Ronald G. Lieberman, a partner with Cooper Levenson, will speak at a Family Law Certification Exam Prep Course on Oct. 14 at the New Jersey Law Center in New Brunswick, N.J.
This course is designed for attorneys who need a comprehensive understanding of New Jersey Family Law OR individual preparation for the Certification Exam. It is described as “providing a broad overview of matrimonial law for attorneys who are prepping for the Matrimonial Certification Exam or who want a comprehensive course review of family law. Presented in cooperation with AAML-NJ and several of their Fellows, the program will review subjects most likely to arise in family practice as set forth by the Board of Attorney Certification (“the practice of law dealing with all aspects of antenuptial and domestic relationships, divorce, annulments, alimony, child support, separate maintenance, child custody matters, equitable distribution, domestic violence, paternity and post-judgment matters”).
Lieberman will speak on Domestic Violence and Rules of Evidence and Trial Strategy. The speakers are attorneys are all certified by the Supreme Court of New Jersey as Matrimonial Law Attorneys. The full program agenda and speaker list can be found at: https://tcms.njsba.com/PersonifyEbusiness/Default.aspx?TabID=1699&productId=44594590
Q. A couple bought a house and the husband’s father is on the mortgage because husband has bad credit. Fast forward a few years and the couple is divorcing. They want to sell the house and split the proceeds. Does the father on the mortgage have any say?
— Looking for help
A. You didn’t mention if your father-in-law is on the deed of the home.
“He has no rights to force or to prevent a sale,” Lieberman said. “In other words, he has all of the detriments of home ownership by being on the mortgage with none of the benefits of home ownership.”
Lieberman said upon the sale of the home, the mortgage would be paid off.
“A home cannot be sold unless any mortgages are satisfied by the sellers,” he said. “It should not matter to the father whether the proceeds from the sale pay off the mortgage or whether the sellers have to bring funds to the closing to pay off the mortgage because either way, the mortgage must be paid off and the father is cleared.”
As a result, Lieberman said, you can either sell or not sell the home, and your father-in-law has little if no ability to stop you.
Email your questions to Ask@NJMoneyHelp.com.
Largely eradicated illnesses have been making a comeback, like the recent measles outbreak in four New Jersey counties and in other States. Many blame the resurgence of these illnesses on so-called “anti-vaxxers” who choose not to vaccinate their children. Generally, New Jersey law provides protection for parents who, based on religious or medical reasons, choose not to vaccinate because parents have a fundamental Constitutional right to parent their children.
However, on June 10, 2019, the New Jersey Appellate Division in New Jersey Division of Child Protection and Permanency v. J.B. and C.R. (“J.B. and C.R.”), made clear that a parent’s choice not to vaccinate is not absolute. Of course, as with many judicial decisions, this case begs as many questions as it answers.
In J.B. and C.R., the New Jersey Division of Child Protection and Permanency (“DCPP”—formerly DFYS) had care and custody of two children who had been removed from their parents. The Mother had objected to DCPP having the children vaccinated on grounds of “the Bible and the First Amendment” and “DNA and foreign protein in vaccines which are not healthy.”
After a hearing, including expert testimony from the children’s Board certified pediatrician, the trial court decided that DCPP could have the children vaccinated over the Mother’s objection. The New Jersey Appellate Division affirmed, noting that since a court can order necessary and appropriate medical care for an ill or injured child, that logic would extend to medical care to prevent illnesses. In its final paragraph, the Appellate Division stated: “[a] court of competent jurisdiction has the authority…to order necessary and appropriate medical care for an ill or injured child over the objection of the child’s parents…[w]e perceive no meaningful distinction between the power to order prophylactic medical care in the form of vaccinations…and medical treatment for diseases already contracted. Indeed, the child’s best interests are better served by preventing rather than treating disease.”
Despite the Court’s ruling, New Jersey Courts do not have carte blanche to order unvaccinated children vaccinated. For example, religious and medical exemptions still exist for parents who do not want to vaccinate their children but nonetheless send them to public school.
The circumstances surrounding J.B. and C.R. case involved DCPP, which had care and custody of the children, and that fact was a significant consideration in the Court’s decision. The real question now is how will family courts apply this decision in “normal cases” with typical custody disputes. The case will no doubt have far reaching consequences or benefits—depending on your view—beyond the DCPP sphere. Take for example two divorcing parents, one who wants a child vaccinated and the other who does not. If the matter is brought before a court and a Judge is called to rule, after a hearing with expert testimony from a physician, I see no reason a court could not rely on the decision in J.B. and C.R. to rule in favor of the pro-vaccine parent.
“Make it stop!” is a familiar plea I hear from family law clients when an ex-spouse or partner files yet another application in Family Court. It can be extremely frustrating to be on the receiving end of the second, third, fourth….tenth….application. Post-judgment family actions can continue for years after the parties are divorced or initially resolved their issues (or so they thought). Especially if there are children in common, litigants will have many years of contact ahead of them.
Unfortunately for those on the receiving end of court filing after court filing, there is no bright line rule about how many times a party can file an application in Family Court. A court generally will not intervene to limit a party’s access to the court absent exceptional circumstances because it is a constitutional right under the Due Process Clause of the 14th Amendment of the United States Constitution. In the New Jersey Appellate Division case of Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010), the Appellate Court held that a complete and blanket denial of a party’s access to the courts without regard for an application’s merits would be a denial of due process. However, all hope is not lost for litigants who feel they have been abused by frivolous or excessive court filings.
A court can, in some instances, limit a litigant’s access to it. But, before any prior restraint on access can be considered, the use of the litigation to harass must be first “objectively determinable.” D’Amore v. D’Amore, 186 N.J. Super. 525, 530 (App. Div. 1982). So, it has to be apparent to a reasonable observer that a claim is being made by one party to harass the other.
Many family law litigants feel they are being attacked or harassed merely because they are back in court, yet again. Still, that does not mean a court filing will rise to the level of harassment. For example, what if a party files an application seeking a change in parenting time, then three months later files an application to take advantage of the child tax credit, and then two months later files an application to compel the other party to contribute to the cost of extracurricular activities? The party on the receiving end of multiple court filings may feel such actions are taken to “get” that person, make him/her incur unnecessary fees or even, to harass. But without more, a reasonable observer likely could not determine that on their face, those filings were harassing in nature. Thus, the court would not limit a litigant’s access to it in those circumstances. And, before taking legally drastic measures to limit a party’s access to the court, a court could try to deter future filings by awarding counsel fees to the responding party or sanctioning the filing party.
Where a pattern of frivolous litigation can be demonstrated, a court can prevent an application from being filed when other available sanctions, such as monetary penalties, proved unsuccessful as a deterrent. Rosenblum v. Borough of Closter, 333 N.J. Super. 385 (App. Div. 2010). In the event a restraint is imposed on a party, the restraint must apply to the “specifically identified claims which have been determined to fall within one of the recognized categories of objective harassment.” D’Amore, 186 N.J. Super. at 530. A court will not simply issue a blanket denial of a litigant’s access to it.
Oftentimes, you or your spouse receive stock awards from the employer. Those shares will vest over a period of years as opposed to all at once. The question then becomes, what happens to the stock awards which vest after a divorce complaint has been filed if the vesting depends upon you or your spouse’s efforts on the job after the filing? We know have an answer for you. The answer is…it depends.
A recent case from the Appellate Division now tells lawyers that they can argue that if the award was made during the marriage that their clients can keep them free and clear of the spouse’s claim if that stock was issued in whole or in part for future performance. In other words, the stock award must be made for services performed after the complaint for divorce was filed, for future services, and not a deferred compensation for prior efforts.
If you have stock awards, or you believe your spouse has them, you should find out if the stock was intended to vest due to future services and not prior services by looking at the stock plan and find out if the stock grants were designed to maintain a long term interest by the employee in the overall success of the company. Or, you need to determine whether the stock was intended to vest through mere continued employment without consideration of you or your spouse’s level of proficiency.
It’s that time of year again when everyone is focused on giving (and getting) presents. These words of advice may leave you feeling a bit chilly, but here are some caveats to remember about gift giving at the holidays:
If an engagement ends without a resulting marriage—regardless of who called the whole thing off—the giver of the ring is entitled to have it back in New Jersey, and in a majority of other States, because the ring was a “conditional gift” given on the condition a marriage would result. Keep in mind that after you get down on one knee to propose, you may end up on both knees begging for the ring back if you propose on Christmas or Hanukkah, for example. If the receiver wants to keep the ring, he or she could allege that the engagement ring was intended as an unconditional gift—no “I do” required. So, if you give an engagement ring on a traditional gift-giving holiday, it might be harder to refute that it was actually a conditional gift.
What happens to gifts given during the marriage in the event of a divorce? The important thing to remember in this instance is: what’s yours is ours. Marital gifts between spouses are subject to equitable distribution, regardless of who bought the gift and regardless of what was done with the gift. So, it matters not that the soon to be ex-spouse never drove the sports car she bought for her husband; it is still an asset subject to equitable distribution in the event of a divorce.
The moral of this holiday story is—gift wisely.
It’s too bad there isn’t some Miranda-type warning before posting on social media, something along the lines of: what you post online can and will be used against you in a (family) court of law. It seems elementary but it bears repeating: be careful what you post—whether it’s on Twitter, Facebook, Instagram, Snapchat, or even in text messages and emails. Messages and postings frequently end up being used in court filings and even during trials.
I have been involved in many cases where social media postings contribute to the undoing of a client’s case or the opposing party’s case. For example, if a parent claims he or she cannot afford to pay child support but posts on social media outlets about his or her vacations, meals out, and extravagant expenditures, it will undermine that person’s credibility. Incriminating online postings in cohabitation cases by an alimony recipient are also common social media pitfalls. If the alimony recipient claims he or she is not, for example, in a relationship recognized in the couple’s social and family circle (one of the factors for a finding of cohabitation, see N.J.S.A. 2A:34-23), but Facebook is littered with photos of family holiday celebrations, trips, and birthdays, with the new significant other, this information can and will be used against the alimony recipient in court and potentially hurt his or her case.
Another thing to keep in mind is whatever you text or email can end up in a court filing. Does it matter, legally, that ex-spouses/partners trade barbs via text message? Probably not. But, it does not paint the acrimonious and hostile party in a good light for the Court, and Judges are human, too. A party with reasonable positions and a credible and calm demeanor can be undermined by the other party introducing ugly and expletive-filled text messages.
Many clients ask “can he/she ACTUALLY use this stuff against me?” The answer is—absolutely. So, be careful.
Atlantic City, N.J. — May 16, 2018 — Ronald G. Lieberman will speak at the New Jersey State Bar Association Annual Meeting and Convention on May 16, 17, and 18 at the Borgata in Atlantic City, N.J. The sessions include:
On Wed., May 16: “Is Alimony a Pension or Is There a Duty to Mitigate”
This session “looks to address the many practical issues surrounding whether a supported spouse has an affirmative duty to obtain gainful employment. While our case law allows for the imputation of income in appropriate circumstances is that a mere fiction? An obligor is required to work to capacity to support her ex-spouse, meaning she does not have the real option of hawking roses in the airport. Without a corresponding obligation imposed on the supported spouse are they not, in practical effect, permitted to hawk those roses in the airport if they choose? If income is imputed to a supported spouse should the courts upon a modification or retirement application factor into the analysis the monies representing possible bonuses, promotions and other career advancements? Should monies be imputed for the savings that would have or could have accumulated, whether in the form of retirement benefits or actual savings? In the end if there is no such duty then is alimony nothing more than a pension earned during the marriage?”
Moderator/Speaker: Paris P. Eliades, Esq., NJSBA Past President, Paris P. Eliades Law Firm LLC
Hon. Marie E. Lihotz, P.J.A.D. (Ret.), Archer Attorneys At Law
Hon. Angela White Dalton, J.S.C., Family Division, Monmouth County Superior Court
Hon. James A. Farber, J.S.C. (Ret.), Paris Eliades Law Firm, LLC
Ronald G. Lieberman, Esq., Cooper Levenson, Attorneys At Law
Frank A. Louis, Esq., Louis & Russell
On Thurs., May 17: “Would Equal Physical Custody Elevate a Parent’s Desires Over the Child’s Best Interests?”
This program explores whether exactly equal physical custody between parents elevates a parent’s desires over the fundamental underpinning of custody which is a child’s best interest. Social science and human conflict need to be reviewed to determine whether exactly equal physical custody is appropriate.
Moderator/Speaker: Ronald G. Lieberman, Esq., Cooper Levenson, Attorneys At Law
Hon. Terry Paul Bottinelli, J.S.C., Family Division, Bergen County Superior Court
Jeralyn L. Lawrence, Esq., Norris McLaughlin & Marcus
Megan S. Murray, Esq., Paone Zaleski & Murray
Amy Wechsler, Esq., Shimalla Wechsler, Lepp & D’Onofrio, LLP
Michael A. Weinberg, Esq., Archer Law
On Fri., May 18: “Family Law Bench-Bar Conference”
A discussion among experienced family law practitioners and family part judges on how we can work together to help resolve and adjudicate family law cases expeditiously. What do judges need from lawyers to help prepare them to hear a case and what lawyers need from judges to help them resolve their cases.
Moderator/Speaker: Sheryl J. Seiden, Esq., Seiden Family Law, LLC
Hon. Maritza D. Berdote Byrne, P.J.F.P., Presiding Judge, Family Division, Morris County Superior Court
Hon. Lisa F. Chrystal, P.J.F.P., Presiding Judge, Family Division, Union County Superior Court
Hon. Charles W. Dortch Jr., P.J.F.P., Presiding Judge, Family Division, Camden County Superior Court
Hon. Peter J. Melchionne, P.J.F.P., Presiding Judge, Family Division, Bergen County Superior Court
Hon. Marcella Matos Wilson, J.S.C, Family Division, Essex County Superior Court
Ronald G. Lieberman, Esq., Cooper Levenson, Attorneys At Law
Michael A. Weinberg, Esq., Archer Law
Cooper Levenson is a full service law firm since 1957, with 75 attorneys and New Jersey offices in Atlantic City and Cherry Hill. The firm also has offices in Bear, Del., Fort Lauderdale, Fla., and Las Vegas.
American Courts increasingly must deal with how to treat shari’ah law in divorce proceedings.
To quote a Mhar Agreement: “This is a prompt Mahr: One gold coin, sum of money and jewelry to be given prior to marriage, sum of money deferred and to be paid upon the divorce of the parties. This contract is to be governed by Islamic Law.”
Did you know that the First Amendment might not preclude a Court from enforcing a Mahr agreement? How far have the Courts gone on to treat the agreement as a valid prenuptial agreement, or to nullify it, or to incorporate it as part of the equitable distribution division of the assets?
Mahr agreements are Islamic religious agreements entered into prior to marriage and are governed by Shari’ah law. For many Muslims the Shari’ah is more than “law” it includes the methodology and process of ascertaining divine meaning and as such forms the moral and legal anchor of a Muslim’s existence. In all interactions, under Shari’ah, a Muslim is governed by the same degree of honesty, good faith, an eye to fairness, social responsibility, and equity essentially they are to live an ethical life seeking to please God.
Many times Mahr agreements contain all elements of a secular contract between the parties. Mahr is not a dower because it does not involve the bride’s father paying the groom but rather the groom must pay a price for the woman. If they do not agree to a price, one will be determined by the Court. In the bluntest terms, in the Islamic world, marriage is more of a contract than a sacrament. Islam emphasizes orthopraxis rather than orthodoxy and theology. The difficulty lies where a particular religion has developed an extensive system of laws. Those laws govern marriage and divorce, alike. Under New Jersey jurisprudence, it is a basic established principle that “a contract is a set of promises for the breach of which the law gives a remedy, or performance of which the law in some way recognizes as a duty.” Reinstatement (Second) of Contracts § 1 (1979).
The questions our Courts are faced with are what are Mahr agreements, what did the parties agree to, and is their contract enforceable? Is a Mahr a prenuptial agreement? Is it a simple contract?
In the New Jersey case of Odatalla v. Odatalla, 355 N.J. Super 305 (2002), the Court applied a two-prong test to determine whether a religious agreement is enforceable during divorce proceedings. Namely, is the contract: (1) capable of specific performance under “neutral principles of law” and (2) once those “neutral principles of law” are applied, does the agreement in question meet the state’s standards for those principles? The trial court enforced the dower provision holding that applying neutral principles of law (i.e., the principals of contract law in New Jersey), the Mahr agreement satisfied the all of the elements of a valid civil contract. The court used the evidence adduced from a period prior to the contract to interpret the meaning of the words of the contract and concluded that the ten thousand dollar deferred portion of the Mahr was due upon the dissolution of the marriage under the contract. It is important to note that the Court equitably distributed marital property, assets and debt and made findings as to alimony in the matter.
This New Jersey Court decision closely followed the New York Court decision in the case of Avitzur v. Avitzur, 58 N.Y.2d 108 (N.Y. 1993) addressing Jewish marital agreement. In Avitzur, the Court held there was nothing in law or public policy that prevented judicial recognition and enforcement of the secular terms of a religious marriage agreement because there was no excessive entanglement between church and state when the court applied neutral principles of contract law to decide the case. This approach is consistent with Jones v. Wolf, 443 U.S. 595, 9 S. Ct. 3020 (1979) which explained that the “neutral principles of law” approach that allows agreements to be enforced based upon neutral principles of law as opposed to religious doctrine.
This approach, however, could run afoul of the parol evidence rule, which bars the introduction of extrinsic evidence to clarify the meaning of a contract, and is in essence rewriting agreements. The parol evidence rule of contract law stands for the principle that parol evidence cannot be introduced to create, vary or contradict a term of a contract not otherwise present in the written agreement. The overreaching use of parol evidence undermines the certainty of the contract and invites problems with the statute of frauds, which requires agreements to be in writing in order to be enforceable. The Odatalla Court, however, used an exception of the parol evidence rule, which stands for the preposition that evidence can be introduced to interpret the meaning of the written words of a contract.
To avoid unnecessary confusion with regard to agreements which are likely to be enforced, you may want to contact an attorney to determine whether additional language should be included in your religious contract to avoid “double dipping”. We are taking the time to write about this to show you that entering into an agreement for religious purpose is far from a trivial question. You must understand how a religious agreement may affect your future rights. We, at Cooper Levenson, P.A., have earned a recognition as a specialized and experienced law firm in the representation of clients in various areas, including contract and family law.