Articles Posted in Procedure

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On June 8th, I argued a case of significant importance in the Appellant Division. Although I have not received a decision as of yet, I am still of the belief I was heard. The case involved an application from the supporting spouse to terminate alimony based on the cohabitation of his former spouse. Although I did not represent my client at the trial level I believe that my predecessor made the necessary arguments allowing me to present the important issues to the higher court. The Trial Judge had misread the recently decided, Landau decision, believing that the fact in Landau created a litmus test as to what constituted a Prima Facia case allowing discovery and a plenary hearing as to the issue of cohabitation. In fact, Landau provides that before one is entitled to discovery and a plenary hearing one must establish a prima facia case.

A prima facia case is one where the court is to consider the issues presented by the proponent of a proposition in the light most favorable to said, petitioner. In considering the assertions of the petitioner the defenses offered by the opposition are not to be given weight. Since the opposition is not required to give evidence, their election to give selected evidence is should not be considered as the issue is not ultimately a success on the merits but rather the sufficiency of the assertion to justify a full examination of the issue.  

The idea of a prima facia case as an entry ticket is based on the privacy right of the dependent spouse who ought not to be forced to divulge intimate details absent the presentation of more than innuendo. In my case, there was significant proof including a private investigator’s report, statements by the paramour of the closeness of the relationship, and some economic proof. The initial problem was that the Trial Court had misread the law, this error of the law was compounded by the trial courts weighing the defenses of the dependent’s former spouse and finding her explanations more credible. 

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I am frequently asked if It makes sense to buy out of an alimony obligation with a lump sum payment. The answer to the question is a bit complex but I will try to tackle it in the length of this post. Usually, when there is a discussion of the buy-out of alimony, the question that is most common to follow is what motivates the desire for a buyout? The recipient of alimony may want a lump of money to use to invest, buy a house, or start a business. The payor can be looking for a clean break and may find the process of paying alimony on a regular basis annoying or emotionally destabilizing or they can be in the process of seeking a final end to the interaction withpexels-karolina-grabowska-4386289-200x300 the payee and has a concern for what can feel like the never-ending revolving door of the courtroom. What motivates a recipient to want a lump sum is personal and that motivation should be discussed with your attorney. This post is to focus on the payor’s rational decision-making process, the emotional need to walk away with a clean break once again should be discussed with your attorney.

When a lump sum is discussed at the very least the payment of alimony overtime must be established. In a marriage of under 20 years the likely length of alimony and amount that needs to be established and then discounted to present value using the present value formula. In marriages, over 20 years alimony is usually assumed to end at the social security retirement age of the payor. Once the term and the amount of alimony is agreed upon there then needs to be an agreement as to the discount rate. The discount rate is the assumed interest rate that will prevail in the marketplace during the term of alimony. The assumption is that if a payee banked the money paid to them or annuitized it they would end up with their full alimony over a period of time.

To put it simply, if you compute the present value of the future payment of alimony and pay it out while assuming you have the economic ability to do so the payment makes very little economic sense for a multitude of reasons. One obvious consideration that is to be made is that you in theory could bank or set up your own annuity to pay the alimony which would hedge your obligation against the possibility that alimony might not be paid for the full term. For example, if your ex-spouse should die, alimony ends. If your spouse received a lump sum the beneficiaries of the remaining lump fund could be your children or could be a new spouse. The payor; could die and alimony would then also come to an end. In most circumstances, alimony is protected with some sort of insurance, however, the money you did not payout in lump sum would be part of your estate and would go to people you love. Your ex-spouse could remarry, alimony ends upon remarriage.

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I have received many questions as of late regarding Covid-19 and the effect it has had on the divorce process. Those I have spoken to expect to hear that the courts are in shambles unable to handle all of the paperwork and processing that has become necessary in this new socially distant world. In point of fact, my experience with the courts since the shutdown has been quite positive. I have argued several matters in the Appellant Courts since the shutdown most by Zoom or through the phone. The Judges have been attentive and as well prepared as an Appellant Judges always is. Most importantly though, the quality of the discussion has been in no way compromised, in fact in many ways I find this virtual experience better than in-person argument. pexels-ruslan-burlaka-140945-300x200Let’s start by our means of travel or getting there, my office in my home is in the family room. I joke to my wife when descending the stairs that I am ‘driving to work.’ The point being, I do not have to drive to the argument this saves time and furthermore the headache brought on by the annoyance of finding a parking space. My clients save money as well because as a lawyer, I bill for travel time. I also do not have to wait as the Zoom meeting starts promptly when the court is ready to hear our case; a second savings to our clients who are otherwise billed for waiting time. Lastly, I find argument easier as I am able to have all of my documents spread out on my desk (and floor.) When arguing in person the need to drag my files with me and have them all stored at the speaker’s podium which leaves me minimal space to spread out, the ease of finding documents and case law has greatly improved when my appearances have been virtual.

When looking at the trial level, a virtual conference has the same travel and waiting time advantages. When participating in a Zoom trial, the ability to load all of one’s exhibits onto the server and instantly deliver the documents being presented to the judge, the witness, and opposing counsel is very efficient. No more fumbling around for a piece of evidence or waiting for everyone to find the relevant page or section being referred to. Further, when trials were held in person, there were constant interruptions by lawyers seeking emergency relief or other parleys with the Judge. There is more of a flow with uninterrupted trial time on zoom. When first having to cross-examine a witness virtually, I was concerned that it would be harder for the court to capture the demeanor of the witness, this concern I learned is unfounded. Delays in responding and hedging are actually more obvious on zoom. You can literally see the liar sweat.

Motion practice has also been an absolute joy to do via zoom. Usually, on motion days a busy lawyer could be racing from county to county sometimes making three court appearances in three geographically distant locations on any given day. Clients paid for the travel and racing across the state takes a toll on the lawyer. Now I am able to schedule matters in; Bergen, Atlantic, and Sussex County and get them all done in the morning.

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Ever since I wrote my past blog on correcting judicial errors, I have gotten a lot of questions from readers and interested clientele alike about how judicial errors can be addressed and amended. When it comes down to it, there are essentially three types of judicial error:1) Clerical, 2) Legal and 3) Matters of Law.pexels-magda-ehlers-1329297-300x211

Clerical errors encompass the indisputable or incontrovertible mistakes that have been made; these can include but are not limited to computation errors or other matters where both parties are in agreement.  These errors can be correct by the court on its own initiative or when called to the attention of the court by either party.  Usually, they can be corrected with something as simple as a letter but if the adverse party contests that an error exists it may require a motion. Computation errors can be corrected at any time, so there is generally no specific time frame in which an application needs to be made; however, it is best to make the application as soon as the error is discovered to avoid claims of estoppel.

Errors of the law or mixed errors of law and fact pertain to situations where the court either misinterprets legal precedents in the former or misapplied the precedents to the facts in the latter.   Legal errors may be corrected through an application to the court within 20 days of the receipt the court’s order if it is a final decision, or if the decision is not final anytime prior to the final decision.  If the decision is final, one also has the option to appeal the court’s decision to the Appellate Division rather than take the matter back to the court. The decision to bring a  motion for reconsideration rather than an appeal is a tactical decision, best discussed with your lawyer.

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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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pexels-sora-shimazaki-5668882-200x300In the Supreme Court decision, Roman Catholic Diocese of Brooklyn v. Cuomo, the limits placed on houses of worship in certain “orange areas” in New York City were struck

down on constitutional grounds based on religious freedom and equal protection.

Fundamentally the Supreme Court found that there was no rational basis that allowed the Governor by Executive Order to treat religious houses of worship differently from nonessential manufacturing facilities, certain classes of categorized “essential services” and pubic transportation. The Court was split 5- 4 with Chief Justice Roberts voting with the minority.

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Although Covid has dramatically affected how the Courts operate day to day divorce cases are still moving forward efficiently. Most matters are proceeding with e-filing of pleadings and motions while appearances are being hosted on Zoom as well as several other internet platforms.

The court buildings are also open to attorneys and litigants specifically involved in a matter on a limited basis. Through a combination of internet and limited physical appearance, matters are

moving through the courts efficiently.

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covid19-300x200Co-parenting children when parents are separated or divorced can be challenging in normal circumstances.  One would agree, however, that times are not normal.  The country is in the midst of a pandemic due to the COVID-19 virus.  Governor Murphy has closed schools and many business, and he has directed that we engage in “social distancing” and stay at home for the indefinite future.

Families all over the State are concerned about their children’s health and well-being, not to mention family finances due to the number of people who have lost jobs, been furloughed or suffered from cuts in pay or hours.  Existing arrangements for custody and parenting time were designed for normal circumstances, not necessarily for unprecedented times such as these.

Questions may arise as to how  separated parents address custody, parenting time and child support issues.  To what extent do existing orders have to be followed? Generally, many existing agreements or orders for parenting time can and should be followed.  However, can a parent withhold or refuse parenting time?  What happens if a parent or child is exposed to the coronavirus or is at heightened risk of exposure?  What if a parent, child or family member begins to exhibit symptoms?  How should parents accommodate a household that has an elderly family member or a family member with a health condition which makes COVID-19 particularly deadly?  What if one of the parents lives out of state and the child has to travel some extended distance?  What if the households do not have the same social distancing practices?   Can both parents’ homes accommodate educating the children while school is closed?  Should parenting time be modified to reflect that both parents are home more either due to having lost their jobs or they are working from home?

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In my last blog post I noted that, effective September 1, 2019, a number of Court Rules directly court-rules-225x300impacting upon Family Part practice had been amended. In this blog post, I will continue this discussion, summarizing some additional court rule amendments, including those which were in response to, or in clarification of, statutory changes which went into effect over the last few years.

Domestic Violence

Rule 5:7A was adopted for the purpose of implementing the provisions of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., and provided a procedure by which a victim of domestic violence may obtain both temporary and long-term relief to the extent afforded under the statute. There were six (6) subparagraphs to this Rule, designated (a) through (f). However, as part of the 2019 Amendments, these subparagraphs were reorganized “to better reflect the flow of a case through the court process”. Notwithstanding this reorganization, most of the language of these Rule provisions remained unchanged, except for three (3) specific modifications/clarifications.

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Ascertaining whether a supported spouse is cohabiting with a romantic partner in such a way that it 3e728f0b3d0e026b62a8cb4b38918e95-300x200constitutes a changed circumstance warranting a modification of alimony is often an issue that family courts have address.  In 2014, the New Jersey Legislature modified the alimony statute, N.J.S.A. 2A:34-23(n), to codify factors to determine whether a former spouse is cohabiting with a romantic partner such that an alimony award may be modified.  Those factors are:

(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

(2) Sharing or joint responsibility for living expenses;

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