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

In the first decision of its kind in New Jersey, a Gloucester County judge has ruled that persons who registered as domestic partners since 2004 but who did not form a civil union under the 2006 law are nonetheless entitled to an equitable distribution  of assets in the same way such assets would be distributed in the divorce of a married couple.

In addition, the judge discussed the "special circumstances" of gay couples who often had years of a committed relationship before being able to legally formalize it in 2004 or 2006, concluding that the period of equitable distribution began at the formation of the parties' relationship in 1999 rather than their establishment of the domestic partnership in 2004.

This case is important in terms of the court's consideration of the entire span of a committed same sex relationship,  since no legal recognition was available until 2004.

Whether the decision will be appealed is unknown; however, it represents the first step in what  some family lawyers, including myself, believe will be the evolution of expanded rights and remedies for same sex couples in New Jersey.

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A New Jersey appeals court has affirmed the state's right to a phase-in period before it accepts joint income tax returns from same sex couples under the New Jersey Civil Union Act.

In Quarto v. Adams the Appellate Division rejected a constitutional challenge by two women who claimed that their 2003 Canadian marriage entitled them to full parity with heterosexual married couples, including the right to file a joint income tax return as of October 25, 2006, the same day the New Jersey Supreme Court issued its decision in Lewis v. Harris granting same sex couples the same rights as heterosexual couples.                       

The appeals court ruled that New Jersey's recognition of the relationship would, however, begin on February 19, 2007, the same day the  New Jersey Civil Union law went into effect. This was also the same day that the New Jersey Attorney General's Office issued a formal opinion granting recognition to same sex marriages from Canada and some other nations.

The result is that same sex couples will be allowed to file joint New Jersey income taxes beginning in 2007.

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To the relief of many and the consternation of a few, New Jersey law now includes "irreconcilable differences" as a ground for divorce. The bill, just signed into law by Governor Corzine, means that a Complaint for Divorce can assert the existence of irreconcilable differences which have caused a breakdown of the marriage for six or more months.

The legal impact is that persons may now file for divorce without having to allege marital fault against their spouse or await the expiration of eighteen months separation. The law will remove some but not all of the animosity in divorce since the great majority of cases are more vigorously contested with regard to such issues as custody, parenting time, alimony, child support and division of marital assets. Nonetheless, lawyers welcome the new law since we know that except in rare instances where egregious fault may be considered by the court, marital fault is not a factor in the financial aspects of divorce. Even in custody cases, the fact that one's spouse has committed marital fault is not determinative. That person may at the same time have no parental faults, although there are situations where underlying problems such as anger may be important.

Finally, the new law does not replace other grounds for divorce such as adultery, desertion or extreme cruelty which still have their rightful place. The important thing is that each case is fact-sensitive. As a matrimonial attorney for thirty years, my advice to anyone considering divorce is to learn not only your legal rights but responsibilities, retain a specialized lawyer, discount advice from family and friends no matter how well-intentioned and, once armed with knowledge and guidance, prioritize your issues.

Technorati Tags: New Jersey : Irreconcilable Differences

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On October 30, the Appellate Division of the New Jersey Superior Court affirmed a trial judge's ruling that a divorced parent must pay more than $40,000 in college expenses for his daughter over the parent's objection that, as a "self-made man", he did not believe college was for everyone and that his daughter was not academically suited for college.

While the ruling stands in the mainstream of New Jersey law with respect to the responsibilities of divorced parents toward their children's undergraduate college or vocational school expenses, it should be noted that each such case involves a variety of factors utilized by attorneys and the courts. In more rare cases, courts have found that a divorced parent can even be held responsible for his or her child's post-graduate or professional school expenses.

Technorati Tags: New Jersey : Divorce : College Costs

 

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New Jersey took a step toward revamping its grounds for divorce for the first time in 35 years when on October 23 the Assembly Judiciary Committee approved adding "irreconcilable differences" as a cause of action for divorce.

If passed, bill A-483 would mean that if a person can prove that irreconcilable differences have caused the breakdown of the marriage for six months and which make it appear that the marriage should be dissolved and there is no reasonable prospect of reconciliation, a divorce should be entered.

Under current New Jersey law, the only "no fault" ground for divorce requires 18 months separation in different households with no reasonable prospect of reconciliation.  Although similar bills have been introduced during the past, this is the first time "irreconcilable differences" has enjoyed wide legislative support. It should be noted, however, that opponents of the bill are contending that the 6 month period is too short for couples to work through their problems. Nonetheless, the sponsors of A-483 are optimistic of the bill's eventual passage.

I will be updating this article as bill A-483 proceeds through the legislative process.

Technorati Tags: New Jersey : Divorce : Irreconcilable Differences

 

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This week's New Jersey Legal Update podcast will discuss the October 25, 2006 landmark decision of Lewis v. Harris. This podcast will give a brief summary of the case, and what the court's decision means for the future of marriage in the state of New Jersey.

This week's New Jersey Legal Update is presented by John Eory, a member of Stark & Stark’s Divorce Group.

You can download the New Jersey Legal Update Podcast # 50 here. (5.7 MB)

Technorati Tags: New Jersey : Podcast :  Divorce : Gay Marriage : Lewis v. Harris

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New Jersey's Supreme Court has just issued its decision in Lewis v. Harris, a case brought by seven New Jersey same-sex couples who sought marriage licenses but were denied.  The couples argued that the state violated their rights to privacy and equal protection under the New Jersey Constitution.

Today, the Court issued its opinion which gave the State legislature180 days to either amend the marriage statutes or enact an appropriate statutory structure which will allow same-sex couples to exercise their full constitutional rights.

For more information see our media advisory on this decision here.

Technorati Tags: New Jersey : Same-Sex Marriage : Lewis v. Harris : Gay Marriage

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If national census data is extrapolated to New Jersey, there are as many as 7,700 children being raised by same-sex couples in the Garden State. What happens if the couple decides to separate or terminate their domestic partnership?

The 2004 New Jersey Domestic Partnership Act did not address these issues. As a result, attorneys have looked for guidance in other contexts, such as whether a "psychological parent-child relationship" exists. This would be of significant importance with regard to custody and visitation upon the breakup of a relationship.

In 2000, the New Jersey Supreme Court developed a four-prong test to determine the existence of psychological parenthood. The scope of this article does not permit a detailed discussion and, as we lawyers like to say, every case is "fact specific". Anyone seeking an explanation of their legal rights and responsibilities should contact an experienced New Jersey Family Law attorney.

Technorati Tags: New Jersey : Divorce

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Individuals preparing to begin the divorce process often interview multiple attorneys prior to deciding on who to retain. Such a practice is prudent given the importance of the attorney-client relationship. A litigant's impressions of the legal system and their acceptance of the divorce are influenced greatly by their relationship with their attorney. Just as a consumer should not buy a car without a test drive or purchase clothes without trying them on, a legal consumer should invest the time necessary to meet with potential attorneys in order to achieve the most beneficial result. Selecting an attorney involves establishing a relationship with the intended attorney and should involve an in-person interview or consultation whenever possible

Once an attorney has met with a potential client and obtained confidential information, that attorney is then precluded from representing the other spouse. This reality has lead many litigants to schedule interviews with multiple attorneys for no other purpose than preventing the attorney from representing the other party. Attorneys in New Jersey have recently been advised that encouraging such conduct on the part of a potential or new client is unethical. After considering this issue, the Advisory Committee on Professional Ethics authored and released Opinion - #73 - which serves notice that an attorney who advises his/her client to contact other lawyers for the purpose of denying their spouse from obtaining representation by counsel of his or her choice constitutes conduct prejudicial to the administration of justice.

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This week's New Jersey Legal Update podcast is presented by John Eory, a member of the firm's Family Law Group, and discusses the case of Lewis v. Harris which was argued before the New Jersey Supreme Court last week. This case brings a long history with it to the Court and is being watched nationally as a case which may direct how courts view legislation which bans same-sex marriage.

You can download the New Jersey Legal Update Podcast # 28 here.(12.2MB)

Want to watch a webcast of the argument of Lewis v. Harris before the Court? Download it here.

Technorati Tags: New Jersey : Podcast : Same-Sex Marriage

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