New Jersey Divorce Law Blog

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.

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.

 

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.

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.

 

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.

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.

 

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 father's 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.

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.

 

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.

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. 

A Parent's intentional interference with visitation may now give rise to a claim for money damages

Currently on appeal are two cases making their way through the New Jersey court system; each taking very different positions on the issue.  In both cases, mothers have allegedly engaged in intentional behavior to cause the breakdown of the relationship between their children and their fathers, who are seeking monetary damages as a result. 

In Segal vs Lynch, Judge Rand in Morris County, relying on the 1935 Heart Balm Act (N.J.S.A. 2A:23-1)  dismissed the claim, while in Smith vs Smith, Judge Gallipoli in Hudson County reached the opposite conclusion.  Judge Gallipoli’s opinion considered the legislative intent of the Heart Balm Act, concluding that its purpose is to prevent claims for loss of marital affection i.e. between spouses and not for harm to a relationship between father and child.  Therefore, he found that the Heart Balm Act was not applicable.   In reaching that conclusion, he found that the claim for emotional distress  (as a result of the loss of the relationship between the father and his children) is separate and distinct from the abolished claim for "alienation of affection" addressed in the Heart Balm Act.

Undoubtedly, this issue will make its way to the NJ Supreme Court and could open a new door long sought by fathers rights groups for years in their efforts to redress alienation type behavior by the other spouse.

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. 

 

An end to palimony claims in New Jersey ?

30 years ago, the New Jersey Supreme Court held that a promise (oral or in writing) made by unmarried cohabitants in a marital-style relationship can be enforced, under the concept of "Palimony". Kozlowski v. Kozlowski, 80 N.J. 378 (1979).  This concept has been upheld and expanded upon by subsequent decisions. See e.g. Devaney v. L'Esperance, 195 N.J. 247 (2008), In re Estate of Roccamonte, 174 N.J. 381 (2002).

In its simplest sense, the concept of palimony  means "detrimental reliance" upon the promises of the other. In a marital-type relationship, it is where one party changes his / her financial setting because of the promises of support, asset accumulation, etc by the other party.  It is based on the law of contracts, where an oral promise can be enforced if a party relies and acts on it to their detriment.

Recently the New Jersey Supreme court has further defined the circumstances under which a palimony claim can be filed.  In re Estate of Roccamante, the court held that entering into a marital-type relationship and acting accordingly, was sufficient consideration to enforce a promise for support.  In re Estate of Roccamonte, 174 N.J. 381, 393 (2002).  At the same time, the court clarified that cohabitation i.e. living together in a family setting was an essential requirement for a palimony claim. 

However, in last year's New Jersey Supreme Court decision in Devaney v. L'Esperance the court pulled back slightly from its prior position and held that cohabitation is not an indispensable element of a cause of action for palimony, so long as there is a marital-type relationship.

For reasons unknown to this writer, this pull back on the living together requirement has triggered the New Jersey legislature to jump into the fray and consider a bill under which parties will be required to enter formal written palimony agreements, to be enforceable in New Jersey.  A bill (S2091) going through the New Jersey legislature, that is likely to become law, will modify N.J.S.A. 25:1-5 and require "[a] promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination" to be in writing to be in enforceable.  The stated purpose of this bill is  to overturn the New Jersey Supreme Court's palimony decisions in Devaney and In re Estate of Roccamonte.

This development by our legislature is troubling because it is eroding the intent set forth thirty years ago by the Court's decision in Kozlowski. In Kozlowski, our Supreme court held that if you made representations that another relied upon to his/her financial detriment in a marital style setting regardless of whether that representation was in writing, a court of equity could intervene to prevent an unjust harm / enrichment. Instead, this bill will require people to first register their intent to provide support by signing an agreement, just like in a civil union.

The result is that it will deprive the courts of any ability to decide what is fair and reasonable or make any award in the absence of a written agreement, which is often the case in palimony situations. Similarly, such legislation will require unmarried cohabitants to continually update their "intent" in writing as the length of their relationship expands. If they fail to do so, the intent expressed by them in the first year of living together can bind them 10 - 15 years later, working a potential inequitable result on one and a potential windfall to the other.

As an example, consider a real palimony case previously considered by our court system. in that matter, a woman  lived in Chicago and owned her own business dated a wealthy man from NJ. During the course of their dating relationship, he convinces her to close down her business in Chicago and move in with him in NJ based on an oral promise to care of her. for the next 8 years, they live a wonderful and happy life together, then during the course of a routine medical exam, she is diagnosed with cancer. On her drive home from the doctor, she finds that the gates to their home are locked and her clothing packed and waiting for her outside.  According to the court papers filed in that matter, the man threw her out because he did not want to have to be stuck caring for a woman who was going to die.  Under NJ case law, she had a valid cause of action against him for palimony despite the fact that they never married nor registered their relationship nor signed any type of written agreement. Under the proposed law, would she still have a palimony claim ?

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. The proposed bill 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.

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.