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

The Honorable Francis B. Schultz, J.S.C. recently held that the New Jersey Prevention of Domestic Violence Act (hereinafter “DVA”) is unconstitutional in that it violates New Jersey’s constitutional article on separation of powers and utilizes the preponderance of the evidence standard of proof.  In his letter opinion, the Judge disagreed with the Defendant’s other attacks on the constitutionality of the statute, including arguments regarding the statute’s alleged violation of the Defendant’s First Amendment right to free speech and Second Amendment right to bear arms, as well as other jurisdictional attacks. 


With regard to the Defendant’s separation of powers argument that the DVA is unconstitutional based upon the statute’s prescription of procedural aspects constitutionally reserved to the Court,  the Judge noted that the procedures established by the DVA directly conflict with established Court Rules and specifically held that “the entirety of N.J.S.A. 2C:25-29A, especially the ‘within ten days’ requirement for the setting of the final hearing, contains what are unambiguously rules for practice and procedure.” 


As to the standard of proof issue, the Judge held the DVA unconstitutional utilizing the balancing test promulgated by the United States Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976).  Based on the implication of a Defendant’s fundamental right as a parent to be with his or her child, the Judge found that the due process clause of the Fourteenth Amendment and the New Jersey Supreme Court case of In re Polk “require that a clear and convincing standard be utilized in domestic violence matters.”  Interestingly, while the Court found that a new hearing was required, the Judge did not order that the Judge who will conduct the hearing to apply the clear and convincing standard, holding only that the Matthews’ balancing test should be utilized in determining the standard of proof to be applied. 


The impact of this case may result in the overturning of hundreds of thousands of Final Restraining Orders upon application of Defendants across the State.  However, based upon the Judge’s utilization of the Matthews’ test when focused on the fundamental right of a parent to be with his or her children, it seems that such arguments may only be applicable for cases where the parties have minor children, and the Defendant’s access to them has been substantially cut off due to the entry of the Final Restraining Order, thus implicating a fundamental right.  Anyone who feels that this case may be applicable to his or her Final Restraining Order should consult with an attorney and consider awaiting the result of the new hearing to be conducted pursuant to the Judge’s Order.  Based upon the interview of the Plaintiff’s attorney by the New Jersey Law Journal published June 30, 2008, appeal of the Judge’s determination in this case is likely if she loses at the new hearing in which the Matthews’ balancing test will be applied in determining the standard of proof.

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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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Property Settlement Agreements (herein after “PSAs”) are generally the mechanism utilized to set forth the terms of parties’ agreements and regulate post-judgement (post-divorce) issues. However, PSAs are not entirely enforceable in the context of bankruptcy. One example is in the context of joint debts or loans where one party assumes liability pursuant to the PSA and agrees to indemnify and hold the other harmless, but the other party’s name is not removed from the loan or debt. While such an agreement is enforceable by the Superior Court and generally properly brought before the family law division, this is not the case in the context where one party subsequently files for bankruptcy. If the party, who is not responsible for the debt or loan pursuant to the PSA, does not have his or her name removed from such debt or loan, once the responsible party is relieved of such debt or loan, the creditor can pursue payment from the other.


For example: Wife has a daughter from a prior relationship. Wife obtains a loan to pay for her daughter’s college education. Her husband, who is not the daughter’s father and thus has no legal responsibility to provide for her education, co-signs the loan. Husband and Wife are divorced three years later. In the Property Settlement Agreement, Wife agrees to be solely responsible for the loan and to indemnify and hold Husband harmless for same. Five years after entry of the Final Judgement of Divorce, Wife files for bankruptcy. The bankruptcy court discharges her from liability for the loan. The creditor subsequently pursues Husband, who has now not had any contact with Wife in several years, yet whose name remains on the loan as co-signor. When Husband does not make payment, believing that he is not liable for the loan pursuant to the parties’ PSA, and Wife’s agreement to indemnify and hold him harmless for same, the creditor begins to garnish his wages. (Alternatively they may have obtained a judgment against his home or other property.)


How to Protect Yourself:

1. Close all joint credit cards and/or accounts as soon as possible following entry of the PSA and/or Final Judgement of the Divorce, subject to the terms thereof.
Open new accounts and/or credit cards.

2. If possible, utilize joint funds prior to the division of same, to pay off or pay down joint debt. Upon division of same, pay off the debt utilizing a mechanism that will ensure that you both have a separate obligation under separate accounts. (i.e. there is $8,000 of marital credit card debt on a single charge card and each party agrees to be responsible for $4,000 of same. Each party should open a new card and transfer his or her share of the debt to that new account satisfying his or her obligation and ensuring that the marital debt is paid in full and the account is closed). Request that language placing such an obligation on both parties be included in the PSA if it is not already.

3. Have all joint loans refinanced, such that the non-liable party’s name is removed. Alternatively, consolidation may be a solution.

4. Check your credit score regularly. You are entitled to a free credit score report through the three main credit reporting agencies. However, when doing so via internet, beware of websites such as freecreditreport.com, where in order to access your credit report and score, you are automatically signed up for a 30 day trial, after which a monthly fee will be charged to your credit card. Read all small print thoroughly to avoid giving permission allowing the credit reporting agency from charging your credit card.

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