New Developments

Regarding New Jersey Divorce law

Governor Corzine signs S-1467 into lawJustices Reject Transsexual Marriage CaseNew IRS Guidelines For Innocent Spouses September 28, 1999 – Grandparent Visitation RightsSeptember 26, 1999 – N.J. Parental Notification for Abortion Act September 13, 1999 – Limited Duration Alimony

Governor Corzine signs S-1467 into law

On January 20, 2007, Governor Corzine signed S-1467 into law. S-1467 (Scutari/Gill/Bateman/Cohen/Vas)
adds new causes of action for divorce based on irreconcilable differences. The new law is P.L.2007, c.6 and
takes effect immediately. Additional information can be obtained from the Legislature’s websitewww.njleg.state.nj.us.

Justices Reject Transsexual Marriage Case

The U.S. Supreme Court begins its new term by denying review in several family law cases, including the appeal of a male-to-female transsexual whose marriage to a now-deceased man a Texas appellate court held invalid on the grounds that gender is determined by chromosomes at birth.

NEW IRS Guidelines For Innocent Spouses

The IRS has released a Revenue Procedure that provides guidelines for divorced and separated spouses on how to obtain “equitable relief” where they were unaware of tax problems or if payment of taxes due would cause undue hardship. specifically, the Revenue Procedure provides guidance for taxpayers seeking relief from federal tax liability under Section 6015(f) or 66(c) of the Code. Such a spouse seeking relief (i.e., a “requesting spouse”) must satisfy certain “threshold conditions” for any request for equitable relief. This Revenue Procedure sets forth the conditions under which relief under Section 6015(f) will ordinarily be granted and provides a partial list of factors to be considered in determining whether it would be inequitable to hold a requesting spouse jointly and severally liable for liability that was properly reported but not paid where certain conditions are not met, or for a deficiency.

September 28, 1999 – Grandparent Visitation Rights

The United States Supreme Court has granted a Writ of Certiorari in the case of In re The Visitation of Natalie Anne Troxel, Isabelle Rose Troxel, minors, Jennifer Troxel and Gary Troxel, 173 Wash. 2d 1, 969 P.2d, 21 (1998) involving the constitutionality of the Washington State legislation creating third party visitation rights. (Note: the visitation statute under scrutiny in the Washington case did not specifically relate to grandparent visitation, but rather to the broader category of third parties.) The Supreme Court of Washington ruled that the State’s third party visitation statute authorizing visitation over parental objection was constitutionally flawed under the Federal Constitution. The Court concluded that neither the State’s police powers nor the parens patriae responsibility could be invoked as justification in the absence of harm to the physical or mental health of the child or to public safety, peace, order, or welfare. The Washington Court held that:

Short of preventing harm to the child, the standard of “best interests of the child” is insufficient to serve as a compelling State interest overruling a parent’s fundamental rights. State intervention to better a child’s quality of life through third party visitation is not justified where the child’s circumstances are otherwise satisfactory. To suggest otherwise would be the logical equivalent to asserting that the State has the authority to break up stable families and redistribute its infant population to provide each child with the “best family.” Id. supra 969 P.2d at 31-32.

The matter is currently scheduled for argument in January 2000 with a decision expected sometime in the middle of next year.

New Jersey has a much more specific grandparent visitation statute, to wit N.J.S.A. 9:2-7.1 that provides that “a grandparent or any sibling of a child residing in the State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It is the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interest of the child.” (N.J.S.A. 9:2-7.1(a)).

In making a determination on an application filed pursuant to this statute, a court is required to consider the following factors:

The relationship between the child and the applicant;

The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;

The time which has elapsed since the child last had contact with the applicant.

The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;

If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

The good faith of the applicant in filing the application;

Any history of physical, emotional or sexual abuse or neglect by the applicant; and

Any other factor relevant to the best interests of the child.

N.J.S.A. 9:2-7.1(b).

With regard to any application made pursuant to this statute, it is a prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full time caretaker for the child. (N.J.S.A. 9:2-7.1(c)).

New Jersey’s grandparent visitation statute was revised on June 29, 1993 to eliminate the requirements of divorce, death or separation having to exist before a grandparent (or sibling) could make an application to the Court for visitation.

Recent New Jersey cases have evidenced a desire to permit grandparents and other third parties to seek visitation of children or unemancipated individuals. For instance, in a 1995 trial decision out of Camden County, grandparents were permitted to intervene in an adoption case. In another trial level case in 1996 a stepdaughter was granted visitation with her mother over the objection of a stepfather. In an appellate case from 1995 a grandmother was viewed as “standing in the shoes of her deceased daughter” in a custody dispute against the foster parent.

Notwithstanding the foregoing, decisions across the country with regard to the constitutionality of grandparent/third-party visitation statutes are not consistent and, as a result, a pronouncement from our Nation’s Supreme Court would be quite enlightening as to the viability of such laws

September 26, 1999 – New Jersey Parental Notification for Abortion Act

The New Jersey Parental Notification for Abortion Act was to become effective September 26, 1999. However, the American Civil Liberties Union has filed an emergent appeal for a stay to the NJ Supreme Court which has been granted on a temporary basis and may place a hold on the commencement of this law pending Constitutional scrutiny. Notwithstanding the recent attempts by the ACLU to stop implementation of the new law, this law requires medical providers to give notice to parents of a minor seeking an abortion unless a court orders otherwise. It also provides for a judicial bypass procedure that affected minors may utilize to seek waiver of the parental notification requirement. The act also provides that those waiver applicants have a right to appointed counsel for the proceeding if they so request and that the court advise them of this right.

September 13, 1999 – Limited Duration Alimony

A recent amendment to N.J.S.A. 2A:34-23 permits, in addition to permanent and rehabilitative alimony, the Courts of the State of New Jersey to award “limited duration alimony.” N.J.S.A. 2A:34-23 was also amended on September 13, 1999 to provide for “reimbursement” alimony. Generally, permanent alimony would be awarded in long-term marriages and only terminate or be modified based upon the death of either party, the recipient’s remarriage, possibly the recipient’s cohabitation or a change in circumstances. Rehabilitative alimony is typically awarded in situations where the dependent spouse requires a certain period of time to re-enter the marketplace and achieve his or her earning potential after a certain period of education and/or training. Prior to the recent modification of the aforementioned statute, the Courts could award either or both permanent and rehabilitative alimony. However, there was a gap in the law when it came to alimony in short-term marriages. Before the recent amendment, the Courts could not award limited duration and/or “term” alimony. Although the Courts were unable to award this, litigants and their attorneys would often negotiate this point. However, if one party was adamant about accepting limited duration alimony, they could always rely on the fact that if the case proceeded to trial, the Court could not award that kind of alimony. That is no longer the case in light of the recent enactment.

There are 13 factors which the Court must consider when awarding any form of spousal maintenance including, but not limited to, permanent, rehabilitative, limited duration or reimbursement alimony. These factors include the needs and incomes of the parties, the duration of the marriage, the age, physical and emotional health of the parties, the standard of living established in the marriage and the likelihood that each party could maintain a reasonably comparable standard of living.

The new statute provides that an award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the Court found would occur at the time of the award. The Court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances. Further, in determining the length of the term, the Court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate. (Note: to a degree, this sounds like rehabilitative alimony.)

Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. Such an award may be made separately or in conjunction with limited duration or rehabilitative alimony only.

Nothing in the new statute is to be construed to limit the Court’s authority to award permanent alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case.

In accordance with N.J.S.A. 2A:34-25, if after the Judgment of Divorce a former spouse shall remarry, permanent and limited duration alimony shall terminate as of the date of remarriage except that any arrearages that have accrued prior to the date of remarriage shall not be vacated or annulled. A former spouse who remarries shall promptly so inform the spouse paying permanent or limited duration alimony as well as the collecting agency, if any. The Court may order such alimony recipient who fails to comply with the notification provision of this Act to pay any reasonable attorney fees and court costs incurred by the recipient’s former spouse as a result of such noncompliance. Conversely, the remarriage of a former spouse receiving rehabilitative or reimbursement alimony shall not be cause for termination of such alimony by the Court unless the Court finds that the circumstances upon which the award was based have not occurred or unless the payor spouse demonstrates an agreement or good cause to the contrary.

In 1993, a Commission to study the Law of Divorce was instituted and issued a report in 1995 addressing the adequacy of New Jersey laws in the divorce area and to make recommendations for desired alterations. After hearing from various witnesses, the commission determined that the current system would benefit from reform. Part of the suggested reforms included limited duration alimony. Specifically, in its report, the commission noted that “with the added option of limited duration alimony, the Courts will not have to use the fiction of requiring one spouse to pay “rehabilitative” alimony to a spouse who has a career and is in no need of rehabilitation.” Essentially, the limited duration alimony requires no other purpose than to provide additional support to a recipient spouse during the period following a divorce without any need to show a need for rehabilitation and may terminate without said rehabilitation having occurred. This is a distinguishing factor from “rehabilitative” alimony which should not terminate until the contemplated rehabilitation has been achieved.