New Jersey Divorce Law Blog

Excessive or Inappropriate Text Messaging can be Harassment and result in the entry of a Restraining Order under the NJ Domestic Violence Law

To the surprise of many, excessive or inappropriate text messaging to a former partner can result in the entry of a domestic violence restraining order.

While our domestic violence laws are designed to protect against actual physical violence, those same laws also protect against harassment type behavior; defined generally as making or causing a communication in a  manner likely to cause annoyance or alarm or through repeatedly committed acts with the purpose to alarm or seriously annoy such other person. Such was the issue presented in L.M.F v. J.A.F.

In L.M.F v. J.A.F., the parties shared joint legal custody of their children and their main manner of communication was through texting. As a result of a series of angry text messages sent to the former wifer by her former husband over a short period of time, she filed a domestic violence complaint against him, alleging harassment[1].

According to the former wife, her ex husband texted her 18 times on a Friday between 6:50 a.m. and 11:34 a.m. The second group of text messages occurred the following Monday, with her former husband texting her 5 times between 8:54 a.m. and 9:51 a.m. and finally two more texts from him at 5:00 p.m. and 5:07 p.m. that evening. 

At trial, the former husband admitted to having sent all of those text messages to his former wife but claimed that the purpose of his text messages focused on their daughter's SAT score information and their daughters whereabouts  and not to harass her.

The trial court disagreed and found that those text messages amounted to harassment and therefore constituted an act of domestic violence, warranting the imposition of a final restraining order against him from further contact or communication with his former wife.  The former husband filed an appeal.

Upon review, the Appellate Court agreed with the trial court that excessive or inappropriate text messaging can amount to harassment but in this particular matter, found that the former husband’s purpose in sending those text messages was not to harass his former wife and therefore not harassment nor a violation of the domestic violence laws.

As to the issue of “intent to harass”, the Appellate Court focused on the following:

1)   There was no history or pattern of abuse between the parties;  

2)   The ex-wife was not in fear of her ex-husband;  

3)   If the ex-wife had responded to the former husband's inquires concerning their daughter, the father would have ended his inquiries, and his reason for contacting her;     

4)  The father was not unreasonable for believing he was being ignored; and

5)   The father had a right to specific information concerning their daughter (SAT scores and whereabouts on a Friday night).

In this matter, the former husband was fortunate that his text messages focused strictly on the daughter’s SAT score information and her whereabouts on that Friday night and not on any other subject matter. Based on the reasoning of the appellate court, had he gone further, the court could have concluded that his intent was to harass her and could have resulted in the entry of a domestic violence final restraining order against him.

Before sending another angry text or voice mail message, please consider meeting with a lawyer knowledgeable in family law matters for an education on the domestic violence laws of this state and how those laws can impact your future and  your relationship with your children and  with your former partner.

[1] N.J.S.A. 2C:33-4(a).

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.

10 Red Flags That You May Be Headed for Divorce

Mindy Smith, writing on divorce matters for the Huffington Post, compiled her Top 10 list of “Red Flags for Sure Signs of Divorce”. I agree with most of Ms. Smith’s observations with the following revisions:

RED FLAG #10: If your spouse is face-booking with an “old friend” of the opposite sex on a regular basis, you may be heading for a divorce. While occasional (rare) contact with a former lover should not pose any real danger to your relationship, the contact becomes a problem when this communication is substituted for communication with the spouse and/or if this communication is hidden from the other spouse.

RED FLAG #9: If you spouse has gained or lost more than 20% of his or her body weight, you may be heading for divorce. In every marriage, part of keeping the passion alive is maintaining the physical presence that attracted the two partners to the other in the first place. When one spouse no longer cares about his or her appearance or radically changes his/her physical appearance, that physical change can be a sign that he/she no longer is interested in you.

RED FLAG #8: If your spouse is donning sexy new underwear all of a sudden, you may be heading for divorce. If your spouse makes a drastic change in his or her underclothes, you have to wonder why. This is one of the all-time biggest signs of an early stage of an affair.

RED FLAG #7: If your spouse is now lying around all day and lets you take care of all of the household chores without any sense of guilt or remorse, you may be heading for divorce. Being married is not a time for laziness. Each partner needs to respect the relationship and do his or her part to share in the household chores. Failure to recognize this responsibility can create resentment by the other spouse.

RED FLAG #6: If your spouse is secretive with his or her cell phone and his/her text messaging, you may be heading for divorce. In today's society, it is very easy for an individual to maintain one persona to his or her spouse and another personality type to others, especially through text messaging. Cell phones and computers make that “dual life” easier and can become intoxicating to those participants.

RED FLAG #5: If your spouse makes you write down everything you spend money on, you may be heading for divorce. This is a classic sign of a controlling and emotionally abusive spouse. Control is never a healthy weapon in marriage.

RED FLAG #4: If your spouse no longer wants to have sex with you, you may be heading for divorce. Sex in an integral part of a healthy marriage. It provides a way to connect with your spouse on an emotional as well as physical level. Sex is good exercise and promotes healthy well-being. If your spouse no longer shows sexual interest in you, it is imperative to try to find out why and work on the issues. Often lack of sex leads one spouse to resent the other spouse over time.

RED FLAG #3: If your spouse spends more time on the tennis courts or at softball than spending time with you, you may be heading for divorce. It is very easy for a married person to find him or herself absorbed in the activities of everyday life. In order for a marriage to have a chance at succeeding over time, each spouse has to put the marriage first. Making time on a daily basis to connect with your partner is an absolute must. If you spend more time focusing on other people or other activities, then your marriage is bound to suffer.

RED FLAG #2: If your spouse is out with friends at singles bars after work and you are not invited to participate, you may be heading for divorce. The ‘singles scene' should have a danger sign posted at every corner bar. If your spouse is constantly going to singles bars without you or is always meeting up with a “friend” at the bar, one has to wonder if he or she divulges their true marital status to the other singles out there and whether he/she is attempting to lead a double life.

RED FLAG #1: If your spouse is constantly flirting with your friends while the two of you are together, you are heading for a divorce. When the marriage gets to the point where one spouse acts so disrespectful to openly flirt with others in your presence or knowing that you are nearby, it is never a good sign. If anything, it is a sign that he/she is looking for positive feedback from your friend so as to embark on his/her next affair.

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. 

 

 

 

NJ Court Addresses Intentional Infliction of Emotional Distress Claims Between Parents

In a landmark decision earlier this year, a New Jersey Appellate Court (Segal v. Lynch) held that a parent has a right to sue the other parent for the intentional infliction of emotional distress, under exceptional circumstances, where there is damage to the parent-child relationship caused by specific bad acts by the other parent.

In Segal, the trial court denied a money damage claim advanced by the father of two children against the mother as result of his perception of her poisoning the relationship between him and their children (claim of parental alienation).

The appellate court in Segal upheld the trial court’s decision denying the father’s claim for damages, but in so doing, opened the door for claims of intentional infliction of emotional distress for the loss of affection from children in the right setting.

In denying Segal’s claim, the appellate court held that it was not in the best interests of these children for one parent to sue the other for monetary damages, where the measure of damages would be the extent of the injury to the parent/child relationship. To do so would require the children to testify as to who said what, who did what to whom, and how the children felt about it. Hence, the appellate court held that the facts of this case did not rise to the level to warrant such an invasion into the relationship between the children and each parent and why the strain existed between the children and their father.

However, while saying that this case did not warrant such an invasion, the court opened the door to permit claims by one parent against the other for the intentional infliction of emotional distress in exceptional circumstances. In fact, the appellate court gave the following specific examples of what it believed were despicable and destructive type behavior that might give rise to a claim for damages:

"A case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation."

"The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification."

While the appellate court denied Mr. Segal's claims, it also made it clear that going forward, the courtroom door is open to claims where one parent’s conduct is egregious in its impact on the other parent’s relationship with their children. Family court matters are incredibly fact sensitive, so it will be interesting to see how the case law flowing from this decision develops.

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 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.

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.