Articles Posted in Case Law

A recently published case establishes new rules for resolving preschool disputes between divorced parents. The court recognized that this particular issue had never been addressed before. An ordinary dispute between divorced parents can sometimes land you in an unexplored area of New Jersey law. It is important to hire a knowledgeable family law attorney to help navigate your parental rights disputes.

The case of Madison v. Davis involves parents who were married for four years before they were divorced. They have joint custody of a child, “L.D.”, with L.D.’s mother assigned as the primary residential custodian. Until recently, L.D. attended a preschool that was chosen by both parents. This school (referred to as “Preschool A”) violated state regulations by improperly allowing L.D.’s father to pick the child up from school when he was not authorized. L.D.’s mother promptly took the child out of “Preschool A” and enrolled her in “Preschool B.”  Continue reading

If a person feels that his or her life, safety, or health is at risk because of the acts or threats of another person, he or she may be able to obtain a temporary restraining order from a judge in New Jersey. The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq is the body of law in New jersey that was enacted, and designed to provide a swift remedy to protect a  victim from abuse.   Similarly, if you are a defendant that believes you were wrongfully accused of having committed an act of domestic violence, the consequences of having a restraining order entered against you can have long term impact.

Domestic violence is pervasive. It knows no socio-economic boundaries.  If you are the victim of domestic violence, or if you have been accused of committing an act of domestic violence, you should call an experienced, licensed  domestic violence attorney in New Jersey to zealously represent your rights.

Procedurally, a victim of domestic violence may seek a temporary restraining order (T.R.O.) from a Superior Court judge in the family division of the county court where the alleged act of domestic violence occurred, the county where the victim resides, or where the defendant resides.  If the Superior Court is closed at that time, the victim should immediately contact the local police department who will then contact the municipal court judge. The municipal court judge will speak with the victim by telephone to ascertain the facts. The judge will then decide if the victim has described a set of facts that are sufficient to obtain a TRO.  If the judge decides to grant the TRO to the victim, the police will prepare and serve the TRO on the defendant immediately.   In many instances, the victim is granted the exclusive use and occupancy of any shared residence the two people had occupied up until the alleged act occurred.  In addition, the victim is presumptively entitled to temporary custody of any minor child.  The court will schedule the matter for a hearing within the next 5-10 days to allow the defendant to tell his or her side of the story.  Keep in mind, a TRO, if issued, is frequently issued without the judge  hearing the defendant’s version of what may have transpired.  Generally, our legal justice system does not so drastically effect a person’s rights and due process without a hearing. However, because of the need to balance the immediate protection of a potential victim of domestic violence, the remedy is swift.  To balance that significant impact on a person’s due process whereby  a defendant  in many instances will be denied the opportunity to be heard before he or she is literally removed from one’s home, the court must hold a hearing fairly quickly as well. This hearing is when the court will decide if the TRO should now become a final restraining order (‘FRO”) if the victim proves his or her allegations or, if the defendant can successfully defend against those allegations, the judge will dismiss the TRO and the restraints against the defendant will be vacated.

When grandparents are denied an opportunity to visit their grandchildren, a conflict is bound to arise. On one hand, a parent has a right to decide how his or her child will be raised. On the other hand, removing a grandparent from a child’s life could potentially harm the child. In New Jersey, we have a statute that governs the rights of parents and grandparents in these situations, and two important court rulings have clarified the way in which the statute is applied. If you are involved in a conflict over visitation, you should speak to a family law attorney who can explain how New Jersey’s statute applies to your case.

The New Jersey legislature passed a law to address problems that arise when a parent forbids a grandparent from interacting with a grandchild. The law sets out a process by which grandparents can apply for visitation rights and lists eight factors that must be considered in evaluating the grandparent’s application for visitation. They include the relationship of the grandparent with the child, how the grandparent gets along with the child’s parents or the person who has custody of the child, and the length of the period since when the grandparent has spent time with the child. Other factors extend to considering what impact the grandparent visitation may have on the relationship of the child with his or her parents or the individual with custody, the time-sharing arrangement of the parents, the motive of the grandparent in seeking visitation, any record of the grandparent mistreating the child, and any other information that may seem relevant to the court.

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A recently published New Jersey case held that a divorced parent is not always liable for a child’s college education. This case involved complex facts, and a number of criteria were considered in addition to the parent/child relationship. Divorce cases can be complex, especially when there are children involved in the equation. If you are considering a divorce or a dissolution of your civil union, you should talk to a New Jersey family law attorney who can help explain your case.

Mr. and Mrs. Black had been married for 17 years, and together they had three children. When Mr. and Mrs. Black were divorced from each other, the settlement included obligations to pay for their children’s college educations.  Although Mr. Black had repeatedly tried to establish a positive relationship with C.B., their oldest child, the child had  written  Mr. Black completely out of his life.  Therefore, Mr. Black no longer saw a reason to pay for C.B.’s college tuition. Continue reading

New Jersey residents are allowed to designate a representative in legal matters. This arrangement, called a Designated Power of Attorney (POA), allows a trusted person to sign documents and negotiate legally binding agreements on your behalf. The right to a POA is expressed in the Revised Durable Power of Attorney Act (N.J.S.A. 46:2B-8.1). But when a litigant in a contested divorce case tried to use a POA, the court found that there are limits to a POA’s powers. Before  allowing someone to act with such power on your behalf, you should discuss the implications with a licensed attorney.

Mr. Marsico created a POA agreement that allowed his adult daughter from a prior marriage, Ms. Mertz, to act on his behalf in some legal matters. Several months later, Ms. Marsico decided she wanted a divorce from Mr. Marsico. When Ms. Marsico sent a complaint for divorce, Ms. Mertz signed and filed a counterclaim for divorce on behalf of her father, Mr. Marsico.

The attorney for Ms. Marsico objected to the counterclaim, stating that it wasn’t valid because it wasn’t signed by Mr. Marsico. The attorney went on to note that Mr. Marsico is 84 years old, but he has not been ruled incompetent by any court. Furthermore, the attorney argued that Ms. Mertz has a conflict of interest because she may eventually inherit part of the Marsicos’ marital estate. Continue reading

A 2010 change to New Jersey law made oral agreements for palimony unenforceable. But it was unclear whether this change would affect agreements that were already in place. A landmark case was recently decided by the New Jersey Supreme Court, declaring that older oral palimony agreements are still valid. If you are struggling to enforce a palimony agreement, or if you want to create an agreement of support between yourself and a loved one, you should contact an experienced New Jersey family law attorney.

When two people agree to something, they don’t always “get it in writing.” New Jersey law recognizes that some oral contracts can be just as binding as written contracts, but there are a number of problems inherent in oral agreements. Therefore, it is imperative to get your agreements in writing and in a format that comports with the law.

New Jersey’s Statute of Frauds requires that certain important agreements must be made in writing in order to prevent fraud. For example, if you transfer ownership of real estate, make certain major agreements relating to creditors, or make agreements that depend upon a future marriage, the Statute of Frauds requires those agreements to be in writing. Continue reading

In the state of New Jersey, it is rare that the entry of your final judgment of divorce represents the final interaction with your former spouse, especially  if your settlement agreement or  judgment of divorce includes a provision for alimony to be paid.  Whether you are the payor/obligor or the payee/recipient of alimony, it is a common occurrence that post-judgment issues arise between the now divorced spouses will inevitably occur and, in many cases, it involves the issue of alimony. This post-judgment scenario frequently occurs when the obligor spouse believes that the dependent spouse receiving alimony may be cohabiting with a person in a relationship akin to a marriage and thus, believes the alimony obligation should terminate or, at a minimum,  be reduced. Continue reading

Many people in the midst of a divorce or imminent divorce proceeding  find themselves involved in a situation involving domestic violence with their spouse.  If you are granted a restraining order in New Jersey, you may wonder how that might effect the issue of custody in your divorce.  Or, if you are the defendant in a domestic violence case that now has a restraining order entered against you, you may wonder how this may affect the ultimate issue of custody of your minor children.

Unlike issues of support or equitable distribution involved in a typical New Jersey divorce case, the issue of custody of one’s children in many instances can prove to be the most important and difficult  to resolve.  The existence of a final restraining order raises other concerns that can impact the issue of custody of your minor children.

In New Jersey, a  trial court determines the issue of custody of minor children  based upon a standard known as  “the best interest of the child”.  To many, this can be a very illusive standard.  There is much case law in New Jersey that attempts to define this standard.

Once that determination as to the custody has been made by a court, or by consent of the parties if they can agree, it may still be changed in the future.  Certain factors must be met in order to succeed in changing custody. Generally speaking,  if the other parent voluntarily consents to the change,  it will in most instances, be permitted by the court. If the other parent does not agree to the proposed change in custody, an application (referred to as a “motion”) must be filed to commence the process in the family court in New Jersey.

An application to modify custody requires a two-step process.  The first step requires the moving party to show a “change of circumstances” as a threshold to allow discovery and an evidentiary hearing or trial.  The second step is the hearing or trial itself in which the court will apply the same standard that would have applied at the time of the original custody determination.  The paramount consideration in all child custody cases is to determine  “what is in the best interest of the child?. ”

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In a case decided on July 30, 2014, Viso vs. Viso, the Appellate Division rejected an appeal to modify the court order which denied the supporting spouse’s obligation to terminate or modify his support obligations.  In this instance, the parties’ were divorced in December 2007 and memorialized their agreement in a property settlement agreement which the court incorporated into their final judgment of divorce.

Approximately four and a half years later the Plaintiff, the supporting spouse,  filed a motion to modify his support obligations asserting that his financial circumstances had changed, his income had decreased, and that the defendant, the supported spouse, had increased income.  His motion was denied by the trial court.

In New Jersey, a court may modify support if there is a showing of changed circumstances.  Those changed circumstances can include an increase or decrease in a supporting spouse’s income.  It may also include an increase in the supported spouse’s income as well as subsequent employment by the dependent spouse.  The party who seeks to modify the support amount has the burden of proof.

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