New Jersey Divorce Lawyers Blog

October 11, 2014

ENTERING INTO CIVIL RESTRAINTS AS AN ALTERNATIVE TO TRIAL OF A TEMPORARY RESTRAINING ORDER IN NEW JERSEY

If a person feels that his or her life, safety, or health is at risk because of the acts or threats of another person, he or she may be able to obtain a temporary restraining order from a judge in New Jersey. The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq is the body of law in New jersey that was enacted, and designed to provide a swift remedy to protect a victim from abuse. Similarly, if you are a defendant that believes you were wrongfully accused of having committed an act of domestic violence, the consequences of having a restraining order entered against you can have long term impact.

Domestic violence is pervasive. It knows no socio-economic boundaries. If you are the victim of domestic violence, or if you have been accused of committing an act of domestic violence, you should call an experienced, licensed domestic violence attorney in New Jersey to zealously represent your rights.

Procedurally, a victim of domestic violence may seek a temporary restraining order (T.R.O.) from a Superior Court judge in the family division of the county court where the alleged act of domestic violence occurred, the county where the victim resides, or where the defendant resides. If the Superior Court is closed at that time, the victim should immediately contact the local police department who will then contact the municipal court judge. The municipal court judge will speak with the victim by telephone to ascertain the facts. The judge will then decide if the victim has described a set of facts that are sufficient to obtain a TRO. If the judge decides to grant the TRO to the victim, the police will prepare and serve the TRO on the defendant immediately. In many instances, the victim is granted the exclusive use and occupancy of any shared residence the two people had occupied up until the alleged act occurred. In addition, the victim is presumptively entitled to temporary custody of any minor child. The court will schedule the matter for a hearing within the next 5-10 days to allow the defendant to tell his or her side of the story. Keep in mind, a TRO, if issued, is frequently issued without the judge hearing the defendant’s version of what may have transpired. Generally, our legal justice system does not so drastically effect a person’s rights and due process without a hearing. However, because of the need to balance the immediate protection of a potential victim of domestic violence, the remedy is swift. To balance that significant impact on a person’s due process whereby a defendant in many instances will be denied the opportunity to be heard before he or she is literally removed from one’s home, the court must hold a hearing fairly quickly as well. This hearing is when the court will decide if the TRO should now become a final restraining order (‘FRO”) if the victim proves his or her allegations or, if the defendant can successfully defend against those allegations, the judge will dismiss the TRO and the restraints against the defendant will be vacated.

October 11, 2014

New Jersey Law Tries To Address Grandparent Visitation Disputes

by Mark Goldstein, Esq.

When grandparents are denied an opportunity to visit their grandchildren, a conflict is bound to arise. On one hand, a parent has a right to decide how his or her child will be raised. On the other hand, removing a grandparent from a child’s life could potentially harm the child. In New Jersey, we have a statute that governs the rights of parents and grandparents in these situations, and two important court rulings have clarified the way in which the statute is applied. If you are involved in a conflict over visitation, you should speak to a family law attorney who can explain how New Jersey’s statute applies to your case.

The New Jersey legislature passed a law to address problems that arise when a parent forbids a grandparent from interacting with a grandchild. The law sets out a process by which grandparents can apply for visitation rights and lists eight factors that must be considered in evaluating the grandparent’s application for visitation. They include the relationship of the grandparent with the child, how the grandparent gets along with the child’s parents or the person who has custody of the child, and the length of the period since when the grandparent has spent time with the child. Other factors extend to considering what impact the grandparent visitation may have on the relationship of the child with his or her parents or the individual with custody, the time-sharing arrangement of the parents, the motive of the grandparent in seeking visitation, any record of the grandparent mistreating the child, and any other information that may seem relevant to the court.

October 10, 2014

Recent Case Shows Divorced Parents Are Not Always Responsible For Paying Their Child’s College Tuition

by Mark Goldstein, Esq.

A recently published New Jersey case held that a divorced parent is not always liable for a child’s college education. This case involved complex facts, and a number of criteria were considered in addition to the parent/child relationship. Divorce cases can be complex, especially when there are children involved in the equation. If you are considering a divorce or a dissolution of your civil union, you should talk to a New Jersey family law attorney who can help explain your case.

Mr. and Mrs. Black had been married for 17 years, and together they had three children. When Mr. and Mrs. Black were divorced from each other, the settlement included obligations to pay for their children’s college educations. Although Mr. Black had repeatedly tried to establish a positive relationship with C.B., their oldest child, the child had written Mr. Black completely out of his life. Therefore, Mr. Black no longer saw a reason to pay for C.B.’s college tuition. Continue reading

October 8, 2014

Judge Places Limits On Designated Power Of Attorney In Divorce Proceedings

by Mark Goldstein, Esq.

New Jersey residents are allowed to designate a representative in legal matters. This arrangement, called a Designated Power of Attorney (POA), allows a trusted person to sign documents and negotiate legally binding agreements on your behalf. The right to a POA is expressed in the Revised Durable Power of Attorney Act (N.J.S.A. 46:2B-8.1). But when a litigant in a contested divorce case tried to use a POA, the court found that there are limits to a POA’s powers. Before allowing someone to act with such power on your behalf, you should discuss the implications with a licensed attorney.

Mr. Marsico created a POA agreement that allowed his adult daughter from a prior marriage, Ms. Mertz, to act on his behalf in some legal matters. Several months later, Ms. Marsico decided she wanted a divorce from Mr. Marsico. When Ms. Marsico sent a complaint for divorce, Ms. Mertz signed and filed a counterclaim for divorce on behalf of her father, Mr. Marsico.

The attorney for Ms. Marsico objected to the counterclaim, stating that it wasn’t valid because it wasn’t signed by Mr. Marsico. The attorney went on to note that Mr. Marsico is 84 years old, but he has not been ruled incompetent by any court. Furthermore, the attorney argued that Ms. Mertz has a conflict of interest because she may eventually inherit part of the Marsicos’ marital estate. Continue reading

October 7, 2014

In New Jersey “Separation” Cases, A Name Change Can Present Additional Hurdles

by Mark Goldstein, Esq.

New Jersey recognizes a concept called “divorce from bed and board,” which is the closest thing our state has to a “legal separation” for a married couple. It is also referred to as a “Limited Divorce”. Divorce from bed and board does not dissolve the marriage in the way that a traditional divorce does (also referred to as an “absolute divorce”). Because of a peculiarity in New Jersey law, family courts do not have the authority to change a person’s surname as a component of a divorce from bed and board action. This type of name change requires additional steps, and in order to properly file your name change you should consult with a family law attorney.

Any adult or emancipated minor in New Jersey is allowed to legally change his or her name. The normal process for name change is a bit convoluted, and divorce cases often include a name change component. To streamline the process, family courts in New Jersey have the authority to simply order the change of a litigant’s surname back to whatever name was used prior to the marriage or civil union. But a family court’s power is narrowly defined in a section of law titled N.J.S.A 2A:34-21. The section granting this power to a family court judge reads:

“The court, upon or after granting a divorce from the bonds of matrimony to either spouse or dissolution of a civil union to either partner in a civil union couple, may allow either spouse or partner in a civil union couple to resume any name used by the spouse or partner in a civil union couple before the marriage or civil union, or to assume any surname.” Continue reading

October 6, 2014

Recent New Jersey Law Clarifies The Definition Of Cohabitation In Alimony Modification Cases

by Mark Goldstein, Esq.

Alimony arrangements can become infuriating when the alimony recipient secretly cohabitates with a new partner. This often results in one of two untenable situations: The alimony recipient may be using their alimony disbursements to financially support their new paramour; or the alimony recipient may be receiving cash payments of financial support from the new paramour, while concealing significant changes in finances.

Cohabitation is an area where divorce and dissolution becomes exceptionally messy. The obligor (person making alimony payments) sometimes hires a private investigator to monitor the alimony recipient and try to prove cohabitation. If cohabitation is discovered, the obligor may follow up by trying to discern the financial changes that result from the new cohabitation arrangement. Cohabitation can be hard to prove, because a wily alimony recipient might keep their new financial arrangements “off the books” in order to continue to receive alimony checks.

The evidence often yields an incomplete picture of the situation, which is then used to persuade a judge that cohabitation is occurring and an alimony modification is warranted. But a second problem arises because judges traditionally wield vast discretion in defining cohabitation, thus making alimony modification outcomes hard to predict. Continue reading

October 5, 2014

New Jersey Family Collaborative Law Act Creates New Options, But It Isn’t For Everyone

by Mark Goldstein, Esq.

The New Jersey Family Collaborative Law Act creates a new way to settle differences in divorce and dissolution cases. This method of cooperative problem solving has its advantages, but when it fails it can potentially add time and expense to the process of terminating marriages and civil unions. If you are facing a divorce or the dissolution of a civil union, you should consult with a New Jersey family law attorney to determine which path might lead to the best outcome for your case.

The New Jersey Supreme Court has long tried to encourage alternatives to courtroom divorce battles. The Supreme Court requires attorneys to inform their clients about alternative dispute resolution options. Now there is an additional alternative available in New Jersey, which promises a friendlier approach to resolving differences.

Family Collaborative Law encourages negotiation and problem solving between the parties in a divorce or civil union dissolution. The New Jersey version of this concept was codified in September 2014, and it is based on the 2009 Uniform Collaborative Law Act that was created by the Uniform Law Commission. Several other states have also enacted similar laws. Continue reading

October 3, 2014

New Jersey Supreme Court Makes Important Ruling Regarding Oral Palimony Agreements

by Mark Goldstein, Esq.

A 2010 change to New Jersey law made oral agreements for palimony unenforceable. But it was unclear whether this change would affect agreements that were already in place. A landmark case was recently decided by the New Jersey Supreme Court, declaring that older oral palimony agreements are still valid. If you are struggling to enforce a palimony agreement, or if you want to create an agreement of support between yourself and a loved one, you should contact an experienced New Jersey family law attorney.

When two people agree to something, they don’t always “get it in writing.” New Jersey law recognizes that some oral contracts can be just as binding as written contracts, but there are a number of problems inherent in oral agreements. Therefore, it is imperative to get your agreements in writing and in a format that comports with the law.

New Jersey’s Statute of Frauds requires that certain important agreements must be made in writing in order to prevent fraud. For example, if you transfer ownership of real estate, make certain major agreements relating to creditors, or make agreements that depend upon a future marriage, the Statute of Frauds requires those agreements to be in writing. Continue reading

October 1, 2014

Alimony Reform Law Addresses Inconsistencies Among Alimony Modification Cases

by Mark Goldstein, Esq.

In an alimony arrangement, the “obligor” is the person who is making alimony payments. Sometimes the obligor experiences an unexpected job loss or a reduction in income. This often leads to a request for an alimony modification judgment. An alimony modification can reduce or suspend the obligor’s alimony payment obligation. Previously, New Jersey law was vague as to when and how an alimony modification judgment should be implemented. In the absence of clear legislative guidelines, New Jersey judges often applied their own rules and criteria to cases, leading to unpredictable outcomes and a sense of general unfairness.

The inconsistent nature of our alimony modification system was causing a great deal of stress for people who had already lost their jobs. In a new law, the New Jersey legislature addressed this problem by requiring judges to base their decisions on the following 10 factors: Continue reading

October 1, 2014

New Jersey Alimony Reform Creates Much Needed Guidelines, But Still Allows Broad Judicial Discretion

by Mark Goldstein, Esq.

Alimony reform has brought sweeping changes to the way New Jersey judges evaluate alimony arrangements. This legislation creates guidelines to encourage predictability and fairness in divorce and separation proceedings. Although courts must adhere to these general guidelines, judges still retain a great deal of discretion in deciding cases. Therefore, you should talk to a New Jersey divorce attorney who can advocate strongly on your behalf.

New Jersey alimony reform creates mandatory criteria that judges must use when evaluating the amount and duration of alimony payments. The reform law also eliminates “permanent alimony” and calculates the duration of alimony payments based upon the length of the marriage. Finally, the law clarifies three circumstances that permit alimony to be reduced, suspended, or terminated.

Prior to alimony reform, judges used their own criteria to evaluate alimony cases. This made it difficult to predict financial outcomes, so the legislature created 13 mandatory criteria designed to promote greater uniformity among judges. These criteria include a number of factors, including the parties’ financial needs, earning power, assets, and past standard of living, the age and health of both parties, the dependent party’s need for education and training, and one party’s past sacrifice for the career advancement of the other. Judges are given broad discretion when it comes to administering these criteria, and judges are also free to consider “any other factors” that are deemed relevant. Continue reading