Articles Posted in Jurisdiction

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Palimony Agreements. As our societal norms changed, it became more common place for couples to live together without the benefit of marriage. However, in most jurisdictions, New Jersey included, the laws and statutes favored marriage. Hence, when a relationship ended, the law only recognized the financial rights and obligations-i.e. spousal support or division of property-arising out of a marriage or other legally recognized relationship ( i.e. civil union, domestic partnership). These laws did not apply to “living together” relationships or their breakup, even if the couple had been together for many years. A financially dependent party could be jettisoned to fend for themselves without any recourse. Then came the case of the actor Lee Marvin and his longtime girlfriend. She sued him, claiming he had promised to support her for the rest of her life. The Court recognized that such promises could create an enforceable contract or agreement for which compensatory “damages” could be awarded. Since spousal support or alimony was only statutorily allowed upon divorce, the term “Palimony” was born to describe such damages. Following Kozlowski v. Kozlowski, N.J. 378 (1979), New Jersey recognized the enforceability of such

“ Palimony Agreements” arising out of such marital-type relationships. However, rarely were such “promises” reduced to writing. They were generally premised on statements orally made, or expressed or implied from the actions of the parties.

Perhaps concerned that the Courts had gone too far in enforcing such “Palimony Agreements”, the New Jersey Legislature in 2010 chose to amend the Statute of Frauds, N.J.S.A. 25:1-5(h), so as to require that any such contract must be in writing and signed by the person making the promise. However, the amendment went on to provide that “ no such written promise is binding unless it was made with the independent advice of counsel for both parties”.

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In a previous blog, I promised that the Appellant Division was going to revisit the proof required to be presented before one could obtain discovery of a dependent former spouse’s social and financial circumstances; as of today June 17th, 2021, the case has been decided although not yet approved for publication.

Temple v. Temple ( A-0293-20) is an important decision for anyone seeking to terminate their alimony obligations based on their former spouse’s cohabitation. In Landau v. Landau, the appellant court indicated that before one was entitled to discovery or a hearing, regarding issues of cohabitation the proponent of this change in circumstance needed to prove evidence of said change. The problem with Landau was that it did not address what proofs were needed in order to meet the requirement and move forward with the discovery phase.

The Trial Judge on Temple found that to be successful on an application one needed to prove all six factors set forth in the statute as things to evaluate when determining if a prima facia case was established. The Appellant Court accepted our argument that one needed not to prove all six statutory factors to establish a prima facia case but must only establish sufficient evidence so that the trier of fact may conclude that the parties have “ undertaken duties and privileges that are commonly associated with marriage or civil unions.”

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pexels-august-de-richelieu-4427541-200x300This happens with regularity. A new and sometimes even an existing client will tell me about a divorce case involving a friend, relative, or acquaintance that had issues “similar” to theirs’s, and that the judge, in that case, had decided those issues this way or that. They expressed a belief that how the judge decided those issues “must be the law”, and therefore, they would expect to have a similar result in their case. Why I certainly thank them for the information, they are then surprised and disappointed when I tell them that every divorce case is different and that how one judge may have decided the issues is not necessarily determinative on what will or shall happen in their case, and/or that the decisions of a judge in a different case are in no way binding upon the judge handling their case. The other judge’s decision may be the “law” in their friend, relative, or acquaintance’s case, but is not necessarily the law in theirs.

Before discussing the “legal” reasons for this, there are some very practical reasons why it is unwise to compare what may have happened in one divorce case with any other. The first reason is very simple. Just like no two people are exactly the same, neither are any two marriages nor the issues arising from the dissolution thereof. A primary breadwinner may “earn” the same amount of money, but one is a W-2 employee with a long-standing steady job and the other a small business owner whose income is based on many variables and creates a whole different set of considerations. The parties may be married for the same number of years but in one both parties have been gainfully employed, while in the other a party may have given up or deferred a career to raise children. In another, the parties may each have had two children, but in one the children are relatively healthy and doing well academically, but in the other, a child may have special needs or behavioral or educational deficits. The parties may have enjoyed the same family income, but one lived frugally and the other beyond their means. You get the point. As much as one may see similarities, no two marriages are alike. No two life stories are the same.

When a divorce case comes before a judge, there are certain legal authorities that the judge is to apply in deciding the issues in that case. There are statutes which have been enacted by the Legislature. There are Court Rules which have been promulgated by our Supreme Court. There are published decisions, which have been rendered by the courts in which they have interpreted, implemented, and/or applied those statutes and rules to a given case. A judge applies that legal authority to what it finds to be the facts and evidence in the case and renders a decision. However, since the facts and evidence are never exactly the same and vary from case to case, the resulting decision, even applying the exact same law, will vary as well. That, plus the fact that much of the law governing divorce matters is not based upon any sort of simple “formula”, but upon a multitude of factors a court is to consider, and which afford the court with a great level of discretion in determining. This ability to exercise discretion necessarily leads to different results depending not only upon the facts and circumstances of the case, but the weight of the evidence, the credibility of the testimony, and the “feel” of the case itself, so the judge can make a decision which is fair and equitable.

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The care and feeding of the lawyer you hire is an important aspect of divorce husbandry. Too often I hear a litigant complain that their lawyer made a deal or a concession without consultation of the client. Some divorce lawyers take a paternalistic role in the responsibilities of their client, which can be a good thing when not taken to the extreme. The extreme occurs during non-emergent situations when the lawyer makes an agreement that affects a substantive right.  Unless you have given the lawyer authority in advance, they should never do something that impacts yourpexels-anthony-shkraba-5816300-200x300 economic or custodial rights without your permission.  Often in conferences with the court concessions can be strongly suggested by a judge or pushed by an adversary, because of this a lawyer can feel cornered.  A good lawyer will always back off reminding the participants that they themselves (the lawyer) can not make such a concession without first discussing it with their client. I have never been in this position when that simple reminder did not cause the court to immediately back off. Judges want cases to move and they want the parties to settle but they are aware that litigants, not lawyers make deals and that lawyers should not make concessions without their client’s authority. The problem that arises, is that lawyers have what is called “apparent authority” meaning if the lawyer agrees to something the law assumes they had the authority to do it.  If your lawyer has made a substantive concession without consulting you document it.  Send the lawyer a letter or an email indicating the date you were advised of the concession and that you were not consulted and do not agree. Insist they reverse the agreement and that they admit they made a mistake.  If they refuse… run.  Get another lawyer quickly and fix it. Waiting could be viewed as agreeing to the terms.

Note that I have been talking about substantive issues.  Substantive issues, for example,  deal with; parenting time, the level of alimony or child support, the payment of fees, and the sale or distribution of property.  Lawyers usually do not seek their client’s consent when dealing with calendar issues unless the issue involves the client.  If you are being deposed or if the deposition of a witness is being scheduled you have a right to be consulted about your availability however if the calendar does not concern you, the lawyer may rightfully resolve the timing of things.

I often analogize my role as a family law attorney to that of a captain of a ship.  When on the high seas and an emergency occurs that requires an immediate decision that is up to me as well as direction and strategy. But ultimate decisions are made by the shipowner ( the client). The relationship between a lawyer and his client is interactive and symbiotic. The need to work cooperatively should be a consideration when choosing your lawyer. Objectives should be discussed and parameters established to reach those objectives. The lawyer develops the strategy to accomplish those goals.  During the process, open communication is important looking at the objectives but always with the understanding that the ultimate decision is always the clients, although that decision may be informed by the lawyer.

 

 

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In 2014, the New Jersey divorce statute, NJSA 2A: 34-23 as it pertains to the issue of spousal support or alimony was substantially modified. One such modification dealt with the vexing question of what the duration or term of the obligation to pay alimony should be. While a prior amendment to the statute had afforded courts the ability to award “limited duration” alimony, the lack of specific standards of under what circumstances this would apply, or for how long, versus an awarding of “permanent” alimony, led to divergent interpretations and applications by the courts. The Legislature sought to bring clarification to this issue when it included the following language to NJSA 2A: 34-23(c):pexels-rodnae-productions-6670068-229x300

“For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.”

Hence, for a marriage of over 20 years, the duration of a possible alimony award was left “open”, and subject to the discretion of the trial court, applying the statutory factors and other legal principles to the facts and circumstances of a given case. Hence the development of what has been come to be known as “open duration alimony” for marriages in excess of 20 years.

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I recently argued a case via Zoom in the appellate division that could have far-reaching implications in this new pandemic world. The issue dealt with an agreement that resolved marital rights in divorce entered into while the parties were happily married. We know that prior to getting married, engaged couples can enter into a prenuptial agreement resolving certain marital issues. The ability for couples to enter into such an agreement has existed since 1988 when it was codified into a Uniform Statutory Law.

Divorcing couples must face and resolve a myriad of issues involving support, property distributions, and, where applicable, the care and custody of children. What ability then do parties have after they are married to contract for and away marital rights and obligations? Before yesterday the law was pretty clear. Mid-Marriage agreements were suspect. Two separate courts have found these types of Mid-Marriage agreements are inherently coercive and as such held that they needed to be seriously scrutinized. Since happily married people are not adverse to each other as they are when they are divorcing and, unlike people contemplating marriage, have already committed to the marriage, it was generally held that the courts needed to examine such mid-marriage agreements to determine if they are fair and fairly entered into. The burden to overcome the presumption of compulsion by circumstance was, these cases opined, monumental. The maxim that to obtain equity one must do equity, rings loudly when questioning such agreements.

In my recent appeal, my adversary argued that the Mid-Marriage agreement should be governed by simple contract law. A deal is a deal he would argue. The protections of those two cases where divorce is threatened should not apply to happily married people. These people, he argued, should be free to contract without restriction. In fact, he argued the dominant financial spouse had no duty of fair dealing or full disclosure. If the subservient spouse did not ask the right questions or seek more information, that person is an adult and should suffer the consequences of the bad deal they chose to make. Spouses should be free Mid-Marriage to give away their rights so long as they have a lawyer, even if that lawyer was hand-selected by the dominant spouse.

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Earlier this month, a March, 2017 written opinion by family court judge the Honorable Russell J. Passomano, J.S.C. was approved for publication in the matter of BG-v-LH (FM-07-468-13).   In this published opinion the court addressed issues of296050aba1c021ff4a7e4cab0ed498d2-1-300x200 jurisdiction in a custody and parenting time dispute where one party had relocated with the children out of the state of New Jersey, but the parties had reached an agreement as part of their divorce that future custody disputes would be decided under New Jersey law and in New Jersey courts.  This case contains a detailed analysis that a family court undergoes to resolve jurisdiction issues and the application of the Uniform Child Custody Jurisdiction and Enforcement Act. 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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SlashI was recently perusing a periodical and came across a story about a celebrity musician who was claiming he was never married to his wife of 15 years because of a known snafu in her earlier divorce paperwork. The headline stated “Slash claims he was never married to wife of 15 years”. (http://www.metro.us/entertainment/slash-claims-he-was-never-married-to-wife-of-15-years/zsJpjE—wsgif5AIi7dW6/). For those of you who don’t know, Slash, who’s legal name Saul Hudson (which better calls to mind the fictional character Saul Goodman of “Breaking Bad” and “Better Call Saul”),  is the prolific lead guitarist of the recently reformed rock group Guns N’ Roses.  Continue reading ›

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The Presidential election is about a month away, and one of the major issues of this election has been immigration.   Immigration is regulated under federal law, chiefly under the Immigration and

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Nationality Act (INA), enacted by the U.S. Congress in 1952, and the Immigration Reform and Control Act (IRCA), which was passed by the U.S. Congress in 1986 in an effort to curb illegal immigration.   The U.S. Supreme Court has has almost universally overruled any state’s efforts to regulate immigration, not only based upon the Supremacy Clause of the U.S. Constitution, but also to ensure a national standard on immigration rather than various patchwork laws by the individual states.  Family law, however, is an area that falls into the control of the individual state’s authority to legislate and govern. Continue reading ›