New Jersey Divorce and Family Lawyer Blog

Domestic Violence During the Coronavirus Pandemic

April 3, 2020 | James P. Yudes, Esq.

Life has taken an unexpected left turn over the course of the last few weeks. Many have become unemployed Those lucky enough to be working may have received a cut in pay or be working reduced hours. Apart from the financial impact of the current pandemic there are social losses as well. Most work places are closed, forcing those still employed to work from home. Twenty first century life is dynamic. We are not a country of couch potatoes; our kids have lessons, sports and activities. Most household have two working partners. The point is that COVID-19 has brought us closer together in close quarters for longer periods of time than usual.

Citizens are directed to shelter in place in New Jersey but, unfortunately, not everyone is safe in the household where they are to “shelter”. The “rat theory” posits that if you put too many people together in too small a space for too long a period of time, tempers are likely to combust. If your marriage was going through a difficult period before this pandemic, the stress of lost or reduced wages and close proximity may be catalyst for argument and possible violence.

If your spouse has been violent in the past or if there is pent up anger, rage or fear in your household, you certainly you need to be prepared to deal with the possibly of a violent incident. Let’s be honest: tempers are more raw when the release valves fail and now there is a far greater difficulty in finding neutral territory. You, also on edge, may have fewer coping mechanisms to deflect incoming domestic attacks.

Co-Parenting in a Pandemic: Help for Divorced or Separated Parents

March 29, 2020 | Karen T. Willitts, Esq.

Co-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?

Paternity Support Reimbursement Claims? Asking the Internet Versus Asking a Lawyer

January 21, 2020 | Kevin M. Mazza, Esq.

Maury says you are NOT the father! Actually, after getting the results of a genetic or DNA test, you discover that you are not the father of the child you were led to believe was yours and had been supporting. Rather, the child you have been supporting was the offspring of an extramarital affair between your ex-wife and another man conceived during your marriage. Once you get past the shock of such a disclosure, you question to what extent you may have an ability to seek reimbursement from the biological father for the support you had already paid on behalf of that child.

If you turned to the internet for an answer to that question, you might not only have been led to believe you had no right to do so, but that you were a selfish, horrible and “grotesque” person for even raising the issue. This was essentially the exchange highlighted on my browser’s home page a few weeks back. As a lawyer, it is obvious that such “advice” would be legally erroneous, certainly under New Jersey law. However, I wondered how many people may have relied upon this response as opposed to discussing the matter with an attorney.

Before commenting on whether it is wise or prudent to rely upon “Ask the Internet” to get answers to significant legal questions, I will address whether under New Jersey law a claim for reimbursement of child support can be brought against one determined to be the biological father of a child. The applicable statute as well as our courts have answered yes. Situations such as these are governed by the provisions of the New Jersey Parentage Act, N.J.S.A. 9:17-38 to 59, enacted in 1983, and modeled after the Uniform Parentage Act 1973. The Parentage Act was intended to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide procedures to establish parentage in disputed cases, as well as to ensure that children receive their statutory right to financial support and to facilitate payment by fathers who refused to admit paternity and/or fail to pay. To that end, the Parentage Act not only provides all children with a judicially enforceable right to such support, regardless of their parents’ marital status, it affords to “any person” who has furnished financial support to a child the ability to institute a proceeding seeking reimbursement for reasonable educational, medical or other support-related expenses from the biological father where the existence of the father/child relationship has been declared or paternity is acknowledged or adjudicated. N.J.S.A. 9:17-55(a).

Can a Noncustodial Parent Object to a Custodial Parent Moving Within the State of New Jersey?

November 4, 2019 | Karen T. Willitts, Esq.

Various blogs have been written by members of our firm about situations where a custodial parents wants to move with the parties’ children to a state other than New Jersey. Can a custodial parent live wherever he/she wants within the State of New Jersey? Can a non-custodial parent ask a New Jersey family court just to stop a custodial parent from moving with the children to another town or city within the State of New Jersey?

Certainly some parents have reached an agreement with one another that they will live within a certain proximity to one another where they feel that it is in their own best interest for their children to live in certain areas of New Jersey or for the parents to live within a certain proximity to one another in order for their custody and parenting time agreement to work out. New Jersey has a public policy of enforcing settlement agreements where they are fair and equitable.

What if parents do not have such an agreement? Can the non-custodial parent prevent the custodial parent from living anywhere within the state of New Jersey that the custodial parent wants to live? In 2003, the Appellate Division addressed this question in the case of Schulze v. Morris, 361 N.J. Super. 419 (2003). In this case, the parties had both been living in Middlesex County, New Jersey, but after the custodial parent was denied tenure at her teaching position, she found another teaching job in Sussex County and wanted to move with the parties’ child to Sussex County. The non-custodial parent filed an Order to Show Cause seeking to stop the custodial parent from moving with the parties’ child to Sussex County. The Appellate Division concluded that a custodial parent’s request to move to a different place within the State of New Jersey is not a “removal” action pursuant to N.J.S.A. 9:2-2 for which the custodial parent has to obtain the permission of the Court. However, the Appellate Division recognized that a custodial parent’s move with a child can have significant impact on the relationship between the child and the non-custodial parent and that there are occasions where an intrastate relocation can constitute a substantial change in circumstance warranting a modification of the custody and parenting time arrangement. When a noncustodial parent opposes an intrastate relocation of the child(ren) but the custodial parent on the basis that the move will be “deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests”, then the Appellate Division in Schultze directed that the family court had to assess the factors in Baures v. Lewis, 167 N.J. 91 (2001), an interstate relocation case.

NEW JERSEY FAMILY PART COURT RULE AMENDMENTS – 2019 (PART II)

October 18, 2019 | Kevin M. Mazza, Esq.

In my last blog post I noted that, effective September 1, 2019, a number of Court Rules directly impacting 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.

New Jersey Appellate Division Clarifies Whether the Changed Circumstance Standard Applies in Post-Judgment Cohabitation Cases

October 10, 2019 | The Law Office of James P. Yudes, P.C.

Ascertaining whether a supported spouse is cohabiting with a romantic partner in such a way that it constitutes 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;

New Jersey Family Part Court Rule Amendments (2019) (Part I)

September 11, 2019 | Kevin M. Mazza, Esq.

The calendar turning to September signifies different things to different people. For some it signals the end of heat and humidity, cooler temperatures and changing leaves. For others, it’s the kids finally going back to school. To still others, it signals the start of the football season, the excitement of baseball pennant races and playoffs, or the opening of basketball or hockey training camps. However, for lawyers such as myself, the holidays come early as each September brings with it special gifts, namely the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey.

Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part practice, many being in response to, or in clarification of, statutory changes that went into effect over the last few years. I will summarize and discuss these Amendments over the course of several blog posts.

Arbitration

Which Parent Bears the Burden of Proof in New Jersey as to Relocation AFTER a Parent Has Already Moved From New Jersey With the Parties’ Children?

September 6, 2019 | Karen T. Willitts, Esq.

In enacting New Jersey statute, N.J.S.A. 9:2-2, the Legislature established a mechanism and procedure for a divorced or unmarried parent when seeking to move with one’s children outside the state of New Jersey. The statute provides:

“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”

The Courts in New Jersey have on several occasions interpreted this statute to address the standard for the family courts to apply when one parent wants to move out of New Jersey with the parties’ children, and the other parent objects to the children making such a move. We addressed this standard in a previous blog with regard to parents having a shared 50/50 custodial arrangement based on the decision of the Appellate Division in Bisbing v. Bisbing, 445 N.J. Super. 207 (App.Div. 207), affirmed in part, modified, 230 N.J. 309 (2017). In another blog, we addressed the standard for relocation based on the factors outlined in Baures v. Lewis, 167 N.J. 91 (2001). In those cases, before the children were removed from New Jersey, an application was made by the parent seeking to move. Does that have to be the procedure? Can the parent make that application after the move? Is it the obligation of the objecting parent to make an application objecting to the children’s removal from New Jersey?

Live-in Nannies Qualify as a “Household Member” Under the Prevention of Domestic Violence Act

August 27, 2019 | The Law Office of James P. Yudes, P.C.

In E.S. v. C.D., FV-02-00194-19 (Ch.Div. 2018), the family court deal with the question of whether Plaintiff was entitled to protection under the Prevention of Domestic Violence Act (“PDVA”), given the economic relationship between the Defendant, who was employed in Plaintiff’s household as a live-in nanny.

The Defendant had been employed as a live-in nanny by the Plaintiff for seven months, before the Plaintiff fired the Defendant for assaulting the Plaintiff’s child. After Defendant’s employment was terminated, Defendant made numerous calls and sent threatening text messages to the Plaintiff. Defendant also threatened to lie to the child’s father in order to cause Plaintiff to lose custody of the child.

The Plaintiff sought a restraining order pursuant to the domestic violence statute based upon harassment, cyber-stalking and terroristic threats. The Prevention of Domestic Violence Act protects from domestic violence a victis defined as “any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member. ” N.J.S.A. 2C:25-19(d). In order to determine if defendant qualified as a household member, the trial court considered the factors listed in Coleman v. Romano, 388 N.J. Super. 342, 351-52 (Ch.Div. 2006), which are:

Lottery Winnings: A Dream Divided?

June 27, 2019 | Kevin M. Mazza, Esq.

“All you need is a dollar and a dream”. Mega Millions. Powerball. Pick-6. State lotteries all over the country encourage people to pluck down their dollars for the dream of possibly winning a fortune and being financially set for the rest of your life.

However, for one Michigan man that “dream” may have been considered more of a nightmare when he was directed in his divorce case to turn over to his ex-wife $15 million, nearly one-half of the Mega Millions jackpot he won in 2013. That decision was recently affirmed by the Michigan Court of Appeals in Zelasko-v-Zelasko (Docket No: 342854 decided June 13, 2019). Why the husband may have considered a lottery jackpot to be a “nightmare” included the fact that the parties married in 2004, separated in 2008, filed a divorce complaint in 2011 – almost two years before the winning lottery ticket was purchased – and where the wife had been the primary breadwinner, earning roughly three times what the husband earned. Why such a result? Most critically, under Michigan law “marital property” subject to equitable distribution in a divorce includes all property acquired from the date of marriage until the date of entry of the divorce decree. Hence even property acquired after a separation or after a divorce complaint is filed is considered marital property in Michigan. Since these parties’ actual divorce did not become final until 2018, the lottery winnings of 2013 were still considered marital property.

Among the other reasons this significant award to the wife was affirmed on appeal included: (1) that the determination was made by an arbitrator during a binding arbitration process which had been agreed upon by the parties, with the ability to challenge such rulings being statutorily limited; (2) the arbitrator’s ruling that such a division was fair and equitable, opining that the winning lottery ticket was probably not the first lottery ticket the husband purchased during the marriage and that as losses throughout the marriage were incurred jointly, winnings should also be shared jointly; and (3) that the dollar spent for the ticket was arguably marital money and as such a joint investment. Beyond this, the husband had not engendered much sympathy since he allegedly failed to contribute any money for the support of the parties’ three children.