New Jersey Divorce Lawyer Blog

As a New Jersey Divorce Lawyer, I have always found this area of NJ Family Law to be one of the most unfair, specifically to the person paying alimony. Most recently, a new case came down that disturbs me as, in my opinion, has made the law of "cohabitation" in New Jersey even more unjust. This blog shall explore the law as it presently stands, this brand new case and how the pending New Jersey Alimony Reform may make the law more fair in this area of the law.

Under present New Jersey Divorce Law, cohabitation occurs (in a court of law) is when the couple bears the "character of a family unit as a relatively permanent household." Furthermore, the relationship must show "stability, permanency and mutual interdependence." One of the lead cases further states that when the couple is in an intimate relationship wherein they undertake duties and roles that are commonly known to be like those in a marriage, cohabitation exists under NJ Divorce Law. Examples given in this case include but are not limited to:

1. Living together;

2. Comingled finances;

3. Sharing living expenses;

4. Sharing household chores;

5. The couple's social and family circle recognizes the relationship as one of a "married" couple.

Now, in this brand new case the guy paying alimony appeared to do everything he needed to do to prove his case when he filed his motion. He alleged that his ex-wife's boyfriend had a "sham residence" as he spent most of his time at the ex-wife's home. He further claimed that the boyfriend had a full closet of clothes in her home, helped with the children and household chores and went on vacation with the children. He also had a piece of mail sent to the boyfriend at the ex-wife's house. The private investigator hired by this fellow stated that he observed the boyfriend over at the ex-wife's house on at least six occasions; 3 partial nights and three overnights with the children.

On the other hand, while acknowledging the romantic relationship the ex-wife denied that they were cohabitating together. She further admitted that her boyfriend had exercise clothes at her house, took the trash out, helped with the children and went on vacation with them. However, she points out that they never commingled their finances and that her boyfriend did not pay towards any of her household bills.

The ex-husband lost! His motion was denied and he was not permitted to have a trial to prove his case. While the trial court noted the three overnights, the Court also pointed out that there was no proof of a "sham residence." The trial court did not find that taking vacations and one piece of mail was enough to prove a "marital-type relationship." When the husband appealed, he lost again!

Overall, I do not agree with this decision. In doing my own legal analysis, it does not escape me that there was no "proof" that the boyfriend had a "shame residence." If I was the lawyer for the ex-husband, I would have made sure we submitted this key piece of evidence. Having said that, I do not think that this decision is fair. All of those other factors should have, at a minimum, allowed the ex-husband to have a trial and testimony taken of the ex-wife and her boyfriend. Regretfully, in my legal opinion, the boyfriend was never afforded his "day in court." It is also my opinion that the ex-wife spoke to a expert NJ Divorce Lawyer in order to "plan" things like no joint bank accounts and that the boyfriend must be sure maintain a "sham residence" so that the ex-wife did not lose her alimony payments.

The good news is that the New Jersey Alimony Reform (which is presently making its way through the legislature. If this new law passes, the ex-husband will only need to prove cohabitation for at least 3 consecutive months but would not be required to have a full blown trial to prove his case (which is how the law presently stands even if the initial motion to the Court makes a great case proving that they are living together). As my office has handled countless cases of this type and as we continue to keep a close eye on New Jersey Alimony Reform, please do not ever hesitate to contact my office to discuss this complex and evolving area of New Jersey Divorce Law.

Even for an experienced New Jersey Divorce and Family Attorney, determining whether an individual's behavior amounts to harassment under New Jersey's Prevention of Domestic Violence Act is a challenge. When a couple is experiencing a messy "break up," my office is frequently asked to investigate such situations. As a New Jersey Domestic Violence Lawyer for nearly the past 20 years, my legal team and I analyze the specific facts of the situation in order to advise our client's whether a Temporary Restraining Order is necessary. Simply put, the difference between Harassment under New Jersey's Criminal Code versus "breaking up bickering" is often a very fine line. The best way to explain the difference is to share some examples but first let's be clear what harassment is under New Jersey's Criminal Code.

What is Harassment in New Jersey?

Harassment is Domestic Violence in New Jersey if the aggressor purposely intended to harass by using a course of alarming conduct or repeated acts intended to alarm or seriously annoy another causing immediate danger to a person or their property.

Who can I get a Temporary Restraining Order against?

You may obtain a Temporary Restraining Order against a spouse, a former spouse, a present or former household member, a person that you have a child with (even if currently pregnant) or someone that you have or had a dating relationship with.
What are examples of Harassment under New Jersey's Prevention of Domestic Violence Act?

I often find the best way to explain complex areas of NJ Domestic Violence law is to use examples. The "Plaintiff" is the victim who has obtained a Temporary Restraining Order and the "Defendant" is the accused domestic abuser. In each example that the Defendant was found to have harassed the Plaintiff, a Final Restraining Order was issued. Following please find a number of illustrations to help crystallize your understanding of Harassment in N.J.:

Continue reading "When is Harassment in New Jersey Considered Domestic Violence?" »

In nearly twenty years of practicing divorce and child custody law in New Jersey, this is a question that my law firm is frequently asked. While this is a fairly complex area of the law, I trust the following shall be a helpful and useful explanation.

In 1997, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was passed and has been adopted by every state except Massachusetts (which should be passing the UCCJEA shortly). The UCCJEA was passed so that there are clear guidelines as to what state has jurisdiction over a child in family court in order to ensure that children may be protected at all times.

The first thing that must be determined is the child's "Home State." For instance, if the child has lived in New Jersey for the past six months OR the child lived in New Jersey for at least six months before the filing a Complaint for Custody in the Superior Court of New Jersey, provided a parent (or someone acting as the child's parent) still lives in NJ, then New Jersey is the child's Home State. If NJ is not the home state in this manner, then the state that has the most connections with the child and one of the parents shall have jurisdiction over the child. This way, any and all substantial evidence shall be located in this state. By way of example, let's say Little Eddie lived with his parents in New Jersey for all five years of his life but then his father moved to New York while Little Eddie remained with his mom in NJ. In this case, N.J. would remain his Home State and a New Jersey family court would handle the child custody case.

Continue reading "How Do I Know if New Jersey has Jurisdiction Over My Child Custody Case?" »

As an NJ Family lawyer, I am frequently asked, "Can I against a restraining order?" When this occurs, I must first determine whether New Jersey's Prevention of Domestic Violence Act ("the Act") protects the victim. Therefore, I must learn certain facts surrounding the situation.

First, the victim must be over the age of 18 years of age or is an emancipated minor. Typical examples of an emancipated minor include if they are married, are enlisted in military service, has a child or is pregnant, or have been declared by a Court Order as legally emancipated;

Second, The victim must be deemed as a "household member." When a law enforcement officer appears on the scene, they must determine the length of time that the two persons have resided together. When in doubt, the officer must contact a supervising officer or the municipal court judge.

Continue reading "Who is a Victim of Domestic Violence?" »

When I am presented with a New Jersey child custody case with two sound parents, I do my best to help the parties come to an agreement as to how they shall co-parent their children. I often tell my clients, "it is better for you and the other parent to work things out than to have a stranger in a black robe tell you when you may see your children." If the parents come to an agreement, I review the settlement closely. However, unless I see something that is not in the best interest of the children, or something that is detrimental to my client, I do not "upset the apple cart." If two parents can agree, I applaud their ability to put their hurt feelings for one another in order to protect the kids from being involved in NJ child custody litigation.

Nevertheless, I have handled many cases over the years when custody is in dispute and I do so in a vigorous manner. Following are some helpful tips for those parents who face a custody battle. First, it is not a violation of New Jersey's Wiretap Statute for a parent to record a child's conversation with the other parent. Of course, this party must be able to demonstrate a reasonable reason for doing so and that same is in the best interest of the child. Cacciarelli v. Boniface.

Second, a parent's right to the care and companionship with his or her children is a fundamental right guaranteed by the Constitution of the United States. Therefore, even if you consider the other parent to be unfit, you still have a heavy burden in the Superior Court of New Jersey before all contact between that parent and your child will be terminated. Please adjust your expectations accordingly.

Continue reading "Child Custody Battles in New Jersey and Some Helpful Tips" »

This is difficult a question that, as a New Jersey Divorce attorney, I have to answer on nearly a daily basis and I have been doing so for a number of years. New client's often walk in my office completely heartbroken. Sometimes they are in a state of shock or a deep depression. Other times they can hardly control their rage after the betrayal of being cheated on. Then, if during our divorce consultation I determine that this client has alimony exposure, I take a deep breath, tell them harsh reality of alimony, and then explain why.

The lead case is Mani vs. Mani 183 N.J. 70 (2005), which clearly states that marital fault plays no role UNLESS "egregious" conduct can be proven on the part of the other spouse. At this juncture of our meeting, my client will ask, "but they cheated on me, what could be more egregious than that?" I then have to exclaim that while I truly empathize with being betrayed (it is the reason that I divorced my wife three years ago), infidelity under the Mani case does not amount to the type of egregious behavior that Mani was meant as an exception to the strict general law that marital fault is not a factor when determining NJ alimony in a divorce case.

In fact, the Mani case specifically discounts adultery as an "egregious act," no matter how often, how long, with how many or even where (such as a public place!). Now, after the burden of proving that any in any given NJ Divorce case that a claim for alimony has been met, the Mani case did provide us with two examples in order to demonstrate what the Supreme Court of New Jersey meant by "egregiousness" conduct. The first example is if one spouse unsuccessfully attempted to murder the supporting spouse. The second example would be if one spouse deliberately infected the supporting spouse with a loathsome disease. Clearly, these two examples are extreme and it is the opinion of this New Jersey Divorce Lawyer that the Supreme Court of New Jersey intentionally used these two wild examples in order to make it very clear that "fault" will rarely be considered when making alimony determinations in cases involving adultery.

Continue reading "I was cheated on AND I have to pay alimony?" »

Over the years, many potential clients that I have met are under the mistaken belief that if a marriage is of very short duration, then they may obtain an annulment as opposed to a divorce. This is a desired outcome for many because, as opposed to a Divorce, an annulment does not terminate a marriage but rather completely voids the marriage so it is as if the marriage never existed. N.J.S.A. 2A:34-1 It is at this point of the consultation that I utilize a case for an annulment that I handled back in the 1990's in order to explain the difference between divorce and annulment.

First I explain that in the state of New Jersey, the most common ground for an annulment is "fraud in the inducement" to marry. When the potential client looks at me with some confusion, I explain that many years ago a young man came to see me for an annulment. Now, by this point of my career I had many folks ask me if they qualify for an annulment, and roughly 90%-95% of the time they do not. However, once this poor fellow answered a number of my questions, I quickly realized that he qualified under New Jersey law for an annulment.

Long story short, he was dating a girl for a few months when she suddenly announced that she was pregnant and that he was the father. So, he did what he felt was the "right thing to do," and proposed to her on the spot. They were married in a small civil ceremony shortly thereafter and the newlyweds moved into his parent's house.

Approximately one month later, they were have an argument during which the young wife exclaimed, "oh yeah, well I was never even pregnant!" I then realized that this was a perfect example of "fraud in the inducement" to marry. If she had never lied about being pregnant, he would not have married her. However, her fraud induced this fellow to ask her to marry him, I successfully obtained a Court Order for an annulment, and he left the Courthouse content that his marriage was legally voided.

Continue reading "Obtaining an Annulment vs. a Divorce ... and, of course, Kim Kardashian" »

Over the course of my 20 years as an attorney, I have protected the rights of many domestic violence victims. I have always been very proud to be a lawyer in the state of New Jersey given the progressive nature our state legislature has in protecting victims. I've previously talked about new laws and initiatives in our state to help and protect victims.

And once again, at the end of 2012, New Jersey did not disappoint. Police officers in our state now have a new training resource from the Attorney General's Office.

In 1991 the New Jersey Prevention of Domestic Violence Act, 1991 (provide link) was established. This piece of legislation mandates that every New Jersey police officer go through 4 hours of annual training in domestic violence.

And the new online program helps satisfies that requirement in a very cost-effective way by bringing the training program online.

Here is the problem: when training has to be live, there were severe scheduling problems. Police departments have officers employed 24 hours a day. If there are officers from day and night shift who need a particular training, they have to pay overtime to get them scheduled on days off. The new program is offered free to all police departments.

Continue reading "New Jersey Domestic Violence Training Initiative" »

In my job as a New Jersey Divorce Lawyer, I wear many hats. While I enjoy helping clients through the legal aspects of their divorce, I often find myself providing support through the process. Just as I stay current on issues related to the law, I also like to read relevant and topical information on coping with the divorce process. There are many great resources from typical shelf-help books to an abundance of articles on websites.

"I need support to help me get through my divorce" is a statement clients often say to me.

During your divorce process it is critical to take care of your mental and emotional health. Most find the legal and personal process of untangling lives to be very stressful. How you cope with and manage your stress can have ramifications on every aspect of your life and even effect your children. So it is important to put supports in place that will help you through the process.

Recently, I have been seeing many articles on divorce support groups and I have done some research that I think it is important for all divorcing people to keep in mind when looking for support.

By joining a group you quickly realize that you are not alone and you may find great solace in the comfort of strangers. Many clients have expressed to me over the years that they do not have any friends and family members who are divorced. A divorce group may be a great ways to find peers going through the process.

Continue reading "Do You Need A Divorce Support Group? " »

"What happens to my debt when I get divorced?" is a very common question I am asked by clients starting the New Jersey Divorce Process. Typically, couples are worried about debt they have accrued on credit cards, a home equity line of credit, student loans, and car loans. Often, your attorney will review the documentation you provide and combined with other financial factors, explain options to you.

Every financial aspect of your divorce agreement is up for negotiation. This includes how all assets will be divided as well as who will assume debts once your divorce is finalized. It is critical to work with an attorney who can offer creative solutions to your debt exposure with great care that you will be financially sound in your post divorce life.

As you get started with the divorce process, we will file a complaint for divorce with the Superior Court of the county where you reside. As of that date, you and your spouse are no longer responsible for each other's debts. At this time it is best to cancel your joint credit cards and open new individual accounts.

Continue reading "Where does all the debt go in a divorce? " »

When going through the New Jersey Divorce Process most women face the decision on whether or not they want to take back their maiden name or keep their married name. During the final New Jersey Judgment for Divorce, a woman is legally allowed to change her name. She may assume her maiden name, or any other last name she wishes to at that time. This is legislated by New Jersey Statutes 2A:34-21 "The court, upon or after granting a divorce from the bonds of matrimony to either spouse, may allow either spouse to resume any name used by the spouse before the marriage, or to assume any surname."

The name change is formally written into your final judgement (the papers signed by the court). As part of the divorce proceedings in court, you will be asked to swear, under oath, that you are not in fact changing your name for any fraudulent reasons, if criminal charges are pending, and any crime convictions.

Many women struggle with the decision and ask for my guidance in the decision. I always explain the many factors to consider.

For clients with children I have found that women tend to keep their married name. They want to continue to keep the same last name as their children not only as a family connection, but also ease of dealing with schools, doctors, and in activities. It can be easier than always having to explain why there is a difference.

Many clients often choose to keep their married name if they are leaving a long-term marriage and have really established themselves in the community or at work. They feel that no one would know who they were in their profession or in their children's lives if they went back to their maiden name. They also do not want the hassle of changing their identification (including social security and credit cards).

Continue reading "Changing Your Last Name When You Get Divorced" »

We are fortunate in New Jersey to have an Early Settlement Panel (ESP) program. When two divorcing parties can not agree on financial matters, a judge will typically send them to the program.

The goal is to help settle the financial issues such as alimony, child support, dividing of property or any other issues involving money. When alimony is a contentious issue in a New Jersey divorce, about 90% of those cases find their way to the ESP program. Issues such as child custody and/or parenting time are not entertained by the panel.

The panelists are experienced New Jersey divorce and family law attorneys in the county in which your divorce was filed. These volunteers have extensive knowledge of the law and volunteer 4 times a year to help settle cases.

I have been a panelist since 2000. Panelists review your information prior to your ESP date. On the date of the conference they meet with your attorneys to discuss specifics, and then make settlement recommendations to you. Their recommendations are non-binding, you don't have to accept their suggestions.

If you do accept the recommendations of the Early Settlement Panel, and can formally agree to move forward with the divorce, the divorce can be finalized that very day. If the recommendations are not accepted by both parties, the judge will call a conference and could decide to send your divorce to further mediation or even to trial.

There is a magic of the ESP program - 50% of cases settle that day or at the very least significant progress can be made where there was division between the parties. This is because the panelists have no vested interest in the case. They hear the facts, but are not representing either party. Their recommendations are based on experience. I have found that it is the impartiality of the panelists that can sway a divorcing person to reasonableness.

Continue reading "The Benefit of an Early Settlement Panel to Your New Jersey Divorce" »

The use of technology keeps us all a few clicks away from one another. No longer are we bound to the kitchen wall to talk to loved ones. Now with mobile phones (including texting) and many online programs using webcams such as Skype, visiting with your children, no matter the physical distance between you is rather simple. This helps parents when they live far away from their children, but also when they do not have parenting time and would like to touch base.

It is estimated that 10 million American children live in a different state or country than one of their parents. Seeing one another on a regular basis may not be possible and the distance may make holiday visits prohibitive.

For couples going through the New Jersey divorce process, your agreements may stipulate the frequency and mechanism by which your children may communicate with their other parent when it is your co-parenting time. If you are already divorced and would like to put some legal language around these communications, a competent NJ divorce attorney can certainly help you.

There is precedent here in New Jersey for virtual visitation through a case in 2001, McCoy v McCoy. The mother who was the custodial parent had built a website which housed a webcam which allowed for daily updating on the child's activity and face-to-face interactions with her father. The court ruled that this was a "creative and innovated" way for the non-custodial father to keep in touch with his child.

Continue reading "When Your Children Are Not With You Through This Holiday" »

The holiday season has an usual way of highlighting family drama. If there is already tension or discord in the family, the nerve is probably going to get stepped on, several times over. Visiting family all staying together, who is not going to see their family, and the fear of in-laws not getting along are perhaps the biggest in-law/out-law issues many of us face these days. Many divorcing clients have told me that a strain is when you have to choose which side of the family to visit with on a given holiday. Many families struggle with parents putting pressure on their own children to come "home." However, care should be taken to establish a relationship with your son-in-law, it might just strengthen your daughter's marriage.

In my many years of practice, I have seen what type of support parents can give to their own children as they go through the New Jersey divorce process. I have heard from many clients that their in-laws put tremendous strain on their marital relationship. Making demands of time, religion, ethnic customs, and parenting traditions can sometimes be too much and a couple can buckle under the pressure. Research conducted by the University of Michigan nods to my experience and actually supports a theory that in-law relationship can strengthen a marriage.

New research recently highlighted that the son-in-law relationship can be critical to holding together his own relationship with his wife. The research showed that when a husband felt strong ties and connections to his in-laws, his own marriage is likely to last longer. Researchers surmised that a husband putting time into his in-laws shows to his own wife that her family relationships are important.

Continue reading "Out-law or In-law: Son-in-law relationship key to divorce" »

Here we sit in the middle of the holiday season. The actual holidays are starting to fire for some while others the planning continues. Our state is still recovering from the hurricane so many are struggling with the daily life and just giving their children a happy holiday while others are trying to fit in a few minutes to volunteer or a few extra dollars to give. Clients are visiting my office with issues of child custody and where their children are going to spend time over the next few weeks. Many of you are going through your first post-divorce holiday. There seems to be a overwhelming feeling of busy and stress in the air.

I have helped many clients through this difficult time of year and know that you will be ok. Here are some ideas to get you through this rough time.

Stay within your budget:
Gift giving for your children is not a competition with your ex-spouse or any of your family members. Make a commitment to give within your means. It will be less stressful for you now and, more importantly in January as you won't have to face a stack of bills.

Establish new Traditions:
This is a time of acceptance as you move into your post-divorce life. While your day-to-day has changed immensely, so have some of your annual events. Make sure to mark your new life with different traditions both involving your children and also just for yourself. Take a trip to NYC to see the tree at Rockefeller Center and visit the windows on 5th Avenue. Bake cookies or decorate gingerbread houses. Go out for a special meal or exchange presents at a different time than in the past.

Continue reading "Handling your Holiday Stress Triggers" »