New Jersey Family Law Blog

Court holds that cohabitation is not essential for an award
By Edward S. Snyder, 193 N.J.L.J.652

The law of palimony has evolved and expanded over the last three decades and the Supreme Court of New Jersey has been active in defining its parameters. During the 2007-08 term the court once again delved into this area of family law by deciding Devaney v. L'Esperance, 195 N.J. 247 (2008). holding that cohabitation is not essential for an award of palimony, however declaring that it is just one of several factors to be considered by a trial court

Genesis of the Palimony Claim in New Jersey

Palimony is essentially "alimony" where the parties were never married. The true definition of palimony, however, can be described "in general terms [a]s a claim for support between unmarried persons." Devaney, supra, 195 N.J. 247 at 16.

Continue reading "Palimony Re-examined and Redefined" »

“[A]ny party is free to retire, take a vow of poverty, write poetry, or hawk roses in an airport, if he or she sees fit. The only limit is discontinuance of the financial aid the former spouse requires. The reason for this is that the duty of self-fulfillment must give way to the pre-existing duty which runs between spouses who have been in a marriage which has failed.” Deegan v. Deegan, 254 N.J. Super. 350, 358-59.

Continue reading "Demystifying the imputation of income." »

A three-judge Appellate Division panel recently ruled out binding, nonappealable arbitration as a way to settle custody and parenting time disputes. Arbitration is a favored remedy for settling disputes, but parties can’t bargain away the court’s obligation under the principle of parens patriae to ensure the best interests of children, the appeals court said.

Continue reading "No Binding Arbitration of Custody or Parenting-Time Issues, Court Says" »

The New Jersey Supreme Court ruled last month that “[c]ohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.” In Devaney V. L’Esperance, Not Reported A.2d., 2008 WL 2491976 (NJ). The Court by a 6-1 majority broke away from the precedent set by almost every state court by saying a Plaintiff need only prove that there was a “marital-type relationship.” The Court found that no such relationship existed in this case.

Continue reading "New Jersey Supreme Court says cohabitation no longer a requirement for Palimony." »

What if you do not have a will, you only have a few weeks left to live, and you do not want your spouse to inherit your estate?

In New Jersey, a surviving spouse has a right of election to take an elective share of one-third of the augmented estate under certain limitations and conditions spouse.

Continue reading "New Jersey: Cutting Off the Elective Share " »

On April 26, 2007, Bobby Brown filed a lawsuit against ex-wife Whitney Houston in an attempt to change the custody terms as to their 14 year-old daughter, Bobbi Kristina. In addition to the shared custody, he is seeking child support and spousal support. A court date has been set for June 15, 2007.

Continue reading "Custody Battle – Bobby Brown Sues Whitney Houston" »

On or about February 1, 2007, Actress Anne Heche was served with divorce papers from her husband of over five years, cameraman and “stay-at-home dad”, Coley Laffoon, who filed “irreconcilable differences”. However, it has been reported, but not confirmed, that the split was due to a budding relationship with Ms. Heche’s “Men in Trees” costar, James Tupper.

Continue reading "Divorce & Custody Battle - Anne Heche and Coley Laffoon" »

After seven years of marriage, Actress, Laura Jeanne “Reese Witherspoon” filed for divorce from Actor, Matthew “Ryan Phillippe” on November 8, 2006, on the grounds of “irreconcilable differences”. However, it has been circulated Mr. Phillippe had an affair with a co-star, was excessively partying, and indulged in drugs.

Ms. Witherspoon is seeking primary physical custody of their two children (mentioned below), with visitation rights to Mr. Phillippe, and sole use of the family residence. She asks the Court that Mr. Phillippe be denied spousal support. [Ms. Witherspoon is represented by Robert Kaufman.]

Continue reading "Divorce - Custody, Reese Witherspoon & Ryan Phillippe" »

Let's say you and your spouse want a divorce but you don't want to hire attorneys. The two of you feel that you can draft a reasonable property settlement agreement and work with the county court clerk regarding procedural matters.

Beware of your future. Your ex-spouse may challenge the validity of the property settlement agreement, although it will be difficult. New Jersey Courts have held it is a fundamental principle that “the settlement of litigation ranks high in our public policy.” Jannarone v. W.T. Co., 65 N.J. Super. 476, 168 A.2d72 (App. Div.) certif.. denied, 35 N.J. 61, 171 A.2d 147 (1962).

Courts encourage parties to settle. Therefore, Courts are not likely to overturn agreements entered into by the parties voluntarily.

Continue reading "Capacity to Contract and New Jersey Divorce Law" »

In the divorce between Britney Spears and Kevin Federline, Ms. Spears seeks legal and physical custody of their two sons, Sean and Jayden, with visitation rights for Mr. Federline.

Continue reading "Divorce & Custody Battle - Britney Spears & Kevin Federline" »

As as initial matter, it is important to note the New Jersey court system encourages parties to a divorce to settle. The Courts prefer when parties can resolve financial and custodial issues without judicial intervention. The terms of settlement are embodied in a Property Settlement Agreement, also known as a Marital Settlement Agreement.

Oftentimes, a party files a motion for modification of a specific term in the property settlement agreement. New Jersey Courts permit this. The Courts allow parties to file post-judgment (post-divorce) motions for modifications of property settlement agreements (contracts).

In this respect, the contract, property settlement agreement, is treated vastly different in the family context than in a business or employment context. In the latter, there is very litttle room for change.

Continue reading "Lepis and Anti-Lepis Clauses Defined" »

What happens when a payor ex-spouse becomes disabled after the divorce and is no longer able to pay support obligations? Is he/she still obligated to pay?

In determining alimony, counsel fees, and property distribution, income may be imputed to a party who is voluntarily unemployed or underemployed; this requires intentional conduct without just cause.

Continue reading "New Jersey Alimony Laws: Termination Based on Disability" »

In New Jersey, inheritance is viewed as separate property and is not subject to equitable distribution irrespective of when the inheritance is received. Nonetheless, inheritance can play a major role in assigning child support and alimony obligations. Keep in mind, inheritance monies should never be intermingled with joint assets. Always keep your inheritance separate from joint assets to avoid it being subject to equitable distribution.

For example, if the payee has stayed home to raise children and tend to the home, she (typically') may not receive all she believes she is owed if she has inheritance monies. The fact that inheritance cannot be divided between the parties, does not prevent the interest earned from investing the inheritance being calculated into support obligations. By this, the payee may actually become a "payor" as well, and be forced to contribute to her support or the support of her children through the interest received on her inheritance.

Continue reading "Support: Using Interest Earned from Inheritance in Calculation" »

UNDEREMPLOYMENT

In some circumstances, a party who is obligated to pay alimony and/or child support may change their employment, earn substantially less than before, and seek to have either obligation decreased on the basis of decreased income.

The New Jersey Courts will not overlook this event; it is not a matter of happenstance. In fact, New Jersey Courts may impute income to the payor up to the amount the payor earned at his/her prior employment.

In Mowery, the Court held it is not merely the present earnings of the payor, but the potential earning capacity that is the essence of this factor. Mowery v. Mowery, 38 N.J. Super. 92 102 (App. Div. 1955).

Continue reading "Support: How New Jersey Treats Underemployment" »