Recent Blog Posts

    • Holiday Parenting Time- How Does it Work?
      Often times parties leave deciding the issue of who will have parenting time with the children during the holidays until the last minute. Maybe the parties are dreading the argument that will inevitably ensue.  Maybe the rush of the holiday season has put this issue on the back burner.  However, any delay in addressing this issue is a mistake.  Dividing the holidays between parents is perhaps one of the most difficult aspects of any divorce.  Understandably, both parents would like to spend the holidays with the children.  The parties are free to come to an agreement between themselves.  Perhaps the Father spends Christmas Eve with the children and the Mother spends Christmas Day with the children or vice versa.  If the parties are able to amicably decide this issue- Great!  Problem solved.  However, many times, it is not quite that simple... Parties that are unable to arrive at an agreement must apply to the Court to decide this ....
    • Enforcement of a Court Order
      I Have a Court Order, but My Ex-Spouse is Ignoring It!  Now What? Unfortunately, obtaining a Court Order in New Jersey does not necessarily mean that both parties will comply with that Order.  All too often, child support and alimony obligations are ignored and the obligor accrues a substantial amount of arrears.  The Parent of Primary Residence is left financially struggling.  Or perhaps there is an Order that addresses parenting time or custody issues, and the other party refuses to comply.  After a while, you begin to think that you don’t have any options left.  After all, you already have an Order from the Court.... These situations are not uncommon.  The Court issues Orders, but rarely, if ever, polices them.  The Court is just too busy.  It is up to the parties themselves to enforce the Orders.  The parties know whether the other party is complying or not.   If one party to the litigation is not complying, they ....
    • What Are "Changed Circumstances" In This Economy?
      Each day we read of more lay offs; wholesale lay offs in major financial institutions, retailers and the manufacturing industry. Each day we hear of more corporate bankruptcies. Major financial institutions that have the hallmark of financial stability suddenly no longer exist nor dot their thousands of jobs. Each day we hear differing projections as to whether we are in a "recession" and/or how long it will last.   Now we are told that the nation's unemployment rate has hit an all time high--higher in actual numbers than any time in our history including the "Great Depression". What does this mean to divorced persons who are paying child support or alimony, and now find themselves unemployed? I still hear Courts saying that several month's of unemployment is not "a change of circumstances", it is simply a "temporary" situation.  "Temporary" is a very relative term to a person seeking employment in an economic environment ....
    • Quick Tips: Surviving A Divorce Litigation During These Tough Economic Times
      With today’s turbulent economy, the challenges associated with a divorce litigation are growing to be more complicated than ever.  I have prepared the following practical tips in an effort to aid litigants through this difficult period: Update Your Finances Being that the average divorce litigation spans the course of close to a full calendar year, it is important that you work with your attorney and periodically update your financial data.  Various investment accounts that had high values when the litigation commenced, may have decreased significantly due to recent market conditions. While I know that it remains painful to open up your investment account statements these days, it is imperative that you stay informed of your investment position.  It is impractical and expensive for your attorney to piece together a comprehensive settlement proposal without a true and accurate accounting of your assets and liabilities.  Staying informed will save both time and ....
    • Seven Year Delay Does Not Bar Collection of Child Support Payments
      A Trial Court refused to enforce the payment of child support because of the recipient's seven year delay in bringing the Motion for Collection. (Faro v. Vonder Hayden, decided 12/5/2008). The Appellate Court then reversed that finding and held that the delinquent child support could be collected despite the seven year delay. The Appellate Court focused on the father's history of non-payment, his prior non-compliance with Court Orders and his failure to show that the enforcement would be unfair. The moral of the story would seem to be that a person who has been defiant of prior Court Orders can not find solace from the Court simply because of a delay by the other party. Seemingly a reinforcement of the old principles that those who seek equity must have done equity or that those seeking the aid of the Court must come "with clean hands".. ....
    • Our Mutual Joy: Debunking Religious Rhetoric Against Gay Marriage
      The December 2008 issue of Newsweek published a scintillating article entitled Our Mutual Joy by Lisa Miller, which focuses on debunking religious rhetoric in the gay marriage debate.  Gay marriage is an important issue in our society, and involves similar constitutional issues to those raised at the time of abolition. The article nicely outlines the limited discussion of homosexuality contained in the actual text of the Bible. Just as other similar debates involves out of context statements, Ms. Miller notes that much of the discussion of homosexuality utilized as religious rhetoric raised against gay marriage is contained in the book of Leviticus (King James version).  Interestingly, the larger focus of Leviticus is aimed at establishing rules to live by for survival in the ancient Jewish world, many of which are inapplicable, outdated and/or simply ignored by our communities and society today.  Thus, Ms. Miller’s point is well taken: “Why would we regard ....
    • Parental Alienation May Give Rise to Monetary Damages
      In a recent Hudson County case (Smith v. Smith, dec'd December 1, 2008) a father sued his ex-wife and her parents for conduct which he alleged alienated him from his children. The ex-wife and her parents defended, in part, on the basis of the "Heart Balm Act" which bans actions for "alienation of affection" in NJ.    An earlier case in Morris County had dismissed  a claim similar to Mr. Smith's  on the basis that the Heart Balm Act was applicable. The Morris County Court found that the father's claims for the alienation of his children were prohibited under the Heart Balm Act.   However, the Hudson County Court held that Mr. Smith's claims were not for alienation, but were, instead,  for the intentional or negligent infliction of emotional distress.   It is important to note that the Hudson County Court did NOT find that Mr. Smith had a valid or compensable claim. It  merely refused to grant the Motions to Dismiss filed by the ....
    • Voluntary Retirement and its Effects on a Child Support Obligation and Alimony
      In New Jersey, a person seeking to modify a child support or alimony obligation must show that a significant change in circumstance has occurred since the time the award was entered.  It is the party who is seeking the modification that has the burden of proving that they have incurred a change in circumstances sufficiently substantial to warrant a modification of support.  Court’s have held that a decrease in the obligor’s income may constitute a substantial change in circumstances.  However, a reduction in income due to a voluntary retirement may not be sufficient.  In regard to alimony, the Courts have held that the pivotal issue is whether the advantage to the retiring spouse substantially outweighs the disadvantage to the receiving spouse.  For instance, a situation where the obligor is retiring due to health concerns where the effect of the termination of the alimony would be minimal to the receiving spouse favors the payor.  However, if ....
    • Marriage or Marriage-Type Relationships Are Required For Adoption
      Despite the fact that the biological father had a history of mental health problems, substance abuse, and criminal involvement, a New Jersey Superior Court recently refused to consider the maternal grandfather’s application to adopt his granddaughter, and thus terminate the parental rights of the father.   Specifically, the biological father of the child in question was arrested twenty seven times, incarcerated on several occasions, and treated for substance abuse and mental health issues off and on for twenty eight years. When the child was five years old, she told the mother that her biological father had sexually molested her. The Division of Youth and Family Services (DYFS) conducted an investigation and concluded that the father probably sexually molested the child one time. Although the father was arrested and charged with sexual assault and endangering the welfare of the child, the State dismissed the indictment and DYFS closed its case. A year later, the parents were ....
    • Age is More than a Number in Adult Adoption Cases
      The New Jersey Statute regarding adult adoption requires at least a ten year age difference between the adopting person or persons and the adoptee. A recent New Jersey Superior Court reasoned that this requirement served to ensure that some resemblance of a parent-child relationship exists between the parties.   Recently, an adult married couple, ages fifty and fifty three, applied to the New Jersey Superior Court to adopt a fifty-two year old woman that lived with the couple for ten years. The couple stated that they wanted to formalize their familial relationship with the woman and were not seeking to adopt the woman for inheritance purposes.   Having no case law addressing this issue, the New Jersey Court looked to our neighboring states of New York and Delaware for guidance. Both of these jurisdictions have ruled on the issue of whether a parent-child relationship is prerequisite for adult adoption. However, these jurisdictions have reached opposing conclusions.   ....
    • Enforcement of Child Support and Alimony Order From Other States
      In this ever transient society, it is possible that a person seeking enforcement of a support order in New Jersey, whether child support or alimony, may have obtained that order in another state.       In an effort to have uniformity among all the States in the United States, each State has adopted the Uniform Interstate Family Support Act (UIFSA), which establishes the method to enforce a support order when one or both parties have moved from the State of initial jurisdiction.  UIFSA also establishes rules for modifying support orders.   If you have moved to New Jersey from another State and either have a support order or Judgment of Divorce which encompasses child support and/or alimony, you should register that foreign order in this State with the Superior Court of New Jersey, Chancery Division, Family Part.  Registration can also be done by sending the appropriate documents to a New Jersey support enforcement agency (i.e., the Probation ....
    • The Legal Impacts of Governor McGreevy's Divorce
      Over the past months, much has been written about the tabloid divorce of former New Jersey governor James McGreevy and Dana Matos McGreevy. While the salacious details made headlines, the legal lessons embedded in the court's 44 page Opinion issued on August 8, 2008 are worth noting for persons contemplating or going through a divorce.   Lesson One: Fault Doesn't Matter The inverse relationship between marital fault and results obtained was dramatically demonstrated as Judge Cassidy found that Ms. Matos McGreevy had advanced unreasonable and ultimately unsupportable arguments based on her husband's extramarital same sex affair. At one point, the Judge referred to Ms. Matos McGreevy's "irresistible urge for retribution" having  "no residual economic consequences". Harsher words from a family court judge are few and far between.   Lesson Two: Time is Money It is enlightening how Judge Cassidy dealt with Ms. Matos McGreevy's alimony claim.  Despite ....
    • Revisiting Child Custody Issues
      Robert J. Durst, Shareholder and Chairperson of Stark & Stark's Divorce Group authored the article Revisiting Child Custody Issues: Be vigilant and open to revisions which may be a benefit for the for the August 11, 2008 edition of the New Jersey Law Journal.   Mr. Durst discusses the three major issues facing custody determinations in divorces: relocation, arbitration of custody matters and alternative unions, including same-sex marriages, domestic partnerships and civil unions. You can read the full article here (PDF). ....
    • Proving Your Claim For Palimony
      Palimony is a claim for support between unmarried persons first recognized in California in 1976 in the case of Marvin v. Marvin.  New Jersey Courts will recognize a claim for palimony if the right set of circumstances exist.  Given the widespread practice of non-marital relationships and societies’ acceptance of such relationships, the courts have adjusted their views of unmarried persons’ rights and obligations in light of these societal realities.  However, it is one thing to seek palimony and another to obtain it.  In order to obtain palimony, the party seeking it must prove that the other party promised – either expressly or impliedly – to support the other party for some period of time – perhaps forever.  Since a promise of support and reliance on that promise is a contract, which under contract principles must have consideration, New Jersey Courts have determined that the entry into a marital-type relationship and then ....
    • Case Finding of the Prevention of Domestic Violence Act Unconstitutional
      The Honorable Francis B. Schultz, J.S.C. recently held that the New Jersey Prevention of Domestic Violence Act (hereinafter “DVA”) is unconstitutional in that it violates New Jersey’s constitutional article on separation of powers and utilizes the preponderance of the evidence standard of proof.  In his letter opinion, the Judge disagreed with the Defendant’s other attacks on the constitutionality of the statute, including arguments regarding the statute’s alleged violation of the Defendant’s First Amendment right to free speech and Second Amendment right to bear arms, as well as other jurisdictional attacks.  With regard to the Defendant’s separation of powers argument that the DVA is unconstitutional based upon the statute’s prescription of procedural aspects constitutionally reserved to the Court,  the Judge noted that the procedures established by the DVA directly conflict with established Court Rules and specifically ....
    • New Jersey Supreme Court Rules Cohabitation Not Indispensable to "Palimony" Claim
      In a significant opinion issued on June 17, the New Jersey Supreme Court  ruled 6-1 that cohabitation is not an absolute requirement for a successful "palimony" claim but is only one of a number of factors a court should consider. Th ruling is important because it breaks tradition with precedent set  by nearly every other state court in that a plaintiff need only prove a "marital type relationship" rather than show that the couple lived together for some period of time. "Palimony" is a term of art for equitable recovery based on a long-term spousal type relationship between two unmarried persons. In most successful palimony claims cohabitation will exist but it is no longer an indispensable element. Instead, the "entirety of the relationship" must now be considered. Thus, persons who have a "marital type relationship" but do not live together for such reasons as employment, educational or military opportunities would qualify ....
    • How Wide is the Delaware When You Are Divorcing?
      Many residents of Bucks County Pennsylvania work in the adjoining counties of Mercer, Burlington and Hunterdon, New Jersey and vice versa. When those residents experience marital problems, it is not unusual that one or the other of them may relocate from Pennsylvania to New Jersey or vice versa, and may then have a legitimate option to file for a divorce in either state. It is, of course, only in those cases in which the relocating party has resided in the new state for the required period of time to qualify them to file for the divorce in the newly acquired state of residency that this is a legitimate option.  No party can or ever should attempt to avoid the jurisdiction of their home state by relocating or fabricating the length or legitimacy of their new residency in order to acquire jurisdiction. If the new state is New Jersey, a person must have 12 months of continuous residency prior to the filing of the complaint for divorce.  If the new state is Pennsylvania, the ....
    • Parenting Coordinator? Custody Mediator? Who's On First?
      In a case decided on June 17, 2008, a New Jersey appeals court distinguished the roles of a Custody Mediators from Parenting Coordinators in divorce cases. Essentially, a Custody Mediator, whether court-appointed or privately chosen, is barred from making any recommendations to the court concerning custody or parenting time. A Parenting Coordinator, on the  other hand, whether appointed or chosen, may do so, although the court opined that the "preferable practice" would be to consult with the parents and their attorneys beforehand. This case demonstrates the need for precise definitions in order to avoid unexpected or unpleasant results. If in doubt, consult an attorney before deciding how to proceed. ....
    • What Constitutes "Changed Circumstances" to Reduce Alimony?
      On June 19, 2008 a New Jersey appeals court determined that a  police chief's retirement, even if involuntary as claimed, was not sufficient to modify his alimony obligation. The Court found that the trial judge had failed to consider numerous other factors which had  bearing on whether alimony should be reduced or terminated, as defined by statute and case law. Thus, it is important for persons on the verge of retirement and paying alimony, or persons to whom alimony is being paid in such circumstances, obtain sound legal advice and plan accordingly. ....
    • Parenting Issues Can Not Be Arbitrated
      In a decision released for publication on June 16, 2008, the New Jersey Appellate Division held that parenting or custody issues can not be submitted to binding arbitration notwithstanding the parties agreement or even a Court Order. (Fawzy v Fawzy, Judge Simonelli) In Fawzy the parties agreed, on the record and in open Court, to submit their parenting disagreement to binding arbitration. The parties agreement was then reduced ot a Court Order. The husband, apparently believing that the arbitration was not proceeding according to his liking, applied to the Court to be released from his agreement to arbitrate the matter and, instead, to have his day in Court. The Trial Court held Mr. Fawzy to his agreement to arbitrate, but the Appellate Division reversed. The Appellate Division reasoned that submission of parenting issues to binding arbitration deprived the Court of its parens patrie jurisdiction, and that only the Court (not an arbitrator) can determine what is or is not in the ....