New Jersey Family Law Blog

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.

Christine and Samih Fawzy, broke off their 14-year marriage in 2005. When their case came up for trial in Middlesex County in 2007, they decided to submit to binding arbitration on all issues, including custody and parenting time. Judge Fred Keiser Jr. warned the decision would be final and could not be appealed but for changed economic circumstances.

After four sessions, the father began to sense the arbitration was going against him, so he sought to back out and have a plenary hearing. Judge Glenn Berman, who had inherited the case, denied the request, the arbitrator made an award and the judge entered a judgment of divorce.

The appellate court in reversing the parenting provisions of the arbitration award, cited Flaherty v. Flaherty, 97 N.J. 99 (1984). Custody and visitation issues weren’t before that court, but the justices said in dicta, “as we gain experience in the arbitration of child support and custody disputes, it may become evident that a child’s best interests are as well protected by an arbitrator as a judge.” The court went on to say, [i]f so, there would be no necessity for our de novo review…[h]owever because of the Court’s parens patriae tradition, at this time we prefer to err in favor of the child’s best interest.”

Brian Paul, who sought to enforce the arbitration on the wife’s behalf, says he will seek Supreme Court review, asking the justices to balance the public policy goals of limiting litigation and protecting children.

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.

The Parties began dating in 1983 and L’Esperance paid for Delvaney’s college education and purchased an apartment for her in North Bergen. The two also tried unsuccessfully to have a child together. She claimed he promised to leave his wife and marry her but never did. They broke up in 2003 and he kicked her out of the apartment.

Justice John Wallace writing for the majority found that the Superior Court had correctly ruled that the Parties never held themselves out as a married couple. The Court also found that there was no proof establishing the claim that L’Esperance promised to support Delvaney.

Wallace further explained that the Court should not limit itself by requiring cohabitation and saying, “[r]ather, we opt for a more flexible approach that seeks to achieve substantial justice in light of the realities of the relationship. It is the promise to support, expressed, or implied, coupled with a marital-type relationship, that are indispensable elements to support a valid claim for palimony.”

A large majority of successful palimony claims involve cohabitation, however if a couple holds themselves out as husband and wife the fact that they do not reside together may be immaterial. Justice Roberto Rivera-Soto concurred with the opinion but expressed some concern expressing the opinion that cohabitation should at the very least be a bare minimum” requirement. He cited a California case wherein the Palimony cause of action was created. He goes on to say that “California makes the critical observation that if cohabitation were not a prerequisite to recovery, every dating relationship would have the potential for giving rise to such claims, a result no one favors.” Citing Bergen v. Wood, 14 Cal. App. 4th 854 (Cal. Ct. App. 1993).

New Jersey is now the first state that does not require cohabitation as a requirement for Palimony. This decision is a step forward to ensuring fairness in long term marital-type relationships. Most of the cases where Palimony is an issue one of the spouses is either married or has the relationship as something on the side. In cases such as these cohabitation is impossible.

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" »