New Jersey Divorce Law Blog

Gay and Lesbian Rights: The Domestic Partnership Act

The Domestic Partnership Act (DPA) became effective July 14, 2004, and recognizes individuals "who share an important personal, emotional, and committed relationship with another adult."    The DPA provides limited rights and legal protections to those in gay and lesbian relationships and unmarried heterosexual cohabitants age 62 and older.  

In order for two individuals to become "domestic partners", they must execute and file an Affidavit of Domestic Partnership, meeting all of the following requirements (N.J.S.A. 26:8A-4):

• A common residence and are otherwise jointly responsible for each other's common welfare by financial arrangement or joint ownership of real or personal property, which shall be demonstrated by: joint deed, mortgage agreement or lease, joint bank account,  joint ownership of car, or designation of one person as the primary beneficiary of the other's will, life insurance policy or retirement plan;

• joint responsibility of each other's basic living expenses during the domestic partnership;

• neither party is married as recognized by New Jersey law or a member of another domestic partnership;

• neither party is a blood relative of the other;

• both parties are of the same sex and are unable to enter into marriage recognized under New Jersey law, except that two people who are 62 years old or older and not of the same sex may establish a domestic partnership if they meet the requirements set forth in this section;

• both parties have chosen to share each other's lives in a committed relationship of mutual caring;

• both parties are at least 18 years old;

• both parties file a joint Affidavit of Domestic Partnership; and

• neither party has been a partner in a domestic partnership that has terminated less than 180 days before the filing of the current Affidavit for Domestic Partnership, except in cases where one partner died; and, in all cases in which a person is registered under a prior domestic partnership, the domestic partnership shall have been terminated in accordance with N.J.S.A 26:8A-10.

In the implementation of the Domestic Partnership Act, the NJ legislature has taken the position that domestic partners should be entitled to certain rights and benefits that are accorded to married couples, including statutory protection against various forms of discrimination, visitation rights for a hospitalized partner, decision- making rights in a health care setting for an incapacitated partner, the right to file for a state income tax deduction for a partner as a dependent and a state inheritance tax exemption. N.J.S.A.26:8A-2.

Recent court decisions have expanded the rights of same-sex couples and domestic partners.  For instance, in Hennefeld v. Montclair, 22 N.J. Tax 166 (Tax 2005), an honorably discharged disabled veteran and his same sex partner, who registered as domestic partners under the DPA, were eligible for the disabled veteran's tax exemption for property they owned as joint tenants with right of survivorship.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here.

New Palimony Law in New Jersey – Can Its Severity Be Softened By Meeting the Requirements of a NJ Domestic Partnership?

Last year, our blog discussed a proposed New Jersey Senate bill that would change the trajectory of palimony claims in the courts by requiring a signed promise of support between unmarried couples.  Gov. Corzine signed the bill into law this past January.  Unfortunately, this is not good news to all the unmarried people in committed relationships faced with palimony issues.  The Garden State no longer recognizes the concept of “actions speak louder than the written word”  when it comes to financial support and asset accumulation in non-traditional households.

The new palimony law applies whether you are gay or straight, and adds the requirement that you consult with an attorney before signing any written agreement.

Clearly, the New Jersey legislature did not agree with past palimony trend in our court system.  This law was meant to overturn recent “palimony” decisions.    Lawmakers seem to be determined to rein in the latitude the courts were utilizing to impose support and asset accumulation claims based on oral or implied promises.  

As a general statement, palimony, involving an oral or a written promise, was first recognized by the Supreme Court in 1979. The court relied on the law of contracts, finding an oral promise enforceable where a party relies on the representation and promises of support and acts on those promises to their detriment.  But in 2008, our courts seemingly loosened the proof requirements in holding that even cohabitation was not necessary to support a palimony claim, so long as there is was a marital-type relationship.  This was perhaps the trigger for the legislature to step in.

So what should an unmarried couple do to create a writing to demonstrate their “intent” to maintain a martial style relationship with rights accorded to each party?  A starting point is registering under the Domestic Partnership Act (DPA).  The DPA was passed in New Jersey in 2004 and affords legal status to same-sex couples and to unmarried opposite-sex couples over the age of sixty-two.   To get DPA protection, such couples must file a written joint Affidavit, must have a common residence and promise to be "otherwise jointly responsible for each other's common welfare." This can be demonstrated by a jointly-held mortgage, joint rental property, joint bank account, a will, life insurance policy or retirement plan designating the other as a primary beneficiary, or a jointly owned automobile.  They must agree to be jointly responsible for each other's basic living expenses, neither may be in a marriage or another domestic partnership, must have chosen to share each other's lives in a committed relationship of mutual caring, and be at least 18 years old.  

The rights that such couples enjoy under the DPA are a good reason to register.  Domestic partners are allowed to accompany the other when being transported to a hospital or visit in the hospital, to the same extent as would a member of the immediate family.  They are protected under the New Jersey Law Against Discrimination in many critical areas, such as employment, public accommodations, housing, credit and contracting. Such partners are allowed to be a dependent/exemption claim for New Jersey tax purposes as well as exempt from New Jersey transfer inheritance tax on the same basis as a spouse.  Transfers from a domestic partner's qualified pension, annuity or retirement plan to the surviving domestic partner is also exempted from New Jersey Transfer Inheritance Tax.  State employees get health insurance coverage for their same-sex partners just as spouses under the DPA.  State and public employees may also be entitled to pension benefits for their same-sex domestic partners.  

The next and best way to handle this situation is through the use of a cohabitation or prenuptial agreement, where by parties spell out their rights in the event of a termination of the relationship or death.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here.

 

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.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here.

 

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.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here.

 

Given the choice to dissolve a Gay Civil Union or to grant a Divorce to a Gay Couple, a New Jersey judge has opted to grant the first Gay Divorce

While other states are still debating whether to recognize gay marriages, at a hearing in Trenton last week, New Jersey Superior Court Judge Mary Jacobson issued a divorce instead of a dissolution of a civil union to a lesbian couple who had been married in Canada.

The Attorney General’s office had argued that the couple should receive a dissolution of a civil union, rather than a divorce. However, the Judge disagreed, advancing the view that a divorce was necessary to allow one of the parties, La Kia Hammond to return to Canada and marry another woman there. Her lawyer successfully argued that a dissolution of a civil union might not be accepted nor recognized in Canada as ending the parties’ marriage.

"To grant the divorce here is not against public policy," Jacobson said. "It's consistent with the strong marriage recognition principles that have been practiced since the 1800s."

In making this decision, the Judge overruled an Attorney General’s directive that gay marriages that occur elsewhere should be treated as a civil union in New Jersey and not as a marriage for dissolution purposes.

It will be interesting to see whether the Attorney General's office appeals this decision or if the legislature will decide to recognize gay marriages performed elsewhere.  Several states are currently grappling with this issue. If recognition of gay marriages does occur in New Jersey, then the barrier against gay marriage will be further lowered.

If you have any questions about this topic, or any other family law related topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond, please contact us by phone at (973) 379-9292, or email us by clicking here. 

Welcome to the New Jersey Divorce Law Blog

Welcome to the Diamond and Diamond New Jersey Divorce Law Blog.  The contributors to this blog will be Richard Diamond, a Certified Matrimonial Attorney with twenty-five years of family law experience and Lynn Matits, an associate with the firm. 

The focus on this blog will be to provide information and insight on recent noteworthy cases from the New Jersey Supreme, Appellate and Trial Courts that relate to adoption, alimony, child support, civil unions, custody, divorce, domestic violence, equitable distribution, prenuptial and settlement agreements. 

In addition we will provide practical information and an overview of the New Jersey law that may assist those going through a divorce or trying to resolve a family law matter..

The law firm of Diamond and Diamond practices exclusively in the area of family and matrimonial law and offers expertise in dealing with complex cases.  The firm has offices in Bedminster and Short Hills and serves clients in Bergen, Essex, Mercer, Middlesex, Monmouth, Morris, Hunterdon, Ocean, Passaic, Somerset and Union counties.

If you have any questions about family law  topics, please visit our website at www.diamondanddiamond.com, or to schedule a consultation with Richard Diamond,  please contact us by phone at (973) 379-9292, or email us by clicking here.