New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

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 under the new  standard.  New Jersey is the first state to rule that cohabitation is not a requirement for palimony.

Although every case is determined on its own facts, the ruling eliminates one long-standing factual requirement and opens the door to new and varied situations which would previously had no legal basis.

It is important that a person involved in such a situation obtain skilled legal advice in determining how to proceed.

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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 period of continuous residency prior to the filing of the petition for divorce is 6 months.

 In either case, the party filing for the divorce also has the option of filing in the original state if his/her spouse continues to reside in the original state.  The change of a person’s state of residency may have significant ramifications on a variety of levels above and beyond simply the jurisdiction for their divorce.  State Income Tax, Estate Tax and a variety of other factors must all be considered before changing one’s residency.

 However, as Divorce Attorneys we are often asked whether a client should file in one state or the other and the legal ramifications of doing so. In order to analyze that question, the procedural and substantive differences in the law of the respective states as they apply to the facts of a specific case must be carefully considered.

There can be no definitive answer as to which state may be the preferred jurisdiction for the divorce, and each case must be examined in the context of its own factual and legal issues as well as in the context of the other factors mentioned above.  Our office has six attorneys who are licensed to practice divorce law in New Jersey and four who are licensed to practice in Pennsylvania. Very often, one or more of those attorneys must be consulted in each case in order to make an intelligent decision as to whether a complaint can be properly filed in either state and what may be the ramifications of such filing.

 Very often, we, as Divorce Attorneys, need to also confer with our estate, tax and real estate partners.  Sometimes the decision can be made based solely upon divorce related issues, and other times, it is far more complex. However, typical divorce related issues which must be addressed often include: 

• The grounds for the divorce  - that issue is generally not significant since both Pennsylvania and New Jersey now include and encourage the use of broad “no fault” grounds for divorce.
•  The time which either state may take to process the case – New Jersey has adopted a “Best Practices” doctrine which encourages the Courts of New Jersey to conclude an action for divorce within 12 months of its filing date; Pennsylvania has no similar provision.  Generally, but not always, cases take longer to conclude in Pennsylvania than in New Jersey.
• The Child Support Guidelines - although each state’s Guidelines are different, they are not vastly different.  In both states, the Guidelines are applicable to families up to a combined income of $240,000 and over that amount, both states have similar case law for determining “above guidelines” child support.
• Alimony - Pennsylvania has a presumptive amount for temporary alimony defined as being an amount equivalent to 40% of the difference between the parties income; New Jersey has no such presumption.  Generally speaking, New Jersey is more liberal in awarding post divorce alimony in higher amounts and for longer periods of time.
• College expenses - a party’s responsibility for college expenses for the children may vary depending upon the state of jurisdiction

Procedurally, Pennsylvania and New Jersey are very different and depending upon the needs of each case, the respective procedure of one or the other of the states may be better suited or lesser suited to a particular case.

 In short, just as when one establishes a state of residency for real property tax reasons, personal income tax reasons or estate planning reasons, care should be taken to choose the proper jurisdiction for one’s divorce if, in fact, a person qualifies for jurisdiction in either state. 

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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.

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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.

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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 "best interests" of the children.

In all due respect to a very learned panel of the Appellate Division, their decision, although, perhaps, technically correct based upon the time worn doctrine of parens patrie (the assumption that the State is the ultimate parent of all children with rights which are superior to and even exceed those the child's parents) is contrary to public policy which dictates in favor of divorce litigants resolving their disagreements by alterative resolution techniques (mediation or arbitration).

Virtually all experienced Divorce Attorneys would concur that in cases involving custody or parenting issues litigation is often an ineffective means of resolving the issues. It is not uncommon for competent counsel to advise their clients that such matters do not belong in the Court system and should be resolved between the parties and by alternate means. The Fawzy case could certainly be taken a setback to the mediation and arbitration process which is so desperately needed in the Family Courts.

There are any number of very experienced Arbitrators in new Jersey. Some are extremely competent practicing Divorce Attorneys. Some are experienced mental health professionals. Many have served as Family Court Judges, Appellate Judges or even Supreme Court Justices.
Many have extensive background, understanding and training in matters involving the "best interests" of children.

For the Appellate Division to apparently assume that only a sitting Family Court Judge (even one who has little or no experience or background in such matters) can fulfill the State's Parens Patire responsibility of protecting the best interests of the State's children is, at best, premised upon little more than the assumption that a black robe vests the wearer with a innate understanding that can not be delegated to competent counsel, a skilled arbitrator or even well meaning parents seeking to avoid the emotional trauma and cost of litigation.

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During the past decade divorce lawyers have witnessed the steady growth of "Alternate Dispute Resolution" (ADR) techniques such as mediation and binding arbitration of matrimonial issues. While ADR may be a viable option to a judicial decision, a recent case demonstrates the limits of binding arbitration in the divorce context.

On June 16 a New Jersey appeals court ruled that a divorcing couple could not, as a matter of law, bargain away a court's obligation to review the best interests of their children by agreeing to be bound by an arbitrator's decision respecting child support and, by implication, custody or parenting time.

The key word is "binding". In the above case, the parties had initially agreed that the arbitrator's decision concerning child support would be final and not subject to judicial review or appeal. The appellate court disagreed, stating that courts have a "non-delegable, special supervisory function" when it comes to children which cannot be bargained away and voided the parties' agreement.

The point is that persons seeking to resolve their matrimonial differences through ADR need to be aware of what can and cannot be accomplished by seeking advice from skilled and independent attorneys before and during the process.

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Massachusetts and, perhaps, California now permit Same Sex Marriages. Several States (including New Jersey) permit same sex Civil Unions or Domestic Partnerships.

A Same Sex Marriage can only be dissolved by a divorce and most Civil Union and Domestic Partnership statutes provide that they can only be terminated by an action tantamount to a divorce. The Rhode Island Supreme Court, however, has cast into doubt whether a State which does not permit Same Sex marriages or Civil Unions can dissolve such relationships.

The situation arises when parties who have entered into a same sex marriage or civil union now reside within the jurisdiction of a non-sanctioning State. In Chanbers v. Ormiston 935 Atl 2nd 956 (RI 2007) the Rhode Island Supreme held that the Courts of Rhode Island had no jurisdiction to terminate a Same Sex Marriage or Civil Union entered into in another State on the basis that Rhode Island does not authorize such unions. In a decision based upon the strict construction of its Family Court enabling statutes, the Court ruled that the Rhode Island Family Courts only had authority to dissolve "marriages" as defined and authorized by their State law. Thus, the litigants would be required, under the Rhode Island Supreme Court reasoning, to return to and re-establish residency in the (or, presumably, a) State which authorized their marriage or union.

In some case, New Jersey for example, that would require a period of 1 year of such residency prior to instituting the action to dissolve the Civil Union. It is respectfully submitted that such consequences offend the notions of Equal Process or Full Faith and Credit recognition of the Statutes of a sister state. It would seem that Rhode Island's apparent opposition to the underlying concepts of same sex marriages or civil unions has controlled its decision, not fundamental concepts of Equal Protection and Full Faith and Credit.

Should the Rhode Island reasoning become the prevailing law, it is further submitted that significant inequities will be visited upon person who entered into legal and binding relationships in their State of residence at that time simply because they subsequently relocate to another State which disagrees with the underlying validity of their relationship. Consider, for example, the inequity of requiring the party seeking the termination of the relationship to surrender their employment in order to return to the State of origin of their relationship in order to terminate the relationship.
Suppose there are children of the relationship, the children must be removed from school and relocated simply so that their parents may terminate their relationship.

In no other area of Family Law does a terminating state refuse to terminate a marriage because it does not comply with the marriage laws of that State. Suppose , for example, persons were married at age 16;the legally permitted age under the law of the State of origin of the marriage, but not permitted in the terminating state. Would or should the terminating State refuse jurisdiction to terminate the marriage because it does not comport with it us marriage statutes? Of course not.

From this author's perspective, it is time for our Courts and Legislatures, and most importantly our Family Courts as Courts of Equity, to give Equal Protection to all of our citizens, not simply those of heterosexual orientation.

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It is well-settled law that retirement plans such as pensions, 401(k)s, 403(b)s, KEOUGHs, profit sharing plans, deferred compensation plans and IRAs are subject to equitable distribution in the event of divorce.

But what about a disability pension?  Is that an asset accumulated during the marriage and subject to equitable distribution like a retirement pension, or should it be looked at like a personal injury award or worker’s compensation award wherein if it’s attributable to pain and suffering it is not subject to equitable distribution.
   

In a recent New Jersey Appellate Court case, the Husband, who had been a fireman, was injured on the job and entitled to the Police and Fire Retirement System disability pension.  The issue was whether this disability pension was subject to equitable distribution.  It must be noted that State of New Jersey employees, whether public employees, teachers, police or firemen, are entitled to a pension upon retirement if those employees have the requisite number of years in the retirement system.  If an employee becomes disabled before retirement, that employee may be eligible for a disability pension which takes the place of a future retirement pension. 
   

It was determined by the New Jersey Appellate Court that the State disability pension is made up of two components–one that represents a retirement allowance and one that represents compensation for the disability.  It was held that the retirement allowance portion is subject to equitable distribution and the compensation for disability portion is not.  Since the Court was not provided with evidence in allocating a value to each of these components and since the plan itself  is not divided into separate components, the Court came up with its own formula.
 
   
In this particular case, wherein the disability was the result of a traumatic event occurring during the performance of duties, the disability allowance was two thirds (66-2/3%) of the employees’ final compensation regardless of age or years of service or contributions to the pension.  There is a lower percentage disability allowance in the event of disability which is not a qualifying traumatic event (i.e. disabling illness).  If an employee  is injured early in his career, he/she receives the same percentage of final salary as an employer who may be injured later on in his/her career.  In comparing the ordinary retirement pension to a disability pension, the retirement pension is dependent upon years of service and age.  Those pensions generally range from 50% to 65% of final salary.  Therefore, the enhanced benefit in the event of a qualifying traumatic event during performance of duties is anywhere between 16-2/3% and 1-2/3%. 
   

The expectations of a divorcing couple are that the retirement portion of this pension, which was a forced savings during the marriage and an anticipated benefit by both parties in the future, should be allocated between the two of them upon divorce.  If the disability occurs when the employee would have already been eligible for retirement, even if early retirement, then we would know what percentage of the disability pension would have been for retirement–anywhere between 50% to 65% depending on the number of years of service.
  

So, for example if the employee had worked for 20 years and would have been eligible for a retirement pension of 50% of their final salary, but became disabled as result of a qualifying traumatic event and therefore received a disability pension of 66-2/3% of a final salary, then  the additional 16-2/3% of the disability pension is related to the disability and 50% of the pension is related to service and subject to equitable distribution.
 
   

But what happens if the employee does not have enough years of service in to be eligible for the ordinary retirement pension?  How are the two components determined?
   

The Appellate Division decided that it would use the earliest retirement percentage of final salary which is 50% attributable to 20 years of service, stating that the disabled employee would have most likely worked until early retirement but for the disability.  So, for example, if the employee became disabled after 10 years on the job, in order to determine the percentage of the retirement portion of the pension subject to equitable distribution, we should use a coverture fraction wherein the numerator of this fraction is the number of years the employee worked during the marriage (in this example, 10 years) and the denominator is the total number of years worked (or in this case, number of years he would have worked but for the disabling injury, which is 20 years).  Therefore, the coverture fraction would be 10/20 or ½.
   

Now, assume the employee’s final salary before the qualifying traumatic disability was $60,000.  The disability retirement pension would be $40,000 per year, or 2/3 (66-2/3%) of the employee’s final salary.  A normal retirement pension would have been $30,000 or 50% of the final salary.  The $10,000 per year difference between the two is the disability component  which belongs to the injured employee and is not subject to equitable distribution.
   

The retirement pension component is subject to the coverture fraction, as discussed above, wherein 10/20 or ½ of the $30,000, or $15,000 per year, is subject to equitable distribution.         
   

This recent case now gives us a definitive answer that State disability pensions are subject to equitable distribution as well as gives us the formula for determining which portion is divisible in the case of divorce. 

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In the world of post-divorce litigation, the issue of cohabitation by an alimony recipient continues to be an area of contention.

On the one hand, since there is no longer a duty of marital fidelity, should a former spouse who is receiving alimony be barred from living with whoever he or she chooses, especially since the paying spouse is free to do so?

On the other hand, should a person paying alimony be compelled to continue doing so when his or her former spouse is cohabiting instead of remarrying which would terminate alimony?

New Jersey courts have wrestled with these issues for years and, while every case is (as we lawyers say) fact-specific, there are legal guideposts to help navigate the terrain.

First, the mere fact of cohabitation, even when admitted-to or demonstrated to a court, is insufficient to terminate or even reduce alimony. What occurs in such cases is that the burden shifts to the person receiving alimony to prove why he or she is still entitled to payment.

In a case just decided on June 3, 2008, a three judge New Jersey appeals court upheld the lower court's decision that alimony should continue despite the recipient's acknowledged cohabitation and an economic inter-relationship with her boyfriend.

This case does not mean that alimony cannot be reduced or terminated if cohabitation exists. It does, however, highlight the strong need for someone seeking relief to consult with experienced legal counsel in order to determine how to proceed.

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In the State of New Jersey, a divorced parent’s obligation to provide toward the higher education of a child of the marriage is generally determined pursuant to the factors set forth in  Newburgh v. Arrigo, 88 N.J. 529 (1983).  However, in 2006 Gac v. Gac, 186 N.J. 535 (2006), was decided by the New Jersey Supreme Court, wherein the Father was not determined to be responsible to contribute toward the cost of his estranged daughter’s higher education.  In that case, the most determinative facts that led to the father being absolved of such an obligation by the Court included: (a) contribution was not sought by the Mother (or child) except by way of Cross Motion to the Father’s Motion to have the daughter emancipated following her graduation from college; (b) the Father had paid child support for his daughter throughout the period of her college education; and (c) the Father was not provided the opportunity to participate in the college selection process and the child selected an expensive private college that provided similar programs to those available at less costly State universities.

   
In its decision, Court provides some general guidelines for parents seeking college contribution for their children in a post-divorce setting:  “As soon as practical, the parent or child should communicate with the other party concerning the many issues inherent in selecting a college.  At a minimum, a parent of child seeking contribution should initiate the application to the court before the expenses are incurred.”  Id. at 546-547.  Moreover, “the failure to [seek contribution and initiate application to the court before college expenses are incurred] will weigh heavily against the grant of a future application.”  Id. (emphasis added).

   
Thus, if read in conjunction with the facts of the case and the factors set forth pursuant to Newburgh, a custodial parent should do the following in conjunction with a child’s college search and selection process in order to ensure that the non-custodial parent properly contributes toward the costs of the child’s education:

1.    Provide the non-custodial parent information and updates in writing regarding the child’s college search, preferably beginning in the middle of the child’s junior year of high school through the summer preceding his or her senior year.  Such information should include booklets from colleges or universities being considered regarding programs in which the child has an interest in pursuing, financial aid available to the child and/or parents, copies of applications, and any other relevant information. 

2.    In writing, request input from the non-custodial parent regarding the child’s college search and selection process.  This should be done at a minimum when: (a) the child is first beginning their college search and should include a list of the colleges or universities where the child wishes to visit and/or apply; (b) before the child actually begins making visits to the prospective colleges and/or universities, preferably setting forth the dates of anticipated visits; (c) subsequent to all visits setting forth a comprehensive list of college and/or universities to which the child anticipates applying; (d) subsequent to the application process; and (e) upon receipt of acceptances.

3.    In the summer preceding the child’s senior year of high school, in writing, request that the non-custodial parent review their finances and inform you as to their financial ability to contribute toward the child’s college expenses by a date certain.  If no response to such a request is received and/or the non-custodial parent’s answer is that he or she is unable to contribute or is only able to do so minimally, it is incumbent upon the custodial parent to file an application with the Court requesting determination as to each party’s obligation to contribute toward the cost of the child’s education. 

   
Preferably such an application should be filed subsequent to the child’s application to his or her selected colleges and or universities and before the child has made any determinative decision upon receipt of acceptances such that payment has been made or is due and owing. This may require application in the early fall of the child’s senior year in high school if the child wishes to go the path of early acceptance to a college or university. 
   
   
Note:  The Court in Gac does state that “[a] relationship between a non-custodial parent and a child is not required for the custodial parent or the child to ask the non-custodial parent” to contribute toward the child’s college expenses.  Id. at 546.  

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