One unfortunate aspect of practicing family law means one will inevitably have to deal with issues of domestic violence. NJ domestic violence laws are an interesting intersection of family law and criminal law. The L.C. v M.A.J. case which recently came down from the Appellate court offers some perspective on the realities of the law in New Jersey. The case concerned the defendants’ communications to plaintiff. The complaint filed by the plaintiff alleged, among other things, that defendant had emailed plaintiff asking if she was staying home with the child who he understood was sick. Plaintiff did not respond to the email, so defendant called the child, who said he was home sick. Defendant then accused the plaintiff of making the child lie, while also claiming the plaintiff left the child at home alone, sick. Furthermore, defendant called her employer to find out if she was working because he did not hear from her. Plaintiff stated that defendant called her employer a total of three times, and a police officer came to her home to check on her. On top of this, the defendant used a fake name when inquiring about her whereabouts.

As a result of these actions, the plaintiff filed a domestic violence complaint against the defendant, and at a brief hearing, was granted a temporary restraining order from one judge. The complaint alleged a pattern and practice of domestic violence from the defendant, including physical abuse and controlling behavior, and currently, she alleged the defendant harassed her through communication to her and her employer. On the day of the final hearing, in front of a completely different judge, the attorney for the defendant presented a motion to dismiss, which were argued to be on the basis that there was no claim presented upon which relief could be granted. The appellate judges noted that the defendant’s motion did not say this at all, but rather said only the facts alleged by the plaintiff concerned only his parenting issues and did not constitute harassment. The appellate court reversed based on the current state of NJ domestic violence laws.

They first held that they have repeatedly condemned any consideration of in limine motions which seek to terminate an action. The rules of court do not allow filing dispositive motions at the last minute – in fact, these sort of motions should only be permitted to address preliminary or evidentiary issues. Defendant sought only dismissal rather than the resolution of any sort of preliminary or evidentiary issues. The judge should have rejected it out of hand. But instead, he not only considered it, but granted it. To make matters even more grave, this case was a domestic violence matter. The court held that NJ domestic violence laws even more vigorously prohibit the use of such motions to dismiss the action when the alleged victim’s safety is the primary consideration of the court. Rarely will a domestic violence action be able to be dismissed without a full hearing – and even in that case, due process must be upheld, with the victim getting an opportunity to file an opposition with a chance to be heard. In this case, the judge disregarded due process, by his willingness to hear the defendant’s motion.  Defendant could have requested a dismissal at the close of all evidence. Continue reading

Child custody evaluations are often used by the court when the case has a highly contested custody matter before it. The evaluator is able to speak to both parties with an objective perspective, as well as the children, and as a result their opinion is very important to the judge.

Do all the Easy Stuff

The easy stuff is things that you should be doing that goes without saying: showing up on time to the child custody evaluation and dressing appropriately, for example. You should act like you’re going on a job interview. Do not lie to the evaluator. They will be able to catch you if you are dishonest, and they usually have a sixth sense about whether someone is telling the truth. This goes double for any psychological tests you may be given, because they are designed to detect malingering, lying, and other defense mechanisms.

Answer What is Being Asked

This means listening to the questions you are being asked. Do not make assumptions, and if you are unclear about anything the evaluator is asking you, do not be afraid to ask for clarification. If the answer is something you think the evaluator may not want to hear, then just be direct and sincere. Do not embellish or try to explain away the facts. Be frank about your strong and weak qualities as a parent, and concentrate on the strong ones. Admit any errors you think you have made when questioned about them, and display remorse. A child custody evaluation asks you to take an honest look at the circumstances of your family. With that said, make sure you do not provide extraneous information. If you are afraid there will be some issues that do not get covered, bring a short list with you. If the evaluator does not ask you about some of your concerns, ask them if it would be alright if you could discuss these with them. But remember, these are professional people, and their time is important. This is not a counseling session or a chance to vent. Continue reading

One of the most financially impactful events in life can be the possibility of a divorce. New Jersey is not a community property state, but rather, an equitable distribution state. This means that, under New Jersey equitable distribution law, the courts have the discretion to divide marital property in an equitable manner – meaning the split between you and your spouse will be fair but not necessarily equal.

The recent Slutsky v Slutsky case provides a good application of New Jersey equitable distribution law after a party appealed their final decree of divorce. This case illustrates the idea that dividing up property in a divorce is very often complex, and not straightforward. Nancy Slutsky filed for divorce from Kenneth Slutksy after 30 years of marriage. The court case was long and difficult, and eventually, a trial was conducted over 19 days. Both parties challenged various provisions of the final judgment, and Kenneth ultimately appealed. There were nine issues he brought before the court, but for our purposes, this article will focus only on the equitable distribution issues. Essentially, Kenneth claimed there were factual flaws in what the judge found, and argues that the calculations of the division should be reversed.

Defendant was a lawyer, having graduated from Harvard Law School. He was a tax law specialist, became an equity partner in his firm, and owned one share of stock. Shortly before the divorce was filed, the firm changed its payment structure, from a corporation to a limited liability partnership. As capital, Kenneth provided $300,000 to the firm, which was financed through a four-year promissory note. Plenty of evidence was presented concerning Kenneth’s compensation, including the payout for his stock, estimated earnings until retirement, value to the company and his contributions to the firm in general, in order to determine the value of his ‘termination credit account’ (TCA), or what his interest in the firm was. Nancy’s expert initially found the TCA value was $350,830 – but on cross-examination, he admitted the value was likely closer to $292,908, excluding goodwill. Not surprisingly, Kenneth’s expert found the value of the TCA to be $285,000. However, Nancy’s expert estimated goodwill in the firm to be over $1 million, resulting in a revised TCA value of $1,185,304. Kenneth’s expert denied there was any goodwill, to the judge’s dismay. The judge accepted Nancy’s expert’s valuation, finding that Kenneth shared in the firm’s goodwill and awarded plaintiff one-half of the value as her equitable interest. Continue reading

While divorce can be a traumatic experience for some, for others it can be quite liberating. Before separating, you might have tried everything to save your marriage, and in the process realized that divorce was the best option. While “until death do us part” might not have worked out, don’t let divorce ruin your life.

Try Something New

Perhaps the first thing to do is to make a clean break with the past. Move into a different house or apartment, with different furniture and decorations. Get rid of everything that reminds you of what once was. If possible, move to a different city.

Give Yourself Time After Your Divorce

Whether the divorce was sudden or you saw it coming, give yourself time to adjust. There will be good days when you are positive you did the right thing and can make it on your own, and there will be days filled with memories that might bring you to tears. It’s normal to feel like that, but you won’t feel down or doubtful forever. Continue reading

 

Going through a divorce is rarely an easy process. Most divorces are challenging to get through at the very least. Not only can things get emotionally messy, but there are often a lot of tricky legal matters involved as well. One decision that’s often quite contentious is what to do with the house. If you are getting divorced and own a home with your spouse, then the following are some of the options that you have when it comes to selling the house:

  1. Divide the profits of the house equally

If neither you nor your spouse wants to keep the house, or if neither of you can afford to keep it, then simply selling it and splitting the profit might be the best decision. However, it’s important that you understand that your divorce can affect how much money you end up pocketing. If you’ve lived in your house for a long time, then your profits may be affected by the capital gains tax.

Couples can exclude upwards of $500,000 in capital gains. If you sell your house for above that amount, any profit over that sum will be taxed. If the divorce is finalized before you sell the house, then you could end up losing more money towards capital gains tax due to the fact that unmarried individuals can only exclude up to $250,000 in capital gains. Continue reading

In New Jersey, family law cases always provide courts the opportunity to create new law, particularly when it comes to child relocation laws in NJ. One very recent case, Bisbing v. Bisbing, added an interpretation for what is necessary to establish “cause” to allow a child to permanently relocate out of state with the child, even if the other parent objects to the move.

The parties agreed in Bisbing v. Bisbing to a marital settlement agreement when they separated. The agreement included that the mother, Jaime, would have primary residential custody with their twin daughters. The agreement also mentioned a relocation provision, stating that “[n]either party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other.” About a year after the divorce was final, Jaime told her ex that she intended to marry another man, who lived in Utah. Significantly, the wife had been dating this gentlemen prior to the resolution of the agreement. She requested that her ex-spouse consent to the relocation of the children with her to Utah. Her ex-husband said she was free to go, but the children must remain in New Jersey with him.

Plaintiff in Bisbing v. Bisbing went to court, filing a motion under N.J.S.A. 9:2-2, requesting that she be allowed to permanently relocate to Utah with her children. In response, her ex-husband argued that she had negotiated the agreement in bad faith, knowing she was planning on relocating without telling him so he would agree to give her primary residential custody. Child relocation laws in NJ at the time, under the Baures standard, required the parent who is requesting relocation despite opposition from the other parent to show that there is a good-faith reason to move and that it will not negatively affect the child’s interests. At trial, the court agreed that the move was in good faith and the children would not be harmed by it, and granted plaintiff’s request. She promptly moved to Utah, and enrolled the children in school. Continue reading

In a recently unreported case, Hersch v Hersch, the court once again was called upon to interpret New Jersey alimony laws. The parties had been married 15 years when they decided to divorce in 2010. They had two children of the marriage, who, at the time of this final decision, were teenagers. The husband enjoyed a high-power job as an executive compensation and benefits specialist in finance. The wife also enjoyed a fairly good job, earning over $80,000.00 as a product manager at the time the parties divorced. After lengthy negotiations, aided by legal counsel, the parties reached a marital settlement agreement, including 10 pages concerning child support and alimony alone. In the initial agreement, the parties determined that the husband owed $704 each month in child support, and that he would also pay eight percent of any bonuses or stocks that he received from his job as additional child support, whether or not it was cash. On top of this, it was agreed that Mr. Hersch would pay his wife a base alimony for two years and three months in bimonthly installments of $1,125.00. The agreement included the calculation for how the parties arrived at these figures, as well as language accounting for any additional bonuses, commissions or extra compensation the Mr. Hersch may earn during the period which he owed alimony.

In between signing the final decree and the present suit, Mr. Hersch was laid off, re-hired, laid off and hired multiple times, usually earning slightly more at each new job than the last. He also often received large severance packages for each time he was laid off. If the severance packages were considered compensation, then he would owe additional alimony under the agreement. The issue then is, under the New Jersey alimony laws, are these severance payments also considered compensation to be factored into alimony payments?

The court first started by confirming that marital settlement agreements were contracts under the law, and they should therefore be interpreted as such, using contractual principles. The court reasoned that, under the plain language of the settlement, severance pay would be income for purposes of alimony, because the language was broad and excluded only the issuance of signing bonuses. Additionally, under the rules of the I.R.S., the court noted that severance pay is intended to be replacement income, rather than defendant’s characterization of the payment as releasing a specific damage claim. The essence of the agreement was that Mr. Hersch’s obligations are based on what he is required to report as earned income in any given year. In light of this language, New Jersey alimony laws, and the requirements of the IRS, the court held that such severance pay would be absolutely reportable as income earned on his federal tax return. In fact, Mr. Hersch actually did report his severance payment on his IRS returns, including them under the “wages, salaries, tips, etc.” category. Continue reading

A recent case out of New Jersey gives a great overview of the myriad child custody laws in NJ, particularly concerning jurisdictional aspects. The case, BG v LH, concerns three children. The eldest son has mental health issues, but lives in Israel and is now an adult. The younger son has extreme cerebral palsy. He has a wheelchair, cannot speak, and can communicate only using facial expressions, various noises, and a DynaVox. His physical disabilities are severe, and almost all of his daily functions are performed by someone else on his behalf. On June 30, 2014, the children’s parents were officially divorced upon the issuance of a Dual Final Judgment of Divorce (DFJOD), but prior to this, the court had entered a final judgment concerning the custody and parenting time issues, which the parties had consented to. Within this custody order, the mother had asserted that the father had agreed that she be allowed to relocate with her children to Massachusetts, specifically in the Boston/Newton area. She did move, and the parties continued to share custody and visitation of the children pursuant to the order.

However, in November 2016, the father picked up the younger son, then on the way back to New Jersey, traveled to Connecticut to retrieve his daughter who was at a school retreat. The daughter wanted to drive back with her friends and go visit her father from there, but the father refused, which of course, led to a confrontation. Although it was eventually resolved, the daughter’s anger discolored the entire weekend, and upon a week of returning the children to Massachusetts, the department of children and family received complaints, alleging that there was sexual and physical abuse upon the children by their father. Eventually, the complaints were said to be unsubstantiated, although the mother had already filed suit to amend custody in Massachusetts by that time, and the judge there restricted the father to have supervised parenting time only.

Courts interpreting child custody laws in NJ are bound to also follow the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, or NJUCCJEA. Essentially, the law provides that because New Jersey entered the initial orders concerning custody, that New Jersey can now be the only jurisdiction that is able to determine if it has lost jurisdiction. The children moved and currently reside in Massachusetts, so under the act, Massachusetts is the child’s home state. However, the court was required to go through a three-part analysis to determine whether it had appropriate jurisdiction to make custody determinations. Continue reading

The court in Sacklow v Betts very recently encountered the issue of a legal name change in NJ for a transgender child. In this case, the Plaintiff (Sacklow) petitioned the court to change their only child’s name from Veronica Betts to Trevor Adam Betts. The plaintiff argued that the name change was in the child’s best interest because the child is transgender, identifies as male and was undergoing treatment for gender dysphoria. Before puberty, Trevor had been a quintessential tomboy. But during puberty, he changed – he did poorly in school, began engaging in minor criminal enterprises such as vandalizing school property, and fighting. Given the drastic change in his behavior, Trevor was referred to a psychological team, who with their help, he announced that he was transgender and identified as male. At the age of 12, he began requesting that he be referred to as Trevor, rather than Veronica, and from that day forward, his wishes were respected. In fact, the only people who continued to call him Veronica were his father, his stepmother and his step-siblings. Because Trevor felt that this name better reflected his identity, he requested a legal name change.

The court in Sacklow v Betts provides a succinct overview in the procedural aspects of acquiring a legal name change in NJ for a child. An application must be filed by first filing a verified complaint which sets out the reasons why the child is requesting a name change. It should include the child’s date of birth, and also notify the court that the application is not filed in order to defraud creditors, avoid prosecution, or for other illegitimate reasons. The complaint should also include whether or not the child has been involved in some sort of delinquency. If they have, then the complaint needs to be clear on the nature of the crime and punishment. To that end, of course the complaint should include if the child is currently facing delinquency charges. There are additional requirements if the child is part of a family law action, or had been part of one within three years before filing the complaint. In the instant case, there were no errors on the face of the complaint. Continue reading

There is no shortage of cases concerning NJ Restraining Orders, and the most recent appellate case on this topic just came down on June 5. In T.M.S. v. W.C.P., the issue was whether the court abused its discretion by reinstating a final restraining order against the plaintiff, T.M.S, sua sponte, or on its own. The appellate court held that the lower court did in fact abuse its discretion and denied the defendant due process under the law. It reversed the court’s ruling. The (somewhat confusing) procedural facts are as follows:

A temporary restraining order (TRO) had been put in place due to domestic violence which TMS had admitted to. A final restraining order (FRO) was implemented, which TMS moved to vacate. He was denied. He filed again to dismiss the FRO, and WCP did not appear for the hearing, despite being properly served with notice. As a result, the court granted the unopposed application to vacate the FRO. With this victory, defendant then moved for relief from having to forfeit his weapons. At this hearing, there was a question of whether plaintiff was actually properly notified of the original dismissal of the FRO, and so, the court reinstated the FRO (and so, the weapons forfeiture matter was dismissed).

In determining whether a final NJ restraining order can be dismissed, the court relies on eleven factors from the Carfagno case if there is good cause for dismissal. The factors are: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing NJ restraining order because she wasn’t there – but the trial court did note that the defendant had never violated the order, defendant’s consistent sobriety, attended domestic violence counseling, and suffered from health problems that made it difficult for him to inflict any violence, even if he had wanted to. Therefore, on the basis of these factors, the judge determined that the FRO was no longer required to protect the plaintiff.

involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. Continue reading

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