NJ Family Legal Blog

READ THE POST ENTITLED "PARENTAL ALIENATION: PROGRAMS SEEK SOLUTIONS TO PARENT/CHILD DISCORD" FROM OUR PENNSYLVANIA FAMILY LAW BLOG

Eric S. Solotoff — Mon, 08 Feb 2010 22:11:51 -0500

Aaron Weems, an associate in our Bucks County office and editor Fox Rothschild's Pennsylvania Family Law Blog wrote an interesting entry entitled "Parental Alienation: Programs Seek Solutions to Parent/Child Discord."

The post discusses two programs that deal with parental alienation. One is Overcoming Barriers Family Camp in Natick, Massachusetts, The other is the Rachel Foundation for Family Reintegration located in Kerrville, Texas.

There is also a psychologist in New Jersey, Dr. Amy Baker, who has written and lectured extensively regarding this issue.

We have blogged about this topic several times in the past, both on whether Parental Alienation will be added to the DSM, to Appellate cases addressing this issue, to the possibility of a cause of action in tort being considered, as well as several abduction cases. We will continue to address this important topic whenever we can provide relevant information about it.

THE SUPER BOWL AND DOMESTIC VIOLENCE?

Eric S. Solotoff — Sun, 07 Feb 2010 06:28:17 -0500

Every year at about this time, you hear a supposed "fact" that Super Bowl Sunday is the biggest day of the year for domestic violence. I even saw something on this this week on either Twitter or some news service. I figured that I was use this blog to pass along a public service announcement about this scourge to give a heads up to potential victims.

Funny thing is that when I went to research this, I found several articles suggesting that this was really urban legend. No less than Snopes, the debunker of all rumors and urban legends says that this "fact" is simply not true.

I am not trying to make light of this or domestic violence in any way but what is true? Well, what is true is that the use/abuse of alcohol often plays a role in domestic violence. Common experience tells us that there is a lot of drinking when watching the Super Bowl. In fact, people who don't typically watch football may attend a Super Bowl party where alcohol is being served. One need only watch the glut of Super Bowl beer commercials to see the almost overwhelming role of alcohol in Super Bowl culture.

That all said, while their may not be a societal rise of domestic violence on Super Bowl Sundays, victims and potential victims need not simply accept domestic violence and should do what they need to to protect themselves, call the police and/or avail themselves of all domestic violence resources in there area.

ALL CASES HAVE A LIFE OF THEIR OWN - PART II

Eric S. Solotoff — Sat, 06 Feb 2010 14:13:34 -0500

Almost two years ago, in fact, one of the first blog posts even on this blog, I authored a post entitled "All Cases Have a Life of their Own." I just finished a case this week that gave me reason to think about this post again.

In this case, one party just didn't want to get a divorce. It did not make a difference that the other spouse made clear in no uncertain terms that the divorce was going to happen. In fact, because the spouse asked the other to reconcile every single day, knowing that it would upset the other spouse, that spouse heard every day that the marriage was over. Even the children's therapist advised that that spouse should move out given the impact of that spouse's continued presence on the children, etc. Nothing sunk in. Eventually, the finality of the trial date, in fact on the trial date, did the matter finally settle, but not without several last ditch attempts not to proceed with the divorce. The real shame is that substantial fees had to be incurred to prepare for trial - an unavoidable problem because one spouse held out hope for reconciliation until the bitter end.

I have another matter, where a spouse is refusing to make settlement proposal but is demanding a settlement conference. It seems clear that the desire is to get the other spouse in a room to bully that spouse into a settlement or otherwise because there is the expectation that the other spouse will capitulate just as always occur ed during the marriage.

Some spouses refuses to provide discovery or comply with others, hoping to wear the other spouse down.

The bottom line is that hopefully the put upon spouse will stay strong and not fall prey to the other parties unreasonable if not bad faith conduct. More importantly, hopeful the Court's will protect that party with a fair and generous award of counsel fees.

EVEN CELEBRITIES HAVE PROBLEMS DIVIDING THEIR PERSONAL PROPERTY IN DIVORCE

Eric S. Solotoff — Sat, 06 Feb 2010 13:57:06 -0500

In today's New York Daily News, there was an article that actress Kate Walsh and her husband are going to flip a coin to determine who gets to pick first and then they will alternate picks as they divide their personal property in divorce.

You don't have to be a celebrity to follow the alternate selection method. In fact it is very common when people cannot mutually agree upon a distribution of their furniture, furnishings and personal property. Another method sometimes used is that one spouse makes two ostensibly equal lists of the personal property and the other spouse gets to choose which list they want. There are obviously many other ways to accomplish this as well. There are no absolute rules, other than perhaps, the custodial parent will get the children's furniture.

Perhaps the only other absolute rule is that judges (and attorneys) hate getting involved in this type of dispute.

Of course, that is not to say that there cannot be disputes about valuable items like furs, jewelry, art, antiques, collections, etc. That, however, is very different than ordinary furnishings and household items that tend to have little value once you bring them home.

So if you are divorcing and cannot agree on the distribution of the furniture, etc., you too can act like a celebrity, flip and coin and alternate picking until it is all gone.

EQUITABLE DISTRIBUTION - IT DEPENDS

Sandra C. Fava — Sat, 06 Feb 2010 10:09:19 -0500

There is no such thing as a normal or typical divorce, every case is different. Sometimes a case I expect to be difficult ends up being easy, while other straightforward cases can sometimes become quite challenging. Equitable distribution is no exception. Different clients have different assets (and debts) to divide – homes, retirement accounts, IRAs, 401(k), Keogh plans, businesses, vacation homes, time shares, art, jewelry, yachts, trusts, and the list can go on and on. The starting premise is that assets that were owned prior to the marriage are not subject to equitable distribution. However, if that asset is commingled with marital assets it can lose that identity and be subject to equitable distribution. Obviously, this standard can create disagreements with both parties attempting to exclude their assets, but include their former spouse’s assets.

Recently in an unpublished Appellate Division decision, Mekhail v. Mekhail, App. Div. decided February 2, 2010, the Appellate Decision reviewed a judgment involving equitable distribution and alimony issued following a trial. In Mekhail, plaintiff-wife sued defendant-husband for divorce on October 9, 2007. The case was tried and judgment was entered on November 21, 2008. Defendant appealed, arguing that the trial judge erred by: (1) failing to make adequate findings of fact respecting alimony; (2) arbitrarily awarding plaintiff 25% of defendant's retirement account; and (3) directing that each party remain responsible for their own credit card debt. At trial, plaintiff sought to exclude an IRA account with a $15,000 balance, a retirement account with an $18,000 balance, and a Vanguard account with a $36,000 balance. Plaintiff alleged that these accounts were premarital and not subject to equitable distribution. Meanwhile, defendant had a 401(k) account with a $50,000 balance. Because sufficient evidence was presented to the trial court about the plaintiff’s accounts being premarital, they were not subject to equitable distribution. Yet, the trial judge ordered defendant to give 25% of his 401(k) to plaintiff as part of equitable distribution. Of their joint assets, defendant received about $137,500 and plaintiff received about $112,000. Given the facts, the Appellate Division did not find the trial judge decision arbitrary and affirmed the decision and equitable distribution.

Mekhail is an excellent example of how various assets can be subject (or not be subject) to equitable distribution. That is why when people ask about equitable distribution, the only thing I can really say is – “it depends.”

APPELLATE DIVISION CREATES NEW PROCEDURE LIMITING JUDGE'S ABILITY TO RESTRICT A LITIGANT'S ACCESS TO THE FAMILY COURT

Eric S. Solotoff — Thu, 04 Feb 2010 05:56:02 -0500

On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish. This case is near and dear to me because I represent Mr. Parish and we made new law.

In this post-judgment litigation we filed a motion seeking enforcement of the parties' divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish's ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them - he ex-wife would not state if she agreed or not, waiting to see what the court would do.

The trial court denied Mr. Parish's motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.

We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish's access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.

The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant's access to the Court can be restricted.

In doing so, the Appellate Division instituted a new procedural rule. The relevant portion of the opinion is as follows:

We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.

In those limited instances where appropriate, an injunction should be issued only after the judge:
1. makes a finding that past pleadings were frivolous or designed for an abusive purpose;
2. fully scrutinizes the newly filed pleadings and determines them to be repetitive and within the scope of the prescribed vexatious matters; and
3. has unsuccessfully attempted to abate the abuse by employing sanctions such as those provided by Rule 1:10-3 or Rule 5:3-7.

Additionally, any restraint entered must be circumscribed, not global, and narrowly focus on the issues shown to warrant restraint.

The Court also made clear that parent coordinators cannot address enforcement issues nor can they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.

Because there was a spirited dissent in this case, there is an automatic right to appeal the matter to the Supreme Court if the other side chooses to do so.

in any event, we are proud of our efforts and the results obtained in this case. Robert Epstein assisted in this matter as well.

MARRIAGE MAY BE TEMPORARY, BUT PARENTING LASTS A LIFETIME

Sandra C. Fava — Wed, 03 Feb 2010 00:02:13 -0500

I recently read an article about post-divorce parenting. The article made suggestions that I thought were important to echo. In my practice, I see and meet all types of people and parents. Divorce often brings out the worst in people. It’s an emotional time - separation from a partner, equitable distribution, visitation, sale of the marital home, separation from children, moving, dividing of assets, alimony, infidelity, child support, negotiations, court, motions – the list goes on and on. Hopefully, these things will be resolved at some point. But the most important thing when all is said and done is that the children of the marriage are emotionally and mentally unharmed and continue to have a good relationship with both parents.

Without reciting the whole article, I thought I would make some observations about the matters I have handled. One thing I often see in a divorce is when a parent begins to treat their child like a friend. Parents going through a divorce should not tell their child the intimate details of the divorce as if they are an adult. Divorce is an adult matter. Parents should avoid discussing the legal intricacies of a divorce with their child. It is important to explain to the child that you will be living apart and that both parents still love the child and it’s not the child’s fault. But there is no need to explain who will be receiving the retirement accounts or how much alimony will be paid.

This brings me to my next observation – parents speaking ill of their former spouse either to their child or while the child is present. It’s natural for a spouse to be angry at their former spouse following a divorce, but a parent should not try to poison a child against their other parent.

Don’t play the “gift game” with the child. Affection that is bought from a child will only foster a child to attempt to manipulate their parents to get what they want. Often children will complaint to a parent about how they are being treated unfairly by the other parent. Naturally a parent wants to help their child, so they go to Court and seek a change of living arrangements. Sometimes the child is correct. But before a parent just reacts to their child, they should think, why is this happening, is the child just manipulating me so they can stay out later, or go on a trip, or watch more TV - why is the child seeking a change?

This brings me to the most important thing I tell clients when they have children – act in the best interest of your children. When it comes to the children, try to be fair and reasonable, and put yourself in their shoes. If you think going through a divorce as an adult is difficult, image how a child must feel?

Palimony Agreements Must be in Writing and Signed

Erin DeGeorge — Thu, 21 Jan 2010 18:50:03 -0500

In October of 2008, Jennifer W. Milner blogged on palimony and pending legislation (S-2091), which, if enacted, would overturn the palimony decisions she discussed by requiring that any such contract to support one for life must be in writing and signed by the person making the promise. More specifically, that a promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of the relationship or after its termination, is not binding unless it is in writing and signed. The editor of the blog, Eric S. Solotoff, promised that we would updated the blog accordingly. Well, on January 15, 2010, just a few short days before Jon Corzine’s last day as Governor, he signed legislation (S-2091) which prohibits the enforcement of palimony agreements that have not been put in writing. The new law provides that a promise of palimony is not binding unless it is in writing. It also requires both parties to receive independent advice of legal counsel before the agreement can become binding. This law closes a loophole in state law that has allowed palimony claims even when unmarried couples never lived together or did not put their promises of support in writing. The new law takes effect immediately.

Women will no doubt be hurt by this new law. There remains questions as to what the law means to both pending palimony cases as well as people who have in been relationships that would have merited palimony but for the new law. We would expect that there will be more to come on this.

Please, Please, Please, get a Lawyer

Jennifer Weisberg Millner — Wed, 20 Jan 2010 13:58:50 -0500

When lawyers say you should never represent yourself, even in so called, “simple” cases, they are often accused of being greedy, driving up fees, and unwilling to acknowledge that there are smart people out there that are capable of working out the terms of a settlement. I have recently been involved in a case which has been really bothering me. It is the perfect example of an intelligent, thoughtful, detailed oriented individual who believed he knew what he was agreeing to twenty three years ago when he was divorced and now finds himself in a position where a trial court has interpreted his divorce settlement agreement far differently than he did back then.

In my case, my client did not have an attorney at the time that he was divorced . He and his wife were able to reach an amicable agreement as to the terms of their divorce and she hired a layer to draft the agreement and put the divorce through. When they got the issue of my client’s retirement benefits, he agreed to language which he thought would limit his ex-wife’s share of his retirement. Unfortunately, he did not have his own counsel to inform him of what is often referred to the “marital foundation” theory, which essentially means that as a result of the foundation that is built in the early part of employment ( which usually occurs during the marriage), a former spouse will be entitled to the benefit of some post marital efforts.

Usually, a former spouse’s entitlement to a retiree’s pension is calculated by use of what is known as a “coverture” fraction. In its simplest form, the coverture fraction is one in which the numerator is the number of years or months that the employee worked during the marriage and the denominator is the total number of months or years worked. That fraction is then multiplied by the percentage of which the former spouse is entitled ( usually 50%). The resulting number is the actual percentage of the pension payment that the former spouse will receive. This fraction is used for several reasons. First, as I have previously stated, the theory is that during the marriage, a foundation is built which allows the working spouse to advance in later years. Second is the reality that this is a mathematical way to segregate out the marital portion. It is not, however, a perfect science given the way that the majority of pensions are calculated. The end result is often that the former spouse shares to some extent in a pension benefit that is calculated based upon a higher salary which was earned after the divorce.

There are, however, certain retirement plans that are calculated in such a way that a more precise calculation can be made in order to “carve out” the marital portion. However, in those rarer instances, litigants have to be very careful in how an agreement is worded in order to avoid problems at a later date. And that is where my client ran into a big problem. His retirement was one in which there is a way to carefully calculate the marital portion, if it is done correctly. He knew at the time of divorce what he was agreeing to, but unfortunately, the resulting provision in the settlement agreement was a bit ambiguous. He is now in litigation in order to determine what amount of his retirement he has to give his former spouse. The difference between what he thought he had agreed to and what may be ultimately given to his former spouse is in the tens of thousands of dollars. Had he been represented by counsel who understood the intricacies of calculating retirement benefits between spouses, it is likely that now, 23 years later, he would not be in the Courts.

The moral of the story is that you do need a lawyer. There are plenty of amicable divorces out there in which the two spouses have reached an agreement on their own and are not going to fight to the death in a War of the Roses. Yet ,in order to make sure that you are both on the same page, both of the parties should seek the advice of counsel in order to make sure that what they agreed to is what is in the end document. While 39.99 on the internet or in an office supply store seems like a good deal now, it could cost tens of thousands of dollars later.

Hello Cohabitation. Goodbye Alimony.

Sandra C. Fava — Tue, 19 Jan 2010 22:10:32 -0500

What happens when a dependent spouse begins living with another partner? Well, in the recent unpublished decision of Hartelust v. Hartelust the Appellate Division reviewed this question. Docket No. A-2519-08T3, decided January 12, 2010.

Plaintiff Nora Hartelust appealed from an August 1, 2008 Order that terminated Defendant Alexander Hartelust’s alimony obligation. After twenty years of marriage the couple was divorced in January 2007. The judgment of divorce incorporated the property settlement agreement (PSA). At the time, the couple had a fifteen year old child, Alexander was earning $60,000/year and Nora was earning $15,000 per year. The PSA stated that Alexander would pay $175 per week in child support, $220 per week in permanent alimony, and transfer his ownership in the marital home to Nora. The PSA did not address cohabitation.

In April of 2007, Alexander became aware that Nora was cohabitating in the former marital home with her boyfriend. Alexander immediately stopped paying alimony and in July 2007, three months later, filed a motion seeking termination of alimony. After a plenary hearing where the parties, the boyfriend, and the couple’s son testified, the trial judge found that Nora was cohabitating with her boyfriend and was deriving an economic benefit. The judge ordered that Alexander stop paying alimony and awarded Alexander attorney’s fees. Nora appealed. On appeal the Appellate Division affirmed the termination of alimony because the trial judge had determined that based on credible testimony, Nora was cohabitating with her boyfriend and received an economic benefit from that cohabitation. The Appellate Division explained that once there is a prima facie showing of cohabitation, the burden of proof is shifted from the party seeking modification to the dependent spouse, who must show that he or she has not derived an economic benefit from the cohabitation. Nora could not overcome that burden.

Also on appeal was the award of attorney’s fees, which the Appellate Division reversed. The Appellate Division found that the judge failed to consider seven of the nine factors when determining if attorney’s fees were warranted. In this case the attorney failed to submit a Certification of Services, which impacted the Appellate Division's ruling. In order for attorney’s fees to be ordered, an attorney must submit a certification or affidavit of the services they provided.

While this matter is unpublished and therefore not binding, given the law of this state the outcome exemplifies the way the law was meant to be interpreted. Recently, virtually this very same issue was faced by a client and although the spouse admitted to cohabitation, the trial judge did not find that our client had met his prima facie burden and therefore, would not order a plenary hearing. While disappointing, this case further supports our belief that our client was entitled to this hearing, at the very least.

UNAMBIGUOUS LANGUAGE IN SETTLEMENT AGREEMENT CONTROLS OUTCOME

Robert A. Epstein — Tue, 19 Jan 2010 06:50:33 -0500

Oftentimes parties will sign an agreement settling all issues in their divorce matter only for one party to subsequently try to back away from those terms for any number of reasons. Is it just that easy for a party to essentially change its mind? The simple answer is generally no. New Jersey has a strong public policy favoring the enforcement of fair and equitable agreements entered into on a consensual and voluntary basis. If the agreement is somehow the product of fraud, unconscionable or otherwise demonstrates one party's effort to take advantage of the other, then the law provides the wronged party with an opportunity to "set aside" or "vacate" the agreement.

What about those cases where there is no such wrongdoing? Since marital settlement agreements are contracts and, as a result, generally enforced, Courts in this State will look to the terms of the agreement and apply basic contractual principles when addressing one party's claim as to the agreement's (or that provision's) enforceability. For instance, where the agreement's language is unambiguous and the Court is called upon to interpret the terms at issue, the Court will not consider external (or "parol") evidence, such as, perhaps, oral discussions had at the time of the agreement's signing. It will simply apply and interpret the terms before it.

This was the case in Dell'Osa v. Dell'Osa, a recent, unpublished (not precedential) Appellate Division decision where the husband claimed that the trial court improperly divided the parties' retirement accounts because his accounts were comprised of pre-tax funds while the wife's were comprised of after-tax funds. The husband claimed that, as a result of this account structure, two Orders (known as Qualified Domestic Relations Orders or "QDROs") were needed to fairly divide the accounts, rather than just the Court dividing the accounts without such an Order to his claimed monetary disadvantage.

Affirming the trial court's decision, the Appellate Division found the settlement agreement language unambiguous as to this issue, finding that the agreement merely acknowledged the pre-tax and after-tax retirement contributions of the parties without requiring any equitable distribution to factor in a tax adjustment. In its affirmance, the Appellate Division emphasized the notion that "A court may not make a better contract for either party than the one the parties drafted." The Court also looked to other terms of the agreement in concluding that its interpretation of the unambiguous language was consistent with the terms of the agreement as a whole.

WHICH ASSETS ARE EXEMPT FROM EQUITABLE DISTRIBUTION

Eric S. Solotoff — Tue, 19 Jan 2010 05:37:45 -0500

Whether an asset is exempt is a common issue that arises in divorce case. The general rule is that an asset acquired prior to the marriage which is not commingled is exempt from equitable distribution. In addition, an asset that is received via inheritance and/or third party gift is also exempt as long as it is not commingled. Commingling is essentially putting an asset into joint names or depositing it into a joint account. Changing something from someones own name into joint names is deemed as making a gift to the marriage.

Also, the law is clear that the person who seeks to have an asset deemed exempt has the burden of proving that the asset is exempt.

Because an engagement ring is a premarital gift, albeit a conditional gift, from one spouse to to the other, it is exempt from equitable distribution. If the ring is replaced and/or enhanced during the marriage, while the original stone, if it exists, remains exempt, the new ring is not exempt. In fact, any gifts between spouses during the marriage are not exempt and are subject to equitable distribution on divorce. As such, some times we are required to have jewelry, furs, and other expensive presents appraised to determine their value for equitable distribution purposes. Sometimes this task is made a little easier because parties have appraisals for insurance purposes which is why we often ask for the homeowners insurance policy riders.

The premarital portion of retirement assets, i.e. IRAs, 401ks, pensions, are typically exempt. For defined contributions plans (ie. the accounts with cash balances), the trouble may be finding or obtaining the documents to establish the premarital values. That said, even though the premarital values are often commingled with contributions made during the marriage, the premarital portions are typically exempt. Contrast that with a regular premarital bank account where deposits are made during the marriage using marital income. Many would argue that this account has lost it's exempt status. Is that fair? What is the real difference? Perhaps the difference is that though money will usually go in and out of a bank account, there usually is not the same type of two way activity as to retirement accounts.

Similarly, marital homes owned by one party and never put into joint names often do not receive the treatment that the law would require. Specifically, there is case law that says that only the principal pay down of the mortgage during the marriage plus the active appreciation (i.e. if the value of the home has been enhanced by capital improvements) is subject to equitable distribution. That said, I have seen people argue judges state that because it is the marital home, somehow there should be some greater distribution, even if it is not 50-50.

Note that aside from the retirement assets scenario described above, there is another exception to the commingling rule. That is, there is a reported decision that says that when someone has temporarily parked an otherwise exempt asset in a joint account only to move it out to an individual account shortly thereafter, the asset will remain exempt. I had a case where there husband lost his brother at an early age and he received the proceeds of his brother's life insurance. Because he was so distraught about the loss, his wife took the insurance check and opened a new, joint account with it. No other money ever went into or out of the account. After a trial, the court found that the account was the husband's exempt property despite being in joint names for about 2 years or so.

To other notes on exemption. First, even though an exempt asset was converted to a joint asset, that does not mean that it has to be divided equally. New Jersey remains an equitable distribution state and assets that a party brought into the marriage and source of acquisition of the assets are two factors that must be considered. Second, the better practice to protect premarital assets is to have a prenuptial agreement. Prenups can be used to preserve premarital assets, even if they are commingled, if the agreement says so.

Baby M Decision and Validity of Surrogacy Contracts Revisited

Apple Sulit-Peralejo — Mon, 18 Jan 2010 17:08:29 -0500

In 1988, the New Jersey Supreme Court ruled that a surrogacy contract was invalid based upon the circumstances of that case. The Court found that such agreements are in direct conflict with existing statutes and in conflict with New Jersey public policy. In the Baby M case, would-be parents entered into a contract with a women who agreed to supply the egg for in vitro fertilization, to implantation of the embryo and to carry the fetus to birth at which point the would-be parents would adopt the baby. However, the surrogate mother changed her mind after the birth of the child and would not agree to the adoption. The Baby M decision made it clear that New Jersey courts disfavor surrogacy agreements especially those involving monetary exchange.

The Baby M case involved a surrogacy agreement by a surrogate who was also the biological donor of the egg. Since the 1988 Baby M decision, the question of whether or not surrogacy agreements are invalid regardless of whether or not the surrogate mother has biological relations to the child has never been answered. However, recently, on December 23, 2009, a trial Court in Hudson County entered a decision in the A.G.R. v. D.R.H. and S.H. case finding that surrogacy agreements in New Jersey are invalid regardless of the biological relationship of the surrogate mother.

The A.G.R. decision arose out of a 2005 agreement between the surrogate mother and her brother, D.R.H. D.R.H. and defendant S.H. obtained a same sex marriage in the State of California and thereafter registered as domestic partners in the State of New Jersey. In or about 2005, D.R.H. and A.G.R. entered into a contract whereby S.H. would provide the sperm which would be used to fertilize the eggs donated by an unknown woman. The parties furtehr agreed that once fertilization occurred the fertilize embryos would then be implanted into A.G.R. who would carry the fetus to birth. As a result of the in vitro procedure, A.G.R. delivered twin girls.

Although the Court's decision does not provide specifics, after the twins were born, there was a dispute as to A.G.R.'s ongoing involvement with the twins resulting in litigation among the parties.

D.R.H. argued that since A.G.R. did not provide the biological material for the embryos, the surrogacy agreement should be held valid. The Court however pointed out that the Baby M decision only comments on the infants genetic make-up once and the vast majority of the decision supported invalidity of surrogacy agreements in New Jersey.

Notably, there is a split among jurisdictions. Some states honor gestational surrogacy while others, like New Jersey, do not.

REDUCTION IN CHILD SUPPORT - COURT LOOKS AT ENTIRE EQUATION

Robert A. Epstein — Sun, 17 Jan 2010 22:27:27 -0500

Can one former spouse obtain a Court Ordered reduction in child support in New Jersey simply by stating that his or her income is no longer what it once was? The simple answer is no, as the payor spouse must show that he has attempted to "improve" on his worsening situation, and an analysis of his expenditures and assets will also occur. Courts will also look at the parties' understanding at the time when they executed a settlement agreement should one exist. Only if the payor spouse can overcome those hurdles may a Court properly determine that he has established a prima facie case of substantial and continuing changed circumstances from when the support obligation was set.

As I indicated above, Courts will look at the parties' intentions at the time the settlement agreement was signed to determine if the parties "reasonably anticipated" the very condition the payor now claims to have changed. Such was the case in Lester v. Lester, a recently unpublished (not precedential) decision from the Appellate Division where the husband/payor moved for a reduction in his child support payments based on a claim that his income had continually declined due to his pre-existing, yet worsening psoriasis condition. The husband was a physician who alleged that his condition prevented him from performing certain surgeries that were previously part of his medical practice.

In affirming the trial court's denial of the husband's motion for a child support reduction based on his failure to establish a prima facie case of changed circumstances, the Appellate Division primarily noted that the reduced income was only one part of the puzzle. The other parts, including the husband's medical condition pre-existing the settlement agreement with its potential worsening having been presumably contemplated by the parties when the settlement agreement was signed, the husband's failure to reduce his personal and professional expenses, and his "considerable assets" beyond his income, completed the puzzle in the wife/payee's favor.

Establishing changed circumstances is therefore no easy task, as the Appellate Division in Lester analyzed every detail down to the husband's purchase of a new Mercedes. As shown in this prior blog entry, as well as this one, there is a lot of work to be done in both making and defending against such an application.

CHANGE OF RESIDENTIAL CUSTODY- WHAT DOES IT TAKE?

Sandra C. Fava — Wed, 13 Jan 2010 23:15:52 -0500

When to seek change of residential custody can be a difficult and costly decision to make. Obviously, when the safety and well-being of a child is in question, efforts must be made by the non-residential parent to seek custody (even if temporary) of the child. In a recent unpublished decision, Gorski v. Young, Appellate Division, Docket No.: A-2707-08T3m, decided January 8, 2010, the Appellate Division affirmed the decision of the trial court, when it decided if a ten-year old boy was in danger with his mother who had residential custody. In this case, Gregory Young filed a motion for a change of residential custody of the parties’ ten-year old son, Brian (fictitious name). Gregory alleged that Brian’s mother, Angel Gorski, was too mentally unstable, which resulted in Brian receiving “tardies” from school and culminated in an alleged suicide attempt by Angel – a fact Angel denied. Gregory’s motion was denied without a plenary hearing.

Gregory appealed and the Appellate Division remanded with an Order for the trial court to conduct a plenary hearing. At the hearing, Gregory presented witnesses and the judge ordered a mental health assessment of the parties and Brian. The assessment was admitted into evidence over Angel’s objections because she did not have an opportunity to cross examine the expert. The trial court judge ruled that notwithstanding the “tardies” and alleged shortcomings of Angel, there was neither a danger to Brian, nor a change of circumstance warranting change of residential custody. Gregory appealed a second time. On appeal the Appellate Division ruled that because of the expertise of family law judges they would not second guess the findings and judge’s sound discretion. The Appellate Division also noted that although harmless error, the parties should have had the opportunity to cross examine the expert’s mental health assessment.

This case exemplifies the tough decisions parents have to make when seeking custody. Unfortunately, even when parties think they are acting in the child’s best interest, a court may see it differently. That is why it is imperative for an attorney to advise their clients of all the potential outcomes when they go to court for custody issues. Any parent facing this decision must examine it from all aspects and ensure they are utilizing an attorney with knowledge and experience in this area.

GETTING A "GET" - JEWISH DIVORCE IS NO SIMPLE MATTER

Robert A. Epstein — Sun, 10 Jan 2010 22:55:43 -0500

Abdelhak v. The Jewish Press, Inc., et. al., a recently reported (precedential) decision from the Appellate Division, raises the always interesting issue of Jewish divorce. While the divorce itself was not the main issue in the case, which I briefly discuss below, the case provides a relevant opportunity to discuss Jewish divorces in general and how they have been treated by New Jersey courts.

Under Jewish law, a "Get" is a bill of divorce that a husband gives to a wife in order to "free her" to remarry. A secular divorce will not do the trick, as the couple's marital status will remain unchanged under Jewish tenets. In such cases, the wife is labeled unceremoniously as an "agunah," or a "chained woman" so to speak. What does that mean to the woman who wants to remarry? The result is dramatic and far reaching, as she cannot remarry (and, simply put, most Conservative and Orthodox rabbis would not even perform a wedding for such a woman); and any children subsequently had with another man are considered children born of adultery. A trickling down effect essentially occurs, where the children, grandchildren, etc., often can only marry other children born in such a situation or persons who converted to Judaism. Unfortunately, this may place the woman in the position of obtaining an inequitable secular divorce settlement to procure the desired Get from the husband.

One question that has created inconsistency amongst New Jersey courts in this area is whether a court can actually compel a husband to submit to the jurisdiction of the "Beth Din" - a rabbinical court of Judaism - to initiate proceedings to procure a Get to issue to his wife without violating the Establishment Clause of the Constitution's First Amendment. In the 1980s, New Jersey courts, first in the trial court opinion of Minkin v. Minkin, more than once held that compelling a husband to issue a Get was a proper enforcement of the Jewish marriage contract - the "Ketubah." Those cases ruled under the premise that the Get acquisition is not a religious act and compelling a husband to submit to the Bet Din's jurisdiction would "neither advance nor inhibit religion . . . ." One case held that a one-sided settlement agreement executed by the wife in order to obtain the Get was invalid as a product of duress.

Fifteen years after Minnkin, a New Jersey trial court in the case of Aflalo v. Aflalo, determined that the Establishment Clause did not permit the court to compel the husband to submit to the Beth Din to initiate Get proceedings. The court rationalized that compelling such an act would go against the Jewish notion that a Get must be given willingly, without restraint, in order to - so to speak - set the wife "free." The court added that such an act by the judiciary essentially puts the husband at risk of being held in contempt before the Beth Din even though he is consciously against the act in itself, and supersedes any decision the Beth Din may ultimately render on the issue. Notably, under Jewish law, if the husband fails to comply with the Beth Din's dictates, it may issue a "seruv" - an order of contempt to a husband who refuses to comply with its order to give his wife a Get. When ordered, all Orthodox Jews must shun the non-compliant husband.

Interestingly, the Beth Din of America - a central rabbinical body - addressed the improper withholding of Gets by creating a prenuptial agreement containing a support obligation formalizing the husband's obligation under Jewish law to financially support the wife. In so doing, the husband is supposed to be incentivized to issue to the wife a Get should the marriage fail. It creates the sort of civil contractual right upon which it is intended for a court to act and enforce. However, no New Jersey court has actually addressed the enforceability of such an agreement.

Also, no Appellate Division decision has really rule on the Get issue, as one decision within the past few years essentially passed on the issue because the record before the Court was insufficient as to the effect of the particular ketubah at issue and the mandates of Jewish law. The Appellate Division in Abdelhak also did not address the issue, as the real issue there was whether the Court had subject matter jurisdiction to determine whether a husband had been wronged - based on claims including, but not limited to, claims of defamation and intentional infliction of emotional distress - by various parties in relation to his refusal to grant his wife a Get because his wife refused to raise their children as Orthodox Jews.

The Appellate Division ultimately dismissed all of the husband's claims, finding that it lacked subject matter jurisdiction to rule upon the husband's claims because they could not be resolved by solely using so-called "neutral" non-religious based doctrine/principles. Simply put, a jury would have had to consider various issues within the context of specific Jewish laws in order to decide upon the husband's civil court claims. As a result, the Appellate Division concluded that it could not hear the case due to a lack of jurisdiction as to the subject matter before it.

The intertwining of civil and Jewish legal principles and doctrine provides for interesting discussion, especially in light of Abdelhak. The rules involved with a wife procuring a Get are far from simple, as demonstrated by New Jersey courts differing opinions on the issue.

US SUPREME COURT TO HEAR CASE ON INTERNATIONAL CHILD ABDUCTION & THE HAGUE CONVENTION

Sandra C. Fava — Sun, 10 Jan 2010 20:33:31 -0500

Nearly everyone I know from the state of New Jersey has heard about the horrific battle Sean Goldman faced trying to have his biological son returned from Brazil where he was being cared for by his step-father after the unexpected death of his mother. Recently, at the end of December he was finally reunited with his son, seemingly only after the case caught nation and worldwide media attention. What some people may not know or fail to realize is that there are Sean Goldman's all over this country. Parents from New Jersey and other states are faced in a similar battle trying to have their children returned to them from foreign nations.

One such case is the matter of Abbott v. Abbott scheduled for oral argument before the United States Supreme Court on January 12, 2010. The Abbotts were married in England and later had a child in Hawaii. They moved to Chile where they separated in 2002 and were later divorced. The Chilean court granted the mother custody and father visitation rights. In 2004, at the mother's request, the Chilean court issued a ne exeat order prohibiting either parent from removing the child from Chile without mutual consent of the other.

The mother brought the child to the US without the father's consent. Father filed suit in Texas asking the court to grant the return of the child to Chile pursuant to the Hague Convention. The Texas court denied the return of the child to Chile finding that the removal did not breach the father's "rights to custody" under the Hague Convention as was argued. The father appealed and in September 2009, the Fifth Circuit affirmed, holding that only the custodial parent can invoke the Hague Convention to get the child returned.

Father petitioned to the US Supreme Court who will hear oral argument on Tuesday, January 12, 2010. Amici curaie briefs have been filed. The Domestic Violence and Civil Protection Order Clinic at the University of Cincinnati College of Law contends that looking at the best interests of the child requires a finding for Mrs. Abbott. Another group of organizations working in the field of domestic violence are concerned that the treatment of these ne exeat orders could allow many primary caretakers to use such orders as a tool to maintain control over their former partners.

The State of California urges the Supreme Court to construe ne exeat orders as conferring custody rights to a technically non-custodial parent. California further argues that when certain legal principles are applied (comity & reciprocity) return of the child is the right answer.

It will be interesting to see how our nation's Supreme Court views this issue. We will provide an update once the decision is rendered.

SUPREME COURT AFFIRMS KAY DECISION - ESTATE OF LITIGANT WHO DIES DURING DIVORCE CAN MAKE EQUITABLE CLAIMS

Eric S. Solotoff — Wed, 06 Jan 2010 10:35:19 -0500

Previously, I blogged on the Appellate Division's reported (precedential) decision in Kay v. Kay. The New Jersey Supreme Court granted Certification and the decision was rendered on January 6, 2010. In a per curiam decision (i.e. no one specific Supreme Court Justice authored the opinion), the Appellate Division decision was affirmed for substantially the reasons set forth in Judge Grall's appellate opinion.

To reiterate what this case is about, the Appellate Division held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. In that case, the husband died basically penniless and the wife had assets in excess of $650,000 at the time.

The Appellate Division and now Supreme Court held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. This case rejects the holding in Krudzlo v. Krudzlo, a reported trial court opinion from 1990.

The basic rule was that a divorce case abates and no equitable distribution can be had when a spouse dies during the pendency of divorce. However, there is a Supreme Court case called Carr v. Carr that created equitable remedies for a surviving spouse that would otherwise get nothing where the assets were all held by the other spouse and the rights to equitable distribution and an elective share are unavailable under the law. This case provided a remedy for what was called the "black hole."

The Krudzlo case held that the estate of a dying spouse could not assert claims for equitable relief against a surviving spouse.

In Kay, there husband died. At the the time of his death, he had limited assets in his name, insufficient even to pay his legal fees and burial expenses. On the other hand, it was asserted that the wife had more than $650,000 in assets. It was also asserted that the wife dissipated marital assets, diverting them to her own name and her daughter.

Given that the court's seek fairness and equity, the Appellate Division held that it was inappropriate to have a blanket rule preventing the estate from making equitable claims. The Court did not decide the underlying merits of the claim, however. The estate will have the ability to make a claim to prevent the unjust enrichment of the surviving spouse.

The Supreme Court opinion added further important observations. First, the claim raised here was not only for equitable distribution, but also that marital assets had been wrongfully diverted from one spouse to the detriment of the other. Second, the spouse who died was attempting to pursue that claim before his death. The estate was seeking to continue claims raised before death which "should not be extinguished lightly."

Further, just as Carr dealt with the innocent spouse that had no statutory remedy, so does this decision - essentially closing the black hole as to the spouse who died. Clearly, this case reflects and fair and equitable result and prevents an alleged wrongdoer from being unjustly enriched.

THE SUPREME COURT HEARING ARGUMENTS ON CRESPO TODAY

Eric S. Solotoff — Wed, 06 Jan 2010 06:41:10 -0500

Previously we have blogged on the Crespo case. In this case, the trial court determined that the Prevention of Domestic VIolence Act was unconstitutional. The Appellate Division reversed this decision in June finding the statute constitutional.

The Supreme Court will be hearing oral argument on the issue today. As a result, the final say on this issue will be coming soon. Stay tuned.

SUPREME COURT DECISION IN KAY V. KAY EXPECTED TO BE RELEASED ON 1/6/10

Eric S. Solotoff — Tue, 05 Jan 2010 12:27:47 -0500

Previously, I blogged on the Appellate Division's reported (precedential) decision in Kay v. Kay. The New Jersey Supreme Court granted Certification and the New Jersey Judiciary web site advises that the decision will be released on January 6, 2010.

Check back soon for a post on the Supreme Court's decision.