre-trial in limine motions, which are pretrial motions commonly used to request the court to make legal determinations about evidence before trial, to seek an eve of trial dismissal of a litigant’s pleadings. Continue reading

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This week the Honorable Stephen Hansbury, P.J. Ch. published a Superior Court opinion that demonstrates how technology and social media is changing the legal landscape and creating new challenges and solutions.   In the published opinion in KA v. JL, in which Judge Hansbury addressed a cause of action that occurred based on a defendant’s use of social media, whether a New Jersey court can obtain personal jurisdiction over an out of state litigant over his use of social media, and whether pleadings may be served via social media. Continue reading

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Going through a divorce can be time consuming, expensive, and emotionally draining, among many other things. For this reason and more, many people try to rush the process and enter into an file0001849487704-300x225ill advised settlement agreement  on their own in order to obtain a quick divorce and move on with their lives sooner rather than later.  Conversely, other people prefer to stick their heads in the sand and do nothing when their spouse files a divorce complaint, which can lead to the entry of a default judgment of divorce by the court that is contrary to their best interest.  While taking either of these actions may work for some individuals, if such actions result in an unfavorable outcome, it can be costly and possibly difficult to correct, if they can be corrected at all. Continue reading

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On February 1, 2017, the New Jersey Appellate Division published its opinion in the case of New Jersey Division of Child Protection and Permanency v. V.E., A-0586-15T4 — A.3d —- (2017). V.E.file000626018085-300x225 is the mother of R.S. now age nine.  V.E. appealed an administrative finding of the New Jersey Division of Child Protection and Permanency  (“DCPP) that “established” a finding of abuse or neglect without her first being given an evidentiary hearing. The Appellate Division reversed the decision of the trial court to not afford V.E. a plenary hearing “because an established finding is a finding of child abuse or neglect under N.J.S.A. 9:6–8.21(c)(4), subject to disclosure as permitted by N.J.S.A. 9:6–8.11a(b) and other statutes, due process considerations require a party against whom abuse or neglect is established be afforded plenary administrative review. The agency’s denial of an administrative hearing is reversed.” Continue reading

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It is well cited the significant extent that domestic violence is in this State and in this country.  It has alsoOfficer Holding Cell Phone been in the news over the course of the last year or more the danger that police officers and the need for them to protect themselves on the job.  How do we balance the need for officer protection, and the public interest in domestic violence victims, with citizens’ Constitutional rights? Continue reading