The termination of an obligor’s alimony obligation occasioned upon the payor’s retirement is not automatic.  It is up to the obligor to file an application with the Court for a modification or termination of their alimony obligation.  In determining whether an obligor’s impending retirement constitutes a substantial change in circumstances warranting a modification or termination, the Court must consider: (1) the age and health of the party seeking to retire and (2) the motive and timing of the impending retirement.  The Court will also look to the obligor’s ability to pay alimony after retirement, and the dependent spouse’s ability to provide for themselves, which involves an examination of both parties’ incomes and assets.  In the event the Court determines that the reason for the obligor’s retirement is to avoid his or her alimony obligation, the application will be denied.    

Even if the Court determines that the payor has advanced a good faith reason for retirement, the Court must then decide whether the advantage of the retirement to the retiring spouse outweighs the disadvantage to the other party.  This determination is critical to the analysis.  If this inquiry is answered in the affirmative, only then will the Court address whether and to what extent the payor’s alimony obligation should be modified. 

In the event that the Court determines that the advantage to the payor in retiring does not “substantially outweigh” the disadvantage to the participant, then the payor’s retirement–even if pursued in good faith–will not be a basis to modify their alimony obligation.  This is a fact sensitive inquiry that the Court determines on a case-by-case basis. 

Of course, divorcing parties have the ability to negotiate through counsel an automatic date for the termination of alimony, if both parties agree.  If an agreement is reached that contemplates an automatic termination of alimony upon a triggering event (reaching a certain age, retirement, etc.), courts will enforce that agreement.  In negotiating these provisions, it is important that the payor of alimony understand that this is a benefit they would not normally receive and must be willing to offer something in exchange for an automatic termination.   

If you are contemplating a divorce, or are divorced, have an alimony obligation and are considering retirement, it is important to consult with an experienced family law attorney to determine how to best proceed.  
 

Corrine Cooke is a member of Stark & Stark's Divorce Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Cooke: ccooke@stark-stark.com.

In September 2010, the ex-Husband filed a motion to suspend his alimony obligation until he obtained full time employment. He also requested that the accrual of arrears be stayed (or stopped) during that time. His only source of income was unemployment compensation of $390 a week. He asserted that he applied for 181 different jobs and established a professional profile on a networking site. 
 

The Trial Court denied the ex-Husband’s motion, and he appealed. The Appellate Division affirmed the Trial Court’s decision denying the ex-Husband relief. Both courts stated that the person seeking modification has the burden of showing changed circumstances that would warrant relief. In this case, there was a substantial decrease in the ex-Husband’s salary; however, the Court stated that a decrease, standing alone, will not constitute the requisite showing of changed circumstances. 
 

The Court noted the following:

1. the ex-Husband did not seek training or employment in related fields
2. he failed to establish that he had exhausted all of his assets, including his retirement fund
3. he failed to adequately explain and provide proofs of his severance pay
4. he failed to adequately account for monies and assets that he received upon the divorce, including the recent sale of his home

Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano: mimbalzano@stark-stark.com.

In a recent case (Dudas v. Dudas, decided on April 11, 2011), the Defendant/Husband earned between $40,000 and $59,000, towards the end of the marriage. A Complaint for Divorce was filed in 2008, and the case was tried in 2011. Over those years, the Husband’s income increased wherein he earned $64,000 in 2009, $76,000 in 2010 and $68,000 in 2011.

The Defendant argued that his post-Complaint income should not be considered in any alimony calculus and that only the income he earned up to the date of the Complaint should be considered, since the parties’ standard of living was based on his pre-Complaint income.

While the standard of living established during the marriage is a predominant consideration, this factor does not stand alone. The Court held that the actual need and ability of a party to pay directs an analysis of the parties’ present needs and ability to pay, not the past. One of the other factors is the earning capacities of the parties which is also a current consideration.
 

The Dudas Court also considered two additional factors under the catch-all factor of “any other factors which a court may deem relevant.”  They are:

1. the marginal cost estimation; and
2. momentum of the marriage

The marginal cost estimation has to do with the fact that a couple living together is less expensive than a couple living separately in two households. Further, once each party establishes their separate residence, each party’s new budget is not 50% of the marital budget, it is generally more, and may not be substantially less than the two person household budget. In many divorce cases, when the parties separate, there is insufficient money available for either party to maintain the standard of living enjoyed during the marriage.
 

In the Dudas case, the Court felt it was fair to bring both parties reasonably closer to the marital standard of living, which could only happen by looking to the husband’s increased available funds after the Complaint date.
 

Momentum of the marriage recognizes the fact that one’s occupational efforts may take years to pay off. A person’s earning level may start out slow, but through experience, education and perseverance, it may increase dramatically the longer a person works in that particular field.
 

Therefore if a party focuses on his career throughout the course of a marriage, while the other party, as in the Dudas case, maintained the home, cared for the children and provided support and encouragement for the husband in his professional endeavors, then a post-Complaint rise in income will be considered in determining alimony.

Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano: mimbalzano@stark-stark.com.

Mr. Luesek’s organization seeks no less than the elimination of permanent alimony, a position supported by Assemblyman Sean Kean (R-Monmouth) who has introduced a bill to set up a blue ribbon panel to examine such changes and thereby “bring New Jersey into the 21st century”.

Such efforts will provoke discussion, of which this article is an example, but will likely bear little fruit. Alimony in New Jersey is based upon a myriad of statutory factors which the Court can utilize, balance or deem inapplicable in the circumstances of the case. These factors include need and ability to pay, duration of the marriage, marital standard of living, career interruption and other factors which give discretion to the Judge while imposing a set of guidelines for the Court’s instruction and application as  circumstances deem “fit, reasonable and just”  under the governing statute. 

Contrary to popular assumption, Judges are required by law to utilize these factors and cite them in their decisions,  as opposed to employing their personal  sense of what is or isn’t “fair”.  Coupled with the statutory establishment of multiple forms of alimony such as Limited Duration, Rehabilitative and Reimbursement Alimony, it is, in my, wrong to contend that the elimination of “permanent” alimony serves a legitimate legal or societal goal. This is not to say that every alimony case is decided in a manner acceptable to both parties; however, in my over 30 years of practicing matrimonial law throughout New Jersey, the overwhelming number of alimony awards (or denials) have been appropriate to the circumstances of the case. There also exists an enormous body of reported decisions which are legally precedential with respect to alimony and its variations, as a result of which New Jersey judges and lawyers are very well-informed.

I would be the first to add than an award of alimony is not the answer in every case. In fact, it may be deemed totally unwarranted as I, and other matrimonial attorneys, have learned through courtroom experience. Moreover, “permanent” (indefinite duration) alimony is always subject to modification based upon a substantial change in circumstances unless the parties specifically contract otherwise. Thus, the elimination of this type of alimony unfairly tilts the scales in favor of alimony payers and against alimony payees.

There are an increasing number of legal authors who propose a different look at alimony via the establishment of “alimony guidelines” which would determine the amount and duration of alimony awards on a uniform basis throughout all of New Jersey’s counties. Such guidelines would be rebuttable; that is, they could be demonstrated to be inapplicable in a particular case.

This dialogue should continue as uniformity of alimony awards is a legitimate topic.  In contrast, arguments favoring the elimination of one type of alimony are not so framed and, in my opinion, run counter to New Jersey’s distinguished legal history in this important area. 

John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory: jeory@stark-stark.com.

In many cases, parties who are divorcing reach an agreement as to who may take the dependency exemption for their children in any given year. Sometimes they split the dependency exemptions between them if there are two or more children. For any divorce or agreement entered into from 2009 onward, if the custodial parent (parent having the children for the greater portion of taxable year) agrees to give the other parent an exemption in any given year, the custodial parent must sign a written declaration that the custodial parent will not claim such child as a dependent for said taxable year and the non-custodial parent must attach that declaration to his/her tax return.  Prior to December 31, 2008, the non-custodial parent only had to attach the pages from his/her divorce decree or Separation Agreement to his/her tax return.

The form required now is IRS Form 8332 entitled “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent.”  Said form may cover the exemption for more than one year.

Maria Imbalzano is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Imbalzano: mimbalzano@stark-stark.com.

It is important to note the differences between these two types of accounts since it may affect the vehicle you chose if you are getting divorced.
 

Custodial accounts are accounts established at a financial institution for the benefit of a minor child. Generally, one of the parents is named as the custodian for the benefit of the child under the Uniform Transfer to Minors Act (previously the Uniform Gifts to Minors Act). These accounts belong to the child, not the parent. By establishing this type of account, the parent(s) made an irrevocable gift to the child. While the parent, as custodian, may make the decision as to how the money will be invested and spent (until the child is 21), the money must nevertheless be spent for the child or turned over to the child at age 21.
 

It must also be noted that when using funds in a custodial account, that payment is in addition to, not in substitution for, any obligation of a person to support that minor. It is well settled law in New Jersey that a child’s assets may not be used to fulfill a parent’s support obligation.
 

A 529 Account is a college savings plan which has tax advantages authorized under IRC 
Section 529.  These plans allow an investor to save money in an account in which the earnings (i.e., interest, dividends) will grow tax free and, when used for qualified higher education expenses, may be withdrawn tax free.
 

Anyone can be named as a beneficiary regardless of their relationship to the owner, and anyone can contribute to the account.  Only one account owner can be named on the account. 
 

Since this type of account is owned generally by a parent (and not the child), this asset must be dealt with in any Property Settlement Agreement during a divorce. Since the account is only in one party’s name, the best way to deal with it is to split it equally between the parents to assure that each party has control or ownership of an equal amount.  Since divorce agreements many times include provisions for the allocation of college education expenses when they arise, each party can then plan for their own contribution in the future by continuing to invest in their own 529 plan or at least continuing to hold the asset.
 

It should be noted that an owner of a 529 account can make unqualified withdrawals (withdrawals for any reason) as long as they pay the tax and penalties associated with the withdrawal. Therefore, it is not preferable to keep the account in one party’s name after divorce with just a promise that he/she will use the account for your child’s college education expenses. 
 

Further, if only one party holds the asset and there were no specific terms in the Agreement relating to this account, the owner/parent may argue that these funds will go only toward his/her share of the obligation for college education, and the other parent will receive no credit.
 

It is best to be very explicit in your Property Settlement Agreement with regard to funds saved and intended for college.

DT (full name redacted) is accused of creating the fake profile of her ex-boyfriend, a Northern New Jersey narcotics detective, where she allegedly posted comments about him to the effect that he had herpes, frequented prostitutes, was “high” all the time, as well as allegedly confessing, “I’m a sick piece of scum with a gun,” while posing as him on the fake profile.

This case could have wide ramifications for cyberspeech in New Jersey and other states.  At issue is a New Jersey statute which makes it illegal to impersonate someone “...for the purpose of obtaining a benefit for himself or another, or to injure or defraud another.”  DT’s attorney attempted to have the charges dismissed on the grounds that the law makes no mention of “electronic communications”.  The Judge disagreed.

The ruling should give considerable pause to persons contemplating similar actions, since they will now be so doing at their own risk as the law continues to develop in this area.

According to the husband’s divorce attorney, his client saw incriminating messages on the computer he shares with his wife at home which made him suspect there would be more evidence in her social networking accounts, including how she feels about her children and her ability to take care of them, which would be relevant in the pending divorce case. During a deposition, the husband’s attorney asked the wife for her Facebook, E-Harmony and Match.com passwords. After initially refusing, she was instructed by her lawyer to disclose them [note: questionable legal advice]. It then appears that the wife immediately texted her friend and asked the person to change the passwords and delete some messages. Upon learning of this, the husband’s attorney obtained an injunction that the wife not delete any material with the Court further ordering the attorneys to exchange passwords for both spouses so the attorneys could conduct discovery.

On its face, the ruling violates Facebook’s s requirement that users not turn over their passwords to anyone. However, being judicially ordered to do so in the above circumstances and despite the fact that the ruling is highly privacy-invasive, it is certainly not the last word on this subject as the law and technology will continue to interface and evolve.

First, it is important to note that the Internal Revenue Service does not permit you to file under a “married” status unless you were legally married on the last day of the previous calendar year.
However, your case does not have to stall and negotiations to resolve your matter can continue, as you are permitted to have an executed Marital Settlement Agreement prior to the end of the calendar year.  If the end of the year is approaching and you have an executed Agreement, it is common to petition the Court to adjourn the Final Judgment of Divorce hearing. While the Court has no obligation to grant your adjournment request to the next calendar year, judges often grant such requests if there is a clear financial benefit to the parties.

Strategic decisions to hold off the Final Judgment of Divorce hearing are often agreed upon between attorneys in scenarios in which one client would be adversely impacted by a forced single tax filing.  One such scenario would be the case in which marital assets were liquidated during the litigation and tax consequences exist. (i.e. capital gains taxes, early withdrawal penalties/taxes of retirement accounts, etc.)  As many of the redeemed funds were often acquired during the marriage, the parties may minimize the tax burden (lower effective tax rate) by filing jointly and avoid the need to offset the credits through equitable distribution.

I have also experienced scenarios in which the parties have made the decision to hold off a Final Judgment of Divorce to file jointly despite having an executed Agreement to maximize the amount of financial aid for their children.

Please note that before any decisions are made regarding the benefits or possible pitfalls with filing designations during your divorce matter, it is essential that you consult with an experienced divorce attorney as well as a licensed Certified Public Accountant to review the various tax implications of your decision.

The current economic downturn had not been contemplated in the parties’ Marital Settlement Agreement which was entered into in 2007.  When one party sought to enforce the Agreement based upon 2007 values, the trial court agreed.  The Appellate Division, however, reversed that ruling and concluded that a reasonable construction of the Agreement, coupled with principles of fairness and equity, required a different result. The Court stated that although the parties’ Agreement contained no reference of the possibility of reduced fair market values for their three parcels of real estate, the Court has the inherent authority to insert such a provision even though either party had anticipated it or it had been overlooked. 

This is an important development since the Court specifically acknowledged that principles of fairness compelling an examination of the current real estate market, as opposed to that which existed in 2007.  In these troubling economic times it is heartening that the Court recognized that matrimonial settlements, unlike commercial contracts, are a special breed and subject to interpretation and on occasion, reconstruction, based on principles of fairness and equity.

This issue was upheld on appeal in June 2008, wherein The Honorable John Tomasello, J.S.C. in Gloucester County, New Jersey awarded the division of a summer home the domestic partners had shared. The Order specified that interest in a house constituted the division of assets based upon equitable principles, and was not equitable distribution of property. 

If the partners in the foregoing matter had converted their partnership to a civil union upon enactment of same in New Jersey, equitable distribution of property could have been properly directed as this is one of the many rights and privileges from which civil union partners in New Jersey benefit. 

If you have questions regarding equitable distribution in domestic partnerships in New Jersey, or Pennsylvania, please feel free to contact me or schedule an appointment to meet with me in my firm's Lawrenceville, New Jersey or Newtown, Pennsylvania offices. 

Civil unions provide the same rights and benefits to same sex couples as marriage does to heterosexual couples. This includes a wide range of benefits including alimony, child support, and equitable distribution in the context of a divorce. If a couple with a domestic partnership does not convert the partnership to a civil union, they are not entitled to the rights and benefits, which would accrue as if they had a civil union. 

If you have questions regarding civil unions and domestic partnerships in New Jersey, or Pennsylvania, please feel free to contact me or schedule an appointment to meet with me in my firm's Lawrenceville, New Jersey or Newtown, Pennsylvania offices. 

In 2004, the house was appraised at $7,250,000. During 2005, the real estate value dropped and the listing price of the house was periodically reduced (from a high of $8 million to $6.5 million). The Wife agreed to modify the parties’ Property Settlement Agreement stating she would receive $6.5 million (less certain agreed upon deductions) instead of $7 million.  

The real estate value continued to plummet, and, in October 2009, the Husband filed a Motion with the Court to be released from his obligation to guarantee the Wife $6.5 million (less deductions). He had also requested relief from other agreed upon obligations.  

In his Certification to the Court, the Husband stated that no one could have predicted the national economic crisis that occurred beginning in 2008. He also stated that the consequences to him were drastically different than what the parties intended when they reached their Agreement in 2005. The Wife filed a Cross-Motion to enforce the parties’ Agreement. 

The Trial Court as well as the Appellate Division noted that it is well-settled law that “property division or equitable distribution provisions may not be adjusted after divorce to reflect unanticipated changes in the parties’ circumstances.” Therefore, even if subsequent events could not have been contemplated when the parties entered the Agreement, modification will not be granted. 

In this case, the Appellate Court noted that the Husband claimed the recession and decline of the housing market was an exceptional unanticipated circumstance sufficient to warrant modification. The Court disagreed, stating that both parties were aware that the value of the real estate could have gone up or down since they agreed to a sum certain irrespective of the actual sales price.  

If you would like to discuss this matter in more detail, please feel free to contact me here in my firm's Lawrenceville, New Jersey office. 

When parties are divorcing, one of the spouses may raise an issue with regard to the truthfulness of previous tax returns filed. For example, the wife may say that her husband owns a business, was in charge of all the finances, and she does not know whether he had reported the correct income on previous tax returns. If the IRS audits a return that was filed jointly and finds that there was an underreporting or an incorrect deduction taken of income, thereby causing an assessment of taxes, interest and penalties, the wife may be eligible for Innocent Spouse Relief. 

In order to obtain Innocent Spouse Relief, the wife (or husband as the case may be) must file IRS Form 8857 to request the relief, which could be requested for more than one tax year. 

The Innocent Spouse can be relieved from the responsibility of said obligations if:

1. She filed a joint return which has an understatement of tax,
2. The understatement of tax is due to erroneous items on the return reported by her spouse (or ex-spouse),
3. At the time the Wife signed the return, she did not know there was an understatement of tax, and
4. It would be unfair to hold the Wife liable for the understatement of tax.

As you might imagine, the IRS does not grant these requests easily. They reject approximately 40% of the applications made because it is determined by the IRS that the party requesting relief is ineligible. 

If you believe you are entitled to Innocent Spouse Relief, you may wish to review IRS Publication 971, or feel free to contact me with any questions you may have. I’d be happy to meet with you here in my firm’s Lawrenceville, New Jersey office to discuss this matter in more detail.  

I am hopeful that the following two scenarios offer some clarification.

Scenario 1 – Retirement Account Is Not Subject To Distribution: The account would need to be established prior to your marriage with no contributions made during the period extending from your date of marriage through the date of complaint. The most common scenario would be that you have a 401(k) or a rollover IRA from a previous employer that was established before your marriage. As you did not receive any benefit from your employer during your marriage (ie: employer matches, employee contributions, deferred compensation options…etc), it would follow that this asset was not accumulated during the marriage and not subject to equitable distribution.

As a practical tip, it is important to maintain an account statement displaying the value as close to the date of your marriage as possible. This will greatly aid your efforts in proving that the account was indeed premarital and not subject to any possible distribution to your spouse. Many brokerage houses will not maintain account statements longer than 10 years, so keeping a copy in your personal records may be a good idea to offer sufficient proofs.

Scenario 2 – Retirement Account Is Partially Subject To Distribution: When a portion of your retirement account was accrued prior to your marriage, the situation gets a little more complicated.

As stated above, you are entitled to 100% of the retirement account accumulated before the marriage. However, the monies deposited or supplied by your employer during your marriage are subject to equitable distribution, usually under a 50% distribution allocation.

Good recordkeeping is essential here, as you will need to provide your attorney with a statement showing the value of the account prior to the date of marriage. This will be necessary in order to develop the exempt value of the account and will assist your attorney in reaching the proper percentage that is divisible.

For purposes of example, if you had $100,000 in your account and $20,000 was pre-marital, a standard distribution to your spouse would be $40,000.

• Account Total Value = $100,000
• Marital Value = $80,000
• Spouse 50% Distribution = $40,000
• Your Portion = $60,000 ($20,000 exempt and $40,000 marital

Additionally, you are entitled to classify the growth of the portion of the account that was premarital as exempt. Without the assistance of an accountant or actuary, the isolation of the growth portion gets a little tricky. However, to simply the process, attorneys will often look at the historic average earnings of the account during the time period associated with your marriage. Once this growth is isolated, it is a fairly straightforward process to impute an estimated level of earned interest for this exempted portion of the asset.

Please remember that New Jersey is an equitable distribution state. Parties going through a divorce are not always entitled to an automatic 50% distribution of marital assets and there are various statutory factors that must be taken into consideration before a distribution percentage is established

If you, or someone you know, is going through the divorce process and has questions regarding equitable distribution or other related matters, please feel free to contact me in my firm’s Lawrenceville, New Jersey office.

The first issue is whether a Court Order which requires a college student to provide proof of attendance, credits and grades to his or her divorced parents as a condition for payment of college expenses violates the student's right to privacy under the Family Educational Rights and Privacy Act (FERPA).

The second and collateral issue dealt with the question of when a non-custodial parent is paying child support and/or college expenses, is the responsibility to provide that parent with the above information that of the student, the custodial parent or both?

In the case of VB v. VB (names of parties have been redacted) the Court was faced with these issues based on an assertion by the parties' daughter that she had FERPA privacy rights relative to her college records. At the same time, her custodial parent contended that it was only her daughter, not herself, who could be ordered to obtain the documentation and provide it to the non-custodial parent. This combination of legal claims, if successful, would leave the non-custodial parent "in the dark" as to such matters while still paying child support and college expenses.

In VB, the Court examined New Jersey's legal definition of emancipation which includes an analysis of whether or not a child has "moved beyond the sphere of influence" of his or her parents. The Court reasoned that if a child's custodial parent has no control of the child and cannot obtain simple verifying information regarding college attendance and performance, the child is "beyond the sphere of control" thus leading to the legal conclusion that the child is no longer unemancipated for purposes of child support and payment of college expenses.

As for the student's position that she had FERPA privacy rights, the Court disagreed, stating that she was not entitled to use FERPA as a shield to block her father's right to verify her collegiate status while simultaneously asserting that she was entitled to support and payment of her college expenses.

The Court also defined the extent of information which a college student is obligated to provide and consisting of proof of enrollment, credits, and academic performance while indicating that there may be other information in a student's file which has limited or no relevance. For example, a college student who attends counseling on campus may elect to keep such information confidential. Based on the above, the Court concluded that as long as the college student remains unemancipated, her custodial parent is obligated to provide the non custodial parent with documented verification of courses taken, the number of credits per course, and a copies of her report cards at the conclusion of each marking period. Should the student or the custodial parent fail to comply, the Court indicated that it would entertain an application to declare the student emancipated. It strongly appears that under the Court's analysis, such an application would be granted.

By way of caveat, the VB Opinion was issued by a trial court, as opposed to the Appellate Division or the New Jersey Supreme Court. Thus, while not mandatory for other courts to follow; since the Opinion was approved for publication (as opposed to numerous other Opinions which remain unpublished due to their lack of instructional or probative value), VB v. VB provides worthwhile findings of fact and conclusions of law for courts and family law attorneys to apply as appropriate in the circumstances of each case. As such, it represents an overdue and clarifying step in the right direction.

• Make sure both parties are clear as to the definition of “net profits” to be divided upon the closing of the property.  Does your agreement call for the parties to be equally responsible for the closing costs, realtor commissions, outstanding utilities and taxes...etc?  In my experience, the smoothest transactions are the ones that spell out the responsibilities of each party regarding these settlement liabilities before the house is listed.
• Select a mutually agreed upon real estate professional to market your property.  I recommend that each party submit two names for potential realtors If each party suggest two professionals, the appearance of one party “getting their person” does not become an issue.  Make sure to inform the potential realtors that you are in the midst of a divorce to ensure that they understand that communication protocol that will be necessary to navigate this arrangement.
• Have a certified inspector conduct a walk-through before you execute a listing agreement with the realtor.  Knowing what work will be needed for your house to pass inspection before any potential offers are forwarded could go a long way in understanding the true market value of your property.  In the context of a divorce litigation, establishing a budget before the listing will help each party understand their financial responsibilities associated with getting the house up to code. 
• Speak to your spouse and the realtor regarding potentially setting a pre-determined timetable for reducing the listing price of the property.  I have seen many issues arise when one spouse wishes to “fire sale” the property and accept a low offer just to get the property off their hands.  This approach may conflict with a spouse that may be in a financial advantageous position, who wishes to wait out a better offer.  Agreeing to a fixed timetable to lower a listing price by a certain percentage will alleviate the disagreement each time that either spouse may wish to modify the current listing and allow all parties to remain on the same page.  An agreement like this could also be utilized regarding automatic acceptance of certain offers within a percentage range of the current listing price.

I am hopeful that these tips will assist the process of selling your marital residence in the context of a divorce litigation.

New Jersey case law recognized a claim for support between unmarried persons if those persons had formed a marital-type relationship, and one person promised to support the other person, whether express or implied. In the recent case of Botis v. Estate of Kudrick v. Wells Fargo, an issue arose as to whether the legislation regarding palimony, effective January 18, 2010, was retroactive and therefore governed this case which had been filed prior to the effective date of the statute.
 

The facts are as follows:  The Plaintiff began living with the decedent in 1976. She asserted that in 1984 she invested $17,000 from the proceeds of the sale of her house into furnishing the decedent’s home, where she lived. In 1995, they jointly purchased a residence, although her name was removed from the Deed at a later date, presumably for tax purposes.
 

The Plaintiff claimed that they lived in a marriage-like relationship, that she became dependent upon the decedent for support and that he promised he would always take care of her. In the event of his death, she would be cared for as she was during his life. When he became stricken  with cancer, the Plaintiff cared for him. Shortly before his death, she learned that his Will left his entire estate to his daughter and grandchildren. As a result, in or about November 2008, the Plaintiff filed a Complaint for palimony and for the transfer of title to two residences. The decedent’s estate claimed that the Plaintiff was not in a marital type relationship with the decedent, and, therefore, she was not entitled to relief.
 

In March, 2010, after the law was enacted regarding palimony, the estate of the decedent moved to dismiss Plaintiff’s Complaint based on that law since no promise of support was made in writing.
 

The Appellate Court looked to the plain language of the statute which says that it shall take effect immediately. There was no indication that the legislation favored retroactive application. Further, there was no indication as to whether the law applied to claims that were pending on the date of its enactment. As a result, the Appellate Court reiterated the general rule that statutory construction favors prospective application of statutes.
 

In a case such as this, the parties could not have known or anticipated the pre-requisites to enforcement of a palimony promise when the decedent died almost 1-½ years prior to the effective date of the statute. While the decedent was alive, case law supported the expectation that a palimony agreement could be enforceable without being executing in writing.
 
 

This case seems to indicate that a writing is not necessary for any palimony claim filed before January 2010. However, another question presents itself from these facts. Does the new law apply if the parties’ relationship is irretrievably broken before January 2010 but the claim for palimony is filed after January 2010?
 

As in any case, the facts must be ascertained and analyzed before determining whether a party has a claim for palimony.