DV in NJ: Re-thinking Permanency of Restraints and Examining Newer Causes of Action

The New Jersey Prevention of Domestic Violence Act (PDVA) (N.J.S.A. 2C:25-17 et seq . ) provides two forms of relief to a victim of domestic violence: (1) civil relief, by obtaining a restraining order; and (2) criminal relief, by which a victim may file a criminal complaint. Here, we take a closer look at the civil side—the Final Restraining Order.

A restraining order is an order issued by the court pursuant to a complaint under the PDVA to protect a victim of domestic violence. Upon a finding at a hearing that an act of domestic violence occurred, the judge will determine whether to issue a Final Restraining Order (FRO) and what types of additional relief will be granted. An FRO is issued upon a showing that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship as defined by the PDVA. The victim must prove that a predicate act of domestic violence occurred and a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence. The standard of proof at a FRO hearing (“preponderance of evidence”) is lower than that required in a criminal trial (“beyond a reasonable doubt”), even though the sanctions for violating a FRO are criminal sanctions. MORE

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Cohabitation Facts To Consider – Part 1

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

It is becoming more and more common for couples to cohabitate; that is, live together, in a relationship without the bond of marriage.  Many couples find this arrangement to be a great way to “test the waters” before jumping into marriage.

If you are divorced, receiving alimony from a former spouse and are thinking about “testing those waters,” you should read this article carefully, because your romantic life may have a significant impact on your financial future.  If you are paying alimony, you should be aware of the changes to the law, as they may impact your obligation to continue to pay alimony.

Most divorcees are aware that if they receive or pay alimony, the obligation will automatically terminate if the recipient remarries (in most cases).  Many divorcees also know that if the recipient of alimony lives with their significant other, it may impact alimony.  The new alimony statute, N.J.S.A. 2A:34-23(n) enacted on September 10, 2014 provides clarification to help Courts and practitioners to determine if a party is cohabiting.

A noteworthy addition to the law regarding cohabitation is the Legislature‘s overt recognition that some couples may be cohabitating without living together full-time. The new statute specifically states that a Judge cannot find the absence of cohabitation based on “grounds that the couple does not live together on a full-time basis.” This language certainly changes the game, as many people may have believed that if a couple was maintaining two separate households, that factor would carry the day in defining whether or not cohabitation was occurring. The moral of the story is that a person may be deemed to be cohabiting even if he/she maintains a separate residence from their significant other.

Disability Status and Its Effect on Support: Does It Ever End?

As published in the New Jersey Law Journal, October 26th, 2015

This article explores the impact that a determination of disability may have on support obligations, discusses the Social Security Administration’s (SSA) requirement for disability status, surveys the case law, and makes recommendations for practitioners handling such matters.

When an individual is deemed disabled by the SSA, that status creates a rebuttable presumption of a limited ability to work. This reduces the ability of the nondisabled spouse to argue that the disabled spouse should be imputed income commensurate with that spouse’s earnings capability, were he or she not disabled.

For the rest of the article, click here.

Social Media and Family Court

social media
social media

The explosion of the numerous forms of social media has in many ways created a potentially fundamental alteration of the way in which family law litigation is conducted.  I will be addressing social media issues in future blogs as well as in this blog as this recent phenomenon (who ever heard of Facebook seven years ago?) has had a profound impact on the way that issues like custody and even financial issues will be addressed.  I will offer an example in this blog of the impact of social media with possible ramifications and will further develop the potential opportunities and dangers to litigants in future blogs and articles.  My example of what we see is based on an actual incident that I have witnessed.  The details here are not important but the broader issues raised are very significant.

We can start with Facebook and stream of consciousness allegations made by a parent in a custody matter.  This particular matter was a bitterly-contested custody dispute that extended many years after the divorce and the original custody determination.  The former wife (we will call her “Sally”) made the allegation in her court documents that her former husband (we will call him “George”) had recently attempted to burn her house down by setting fire to her porch.  She was obviously attempting to raise to the court concerns over George’s mental stability.

In addition, Sally was simultaneously posting entries on Facebook as to her beliefs of George’s alleged arson and her fears of him.  Multiple posting by Sally and her “friends” on Facebook ensued, with many postings, decrying the alleged mental instability of George.  These postings were viewed by George’s personal acquaintances, business referral sources and even the parties’ daughter, who was a “friend” of Sally’s on Facebook.  George finally learned about this from a “friend” who advised him of the exchange.

A copy of the postings were forwarded to George, which George read with disgust, knowing that the allegations were untrue and realizing that his reputation was being sullied with him powerless to prevent it.  However, George was even more astounded when he read the final postings that contained Sally’s admission that she was wrong; that the fire was as a result of a frayed electrical cord.  The court eventually learned of the misrepresentation.  Sally never issued an apology to George, either personally or on Facebook.

Look at all the possible issues that were created by Sally’s postings. She disseminated false allegations to possibly hundreds of people, many of who know both parents.  Does George have a possible tort action against Sally?  Sally may have admitted to falsely certifying to the court serious allegations about George affecting perceptions about him.  Was Sally attempting to alienate the child against George, knowing the child would be reading her posts and her other friends’ posts?

It is clear that use, or more accurately, misuse of a social media can have significant impact on a custody matter.  This theme will continue to be developed in future entries.