Sometimes, in family law, when you hear the words ‘Restraining Order,’ it is easy to assume that there was an issue of family violence between spouses, or people in a dating relationship. But it is important to remember that the statute is much broader than this, and includes anyone in a familial relationship as well. The case out of New Jersey called ‘R.G. v R.G.’ deals with the issue of domestic violence between brothers, and the role of New Jersey restraining orders between siblings and other members of the family, outside of a romantic or dating relationship.

Essentially, the argument stemmed from disagreements on how to care for the brother’s elderly parents, particularly after their mother suffered an illness and required more extensive care than could be provided by the children. Nasty emails, text message exchanges and heated conversations culminated into a physical altercation while both men were at the parents’ care home, wherein the defendant physically threatened his brother, and ended up pushing his brother at least 6 times, resulting in two falls and his glasses falling off. The police were called, and the defendant was charged with simple assault. During the initial hearing for a restraining order, the Plaintiff admitted that he believed an order was necessary, and that he had fear for the safety and well-being of himself and his family. He also admitted that, aside from this incident, the brothers did not have any history of domestic violence, although the defendant’s son had also successfully obtained a restraining order against his own father two years earlier. In light of the evidence, the trial court entered a restraining order against defendant, who of course, appealed.

To appeal a trial court’s entry of a restraining order in NJ is not easy, as the appellate court gives great deference to the trial courts findings of fact and conclusions of law. The complaints defendant presented to the court was first, a jurisdictional challenge, stating that the plaintiff did not meet the statutory definition of a victim of domestic violence. Luckily for the plaintiff, the statute had been amended prior to the incident in question, which significantly expanded the definition of a victim under the statute. Previously, the requirement was that the relationship needed to be between current or former members of the same household. The statute was amended to protect anyone over the age of 18 who has been subjected to domestic violence by “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). The court did not spend much time on this argument, finding that the statute intended to include victims just like plaintiff in this case. Continue reading

The recent case out of New Jersey between Michael J. Thieme and Bernice Aucoin-Thieme explores the rules of equitable distribution and principles of equity in a love affair turned marriage, turned sour. The two parties met, briefly dated, and shortly after, Bernice discovered she was pregnant. Bernice had been working at a part-time retail job while Michael worked a high-power job for a bio metrics company, often working upwards of 90 hours a week with extensive travel. Michael’s relationship with the founders of the company was close, and they appreciated the work he had put into the success of the company. Therefore, they created a Statement of Understanding, essentially confirming that Michael would get a good share of the company should it ever be sold, in appreciation for all of his hard work and contributions to the company. In light of Michael’s demanding schedule and his significant compensation, the couple decided that, upon the birth of their child, Michael would continue to work but Bernice would stay home, raise the child and care for their shared residence. They talked frequently of marriage, but decided to use their time and money for other things that took priority. In 2003, their child was born.

Over a period of 8 years, the parties lived together, with Michael working long hours, Bernice conducting minor repairs on the property, taking care of their rental portfolio, and raising their child full-time. The relationship was fraught with disagreements and arguments, but eventually, in 2010, the parties finally married. Their honeymoon period was short-lived, and the relationship deterioriated quickly, with angry words and some nasty emails exchanged. In one email, Michael acknowledged the sacrifice that Bernice had made in order for him to pursue his career, and wrote that she should be fairly compensated and taken care of for such an act. Eighteen months after they said ‘I Do,’ Michael filed for divorce. The parties reached a settlement agreement, and it did not include any potential bonus from the company (IBG), particularly because Michael stated that there was no guarantee, and certainly no amount of money that was specifically discussed. While Bernice was aware of this statement of understanding, she was under the impression that Michael would allow her to share in any bonus he might receive, given his words and behaviors over the entire course of their relationship.

As luck would have it, just three month’s after the final judgment of divorce between the parties, IBG was sold and Thieme received a whopping $2.25 million as a Closing Bonus from the company. Not surprisingly, Bernice filed suit for her share of said bonus. In both the trial and appellate courts, the equitable distribution statute was examined fully. The court held that the equitable distribution statute concerned only the time of marriage, with no recognition of any partnership prior to ‘I Do.’ Therefore, the concept of palimony in New Jersey in this case would not apply. Palimony would be any payment to a person who cohabited with another as consideration for various sacrifices or agreements between the parties during their relationship.  But, because the parties did get married, palimony in New Jersey was unavailable to  Bernice. Therefore, she was ultimately being awarded around $30,000.00 of the bonus – or less than 2 percent. But, at the Supreme Court, the inquiry did not end there. Bernice argued that, under principles of equity, their long period of cohabitation should entitle her to a better share of the bonus in exchange for the sacrifice she had made to Michael to raise their child, maintain their home, and allow him to pursue his career. While the Supreme Court agreed that the equitable distribution statute was correctly interpreted and that it does not govern property between parties who have cohabited but never married, the court agreed that principles of equity demanded an examination into Bernice’s argument of unjust enrichment. Under this theory, Bernice would need to show that Michael received a benefit, and it would be unjust for him to retain the benefit without some compensation to her. If this is shown, then the court can impose a constructive trust on property to ensure compensation to the plaintiff. The court relied heavily on the case  Carr v. Carr, 120 N.J. 336 (1990) in delivering its rationale. There, the wife claimed that she should receive an equitable distribution of assets because the husband ended up dying during their lengthy divorce proceedings, and a judgment was never actually entered. The court agreed, imposing a constructive trust because the estate should not contain the share which would benefit Mrs. Carr because it would be unjust enrichment. Continue reading

There is no question that parents owe their children a duty of support. The struggle between courts and parents alike is how long that duty needs to last. Most states agree that 19 years of age is the latest a parent is required to support the child, including New Jersey. However, in New Jersey, emancipation can occur once the child turns 18 or becomes financially independent, in which case the parents would file papers requesting the child be emancipated. But what about when the child decides to seek higher education – should the parents be prepared to pay for this? Is there a right for a child to be educated? One recent case, entitled Ricci v. Ricci, explores this issue in greater detail, and in more interesting circumstances.

In this case, parents of the child, Caitlyn, agreed to emancipate her when she left her mother’s home to live with her grandparents at 19. Having been divorced since Caitlyn was 4, both parties filed a consent order terminating child support. Caitlyn intervened, asking to vacate the emancipation order and also requesting an order for her parents to provide funds so she could attend college. The appellate court goes over the record at length, with both intervenor and the other parties disagreeing as to the family dynamics which led Caitlyn to live with her grandparents.

The mother alleged that Caitlyn smoked marijuana, had trouble with alcohol, was sexually promiscuous and essentially failed to follow the rules imposed on her in her mother’s home. Caitlyn stated she simply did not fit in with either her mother or father’s new family, and to ease tensions, decided to live with her grandparents. Caitlyn’s father corroborated this view, stating Caitlyn had not spoken to either parent for over six months, missed family birthdays, and asserted that he opposed her moving in with his parents, as he himself was estranged from them and felt they were a root cause for Caitlyn’s rebellion. Continue reading

What happens when a party to a divorce proceeding, before, during or after divorce, disposes of personal property belonging to the other party?  The party disposing of the personal property will be penalized in some fashion.  This question came to the forefront in the Superior Court, Ocean County before the Hon. L.R. Jones, a question that comes up frequently in NJ Family Law.

In this case, C.S. v. B.S., the parties made an agreement, later ordered by the court, to share the photos and videos taken during the 25 year marriage, all of which were in the possession of the wife. The wife provided the husband with only a few photos of his boyhood, one of which was ripped into pieces. Before bringing a court action, the husband attempted to get the wife to comply with the Order to share marital photos, and she responded by saying that she had gotten rid of all photos  because she did not want to be reminded of him. The photos and videos were kept in a big footlocker and various boxes at the former marital home, so they were nowhere the wife would have been regularly seeing them.

These photos and videos disposed of by the wife included their child’s birth, weddings, graduations, family celebrations and various family parties and gatherings, of great sentimental value. The husband brought this action seeking a remedy for the wife’s failure to comply with the court’s order to share the marital photos and videos and her, in fact, having disposed of it all. Continue reading

This case is a recent analysis and application of the NJ domestic violence laws, current case law across the state, combined with the entire gamut of family court litigation, including child custody, visitation schedules, support, and divorce. Thus, it is a good case study which examines all manner of evidence, factual circumstances, and policy considerations in a case that comprises multiple family law elements, particularly how a case will proceed once domestic violence is alleged.

The facts of the instant case are as follows: The mother, or plaintiff, separated from the father (the defendant) after having two children with him. The divorce case was filed and there was an interim order concerning custody, parenting time and support entered in October, with the case to be continued sometime in December, 2016. Five days before the continuance was scheduled, the mother filed a domestic violence complaint against the father, saying he had slapped her in the face after an argument concerning their children. The continuance was further delayed in light of the domestic violence proceedings, and the parties each appeared for the final hearing in the complaint. The plaintiff asserted her facts, and the defendant denied them. Therefore, the court had to determine the credibility of each of the witnesses, rather than relying on the testimony of eyewitnesses or videos. The court must start with a blank slate in these ‘he said/she said’ situations in order to be the most objective finder of fact possible. However, the burden of proof is on the plaintiff to show that the defendant violated NJ domestic violence laws, although they must only show the court that there is a preponderance of evidence of such a violation, or that it is more likely than not that the defendant committed violence against the plaintiff.

Some things that a court will use in order to determine which witness is more credible, and therefore, whose testimony is more persuasive are things like their demeanor, body language, eye contact, or the consistency of their statements as they testify. Of course, it is common for different people to have different perceptions about what happened, and therefore not be intentionally misleading the court. The court in this case recognized that possibility, and acknowledged that the court must take this into account when analyzing the testimony presented. Continue reading

Even an amicable divorce can be stressful; people feel like failures, and there’s a sense of deep sadness. Less agreeable divorces bring added pain as couples sink into negativity, blaming each other for conflict. Staying calm, or learning how to move back into a relaxed state when you’re upset, can make splitting up bearable.

Recognize the origin of your pain

You can’t heal negative emotions unless you understand where they originate. During a NJ divorce, people imagine their anxiety stems from the other person involved. They rarely see they create stress and trauma with their thoughts. There’s no denying your spouse might have done and said things that made you want them out of your life. However, the way you deal with feelings, and those you encourage to arise, is up to you.

You contribute to painful emotions when you justify why you need a divorce. Negative thoughts involving blame ruin any chance of positivity and leave you reeling. Recognize your spouse isn’t making you entertain thoughts that leave you depressed. It’s time to take back the power to create the emotions you want. Continue reading

Restraining orders are legal orders that protect a person or multiple people from another person. Restraining orders are issued where the defendant has committed an act of domestic violence, and orders him or her not to contact the victim or else be subject to arrest. Different states have different procedures in place for securing a restraining order. Obtaining a NJ restraining order has two main steps. In the first step the plaintiff (the person who wishes to obtain the restraining order) files a complaint with the court, and the court either grants or denies a Temporary Restraining Order (TRO). In the first step, the court only considers the plaintiff’s side of events without yet hearing from the defendant, which is why it is only temporary. If the court orders the TRO in the first step, the second step is a hearing with both parties, usually within 10 days after the TRO was ordered. During this hearing, the court will consider whether to make the restraining order permanent, called a Final Restraining Order (FRO).

Silver v. Silver – Two-Step Test for NJ Restraining Orders

Silver v. Silver is a seminal New Jersey case that articulates the two-step test that a court applies in determining whether to order a FRO. First, the defendant must have committed an offense (called a predicate act) that is prohibited by the New Jersey Prevention of Domestic Violence Act. Second, the court must find that a FRO is necessary to protect the Plaintiff from future harm or threats of violence.

A.M.C. v. P.B.  – The Facts

It is the second step of determining whether to make the NJ restraining order a permanent one, and the second step of the Silver test that is at issue in the October 21, 2016 New Jersey case of A.M.C. v. P.B. In A.M.C., a wife sought and received a TRO against her husband, a NJ police officer. At the FRO hearing the wife and her estranged husband were present, and the wife alleged that her husband had assaulted her on at least two separate occasions during a three-week period that culminated in her fleeing their home to seek refuge at a women’s shelter and that he verbally threatened to harm her in the future. The husband denied the allegations. Continue reading

When a judge calculates the amount of child support that a parent must pay for a child, many different expenses are factored into that calculation. Certainly things like food, clothing and shelter are included, but additional items such as transportation and entertainment area also considered. Sometimes there are additional expenses that a child can incur that are not necessarily contemplated when base child support payments are calculated. The Guidelines are written in such a way that judges are allowed the discretion to make adjustments to the level of support if necessary on a case-by-case basis, and a judge did so in a recent child support case holding that a parent may need to pay additional child support in NJ if the supported child is especially gifted or talented in the field of the arts.

P.S. v. J.S.

In the November 2016 case of P.S. v. J.S., the judge dealt with the question of whether the child in question should be considered “gifted” and thus have the child support her parent pays increased to provide additional money in order to pay for the expenses required to pursue her talent.

The parents in that case were in a dispute about the payment of expenses related to her acting activities. The Plaintiff currently pays the Defendant $113 per week in child support. The dispute here is that the Defendant wants the Plaintiff to pay additional funds as child support to help cover the cost of all extracurricular activities, “including but not limited to theater-related costs.” The Plaintiff objects to paying the additional support, arguing that those costs are already included in the child support that he pays. Continue reading

Child custody cases can often be contentious, expensive, and lengthy. Because of this, New Jersey courts have developed programs like mediation to assist parents in settling their differences outside of the courtroom. The Custody Neutral Assessment Program exists in some areas of New Jersey, mostly in the southern part of the state, though it is not specifically provided for in the child custody laws in NJ. A custody neutral assessment is used in a child custody case if the parents fail to reach an agreement through the initial mediation process, and is thought to be a less expensive and less time consuming of a process than otherwise lengthy custody evaluations. The assessment process takes approximately 3-4 hours, and costs vary depending on the location, but cost around $1,000 to perform (each parent paying half of the cost), which is significantly less than other options.

The Assessment Procedure

The assessment itself is conducted by a licensed mental health professional such as a psychologist or social worker that is prequalified by the court to have the experience and skill necessary to conduct such an assessment. Despite the fact that mental health professionals perform the assessment, the assessment is not a psychological evaluation or testing, and does not involve treatment. The assessor meets with the parties to discuss the issues that cannot be agreed upon. The assessor will sometimes include the children or others involved in the family situation such as step-parents, if deemed appropriate considering the circumstances.

Scope of Assessment – Recommendations

At the conclusion of the interview(s), the assessor will prepare his or her recommendations about how to resolve the issues in dispute by the parents and deliver them to the court. The clinician’s recommendations may include parenting time and custody, as well as referrals for substance abuse evaluations, anger management classes, or related issues that are preventing the parties from agreeing on custody matters. The court will then schedule a case management conference and at that time determine whether it will accept, modify, or reject the recommendations of the evaluation. The recommendations are not binding on either party, each still has the ability to perform a full custody evaluation. Continue reading

For many people, the holidays are a time of family gatherings and happy memories.  However, for recently divorced couples with children, the holidays present a myriad of issues.  Who will have the kids on Christmas morning? How will visits with extended family members be managed? Who decides what to buy and how much to spend on Christmas gifts? Can the ex-spouses manage to be in the same room together? Even after a divorce in NJ, the holidays can be a joyful time if the divorced parents intentionally keep it that way. If the problems get out of hand with your former spouse, you need to speak to an experienced NJ child custody lawyer.

 

Preparation is key.  Conversations about visitation schedules, gifts, and special events should be had weeks, if not months ahead of time. Talking to your ex might still be painful.  Keep conversations focused on the task at hand.  Resist the urge to take jabs at one another or to bring up old wounds. Try to remember that you both love your children and that moving forward in a healthy co-parenting dynamic will benefit them immensely.

 

Provide opportunities for your children to spend time with both sides of the family.  This may mean that your holidays are more hectic than they used to be.  If so, talk with extended family members about your concerns.  Do your best to allow opportunities for family celebration, but don’t sacrifice all your time with your children on the altar of extended family relationships.  Continue reading

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