Divorce and Alimony in South Jersey

Both during and after a divorce, one spouse may require financial support from the other; this financial support is known as alimony. Alimony allows the dependent spouse to maintain a lifestyle as close as possible to what the couple enjoyed during the marriage, at least until the dependent spouse is able to start supporting themselves.

In New Jersey, there are five types of alimony:

1. Temporary Alimony: this is alimony awarded to a dependent spouse to help cover living expenses while the divorce is still pending.
2. Limited Duration Alimony: this is awarded to the dependent spouse based on financial need and that lasts until the dependent spouse becomes self-supporting. The duration cannot exceed the length of the marriage, with limited exceptions.
3. Open Durational Alimony: this is typically awarded to a dependent spouse after a long marriage of 20 years or more.
4. Rehabilitative Alimony: this alimony is intended to help the dependent spouse get back on their feet and provide training and education for them to become self-supporting. The dependent spouse requesting rehabilitative alimony must provide the steps to be taken for rehabilitation and the time line for same.
5. Reimbursement Alimony: this alimony compensates the dependent spouse who supported the other spouse through advanced education, and who expected to enjoy the fruits of that labor, but was not able to because of the divorce.

To calculate the length and amount of an alimony award, a court will look at the following factors:

• The dependent spouse’s actual needs and the other spouse’s ability to pay
• The duration of the marriage
• Each spouse’s age and health
• Each spouse’s income, earning capacity, education level, and employability
• The standard of living during the marriage
• Parental responsibilities
• The time and expense necessary for the dependent spouse to become self-supporting
• Each spouse’ contributions to the marriage (financial and non-financial)

Alimony awards can also be terminated or modified if there is a change in circumstances. A change in circumstances can include:

• Change in the income of the supporting spouse
• Retirement of the supporting spouse

• If the court made an order based on an event that it assumed would occur, but then the event did not occur
• Remarriage of the dependent spouse
• Death of either spouse
• Cohabitation of the dependent spouse
• Substantial post-judgment changes in circumstances of either spouse

Every divorce is different and, therefore, the amount of alimony potentially awarded can vary widely based on the specific circumstances of each case. Consulting an experienced family law attorney in the South Jersey area can ensure that alimony awarded is calculated in a manner that is not overly burdensome to the supporting spouse and fair to the dependent spouse.

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Sex Offenders “Good to go” in Church Youth Groups

The Anniversary of Petrillo v. Bachenberg (Liability of Attorneys to Non-Clients)

On this date in 1995, the Supreme Court decided Petrillo v. Bachenberg, 139 N.J. 472 (1995).  In the first sentence of his majority opinion, Justice Pollock framed the issue as “whether under the circumstances of this case the attorney for the seller of real estate owes a duty to a potential buyer.”  By a 5-1 […]

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“Appeal” Procedure to Same Judge Who Already Ruled “Below” Was Impermissible

In re Application for a Retail Firearms Dealer’s License Renewal by Cayuse Corp. LLC, ___ N.J. Super. ___ (App. Div. 2016).  This decision, issued by Judge Ostrer for the Appellate Division today, addresses the denial of a renewal of a retail firearms dealer’s license.  The applicant (“Cayuse”) was seeking to renew a license that had […]

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Spring Cleaning & How It Effects Divorce Statistics

Recently, the New Jersey Administrative Office of the Courts provided statistics which seem to confirm that the upcoming spring season will bring with it a significant uptick in the number of divorce filings. Such data supports what divorce lawyers have long known; namely, that increased filings are the result of many couple’s New Year resolutions to put their unhappy marriages “in the rear-view mirror,” along with the time it takes for their attorneys to gather information, prepare, and file the Complaints for Divorce.

As a result, it probably would not surprise you to learn that the lowest number of filings occur during the holiday season immediately preceding the New Year. Meanwhile, it’s been shown that divorce filings tend to increase again around September, after summer vacations end and children go back to school.

Even though the decision to file for divorce is personal, the overarching statistics show that there are measurable patterns that repeat from year to year. Despite the data, anyone seeking legal divorce advice should consult with counsel who specialize in or devote a substantial part of their practice to family law, as each case deserves particularized attention to achieve a successful outcome.

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30 Years Since Goldman v. Weinberger, the “Yarmulkes in the Military” Case

On March 25, 1986, the Supreme Court of the United States decided Goldman v. Weinberger, 475 U.S. 503 (1986).  Simcha Goldman, an ordained rabbi an Orthodox Jew, was serving in the United States Air Force.  Goldman wore a yarmulke, a head covering required of observant Jews at all times.  An Air Force regulation, however, stated […]

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Stark & Stark’s Tim Duggan Guest Starred on “Talented People Radio”

Stark & Stark Shareholder Tim Duggan, Chair of the Bankruptcy & Creditors’ Rights, Eminent Domain, and Real Estate Tax Appeal Groups, guest starred on the internet radio show “Talented People Radio” on March 23, 2016. The show will air again on March 24 at 2:00am and March 26 at 10:00pm. “Talented People Radio” is produced by the Hunterdon County Chamber of Commerce, and is hosted by Colleen Kelly and Jeanne Murphy.

Mr. Duggan discussed various aspects of real estate tax appeals, as well as an explanation of the PennEast Pipeline. In addition, he also answered questions about Chapter 91 requests, how tax assessments affect condominium associations and homeowner associations, and how long the tax appeals process typically takes.

Furthermore, “Talented People Radio” is hosted by Jeanne Murphy PR, which also airs “Talented People TV” on Channel 30 in New Jersey. “Talented People Radio” broadcasts every Wednesday from 3:00-5:00pm, and that week’s session is aired again that Thursday at 2:00am and Saturday evening at 10:00pm. You can also listen to the broadcast online.

For more information about Mr. Duggan or for any questions regarding real estate tax appeals or the PennEast Pipeline, contact our Bankruptcy & Creditors’ Rights Group to speak with Mr. Duggan.

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Allegedly No Goodness to be Thankful for at TGI Friday’s for Drink Consumers, But Class Certification Gets Reversed

Dugan v. TGI Fridays, Inc., ___ N.J. Super. ___ (App. Div. 2016).  This putative consumer class action has a long procedural history, including a previous appeal to the Appellate Division, but its facts are relatively simple.  Plaintiffs bought drinks at TGI Friday’s (“TGIF”) restaurants.  As summarized in today’s opinion by Judge Yannotti, plaintiffs alleged that […]

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(Likely) Coming Soon to the Supreme Court: When Does the Involvement of DNA Evidence Toll the Criminal Statute of Limitations?

State v. Twiggs, ___ N.J. Super. ___ (App. Div. 2016).  In this conspiracy to commit robbery case, the Law Division dismissed the indictment because the State began the prosecution beyond the time allowed by the statute of limitations, N.J.S.A. 2C:1-6.  The State appealed, contending that a provision of that statute that tolls the limitations period […]

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A Win for Class Action Plaintiffs at the U.S. Supreme Court

Tyson Foods v. Bouaphakeo, ___ U.S. ___ (2016).  This decision, issued today, is one of several closely-watched class action cases at the Supreme Court of the United States this year.  In a 6-2 decision, the Court upheld a jury verdict in a class trial, rejecting defendant’s claims that individual issues meant that a class should […]

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PERC Cannot Unilaterally Abandon the “Dynamic Status Quo Doctrine”

In re County of Atlantic, ___ N.J. Super. ___ (App. Div. 2016).  The Public Employment Relations Commission (“PERC”) is a state agency that is charged by the Legislature with implementing the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39 (“the Act”).  In 1975, PERC adopted the “dynamic status quo doctrine.”  That doctrine holds that […]

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Another Reminder that Parent Coordinators Are Not Replacements for Judges

Whether it is because of busy dockets or the fact that the issues could be hard to decide, especially without a plenary hearing, the use of parent coordinators (PC) began becoming more frequent about 10 years ago.  Sometimes it was by consent but other times, it was foisted upon warring parties whether they wanted it or not.  A new reality of “let the parenting coordinator referee the disputes” became a new reality for many.  In fact, in 2007, the Supreme Court implemented a pilot program for the use of parent coordinators in several counties which had both guidelines and a model order.  The goals were laudatory:

A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.

The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

What was clear was the “The Parenting Coordinator may not make any modification to any order, judgment or decree, unless all parties agree and enter into a consent order” though this was often honored in the breach and PCs were vested with far more authority than the law allowed.

The issue that then came up was whether a Parent Coordinator appointed in a non-pilot program county had to follow the Supreme Court Guidelines.  We and others had cases where we objected to what we believed was the PC overstepping their roles and heard both PCs and court’s say that they were not bound to the pilot program guidelines.  The Appellate Division disagreed in Milne v. Goldenberg, a reported decision that we previously blogged on.

In 2012, the pilot program ended, however, the use of parent coordinators was not abolished.  Rather, court’s could still appoint PCs and parties could agree to use them.  Does that mean that a court could simply defer decision making to the PC?  Once again, the answer was a resounding no in the case of Parish v. Kluger, an unreported (non-precedential) decision of the Appellate Division decided on March 17, 2016, which was the latest chapter in the long standing litigation between these parties.  In fact, I was involved in the original reported decision in this matter dealing with similar issues, as we blogged on in 2010.  In that decision, the Appellate Division held that judge’s must decide enforcement motions, noting:

We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.

The Court also made clear that parent coordinators could not address enforcement issues nor could they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.

One would think that with this history in this case, that it couldn’t happen again, but it did.  In the 2016 decision, the Appellate Division wrote:

If, as plaintiff claimed, defendant was preventing him from exercising parenting time as per the MSA, then he was entitled to a remedy. If, as defendant claimed, plaintiff failed to exercise his parenting time out of disinterest, then the court’s decision to not alter parenting time was appropriate. The court should have resolved that dispute. When the court’s decision is considered in its entirety, it could be interpreted – as plaintiff has interpreted it – to vest in the parenting coordinator the resolution of the parties’ conflicting positions as to why the MSA parenting plan was not working. The court has no authority to delegate its decision making to a parenting coordinator. Further, a trial court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”

That last sentence is important, “…court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”  Too often, PC orders would expressly or impliedly give the PC the final say, with the trial court as a rubber stamp and/or requiring the losing party to file a motion so that the PC’s recommendation would not become a de facto Order.

The takeaway from this case is clear.  PC’s don’t make decisions.  Court’s make decisions.  Court’s cannot tell parties to follow a recommendation of a PC in advance, and moreover, even after it is issued, without fully assessing the issues and making independent fact findings.  Given that this is the case, in the real high conflict cases where one of the parties is inevitably going to oppose a PC recommendation and take the issue to court, what is the point of having a PC in the first place?

_________________________________________________________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric:  

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Attorney General May Not Enforce Subpoenas Related to False Claims Act Case in Which Attorney General Previously Declined to Intervene

In re Enforcement of New Jersey False Claims Act Subpoenas, ___ N.J. Super. ___ (App. Div. 2016).  The New Jersey False Claims Act, N.J.S.A. 2A:32C-1 to -15, -17, and -18 (“NJFCA”), encourages private parties to file, under seal, qui tam actions on behalf of the State of New Jersey for violations of the FCA, and […]

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Upcoming Divorce & Family Law Seminars in South Jersey

The Marlton office at Stark & Stark will be hosting three seminars in the next three months that will focus on various aspects of divorce and family law, and will be free and open to the public. Additionally, all three presentations will be held in the Marlton office.

The first seminar is Divorce 101: Understanding the Divorce Process in South Jersey, and will be held on April 10, 2016 from 5:30-6:30pm. The presentation will breakdown the procedural intricacies of the divorce process, including the overview of a divorce proceeding. Other topics that will be covered are alimony determinations, child support, and equitable distribution.

The second seminar will be Alimony & Child Support: Understanding, Modifying, & Enforcing Support Obligations in South Jersey. This presentation will take place on May 8, 2016 from 5:30-6:30pm. The seminar will attempt to answer many of the questions surrounding child support on college contribution before, during, and after the divorce process. This will also include an explanation of the child support calculation, which is how the court determines a parent’s obligation to contribute to college based on various factors.

The third and final seminar will be Bankruptcy & Divorce: What to Expect Before, During, & After Filing, and will be held on June 6, 2016 from 5:30-6:30pm. This last presentation will cover bankruptcy at all stages as a divorce proceeds. Additionally, Lee Perlman, Esq., of the Law Offices of Lee M. Perlman, will be co-hosting this event. Mr. Perlman’s focus is on Bankruptcy, and he will be able to provide a valuable insight into what expectations you should or shouldn’t have during this process.

If you have any questions, or would like to speak with someone about these seminars, please send an email to events@stark-stark.com.

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President Obama Nominates Rebecca Ross Haywood to the Third Circuit

Somewhat overshadowed by the run-up to President Obama’s nomination yesterday of Judge Merrick Garland to the Supreme Court of the United States was the President’s nomination of Rebecca Ross Haywood, the day before, to fill a vacancy on the Third Circuit Court of Appeals.  The seat to be filled is one that became open when […]

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President Obama Nominates Judge Merrick Garland to the Supreme Court of the United States

Today, President Obama made his nomination to fill the seat that came open when Justice Scalia died.  The nominee is Chief Judge Merrick B. Garland of the District of Columbia Circuit Court of Appeals. Born in Illinois, Judge Garland,who is 63, has impeccable credentials.  He is a summa cum laude graduate of Harvard College and […]

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Don’t Let Your Arbitration Agreement Bite You

You hear people talk all the time these days that mediation and arbitration, or quite frankly, any alternate dispute resolution (ADR) methods are the best things since sliced bread.  They may very well be in the right case – which these days may be most of them given judicial backlogs, and other factors making presenting cases to a court undesirable.  They may not be the panacea that people think they are, especially when you don’t frame what you want the arbitrator to do or how you want them to do it, correctly.  In fact, I have previously blogged that the right to appeal is not automatic unless you contract for it.

The issue of a less than ideal arbitration agreement coming back to bite a litigant in the behind was exemplified again yesterday in the unreported (non-precedential) Appellate Division case of Little v. Little.  In that case, the parties agreed to arbitrate a Tevis claim seeking damages for alleged spousal abuse and battered woman’s syndrome before a retired judge. Rather than a full blown arbitration agreement, spelling out all of the desired standards, a right of appeal, etc., the agreement to arbitration was only memorialized in an order, which stated in total:

ORDERED, that the matter is hereby dismissed as the parties have agreed to submit to binding arbitration with a retired judge agreed on between the parties, which arbitration shall take place on or before February 15, 2013, the costs of which will be shared equally by the parties.

After the arbitration took place, the arbitrator issued a two-page written arbitration decision that awarded plaintiff $125,000 “for the physical and mental injuries sustained by her during her marriage…” The award did not set forth any findings of fact or conclusions of law.  Thereafter, the plaintiff moved to confirm the award and the defendant moved to vacate the award, both because of the lack of findings of fact and the reliance on a letter produced after the close of discovery.  The cross motion was denied and the arbitration award confirmed, leading to an appeal.

Defendant appealed claiming that  (1) the arbitration award was against public policy and should be vacated because without findings of fact and conclusions of law it cannot be determined if the award was procured by corruption, fraud or other undue means; and (2) the arbitrator’s reliance on the letterproduced after the close of discovery in constituted undue means.  The Appellate Division rejected both of those arguments.

As to the lack of fact finding, the Court specifically noted:

The scope of arbitration and the requirements of an arbitrator are controlled by contract. Minkowitz v. Israeli, 433 N.J. Super. 111, 132-33 (App. Div. 2013). If the arbitration agreement does not require the arbitrator to make specific factual findings or follow particular procedures, the arbitrator is free to make an award in a manner consistent with the Arbitration Act. N.J.S.A. 2A:23B-4. The Arbitration Act only requires the arbitrator to “make a record of an award.” N.J.S.A. 2A:23B-19(a). Moreover, the arbitration award provides that an arbitrator may conduct an arbitration in any manner that the arbitrator considers appropriate, with the goal of disposing of the matter fairly and expeditiously. N.J.S.A. 2A:23B-15(a). Accordingly, we have previously explained:

[W]ithout an agreement to the contrary, the power of the arbitrator is simply to issue an award that resolves a dispute. If they have not agreed in advance, the parties cannot, for example, force an arbitrator to give reasons for an award or to write a decision explaining his or her view of the facts. Neither can they appeal from the award as they could if they had proceeded to litigate their matter in court. Rather, the rights of the parties following issuance of an award, in the absence of an agreement to the contrary, are entirely governed by statute. (internal citation omitted).

As to the reliance on the letter produced after the close of discovery:

Arbitrators are not bound by the rules of evidence, and instead may determine the admissibility, relevance, materiality and weight of any evidence. N.J.S.A. 2A:23B-15(a). Additionally, an arbitrator may permit any discovery that he or she determines to be appropriate, taking into account the goal of making the proceeding fair, expeditious, and cost-effective. N.J.S.A. 2A:23B-17(c).

What is the takeaway here?  If you want the rules of evidence to apply, put that in your arbitration agreement.  If you want findings of fact and conclusions of law, put that in your arbitration agreement.  If you want a right of review greater than the very limited right of review contained in the arbitration statute, put it in your arbitration agreement.  Otherwise, you can be left with very little remedies if you disagree with a decision, and like the litigant in this case, very little ability to determine what the decision was actually based upon.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric:  

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Relocating a Child During or After a Divorce in South Jersey

Both during and after a divorce, when a child or children are involved, custody orders establish a parenting plan between the divorcing or divorced couple so that the children may still spend time with both parents, even though they no longer reside together. However, custody agreements are complicated when one parent wants to move a considerable distance away from the other parent’s home.

When moving a child out of the state, New Jersey law requires that the relocating parent of the minor child get permission either from the other parent or the courts.

When moving a child within the state, a parent may also require permission from either the court or the other parent to modify the parenting schedule if the new home is far away. For example, if a parenting plan includes language that allows for the parents to drop the children off at school following overnight visits, a significant move, even within the state, will require a change in this parenting plan because the distance for the parents to travel will likely change.

Technology has made it easier to parents to keep in touch with their children, even at a distance. Because of this, courts in New Jersey have allowed custodial parents to relocate with children in most circumstances. However, a court in determining such will rely on several factors.

One factor is the type of parenting arrangement currently in effect. A parent with sole or primary physical custody only has to show the court that the proposed move is in “good faith.” They must also show that the child will still have access to good education, health, and recreation at their new home. Additionally, a new and feasible visitation plan should be proposed so that the child will still be able to see both of their parents. A non-custodial parent may attempt to show that the move is not in good faith, but this will usually be difficult, as current law favors the custodial parent in choosing where the child will live.

In addition to the custody agreement already established by the parents, a court may also look at the following factors in granting its permission for a parent to move a child:

• The child’s preferences (if they are old enough to make this decision for themselves),
• The possibility of the non-custodial parent to also relocate
• Whether the child has any special talents, special accommodations they are receiving for these talents now, and whether the same accommodations are available in the new location
• Whether the child can continue their relationship with the non-custodial parent in the new location
• Whether the child is entering their senior year of high school
• Any effect the move may have on the child’s relationship with extended family members

If you find yourself in a situation where you may have to seek the court’s permission to move, or your child is being moved by their other parent, it is recommended you consult an experienced divorce attorney in South Jersey to ensure that your child’s rights and your rights as a parent are treated fairly.

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‘Til Death Do Us Part…or Not.

In the recent case O’Hara v. Estate of John B. O’Hara, Jr., the Appellate Division reminded us that even though the death of a party to a marriage ends that marriage, it doesn’t always end the divorce.  In Carr v. Carr, 120 N.J. 330 (1990), our Court examined what happens in the event that a party dies mid-divorce – after the Complaint has been filed, but before the divorce is finalized.  You might think that when this happens, the case simply ends – after all, if one party passes away, what is the point of the divorce?

For better or worse, things aren’t so simple.  If a party passes away mid-divorce, then the intent to divorce and to no longer be married has been expressed.  If one party’s death mid-divorce would lead to unjust enrichment for either the deceased party’s estate or for the surviving spouse, the Court must see the divorce through.  Otherwise, the surviving party might be unjustly enriched; what if he or she were to inherit everything in the deceased spouse’s estate, when the deceased party may not have wanted that?  The converse could also be true.  What if the spouse had specifically been provided for in a will, despite the divorce, but the bequest affords the surviving spouse less than (s)he would have gotten in the divorce case?

That latter is the issue at the center of O’Hara, where, in the midst of the divorce matter, the husband passed away.  While the divorce was pending, but prior to his death, the husband executed a Last Will & Testament.  The Will left the wife without any property interest in the marital assets, but created a trust for her benefit and support.  The problem with this was that, in filing a Complaint for Divorce, the Wife had asserted her right to an equitable share of the marital assets.  The trial judge permitted her to see that through by amending her complaint to include a claim against the husband’s estate.  The Court concluded that  “[w]ithout allowing the matrimonial matter to proceed to determine the value of the parties’ assets and what is available per equitable distribution, it will never be clear whether [the wife] received everything under the trust to which she is entitled, via equitable distribution.”

 

The Appellate Division affirmed.  Skeptical of the husband, the Appellate Division found that the marital estate had to be valued, and the wife’s equitable interest had to be determined before it could be said that the benefits to the wife under the trust established by the husband did not deprive her of what she would have been entitled to under the divorce.  Therefore, the lower court’s decision to impose a constructive trust – to effectively freeze the estate – was upheld and despite the death of one of the parties, the divorce litigation set to continue.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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By What Means Can a Creditor Seize Certificated Securities Held by a Debtor?: A UCC Article 8 Decision

Wolverine Flagship Fund Trading Limited v. American Oriental Bioengineering, Inc., ___ N.J. Super. ___ (App. Div. 2016).  This opinion, issued today by Judge St. John, involved the denial of injunctive relief by the Chancery Division.  The key issue was one purely of law, the interpretation of section 8-112 of the Uniform Commercial Code, N.J.S.A. 12A:8-112.  […]

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35 Stark & Stark Attorneys Selected for 2016 Super Lawyers List

Congratulations to the 35 Stark & Stark attorneys who have made the 2016 New Jersey Super Lawyers list, 13 of whom have made the 2016 New Jersey Rising Stars list. These attorneys belong to 13 different practice areas, ranging from Business Litigation to Personal Injury: Plaintiff to Insurance Coverage. Also of note, this year is David Cohen’s 10^th year making the SuperLawyers list.

Here is the full list of Stark & Stark attorneys who have made the 2016 New Jersey Super Lawyers list:

Vicki W. Beyer David R. Cohen Mark W. Davis Michael G. Donahue Timothy P. Duggan John S. Eory Gary S. Forshner

Steven L. Friedman Kevin M. Hart Craig S. Hilliard Denise M. Mariani Thomas J. Pryor Christopher M. Pyne John A. Sakson, IV

Albert M. Stark Bruce H. Stern Scott I. Unger Marci Hill Jordan Joel R. Rosenberg Martin P. Schrama

And here is the full list of Stark & Stark attorneys who have made the 2016 New Jersey Rising Stars list:

Stefanie Colella-Walsh Corrine E. Cooke James L. Creegan Dolores R. Kelley Marshall T. Kizner Evan J. Lide

Bryan M. Roberts Domenic B. Sanginiti, Jr. David M. Schmid Megan E. Smith Stephen M. De Stefano

For more information about our attorneys and practices, please visit www.stark-stark.com.

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The Looming NJ Transit Strike – Tips for Real Estate Companies and Businesses

A transit strike could hurt many people. Many people could suffer delays, or be left without a way to get to work. Businesses could also suffer without employees and customers. And commercial, retail, and other property and business owners could lose business and sales.

The looming strike is a reminder that although you can’t stop some strikes and disasters outside of your control, you can reduce risks by taking the following steps.

Have a Disaster Plan. You can prevent problems and limit losses by having a disaster plan. Having an adequate plan and ensuring that your team knows what to do can help to reduce risks. For example, having alternate ways to access and manage your property and business can help to limit losses.

Review Your Documents. You can also reduce risks by reviewing your insurance policies, leases, contracts, and other documents. This can help to ensure that your documents are updated, adequately meet your needs, and limit losses from events outside of your control.

Complete Deals and Resolve Disputes Now. Another way to minimize risks and maximize opportunities is to more quickly complete deals and resolve disputes. The looming strike is a reminder that there is a need for speed in business and real estate. If you fail to act quickly, you can lose opportunities, such as historically low interest rates, available financing, and rising property values. Delays can also cost you money and damages, from delayed delivery dates to delayed opening dates. And as time passes, other bad things can happen, from bankruptcies to vacancies. In a previous blog post, I discussed ways to quickly complete your deals and resolve your disputes with the help of experienced counsel.

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An Exception to the General Rule That Appellate Courts Lack Jurisdiction Over Appeals From Dismissals Without Prejudice

S.B. v. Kindercare Learning Centers, LLC, ___ F.3d ___ (3d Cir. 2016).  S.B., a four-year old girl, was injured at defendant’s day care center.  Her mother sued for negligence, on her own behalf and on behalf of S.B.  After the case was removed to federal court, the mother changed counsel, and the new attorney filed […]

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Murder Double Shooting NJ Court Reversal

Freehold, NJ - The Supreme Court of New Jersey reversed the murder conviction of a 65-year old man, a former resident of Asbury Park, after determining he was unable to cross-examine Prosecutors’ key witness regarding a plea-bargain, cutting a possible life-sentence in prison to mere probation.

The Forgotten Insurance: Life Insurance to Secure Alimony & Child Support

When we all think of insurance, we often think of medical insurance, car insurance and homeowner’s insurance as these seem to be the necessary and everyday types of insurance. Life insurance, which for some can be synonymous with high premiums, is one of the first costs to go when seeking to reduce your budget. I often find that the issue of life insurance is something that typically does not cross a person’s mind when they are getting divorced, whether they are the supporting spouse or the supported spouse, especially if the parties did not maintain life insurance during the marriage.

Often times however, when a supporting party has an ongoing alimony and/or child support obligation, a court may order (or the parties will agree) that a life insurance policy will continue (or be implemented) as a method of financially protecting a dependent party and/or child in the event of the supporting party’s premature death.

In other words, the same reasons an intact family would procure life insurance, remain after the divorce. All too often however, an obligation to maintain life insurance is the forgotten provision of a divorce settlement agreement in that either 1) it is noticeably absent from the agreement, or 2) it is not being maintained. Obviously, either of these scenarios is troublesome for the supported spouse and could ultimately cause substantial financial ruin should a situation that life insurance seeks to protect against come to fruition.

In the recent case of Ashmont v. Ashmont, Judge Lawrence Jones recently released an unpublished (non-precedential) yet persuasive opinion on how to deal with the issue of life insurance between divorced parties. In Ashmont, the parties’ Marital Settlement Agreement required that the wife would receive permanent alimony and child support for the parties’ children. In order to secure same, the parties agreed that the husband would carry life insurance as a means to protect against the loss of financial support in the event of an untimely death.

Several years after the parties were divorced, wife brought an enforcement action against the husband for a breach of their agreement for his failure to provide proof that he was maintaining life insurance as well as for sanctions for his past and alleged ongoing violations of his life insurance obligations. At the time of the hearing, husband admitted that he had been in violation of this obligation, but had recently brought himself into compliance by securing a new policy, consistent with the terms of the parties’ agreement.

Although wife acknowledged that husband was now compliant, she still sought sanctions against the husband for his prior failure to maintain the policy and for allowing his dependents to go uninsured for such a long period of time. It was clear that husband only complied with the obligation after wife was forced to bring litigation and wife feared that husband would simply fail to pay the next scheduled premium.

In his opinion, Judge Jones lays out four tips regarding life insurance and divorce:

• The court may direct that the supported spouse or other parent be named as the owner of the policy, if permitted by the insurance company. This option is particularly relevant when the supporting spouse has a history of failing to adhere to his or her court-ordered life insurance obligations. Being the “owner” of the policy, rather than the “beneficiary” or the “insured”, allows for the party to receive any and all notices and communications from the insurance company regarding the status of the policy, including invoices, notices of proposed cancellation, change in policy terms and renewal dates;

• When a party willfully breaches a court-ordered obligation to carry life insurance, the court may issue multiple forms of relief, including but not limited to ongoing financial sanctions, until such time as the defaulting party complies with the obligation;

• When a party violates a court order, but ultimately complies prior to the conclusion of enforcement litigation, such compliance does not completely erase or negate the violation. Nonetheless, remedial and corrective conduct is equitably relevant on the issue of mitigating sanctions and penalties which might otherwise be imposed under the circumstances. In this case, the wife had asked for a sanction of $7,440.00, the amount of money that husband had saved over the years by failing to comply with his obligation. Finding it a mitigating factor that husband ultimately did cure the defect and that wife was not financially harmed, husband was sanctioned $2,500.00 and was ordered to reimburse wife her $50.00 filing fee for the enforcement motion; and

• As life insurance is an ongoing financial obligation intrinsically related to spousal and/or child support, an insurance provision in a judgment of divorce or settlement agreement is potentially subject to post-judgment modification upon a showing of a substantial change of circumstances, pursuant to Lepis v. Lepis 83 N.J. 139, 145-46 (1980). This situation may occur when a term policy naturally expires and the insurance is either much older or less healthy than at the time of divorce, meaning the cost of the policy could be substantially increased and thus revisited by the Court.

While no one wants to think about the consequences associated with an untimely death, the takeaway from this case is that as the supported spouse/parent, it is imperative that you are “in the know” regarding the insurance policies that could very well dictate your financial security (and your children’s) for the rest of your life. If your ex-spouse has an obligation to secure their support payments with life insurance and you have not seen recently seen a copy of the policy, it might be time to reach out and connect with them to ensure the policy is current.

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L
Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

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APPELLATE DIVISION FINDS THAT COHABITATION MATTER CANNOT BE REOPENED BASED SOLELY ON CHANGE IN ALIMONY LAW

While the Appellate Division has yet to address the substantive application and meaning of the cohabitation provisions of the amended alimony law, it has now determined twice when the law may apply.

In October, I wrote about how the Appellate Division in Spangenberg v. Kolakowsi, a reported (precedential) decision, held that the cohabitation portion of the amended law does not apply to post-Judgment Orders finalized prior to the amendment’s September 10, 2014 effective date.  On March 2, 2016, the Appellate Division in the unpublished (not precedential) decision of Chernin v. Chernin, similarly held that the 2014 amendments, “by the specific terms of the statute’s effective date”, are not applicable in a situation where cohabitation was previously established pre-effective date.  The primary point to be taken here is that the change in the law alone is not enough to reopen a previously concluded matter – in this case, a cohabitation matter.

Here are the undisputed facts that you need to know:

• The parties were married in 1958 and divorced in 1992.  The property settlement agreement provided that husband would pay permanent alimony of $100,000 per year until July 1, 1997, at which time the payments would increase to $150,000 annually.
• In 1996, husband moved to retroactively terminate his alimony based on wife’s cohabitation.  Following a five day trial, the court granted husband’s motion in part by finding cohabitation, ordering wife to reimburse husband in a sum certain for past overpayments retroactive to when alimony commenced, and reducing husband’s annual alimony obligation by $12,000 annually.  There was no modification to the alimony duration.
• Husband appealed, arguing that alimony should have been terminated pursuant to leading case law at the time.  Husband’s argument was rejected.
• Following passage of the amended alimony law, husband again moved to be relieved of his alimony obligation based on wife’s cohabitation.  Counsel, during oral argument, confirmed that nothing had changed in the past twenty years following the prior modification other than the amendment’s passage.
• The trial court found that the amendment’s passage constituted a change in circumstance and terminated alimony based on the trial court’s prior finding of cohabitation.
• Wife appealed, arguing that the court erred in failing to give effect to the “anti-retroactivity provision” of the amended statute.

In reversing the trial court in wife’s favor, the Appellate Division quoted that anti-retroactivity provision, which provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a.  a final judgment of divorce or dissolution;

b.  a final order that has concluded post-Judgment litigation; or

c.  any enforceable written agreement between the parties.

The Appellate Court determined that the parties’ post-Judgment litigation concluded in 1997 when a final Order was entered reducing the amount of alimony and leaving the permanent duration untouched based on the wife’s cohabitation.  In other words, the cohabitation issue was already addressed and the matter concluded.  As a result, husband could not simply reopen the issue based solely on the law’s amendment.  Citing Spangenberg, the Court concluded:

Because the Legislature has commanded that the 2014 amendments not be construed to modify the duration of alimony ordered or agreed upon, or to modify specifically bargained for contractual provisions incorporated into an enforceable written agreement between the parties, a judgment of divorce, or a final order concluding post-Judgment litigation, all of which applied here, the court plainly erred in relying on the amendments to modify the permanent alimony previously ordered in this case.

So there you have it.  A second decision from the Appellate Division – this one expressly following Spangenberg – addressing when the cohabitation provisions (and, more broadly, the amended law as a whole) may apply to a given set of facts and circumstances.  The new law itself is not a change in circumstances meriting a review of a previously closed case.  Similar to that case, where the Appellate Division used the word “shall” (rather than “may”) when describing whether alimony should terminate in a cohabitation situation under the statute, the Appellate Court did not address whether terminating alimony was the only appropriate measure had application of the new law been deemed appropriate.  Stay tuned for future developments.

__________________________________________________________

 Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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*Photo courtesy of Google free images.

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NJ Federal Court Says Condo Association Lien May Have Priority in Chapter 13 Bankruptcy Plan

Timothy Duggan, Esquire and Chris Florio, Esquire of Stark & Stark, as Amicus Curiae (friend of the Court), were successful in convincing the United States District Court for the District of New Jersey to reverse a bankruptcy court decision, which allowed a bankruptcy condominium owner to avoid paying a condominium lien in full under a bankruptcy plan. The Condominium Association Institute (CAI) authorized Stark & Stark to participate in the appeal since the issue in question was important to all condominium associations in New Jersey and other states.

The issue in dispute was whether a condominium lien, which is recorded and served on the owner and mortgagees, is a fully secured claim under bankruptcy law, or a partially secured claim which may be “stripped off” in a bankruptcy plan. In the case in dispute, Whispering Woods Condominium Association (“Condo Association”) filed a lien for $6,085.85 (later amended to $18,761) for unpaid association fees and assessments. Of this amount, $1,494 (six month priority) was entitled to “priority” over the existing mortgages under New Jersey law. When the owner filed for Chapter 13 bankruptcy protection, the unit was worth $170,000 and encumbered with a first mortgage in the amount of $288,063. Therefore, when the case was filed, the lien priority was:

Six Month Priority for Condominium Lien	$1,494
First Mortgage	$288,063
Balance of Condominium Lien	$17,267

Under bankruptcy law, if a creditor holds a security interest in the debtor’s home that is fully or partially secured, the claim cannot be modified in a Chapter 13 plan; it must be paid in full. For bankruptcy purposes, a claim is “secured” if there is some value in the property to secure the claim. Here, since the home was worth $170,000, there is only value to secure the $1,494 six month priority lien and part of the first mortgage.

The bankruptcy court found that the six month priority claim was entitled to “payment priority” (not lien priority) and had to be paid in full, but the balance of the Condo Association’s claim was unsecured and could be modified (ie. treated as an unsecured claim). The Condo Association disagreed and appealed. In order to advance the rights of all condominium associations, the CAI sought leave of court to file its own brief in an effort to assist the District Court in understanding the impact of the decision on the public.

The District Court disagreed with the Bankruptcy Court and found that the Condo Association held one lien, with limited priority, and the lien could not be modified in the bankruptcy case because the lien, as a whole, was partially secured. As a result, the condominium lien must be paid in full.

This is a great victory for all condominium associations in New Jersey.

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Sports Authority Files for Chapter 11 Bankruptcy in Delaware

This morning, Sports Authority, Inc. (“Sports Authority”) filed for Chapter 11 bankruptcy protection in the United States District of Delaware, Bankruptcy Court, case # 16-10529. The retailer with more than 450 stores is expected to close about 140 locations within the bankruptcy proceeding. Sports Authority was once the biggest sporting-goods chain in the U.S., but over the past few years has had difficulty competing with Dick’s Sporting Goods Inc., Lululemon Athletica Inc., Gap Inc.’s Athleta, and Amazon.com, Inc.

Landlords Beware

If you are a landlord, you will want to know:

• Will they remain a tenant?;
• When will rent be paid?;
• Are there pre-petition claims that are owed?;
• Is the Debtor in default of pre-petition non-monetary obligations?; and,
• What other damages are owed (both pre- and post-petition)?

Trade Creditor Questions

Trade creditors, including suppliers, should also be asking important questions, such as:

• Have you been paid on time and does a reclamation claim (right to take back goods shipped, unpaid within 45 days) exist?;
• Can an administrative claim be asserted?; and,
• Should a proof of claim be filed, and if so, how?

If you are a trade creditor with reclamation claims, then it is vital to assert your rights now.

Stark & Stark’s Bankruptcy & Creditors’ Rights Group can help. Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the District of New Jersey, Southern District of New York, District of Delaware and Eastern District of Pennsylvania on a variety of issues.

For more information on the Sports Authority filing, and how Stark & Stark can assist you, please contact Stark & Stark’s Bankruptcy & Creditors’ Rights Group.

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DCPP / DYFS Agents Exempt from Lawsuit

Children’s Welfare (DCPP/DYFS) Agents exempt from Law Suit

The Proper Venue for Filing a Will Contest

If a party has decided that it would like to Contest a decedent’s Will, the next question that arises concerns the appropriate venue to file the Will Contest. The general rule, as set forth by Rule 4:80-1(c), is that a Will Contest must be commenced in the State and County where the decedent died a resident. As such, if a person passed away as a resident of Mercer County, then the Will Contest must be commenced in the Mercer County Superior Court. There are, however, exceptions where a non-resident decedent may be subject to a Will Contest within the State of New Jersey.

This Rule provides that even if a decedent is not domiciled in the State of New Jersey, a Will Contest may still be commenced in the County where the decedent left any property or into which property belonging to the decedent may have come since his death. The only caveat to this exception would be if a Will Contest or action to probate a Will in another jurisdiction had already commenced. Under those circumstances, the Will Contest would have to take place in the foreign jurisdiction. If that had not already occurred, however, a party may commence a Will Contest in the State of New Jersey, provided those conditions have been met. As will be discussed in another Blog, whether a decedent is considered a resident of the State of New Jersey or another jurisdiction can often be the subject of litigation.

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Governor Christie Renominates Judge Bauman for the Supreme Court

Yesterday, Governor Christie announced that he was nominating Monmouth County Superior Court Judge David Bauman to fill the Supreme Court seat currently occupied by Judge Cuff.  The announcement was a surprise, since it had been generally understood that the Governor had agreed with State Senate President Sweeney to leave Judge Cuff in place until she […]

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