Posted on June 3, 2013 by Sandy Durst

As The Durst Firm, LLC begins its second month of operation, I want to thank everyone for the support and confidence you have demonstrated by referring your friends, family, and co-workers to us for their legal needs.  We strive to provide excellent representation and guidance coupled at reasonable rates.  Our clients benefit from our experience, skill, and insight.  Because we rely on community support, we strive to support our community in return.  You can learn more about some of the organizations / causes we support by clicking on the “Community Support” tab on our homepage.

Posted in Durst Firm News | Comments Off on

Changing the last name of the child

Posted on June 2, 2013 by Sandy Durst

It is common in divorce proceedings for the former wife to change her surname.  The law allows her to adopt any surname, not just her maiden name, as long as it is not being done for fraudulent purposes or to avoid creditors or criminal prosecution.  Recently, there has been an increasing number of cases wherein the mother wishes to change the last name of the parties children.  A recently decided unpublished opinion sets for the procedure for such a request.  The criteria for such a request are different and more stringent than when the spouse is seeking to change their own name.

 

FAMILY LAW 20-2-0109 Fleury v. Fleury, App. Div. (per curiam) (10 pp.) Defendant appeals from the trial court order denying his motion seeking reconsideration of the court’s order granting plaintiff’s request, as part of her final judgment of divorce by default, to change the surname of the minor child born of the marriage to her maiden surname. Although fully aware that plaintiff’s divorce complaint had not sought this relief and that defendant was entitled to notice and an opportunity to be heard, the judge granted the relief to plaintiff. Defendant also appeals the denial of his request to stay enforcement of the child support order. The court denies defendant’s application to stay enforcement of the child support order as without merit. The order changing the surname of the minor child is reversed and the matter is remanded for further proceedings because the application is contrary to Rule 4:72-1, which requires the filing of a verified complaint, and Rule 4:72-3, which requires publication of the notice of application in advance of the hearing and that notice be served by registered or certified mail, return receipt requested, upon defendant, and defendant was denied the opportunity to challenge the allegations supporting the application.

Posted in Durst Firm News, Durst on Divorce | Tagged , , | Comments Off on Changing the last name of the child

Increased lifestyle due to cohabitation can lead to alimony termination

Posted on May 8, 2013 by Sandy Durst

Once alimony has been awarded, NJ law allows for a modification upon a showing by the payor that the recipient is cohabitating and realizing an economic benefit from doing so.  Prior decisions have focused on the economic impact of the recipient’s new relationship and have not required actual cohabitation for relief to be granted.  This recent decision underscores the need for the court to asses the nature of the new relationship and determine if it is akin to a marriage and thereby warranting a modification of the alimony award.  Litigants on both sides of the alimony equation need to keep this decision in mind as time moves on and new relationships develop.

 

FAMILY LAW 20-2-9867 Reese v. Weis, App. Div. (Lihotz, J.A.D.) (46 pp.) At issue in this matter is whether defendant received a substantial economic benefit as a result of her cohabitation, such that alimony should be terminated. We conclude the inquiry regarding whether an economic benefit arises in the context of cohabitation must consider not only the actual financial assistance resulting from the new relationship, but also may weigh other enhancements to the dependent spouse’s standard of living that directly result from cohabitation. We also find a trial judge’s exercise of discretion when determining whether to modify or terminate alimony may properly evaluate the duration of the new relationship and assess its similarities to the fidelity associated with marriage.

Posted in Durst on Divorce | Tagged , , | Comments Off on Increased lifestyle due to cohabitation can lead to alimony termination

Plenary hearing required to resolve disputed factual allegations.

Posted on May 7, 2013 by Sandy Durst

In another decision stemming from a domestic violence case, the court reaffirmed the legal principle that when contested facts are presented to the court, a plenary hearing must be conducted when the certifications and supporting exhibits do not resolve the facts in dispute.  While this decision came from a domestic violence case, the logic and requirements apply to all family court motions.

 

FAMILY LAW 20-2-9847 J.M.F. v. G.M.F., App. Div. (per curiam) (8 pp.) Defendant G.M.F. appeals from the Family Part order denying his motion to dissolve a final restraining order (FRO) entered against him on a domestic violence complaint filed by his former wife, plaintiff J.M.F., pursuant to the Prevention of Domestic Violence Act. The appellate panel reverses and remands for a plenary hearing. The assertions made by defendant in his moving papers were sufficient to provide prima facie support to dissolve the FRO for good cause under the Act. The material facts as to the ongoing need for restraints were sharply disputed in plaintiff’s submitted papers. In turn, defendant refuted the contentions of plaintiff in his reply certification. The issue of plaintiff’s fear, and defendant’s control and dominion over plaintiff need to be explored at the plenary hearing.

Posted in Durst Firm News | Comments Off on Plenary hearing required to resolve disputed factual allegations.

NJ Domestic Violence statute held to protect a fetus

Posted on May 7, 2013 by Sandy Durst

In an interesting decision released today, NJ Superior Court Judge Lawrence Jones expanded the scope of those who are to be protected under the NJ Domestic Violence Law.  It stands to reason that the adult victim can seek protection from abuse whether she was pregnant or not.  In this groundbreaking case the court expanded the protection to the unborn child.  This is a decision that can have widespread ramifications in several contexts.  When domestic violence occurs and the parties have children, there is a presumption of custody in favor of the victim.  Presumably, there now exists a presumption of custody with the mother once this child is born.  How long the restraining order may remain in place is also a question to be answered.  A restraining order may be vacated upon a showing that the victim is no longer in fear and therefore no longer needs the protection offered under the restraining order.  At what age can this child be able to demonstrate that he or she is no longer in fear?  With respect to the abortion debate, this decision could have huge implications which are beyond the scope of any discussion on this blog.  While I certainly cannot fault the goal of Judge Jones’ decision, I remain curious as to how this decision will play out

 

DOMESTIC VIOLENCE RESTRAINING ORDER MAY COVER UNBORN CHILD IN ADVANCE
A domestic violence restraining order can provide in advance for protection of a child not yet born, a state judge has ruled in a case of first impression. “[W]hile a fetus is not yet legally a person, upon live birth the fetus becomes a person, with rights of redress and protection from harms which originated before birth,” Superior Court Judge Lawrence Jones held in B.C. v. T.G., FV-15-1033-13. There is an “inherent logic in allowing a pregnant domestic violence victim to obtain pre-birth, advance protection for her unborn child against a violent abuser,” he concluded.

Posted in Durst Firm News, Durst on Divorce | Comments Off on NJ Domestic Violence statute held to protect a fetus