New Jersey Divorce and Family Lawyer Blog
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.
Rather than considering the facts in a light most favorable to the proponent and providing the proponent with the benefit of the doubt ( all reasonable inferences), the trial judge weighed the positions of both parties and made factual and credible findings. The Trial Court further took Judicial Notice ( assumed facts based on irrefutable common knowledge) facts that were not subject to Judicial Assumption. For example, Covid had ceased being an emergency by mid-June 2020 or that people in dating relationships frequently refer to their partner as their “spouse”. Rather than provide the applicant with the benefit of a doubt the Judge seemed to bend over backwards to find every contested assertion in favor of the dependent’s former spouse.
Proving a prima facia case is like swimming with an arm tied behind one’s back. It is doable but tricky and you are bound to not be as grateful. Since one is not entitled to discovery until they meet the threshold level of proof, the court is not permitted to consider the selected defenses offered by the opponent of the application. Lawyers say that the opponent can not use the lack of discovery as both a sword and a shield offering tidbits of information that are exculpatory while hiding behind the Judicial mandate that they need not engage in full disclosure until the threshold is met.
Unfortunately, too many Judges allow the prima facia mandate to act as a bar for applicants who seek the termination of their alimony. It is my belief that the case I just argued will inform the Bench and the Bar. Keep your eyes out for the decision in Temple V. Temple. Even if unreported it should have a powerful impact on the continuing discussion pertaining to alimony and one’s rights when looking to cease it.