New Cohabitation Case Law- The Standard for Proving Cohabitation to Terminate or Modify Alimony Just Became Easier.

On June 30, 2021 the New Jersey Appellate Court case, Temple v Temple, was approved for publication, making it binding case law in New Jersey.  How does this case now make it easier to prove cohabitation- well let me explain.

Alimony or spousal support in New Jersey may be suspended or terminated if the payee cohabits with another person. N.J.S.A. 2A:34-23. This required the Court to consider six (6) non-exclusive statutory factors, which include intertwined finances, sharing of living expenses, recognition of the relationship, duration of the relationship, sharing of household chores and other relevant evidence. Prior case law had put a significant burden on the paying spouse to prove cohabitation prior to being permitted discovery toward these six statutory factors.

The facts in Temple are not uncommon in cohabitation disputes. A husband and wife divorced after a lengthy marriage with an agreement in which the husband was to pay permanent alimony to wife. Sixteen years later, the husband filed an application with the court to terminate his alimony obligation, alleging the wife had either remarried or was cohabitating with a man whom she had been in a long-term relationship post-divorce.

The wife filed a written response with her own alleged explanations as to her relationship with the gentleman, and alleged she was neither remarried nor cohabitating with him as defined by statute. The trial judge, incorrectly, accepted the wife’s written explanation as true and denied the husband’s application. In doing so, the husband was prevented from conducting discovery and obtaining disclosure of information and/or documentation which may have provided him with further evidence of the wife’s cohabitation.

The husband filed a successful appeal, and the Appellate Division reversed the trial court’s denial and remanded the case to allow husband the opportunity to seek discovery and an evidentiary hearing. In doing so, the Temple court clarified how trial courts need to approach allegations of cohabitation and under what circumstances discovery will be allowed.

While prior case law had given the impression that trial courts should only allow discovery if a high burden of proof was initially satisfied and substantial evidence was independently obtained by the alimony payor, Temple now appears to have lowered that bar substantially.

The decision in Temple is significant, and likely will allow many more alimony payors to succeed in obtaining rights to discovery from their ex-spouse to obtain evidence they would have otherwise been prevented from obtaining to rightfully prove their case and have their alimony properly reduced, suspended or terminated.

Success in cohabitation litigation largely depends on the proper timing of your filing as well as the investigation and precise presentation and application of the facts in your matter to applicable law. 

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Contact Georgia Fraser, Esq. at Fraser Family Law Office LLC for help with your family law or divorce issue. 609-223-2099.

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Making Self-Care a Habit

For many of us self-care is synonymous with things like trips to the spa or once a year vacation and is permissioned perhaps as only an intermittent break from the stress of our everyday lives. But I believe that a habit of true self-care is essential to how we stay present in our lives, how we resource ourselves to make better decisions and create the sense of agency necessary to make changes.  It is also the well from which we draw our energy to give and care for others. But how many of us are running on empty all the time between work and home life?  How often is taking care of yourself the thing that comes last or the first thing to go when your schedule goes sideways?

I had a conversation with a dear friend recently who was looking to make big changes in his life.  We talked a lot about what the block to those bigger changes were and during the course of our discussion he revealed how little of himself was present in his everyday life; always working, doing, taking care of others. How could my friend hope to make these big changes for himself when he wasn’t creating a habit of taking care of himself every day? Here is the advice I gave to my friend:

1. Prioritize Rest: We are a society that disdains rest and glorifies “doing.” But rest – the good old-fashioned close your eyes kind -is essential not only to the body’s repair but to the repair of the emotional and psychic toll that the stress of everyday life takes on all of us.  Rest is where the energy to create and change is built. So my advice was – to find a soft place to land every day if even for 10 minutes. Close eyes. Slow your breath. Let your mind wander.

2. Learn to Say No:  How many of us push ourselves to do things when we’re tapped out, or say “yes” to something that really should just be a no. I heard a great interview of producer Shonda Rhimes in which she revealed that she cultivated a perfect “no,” by saying “No, I’m not able to.” Period. Full-stop.  Try hers or come up with your own- but cultivate more “no’s” in order to say “yes” to yourself more.

3. Don’t Take On More Than You’re Resourced For:  This is a corollary of “no,” but the obvious truth is that when you’re on empty- it’s a full-stop until you’ve re-filled the tank. This could mean more rest, more play, more joy, more connection. Whatever it is that re-fuels you.

4. Establish Your VIP Rope:  You know those exclusive clubs where there is a bouncer and vip rope that only the select people can get behind- well access to you should look like that too. Figure out who the energy vampires are and who are the people that restore and re-fuel you and establish the rules around VIP access.

5. Stay With Your Joy:  Ever go on a weekend trip with a friend and have so much fun you wonder why you don’t do “that” more often? Find ways to bring whatever “that” is into your everyday life. Its really easy to lose the thread of your own happiness in a routine that has so little of YOU in it. So find a way to say connected to yourself by staying connected to the things you love to do. (The good news is that the more you say no to what isn’t your joy the more you can say yes to what is).

Ready to take better care of yourself?  For more information about family law issues contact Georgia Fraser, Esq. of Fraser Family Law Office, LLC  at 609-223-2099.

Here’s What You Need to Know About the New Law on Relocation

Looking to Move Out of State or Keep Your Child From Being Relocated – Here’s What You Need to Know About the New Law on Relocation.

In August, the New Jersey Supreme Court departed from the legal standard that had been in place for 16 years as it pertains to relocation by a custodial parent from the State of New Jersey.   Bisbing v. Bisbing, 2017 N.J. LEXIS 830, 2017 WL 3392717 (N.J. Aug. 8, 2017). If you have a potential relocation issue in your divorce or custody case, it is important that you educate yourself as to how this change in the law impacts you. 

Here is an overview of the basics:

1. You cannot remove your child from the State of New Jersey without an Order of the Court or Consent of the Other Parent:

N.J.S.A 9:2-2 entitled: “Custody of children of divorced or separated parents within jurisdiction of Superior Court; removal from jurisdiction; consent; security”

states:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.

N.J.S.A. 9:2-2.

2. The party seeking to relocate must show “cause” before a court will permit the removal of a child from the State of New Jersey:

N.J.S.A. 9:2-2 requires a showing of “cause” by the party seeking relocation, before a court will authorize the permanent removal of a child to another state without consent of both parents.

3. Best Interests of the Child Standard Now Governs (Old Standard (Baures v. Lewis) v. New Standard (Bisbing v. Bisbing)

The old standard set forth under Baures v. Lewis  involved the application by the court of a two-prong test in situations in which there is a primary custodial parent, which was (1) that there is a good faith reason for the move and (2) that the move would not be inimical to the best interests of the child. 167 N.J. 91 (2001). The New Jersey Supreme Court in Bisbing departed from the Baures two-part test and rather indicated that in all relocation disputes where the parties share joint legal custody that, “the trial court should decide whether there is “cause” under N.J.S.A. 9:2–2 to authorize a child’s relocation out of state by weighing the factors set forth in N.J.S.A. 9:2–4, and other relevant considerations, and determining whether the relocation is in the child’s best interests.” Bisbing, [emphasis added] 2017 N.J. LEXIS 830, 40.

The Court in Bisbing, indicates that, “[t]he Legislature required a showing of "cause" for an out-of-state relocation under N.J.S.A. 9:2-2 in order ‘to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.’” (citing to Holder v. Polanski, 111 N.J. 344, 350, 544 A.2d 852 (1988) (quoting Cooper v. Cooper, 99 N.J. 42, 50, 491 A.2d 606 (1984)).  In determining whether the relocation is in the child’s best interests, the Court has indicated that “the trial court should decide whether there is “cause” under N.J.S.A. 9:2–2 to authorize a child’s relocation out of state by weighing the factors set forth in N.J.S.A. 9:2–4, and other relevant considerations.” The factors to be considered under N.J.S.A. 9:2-4 are as follows:

the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

N.J.S.A. 9:2-4.

Relocation issues present some of the most difficult family law cases because of the competing needs to preserve the child’s relationship with their parent at the same time taking into consideration the potential benefits to the child of a relocation.  It is important to understand how this new law impacts you in negotiating and litigating your custody case.

For more information about relocation or any other custody issues, please contact Georgia Fraser, Esq. of Fraser Family Law Office LLC. 609-223-2099.

New Domestic Violence Case Finds that Inherently Violent Nature of Some Acts of Domestic Violence Are Self-Evident of Need For Final Restraining Order.

The Appellate Division opinion of A.M.C. v. P.B, released for publication on October 21, 2016 finds that a Trial Court misapplied the two-prong test for determining whether the issuance of Final Restraining Order is necessary (set forth in the landmark domestic violence case Silver v. Silver which requires in its second prong that the Court find that a domestic violence restraining order is necessary to protect a victim from future abuse). The Trial Court had found that the defendant had perpetrated acts of domestic violence, in this case, the assault of the victim on two separate occasions in a three- week period, including a physical assault that took place to prevent the victim from leaving the marital residence. But then determined that a Final Restraining Order was not necessary because it was not necessary to protect the victim from further acts of domestic violence because they believed that the parties’ relationship had ended when the victim left the marital residence because there were no children of the relationship and the fact that the defendant had no violated the TRO (which had not been served upon him) after the victim left the marital residence.  

The Appellate Division found in A.M.C. that the inherent violent nature of the acts against the victim, that were done to prevent her from leaving, along with the history of domestic violence and threats of further violence rose to the level of such acts that are “self-evident” of the need to protect the victim from further acts of domestic violence.  As such, the Appellate Division reversed the decision of the Trial Court and found that the victim was entitled to a Final Restraining Order.

This case helps to narrow the broad reading of Silver that sometimes leaves victims of domestic violence without protection, by giving more weight in the Silver analysis to cases involving acts of domestic violence that are inherently more violent in nature.

Domestic violence proceedings have serious implications for both the victim as well as the person accused of committing domestic violence.  Our office handles domestic violence cases and has worked with pro bono domestic violence organizations in both Mercer and Hunterdon County.  Contact Georgia Fraser, Esq. at Fraser Family Law Office, LLC. for a consultation to discuss your domestic violence matter.  (609)223-2099.