New Jersey Divorce Law Blog

The New Jersey Prevention of Domestic Violence Act is Constitutional !

In a thorough and detailed opinion, the New Jersey appellate division in the June 18, 2009 published opinion in Crespo v. Crespo, overturned a Hudson county trial court decision that the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to  -35 (“Act”) was unconstitutional, a decision that should come as no surprise in the light of previous case law upholding it. See Roe v. Roe,  253 N.J. Super. 418,  427 (App. Div. 1992).

The trial court judge had two main arguments as to why the Act was unconstitutional: firstly because the trial court believed that the Act violated the rules governing the separation of powers between the Judiciary and the Legislature; and secondly because the trial court believed that the Act violated litigants due process (procedural) rights by using a "preponderance of the evidence"  standard (lowest standard) as opposed to the higher "clear and convincing evidence" (the standard used in criminal matters) for entry of a final restraining order (FRO).  Both arguments were found to be without merit by the higher court in their opinion.

In Crespo, the appellate panel noted that through the implementation of New Jersey Court Rule 5:7A, the Supreme Court had "enhanced" the procedural components set forth in the Act, and hence its exclusive constitutional authority over court practices and procedures had not been usurped by the Legislature.  The opinion noted that “[a]s Judge Pressler has correctly observed, Rule 5:7A "implements" the procedural components of the Act.  Pressler, Current N.J. Court Rules, comment 1 on R. 5:7A (2009).  The appellate panel found “the argument that the various procedural aspects of the Act violate N.J. Const. art. VI, § 2 ¶ 3, to be utterly without merit”

Secondly, as to the argument that due process requires the higher standard of clear and convincing evidence i.e. evidence that is so clear, direct and weighty that a judge can come to a clear conviction without hesitancy, the appellate panel reviewed the due process criteria set forth in Matthews v. Eldridge, 424 U.S. 319 (1976) and noted that such a standard would foreclose relief in many domestic violence cases and this would be against the public policy of protecting victims.  The Crespo opinion, quoting Roe, concluded “that a standard more demanding than the preponderance standard "would undermine the social purposes of the Act."” Roe, supra, 253 N.J. Super. at 428.

Given the weight of legal analysis in this opinion, any argument that the New Jersey Prevention of Domestic Violence Act is unconstitutional has been unequivocally rejected.

The Crespo opinion did, however,  have one interesting practice point of note, namely the approval of Judge Dilts’ trial court opinion in Depos v. Depos, 307 N.J. Super. 396, 400 (Ch. Div. 1997), that where appropriate permission to obtain limited discovery can be sought from the court.

If you are the victim of domestic violence or have been served a temporary restraining order (TRO) you should consider hiring an attorney experienced in this area of the law at the earliest opportunity.

At time of divorce it is important to review the beneficiary of any life insurance

In the June 16, 2009 published appellate opinion in Hadfield v. The Prudential Insurance Company, the ex-wife argued that she was entitled to proceeds from a life insurance policy for her divorced ex-husband because she had been named as the beneficiary prior to divorce, the beneficiary designation had not been changed post-divorce and the parties had agreed they would each remain as beneficiaries on each other’s life insurance until they remarried.

The parents of Ryan Hadfield on behalf of his Estate argued that after his divorce he had attempted to change the name of the beneficiary of his life insurance from his ex-wife to his sister but had executed the forms incorrectly.

The trial court found in favor of the Estate finding that under N.J.S.A. 3B:3-14, the divorce revoked the insurance beneficiary designation.  On appeal, the appellate division agreed, finding that the ex-wife had “no vested right in the life insurance policy since Ryan could have validly changed his beneficiary at any time prior to his death.”

Furthermore, because the ex-wife had no vested right to the life insurance, the court held that it was not improper to retrospectively apply the amendment of N.J.S.A. 3B:3-14 that occurred in 2005 in which life insurance policies were specifically named as instruments that were revoked upon divorce.

The starting point to this decision focuses on the concept of a "vested interest" in the life  of the other party.  In this case, since there was no obligation upon the Husband to pay support to the Wife after divorce, nor were there any outstanding obligations owed by the Husband to the Wife under the terms of the settlement agreement, what was Wife's vested interest in his estate?

The appellate court confirmed that since there was no vested interest in his estate, what was the former wife's entitlement to continued beneficiary coverage under his will?  Since there was no clear proof of an intent to continue to designate the former wife as beneficiary (after the divorce), her claims had to fail. 

Simply stated though, it would have been better practice for the Husband to have prepared a new will and a change in his beneficiary designation in his life insurance policy, confirming his intent to remove the former wife as beneficiary of his estate to avoid any future conflict.

Hague Convention annual report highlights continued problem of child abductions to Mexico and failure of countries such as Switzerland to comply with Convention

Approximately 200 nations have signed on to an international treaty known as the Hague Convention on International child abduction, which requires the country where a child is taken to (regardless of whether the child is taken by a biological parent or not) to return the child to his/ her country of origin.

A central purpose of the treaty is to prevent parents from abducting their children from one country and taking their children to another country hoping that the new country will permit them to remain with the child and not force them to return home with the child.  Unfortunately despite signing the treaty and agreeing to all of its obligations, it appears that there are numerous counties who are not honoring their obligations under the treaty, including Mexico and Switzerland.

The U.S. State Department recently published its annual Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction,” the treaty under which participating countries agree to return abducted children to the United States.

Congress requires a report each year that analyzes country compliance in the areas of 1) Central Authority performance, 2) Judicial performance and 3) Law enforcement performance.  Countries that the State Department considers to be failing in all three categories are listed as “Non Compliant”.  See 42 U.S.C. § 11611(a)(2).  Countries that demonstrate a failure to comply with the Convention in one or two performance areas are listed as showing “Patterns of Noncompliance.”  See 42 U.S.C. § 11611(a)(3).

In the recently published report that covers fiscal year 2008, the following designations were made:

Countries non compliant:  Honduras

Countries demonstrating patterns of non-compliance: Brazil, Chile, Greece, Mexico, Slovakia, Switzerland and Venezuela

Mexico had the highest incidence of reported child abductions of children taken from the United States, 316 with only 92 children returned.

What is shocking reading this report is that countries such as Switzerland, with efficient government and an established court system are listed as “non-compliant”.  As the report notes, Swiss courts often treat Convention cases as custody decisions, invoking the child’s “best interests” for denying return. There is no authority for this under the Convention.  Article 16, specifically states that a court deciding a Convention application shall not decide the merits of custody rights, instead the child should be returned to the country of habitual residence for any custody determination.

Additionally, the report notes that Swiss courts have shown bias towards mothers who abduct children.  In one notable case where Swiss courts refused to return a child back to the father who lived in the United States, the European Court of Human Rights issued a decision finding that Switzerland had violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits interference by a public authority with the exercise of an individual’s right to respect for his family life.  Despite this ruling, the U.S. father has still been unsuccessful in having the Swiss courts assist him in getting access to his child.  

The report notes the disturbing trend that returns of children under the Convention are increasingly coming with preconditions or “undertakings’ e.g. guaranteed visas to enter the United States, pre-payment of legal fees or long-term spousal support.

The United States partners with 68 countries who are party to the Convention but most are in Europe, North America and South America.  Many countries are not party to the Convention. Those with the highest incidence of reported child abductions from the United States include: China, Egypt, Ghana, India, Jamaica, Japan, Jordan, Kenya, Lebanon, Morocco, Nigeria, Pakistan, the Philippines, Russia, Saudia Arabia, South Korea and the United Arab Emirates.

Related articles by Zemanta

• Lax border scrutiny aids international parental abductions: group (cbc.ca)
• Abducted child believed to be in Lebanon: Calgary police (canada.com)
• The Goldman Case - The Emotional Roller Coaster Continues (themoderatevoice.com)
• You Need An International Border To Turn A Custody Fight Really Nasty (plastic.com)
• A Father's Day he won't see: International child abduction devastates former Kent man (pnwlocalnews.com)

Can I relocate to another state with my children ?

New Jersey has an anti-removal statute N.J.S.A. 9:2-2 which provides that a child who was born in this State or who has resided here  may not relocate to another state absent the consent of both parents or an order from the court finding sufficient cause to permit such a move, unless the child is aged fourteen or more; when they can give their own consent to the move for the purposes of compliance with N.J.S.A. 9:2-2. See Kavrakis v. Kavrakis, 196 N.J. Super. 385, 391 (Ch. Div. 1984).

In a traditional custody setting where one parent serves as parent of primary residence, a removal application is considered under the two-part test of Baures v. Lewis, 167 N.J. 91 (2001).  Baures requires the removal to be granted where the proofs demonstrate that (1) there is a good faith reason for the move and (2) that the move will not be inimical to children's best interests. Id. at 118. 

What does the court system consider is a good faith reason for a move ?  Examples include relocating to be closer to family support, to get married, live where it will be less expensive or to start a new job.

After the party seeking removal has shown there is a prima facie good faith reason for the move, the  burden shifts to the non-custodial parent to address the second prong of Baures and show that the move is not in the child’s interest and that the proposed parenting plan is not reasonable.

Justice Long in Baures, established a 12 factor test to determine if a move was inimical to a child’s best interests:

1. the reasons given for the move;
2. the reasons given for the opposition;
3. the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
4. whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
5. any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
6. whether a visitation and communication  schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
7. the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed;
8. the effect of the move on extended family relationships here and in the new location;
9. if the child is of age, his or her preference;
10. whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
11. whether the noncustodial parent has the ability to relocate;
12. any other factor bearing on the child's interest.

Id. at 116-117.  The court is required to consider those factors which are relevant to each individual case, and may weigh different factors unequally.  Id. at 117.

In reality, if school districts are comparable and educational opportunities are equivalent, it is hard to show that a move will be inimical to a child’s best interests.  The fact that they may have reduced parenting time with the other parent as a result will not bar a relocation  and most relocation or removal applications where the Baures standard applies are now granted.

A judge should not preside over a particular matter when there is an "objectively reasonable belief" that he may be biased or unfair

The April 23, 2009 published appellate decision in Chandok v. Chandok addressed a setting where the trial Judge should have disqualified himself from hearing a divorce case. 

In Chandok, the appellate decision reversed the trial court judge's decision not to remove himself from the matter, vacated the judgment entered by that judge as a result of the trial and remanded the matter for a new trial before a different judge.

In the opinion written by Judge Stern, the appellate court concluded that Judge Torack in Bergen County should never have sat on any cases involving his former law partner because of the history of bad blood between him and his former law partner which resulted in litigation between them and threats of unethical behavior (even though those claims dated back 11 years).

The appellate court ruled that “[t]he mere appearance of bias may require disqualification” so long as the belief of unfairness is “objectively reasonable”  (relying on Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div. 1990). 

Faced with the history between the Judge and his former law partner, an objectively reasonable person could believe that the Judge might not be fair or impartial and even though the application for removal was made by the lawyer late in the matter, it should have been granted.

Who gets the family pet in a separation or divorce ?

Based on a recent NJ Court decision, who gets the family pet in a break up setting, just got more complicated.

Courts in New Jersey traditionally viewed pets like chairs and personalty and were reluctant, if not down right opposed, to making pet ownership determinations in a break up setting. In fact, many if not most judges considered court action concerning family pets to be frivolous and a waste of precious judicial resources.  The reason for this is that New Jersey courts traditionally viewed pets as "personal property" and much to the disappointment of animal right’s campaigners, had not adopted a “best interests of the pet” standard when it came to deciding where and with whom the family pet should live after the parties separated.

However, in the recent published appellate decision in Houseman v. Dare, a family judge in Gloucester county awarded $1500 compensation for a pedigree dog that one party kept in violation of an oral agreement as to who would get the pet upon separation.  The trial court held that monetary damages i.e. the intrinsic value of the dog should be paid when the dog was not handed over.  On appeal, the higher court disagreed with the trial courts ruling and held that "specific performance" is also available as a remedy for the breach of their oral agreement as to possession of the dog instead of money.

The Court reasoned that to allow otherwise, would reward the breaching party who kept the dog in violation of the parties’ agreement. The appellate opinion by Judge Grall, likened a pet to a family heirloom, where money cannot replace the sentimental value attached to it.  That reasoning also signaled a dramatic change in how the family court should view the family pet.  The opinion went on to state,

“There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet based on one party's sincere affection for and attachment to it than in resolving competing claims based on one party's sincere sentiment for an inanimate object based upon a relationship with the donor.”

Translated, what the opinion in Houseman means in practice, is that family courts in New Jersey should no longer avoid ruling on who gets the family pet when the parties separate since the family pet has now been elevated to the same stature and respect as family heirlooms and more valuable than the kitchen chairs.  This should come as good news to all pet owners in New Jersey.

The NJ Senate has rewritten the laws of New Jersey on the subject of Palimony

For reasons unknown to this writer, while the economy continues to falter and unemployment continues to skyrocket, the New Jersey senate has focused its energies on rewriting the laws of this state on the subject of Palimony, requiring all agreements between unmarried cohabitants to be in writing to be enforceable.

As such, regardless of whether you are gay or straight, if you are  living in a family-type relationship with another person and relying on promises of support and asset accumulation with your partner, you need to get it in writing or else those promises will mean nothing.

Ironically, the seminal case in New Jersey dealing with the topic of Palimony acknowledged that unmarried cohabitants living together without the benefit of marriage rarely put their promises down in writing. Yet, our supreme court 30 years ago, acknowledged that if a partner makes promises that the other partner relies upon to her financial detriment, that the court system can provide a remedy. By legislation, New Jersey has decided to abolish that concept and safety net.

Query: If a couple has been living together for the past 20 years without the benefit of marriage, with one partner staying home to raise the children while the other was out advancing his career, why would our legislature feel the need to step in to their lives and say that absent an agreement in writing, the partner who stayed home has no claim for palimony (support or the sharing of assets  accumulated)  since there is nothing in writing between them ?

The New Jersey court system is not overwhelmed by palimony claims. They are expensive to bring and judges are well qualified to consider the unique facts and circumstances of each case. This bill if passed by the Assembly will take away the rights of individuals who would otherwise be entitled to claim support, and may signal the end of palimony claims in New Jersey. Any erosion of legal rights is one that is extremely troubling.

In the meantime, if you are in a long-term relationship or cohabiting with another, then a lawyer should be consulted in order to make sure that there is a written agreement in place that protects your future rights.

What happens to my alimony & child support obligation if I lose my job?

In today’s difficult economic environment, with layoffs, salary reductions and unemployment a harsh reality, many people are finding it difficult or impossible to meet their alimony or child support obligations.  Worse, there is a tremendous fear as to what a court will do if someone can no longer afford to pay the court ordered or agreed upon level of support because of a job loss or salary reduction.

Historically, the simply remedy was to file an application to the court for a reduction in support based on the concept of "changed financial circumstances". Lepis v. Lepis, 83 N.J. 139 (1980).  Not surprisingly, these motions are usually opposed by the party receiving support for a variety of reasons.

To successfully lower support payments, the party making the request has to convince the court that the change of financial circumstance is significant and not temporary.  "Temporary circumstances are an insufficient basis for modification." Innes v. Innes, 117 N.J. 496, 504 (1990). 

In practice, this means that if you have qualifications, prior employment and skills that allow you to earn a living, just being unemployed is insufficient, unless you can show that you have been unemployed for a long period of time (several months) and can prove that you have made a thorough and diligent job search.  In the meantime while you are unemployed and looking for a job, the court will still expect you to meet your support obligations out of any savings, investments or assets you may have. 

If you cannot find a comparable job to the one you did before and have to take a lower paying job, not only will the court need to be convinced that any reduction in income is substantial, but will also require proof that the job that you found is reasonable based on your background and qualifications and that you are not taking a lower paying job to lower your support obligation.  As stated by our court’s, "where a layoff is followed by a shift to a job that does not draw on prior skills and experience, the obligor must explain that choice with reference to other options explored and efforts to find work with comparable pay."  Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004).

Translated - when someone files an application with the court to lower a support obligation as a result of a changed financial circumstance, you need to be prepared to prove that the change in financial setting was beyond your control and that you used best efforts to find replacement employment and that the employment ultimately found is reasonable based on the market, etc.. Most of all, be prepared to prove this change with clear documentation.  If you are laid off, keep copies of all the paperwork to show what has happened to you, and keep copies of every job application you make, who you speak with, the job applied for, salary and any feedback provided.  Additionally, the court will require the preparation of a new Case Information Statement that details all your assets, debts, living expenses and income.

Family courts in New Jersey are courts of equity that have to balance the interests of both parties i.e. the ability to pay against the right of a child or ex-spouse to be supported.  In today’s difficult times, more applications for lowering of support for changed financial circumstances are likely and the key to success will be preparing papers for the court that are clear, concise and detailed..... simply telling the court who you spoke with and what jobs you applied for is a recipe for failure.

When is my child emancipated ?

Depends. If you are still married, emancipation occurs when you and your spouse decide that it is time for your child to stand on his / her own. But, if you are divorced, even if a settlement agreement says that emancipation occurs at 18 or upon graduation from high school, a judge still has the right to override the terms of that agreement and continue an obligation for support upon parents for that child.

In New Jersey, the legal standard for emancipation is "[w]hen a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated." Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995). Translated...... if your child decides to continue with his / her education ( including college or trade schools), the court has the right to say that parents have the obligation to assist their children in those endeavors and continue to financially support them by the payment of the cost of the program, direct weekly support, health care costs and so on and so on.

Oddly enough, becoming pregnant or having a baby does not automatically lead to emancipation either, so long as the child is having the baby is still relying on parental support, pursuing her education, etc. Similarly, a disabled child who requires on-going support beyond the age of eighteen is unlikely to be deemed emancipated by a court.

The most common fight in our courts today in this area is where one parent together with the child select a college or trade school without agreement from the other parent but with the expectation that the other parent will pay for all or a portion of the cost associated with it along with continued weekly support, etc. In that setting, the court is required to examine the Newburgh v. Arrigo criteria to determine whether to impose an obligation of continued support upon that parent. See Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).

As an example, several years ago, I handled a matter where the son over his fathers vehement objection enrolled in a $45,000.00 per year college program instead of a state school at less than half that amount simply because the son did not think that he would be able to make the state school’s lacrosse team. The fathers view was that he did not think that he should have to pay out an extra 100,000.00 in college costs simply so that his son could have fun at school playing lacrosse. Unfortunately simply because the selection of schools was without the fathers approval did not mean that the father was off the hook. It simply meant that the court was forced to review the criteria to determine whether the court was still going to impose the obligation upon the father in whole or in part.

The decision as to whether a child is emancipated at a particular date is fact sensitive, but suffice it to say that in New Jersey, where a child expresses an interest in pursuing higher education, our judiciary is inclined to continue an imposition of a financial obligation upon parents to afford their children that opportunity...... even if the parents are forced to borrow to accomplish it.

Despite being bound by International law on child abductions, 4 ½ years later, Brazil still has not returned one of our children back to New Jersey

I have worked with the National Center for Missing and Exploited Children on child abduction cases and am outraged by the actions of the Brazilian court in refusing to honor its obligations under the Hague Convention on rules governing Child Abductions. Essentially, Brazil has signed off on the Convention to ensure that its children are returned to its borders and at the same time, is refusing to honor its obligation to ensure the "prompt" return of children abducted elsewhere and brought to Brazil.

In 2004, Sean Goldman, a four year old boy and U.S. citizen, was taken on a two-week vacation to Brazil by his Brazilian born mother. At the end of her vacation, the mother decided to remain in Brazil and despite legal action taken by the father in the U.S. under the Hague Convention (for the return of the child to the U.S.), she refused to return the child to the United States and thus far, Brazil has refused to honor its obligation to return the child to the United States as well.

Brazil’s actions are significant since both Brazil and the United States are signatories to the Hague Convention on International Child Abduction. Countries who are party to this convention are required to return a child who has been abducted by one parent back to the child’s country of habitual residence without getting involved in any custody determination - leaving that decision to the courts of the country of habitual residency for the child.

At the time he went to Brazil for a vacation in 2004, Sean’s country of habitual residence was the United States. Article 12 of the Hague Convention required the courts of Brazil to order the immediate return of the child to the U.S.. As such, if there was to be a fight over custody of the child, that fight (under the Hague Convention) was to occur in the U.S. court system. However, to date Brazil has refused to comply with its obligations under international law and highlights the frustrations faced by parents seeking the return of their children in international child abduction cases.

4 ½ years after his child was abducted, the Brazilian courts have now allowed David Goldman to see his son for the first time. Yet, would not allow him to leave Brazil with his son. Is Brazil going to honor the Hague Convention on International Child Abduction and return Sean to the United States ? The answer is that it is required to do so, but more than likely it will only occur so as a result of the forthcoming visit by the President of Brazil to the United States and the political pressure that is likely to be exerted upon him by the U.S. government.