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In an effort to reduce much of the emotional toll of a divorce, NJ law is generally disinclined to use marital fault as a factor when making alimony determinations. Deciding which party is at fault for the breakdown can be a difficult, time consuming, expensive, and emotionally draining process when it is even possible to make such a finding. However, in recognition of the fact that extreme situations of marital fault may be present which do impact the financial standings of the parties, the NJ Supreme Court held that “egregious fault” can rightfully be considered by the trial judge. The seminal case of Mani v. Mani sets forth this proposition but did little to define what would constitute egregious conduct. In the case of Clark v. Clark the appellate court took a step forward by illustrating at least one example where marital fault may be permissibly considered when deciding alimony.
FAMILY LAW — SPOUSAL SUPPORT
20-2-8025 Clark v. Clark, App. Div. (Lihotz, J.A.D.) (23 pp.) We reversed the trial court’s award of alimony, holding defendant’s long-term scheme to embezzle more than $345,000 from the joint marital business while serving as the business’s bookkeeper led to plaintiff’s fault-based claim for divorce, caused more than a mere economic impact on the marital assets, and demonstrated the rare case of egregious fault justifying consideration of whether defendant’s marital misconduct obviated an award of alimony.
In a recently decided appellate division case, the panel reaffirmed the current law in NJ which holds that there is a presumption in favor of the victim of domestic violence having temporary custody of the children. Also, it appears, for reasons that are not fully explained in the brief summary, that the victim was removed from the home. The appellate court found this to be in error and reversed that portion of the restraining order.
FAMILY LAW — DOMESTIC VIOLENCE
20-2-8024 J.D. v. M.A.D., App. Div. (Accurso, J.S.C., temporarily assigned) (18 pp.) We review a wife’s appeal of that portion of a domestic-violence final restraining order entered against her husband, granting him exclusive possession of their marital home and temporary custody of their two children. Because that order denied the victim of domestic violence temporary custody of her children, contrary to the statutory presumption contained in N.J.S.A. 2C:25-29b(11), and restrained her from her home without statutory authorization, we reverse.
For most people, going through a divorce is a period of chaos and uncertainty. It is also a time of transition. For many people, part of their transition from married their married life includes the resumption of dating. Whether or not one decides to date while their divorce is pending is a matter of personal choice. The purpose of this post is not to dictate personal behavior; rather it is simply intended to provide insight into the possible consequences as seen through the eyes of a divorce attorney.
Before taking the plunge, I am often asked if it is legal to date. The answer, candidly, depends on the nature of the relationship. To my knowledge it is not illegal to date while married. However, adultery is a grounds for divorce.
It is the emotional impact of dating that I believe has the most impact on divorce proceedings. Given all the turmoil stirred up during a divorce it is questionable as to whether or not becoming involved in a new relationship is advisable. There is also likely to be an emotional impact on the spouse. Even if it is accepted that the marriage is over, the perception of being replaced may be difficult to process. This can create an emotional dynamic that makes negotiations difficult. People need and benefit from the emotional support of family and loved ones during a divorce. However, be careful not to overly involve your new significant other in court proceedings, negotiations, mediation sessions and the like. Becoming all consumed with your current divorce can be toxic to your new relationship and can create counterproductive tension and hostility during the divorce process.
Realizing that I cannot control the twists and turns of my client’s lives, I would always prefer that the divorce be concluded before a client fully transitions in to the next stage of their life.
After practicing divorce law for more than a decade in NJ, I fully understand the unique circumstances, expectations, and factors that make up an alimony determination. It is true that the amount of alimony can vary as can the duration in two cases that may appear similar at the surface. But be assured, alimony is not a superficial analysis. Seasoned attorneys and committed judges evaluate the specific facts of each case and then apply the factors set forth in N.J.S.A 2A:34-23(b). While not perfect, the statute as presently drafted provides adequate guidance when making alimony determinations. each family going through a divorce is unique and proper application of the factors allows for an individualized approach that leads to a resolution that is appropriate for that given family. No one should want to have some of the most important decisions that will impact their lives for years to come made in an assembly line manner.
There is an increasingly vocal call for alimony “reform”. Make no mistake about it: the proposed reforms are nothing but agenda driven politics designed to improve teh outcomes for the financially advantaged spouse (still usually the husband) and work to the detriment of women and children. I refer you to the excellent piece authored by my friend, Patrick Judge, Esq. which succinctly and accurately details the potential impact of the proposed “reforms”. The piece can be found at http://blog.nj.com/njv_guest_blog/2012/10/on_divorce_and_alimony_nj_on_w.html
Guideline or formulas have an appeal: easy of application and uniform results. The skilled lawyers I have debated this issue with are almost uniform if their opposition to the proposed reforms. And I agree with them. Guidelines are, frankly, for the lazy and uniformed. Working without guidelines, formulas or the like I have been able to achieve results that my clients have been happy with whether they were the one paying or receiving alimony.
If better results are desired (and the first inquiry must therefore be who decides what the “best’ result is?) then make sure you retain an experienced and skilled attorney. Support adding more judges to the family court bench. Give the court the time and personnel needed to make these important decisions. Beware of the wolf in sheep’s clothing. Drastic reforms as proposed are not needed.
We fight so you don’t have to
