New Jersey Family Law

If It Doen't Fit...

Johnnie Cochran, Esq. passed away yesterday. Flamboyant in public, he kept his private life shrouded in secrecy. When some of those secrets became public following a 1978 divorce, they were startling. During that divorce, it came to light that for 10 years Mr. Cochran had secretly maintained a 'second family' which included a son. After that relationship soured, his mistress, Patricia Sikora, sued him for palimony and the case was settled privately in 2004. Los Angeles Times, March 30, 2005

Hague Convention

Two more countries have joined the Hague Convention on Intercountry Adoption. Both Malta and San Marino should be added to the list, already including Australia, France, Germany, India, Switzerland, Mexico, Canada, Spain and many others. While the United States has signed the convention, it has not yet ratified it. Ratification is expected early in 2006. More information is available at the Hague Convention web site : http://www.hcch.net; Family Law Reporter, March 29, 2005

Immune Assets

In New Jersey divorce actions, most assets are subject to equitable distribution. Three statutory exceptions are inheritances, gifts and premarital items. But immunity may also extend to personal injury recoveries. Here, the trial judge erred in awarding half of the wife's personal injury settlement to the husband, especially when he had expressly waived it in the parties' prenuptial agreement, and since the settlement proceeds would ordinarily have been immune from equitable distribution. DeGange v. DeGange, New Jersey, New Jersey App. Div., March 28, 2005.

Overnight Parenting

The ex-husband sought to restrain the ex-wife from entertaining an adult male overnight in the presence of the parties' child. He claimed that she had committed adultery in her home 3 times, but he failed to provide an affidavit in support of his allegation. Pursuant to DeVita v. DeVita and without a plenary hearing, the ex-husband's application was denied because he could not prove (1)the adultery occurred or (2) that the child was present when she allegedly entertained a man in her home or (3) that she was an unfit parent who had acted against the child's best interests. Harkins v. Harkins, New Jersey App. Div., March 26, 2005.

From High To Low

This was a high-asset, lavish lifestyle New Jersey divorce. He was worth over $35.5 million before, but suddenly claimed he was "penniless" shortly after signing a pendente lite support agreement. Once the trial judge found that the marital lifestyle belied this contention, the husband's authority over two corporations and the family trust entities was terminated, his involvement was discontinued and the wife was appointed trustee with sole and exclusive management authority. The Appellate Division affirms. Sherman v. Greitzer, et al., New Jersey App. Div., March 25, 2005

Moving On

In the new world of "The Global Village", ex-spouses are increasingly faced with the need to move out of state. Here, the ex-wife sought an order permitting her to move to Michigan with the parties' 10 year-old daughter. In the 1994 New Jersey divorce, it was agreed that she would have primary physical custody and that he would have "liberal visitation". But when her second husband found a job in Michigan after being "downsized", the Court found that the move was requested in good faith. After asking for further certifications from the parties and receiving a "lengthy, detailed certification" from the mother, relocation was permitted, without a plenary hearing, since the factors required under Baures v. Lewis had been satisfied. Sandello v. Sandello, New Jersey App. Div., March 24, 2005.

Divorce Settlements : Dot The I's

The best way to complete and document a New Jersey divorce is to have a formal agreement prepared by the lawyers, signed by the parties and presented to the Court on the day set for Final Hearing. Less formal procedures can be risky. Specifically, this case disapproves of the practice of placing the terms of settlement "on the record" and then annexing the transcript purporting to set forth the terms of the parties’ agreement. Entress v. Entress, New Jersey App. Div., March 23, 2005

Goose or Gander?

What's a reasonable rate of return on assets to compute income for support purposes? Since Miller v. Miller, 160 N.J. 408 (1999), New Jersey divorce attorneys used a 5-year average of long-term corporate bonds. For Mr. Miller, it was 7.44% and was used to impute the return on his assets, in fixing his alimony payments to his ex-wife. Now, in addressing the same issue but from the perspective of the dependent spouse, the "Miller rate" is said to be excessive. So what should the rate be for Mrs. Overbay? That's the tough call for the trial judge on the remand of this new case. Overbay v. Overbay, ___N.J. Super___ (App. Div. 2005), 2005 WL 624687; March 22, 2005.

Fool Me Once

When the parties agree in a signed writing, they are bound by their mutual promises, absent coercion, fraud or duress. Here, the ex-wife asked her ex-husband to make a one-time payment of $132,000 on her behalf in order to satisfy her preexisting mortgage debt. He agreed to do so, provided that each treated the payment as alimony, i.e., it was to be deducted by him and included by her on their separate tax returns. She secretly reneged on the deal and he got stuck with a $57,757 bill to the IRS. The trial court held and the appeals court affirmed his entitlement to a complete set-off against her of this obligation. Muciello v. Muciello, New Jersey App. Div., March 21, 2005

Passport Impounded

Based on his violent attacks against the mother, the father was placed under a domestic violence restraining order, with only supervised child visitation being permitted. After directing him to anger management classes, the court also impounded his passport, since he was an Egyptian citizen and deemed to be a flight risk. Ismail v. Aboubakr, New Jersey App. Div., March 18, 2005