New Jersey Family Law

HACKENSACK DEFAULT DIVORCE

He never answered her New Jersey divorce complaint. So she got a default New Jersey divorce decree, under which the parties' property was divided according to her equitable distribution proposal. One year and one day after the divorce, she filed a motion seeking to modify equitable distribution, based upon her alleged recent discovery of his 401(k) plan of almost $200,000. The New Jersey divorce judge denied the modification request, finding that the wife had been represented by counsel, either knew of the 401(k) plan before the divorce, or should have known of it through the exercise of reasonable diligence. This decision is now affirmed.    Gonzales v. Devyak, New Jersey App. Div. April 30, 2007

EDGEWATER DIVORCE MEDIATION

It was appropriate for the New Jersey divorce judge to deny the father's motion to emancipate his two daughters – one 22 and one 20. There was ample credible evidence that both girls were full-time students living with their mother, despite one daughter’s having left home for approximately 5 months to live away from home. On theother hand, the problem arose because the mother did not reasonably communicate with the father about the daughters’ status, and so, the judge was justified in awarding counsel fees in favor of the father and against the mother.  Gauthier v. Delgado, New Jersey App. Div., April 18, 2007

SHORT HILLS MEDIATION

In this case concerning the disposition of joint bank accounts on the death of one of the parties to the account, the panel affirms the trial court’s judgment, agreeing with 4 of decedent’s 5 daughters and finding that the balance of certain joint accounts established by the decedent with her 5th daughter are the property of her estate, to be distributed equally among the 5 daughters according to her will. The panel rejects the 5th daughter’s claim that the accounts gave a right of survivorship to her, and that, at decedent’s death, the accounts belonged to her exclusively. The trial court aptly found that the 5th daughter (1) had a confidential relationship with the decedent; (2) had to rebut the presumption that decedent’s creation of the joint accounts was the product of undue influence; and (3) had failed to do so.    I/M/O Estate of Balgar, New Jersey App. Div., April 17, 2007

CHATHAM DIVORCE ATTORNEY

On the notice of removal filed by the husband’s health insurer and the District Court’s sua sponte order to show cause why this New Jersey divorce action should not be remanded for lack of jurisdiction, the District Court held that it lacked jurisdiction over the case and that the matter had to be remanded to the New Jersey family court. The insured had filed the notice of removal as an "additional defendant" to the divorce action after the New Jersey divorce judge ordered that the insurer had to insure the wife. However, the insurer was not a party to the divorce action, and the District Court concluded that the "plain language" of the removal statute, 28 U.S.C. §1441, "clearly limits" the right of removal to "defendants." The District Court further concluded that remand was appropriate based on interests of federalism and preserving judicial resources. Sheppard v. Sheppard, U.S. Dist Ct. (D.J.), April 16, 2007

SUMMIT DIVORCE LAWYER

The New Jersey divorce judge should not have reduced the ex-husband's alimony obligation in light of the parties’ extensively-negotiated New Jersey divorce agreement which contained an anti Lepis clause providing that alimony could not be altered based on changed circumstances, unless the defendant suffered an involuntary reduction in income. The agreement was clear on its face, and provided no guarantee to the plaintiff beyond the monthly alimony of $11,500 and $3000 in child support, unless there was a change in the tax laws, which did not occur. Aaron v. Aaron, New Jersey App. Div., April 13, 2007

WESTFIELD DIVORCE MEDIATION

In this international child custody dispute, where the mother is currently incarcerated for violating litigant's rights under Rule 1:10-3, New Jersey retains both personal and subject matter jurisdiction. There is no obligation under the Hague Convention to recognize the determinations made by the courts of Spain under principles of comity or res judicata. Further, the panel finds no basis to afford comity to the Ecclesiastic Tribunal of the Archbishopric of Valencia and no error in the refusal of the trial court to adjourn the custody trial pending the disposition of the mother's indictment for interference with child custody or the court-imposed sanctions. Innes v. Carrascosa, ___N.J. Super. ___ (App.Div. 2007); New Jersey App. Div., April 12, 2007

MORRISTOWN MEDIATION

The New Jersey family law judge aptly denied the grandmother's motion to modify the terms of a "relatively recent" consent order that allowed her to have visitation with her grandson, concluding that she had failed to make even a threshold showing that increased visitation was necessary to avoid harm to the child. Without such a threshold showing, she was properly denied discovery and an evidentiary hearing. The judge also justly denied reconsideration and awarded counsel fees to the boy’s parents.     Parson v. Plotts, et vir., New Jersey App. Div., April 11, 2007

MORRIS COUNTY MEDIATION

The New Jersey divorce judge was wrong in denying the ex-husband's application for counsel and expert fees he incurred in his New Jersey divorce. The ex-wife o refused repeated requests for an uncontested divorce and took a frivolous position claiming the unenforceability of the parties' New Jersey divorce agreement. The ex-husband was correct in contending the agreement did not preclude an application for counsel fees under the circumstances here.     Hmelovsky v. Hmelovsky, New Jersey App. Div., April 10, 2007

HACKENSACK MEDIATION

In a New Jersey divorce action filed in 2005, the New Jersey divorce judge properly valued the pension assets using a marriage end date other than the date of filing of the New Jersey divorce complaint, pursuant to Painter. Here, remarriage after the entry of a final judgment of divorce in a New York action (even though it was reversed on appeal) presented "incontrovertible evidence" pinpointing the time the marriage "irretrievably broke-down," such that the marital partnership terminated prior to the filing of the New Jersey divorce complaint. Smith v. Smith, 72 N.J. 350, 361-62 (1977). The facts of this case present another exception to the Painter rule.     Genovese, etc. v. Genovese, New Jersey App. Div., April 9, 2007

ALPINE DIVORCE ATTORNEY

The New Jersey divorce judgment provided that the ex-husband's savings plan be subject to equitable distribution, despite a provision in the parties' New Jersey prenuptial agreement to the contrary. The New Jersey divorce judge found that increased contributions to the savings plan during the marriage were not foreseeable at the time the prenup agreement was signed, thereby rendering the section at issue unenforceable. The judge also justifiably ordered the ex-husband to pay plaintiff rehabilitative alimony for three years while she completed her college degree, which would allow her to earn the income necessary to maintain the marital lifestyle.  Pattison v. Pattison, Jr., New Jersey App. Div., April 6, 2007