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Top Ten Family Law Cases from the Last Ten Years

To help celebrate family lawyer magazine’s tenth anniversary, here is a top ten list of the most important/influential family law cases over the last decade..

To help celebrate Family Lawyer Magazine’s tenth anniversary, here is a top 10 list of the most important/influential family law cases over the last decade.

By Laura W. Morgan , Family Law Consultant

It was also difficult to decide which state cases to include. Sometimes, a state supreme court will issue a decision that is decidedly influential, because other states adopt the reasoning of the ruling. Tropea v. Tropea , 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), which set out the standard for considering the relocation of the custodial parent, comes to mind. It can be hard, however, to predict if a recent state supreme court will be influential because influence takes time. We may not know if a decision issued by a state supreme court today is truly influential until years from now.

With these caveats in mind, here is my top ten list of important/influential family law cases over the last ten years. Reasonable minds may differ.

Top 10 Family Law Cases from the Last 10 Years

United states supreme court cases.

Fulton v. City of Philadelphia , 141 S. Ct. 1868 (June 17, 2021). The City of Philadelphia contracts with private agencies to certify and support foster parents. City contracts and ordinances prohibited these agencies from discriminating on the basis of sexual orientation. When Catholic Social Services refused to commit to certifying same-sex foster parents, Philadelphia refused to renew its contract. Catholic Social Services sued, arguing the city violated the First Amendment by forcing CSS to either espouse support for same-sex marriage or abandon its charitable mission. Philadelphia argued CSS could not claim a right to serve as a City contractor while refusing to follow anti-discrimination rules designed to meet the City’s duty to protect LGBTQ children and parents in the foster care system. The Supreme Court held that the city violated CSS’s right to free exercise. The Court reasoned that the Philadelphia law was not neutral and generally applicable because it allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Commissioner. Additionally, CSS’s actions do not fall within public accommodations laws because certification as a foster parent is not “made available to the public” in the usual sense of the phrase. Thus, the non-discrimination requirement is subject to strict scrutiny, which requires that the government show the law is necessary to achieve a compelling government interest. The government failed in that showing. www.supremecourt.gov/opinions/20pdf/19-123_new_9olb.pdf
Monasky v. Taglieri, 140 S. Ct. 719 (February 25, 2020). The first question presented concerned the standard for habitual residence: Is an actual agreement between the parents on where to raise their child categorically necessary to establish an infant’s habitual residence? The Supreme Court held that the determination of habitual residence does not turn on the existence of an actual agreement. The second question was: What is the appropriate standard of appellate review of an initial adjudicator’s habitual-residence determination? The Court held that neither the Convention nor ICARA prescribed modes of appellate review, other than the directive to act “expeditiously.” The first-instance habitual-residence determination under the Hague Convention was subject to deferential appellate review for “clear error.” Thus, under the Hague Convention, a child’s “habitual residence” depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parties, and such a determination is subject to review for clear error. www.supremecourt.gov/opinions/19pdf/18-935_new_fd9g.pdf
Sveen v. Melin , 138 S. Ct. 1815 (June 11, 2018). Mark A. Sveen and Kaye L. Melin were married in 1997. Sveen purchased a life insurance policy that year, and the following year he named Melin the primary beneficiary, and his children the contingent beneficiaries. Sveen and Melin divorced in 2007, and Sveen died in 2011. Meanwhile, Minnesota had changed its probate code in 2002 to apply a revocation-upon-divorce statute to life insurance beneficiary designations. Sveen had never changed the designation on his life insurance policy, and Melin was therefore still listed as the primary beneficiary at the time of his death. The Supreme Court held that Minnesota’s automatic-revocation-on-divorce statute did not substantially impair pre-existing contractual arrangements, and thus, application of the statute to revoke the ex-wife’s primary beneficiary designation under life insurance policy that was made before statute’s enactment did not violate the Contracts Clause of the Constitution. www.supremecourt.gov/opinions/17pdf/16-1432_7j8b.pdf
Sessions v. Morales-Santana , 137 S. Ct. 1678 (June 12, 2017). In this case, the Supreme Court cured the unequal treatment of children born to unwed U.S.-citizen fathers by extending a burden to children of unwed U.S.-citizen mothers. The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship. When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children. Morales-Santana’s constitutional challenge required the Justices to grapple with two crucial and contested issues: the extent to which constitutional gender equality principles govern regulation and recognition of family relationships and the nature of the judiciary’s role in the enforcement of the Constitution at the border. The Supreme Court declared that the law governing the acquisition of citizenship violates equal protection principles. They remedied the equal protection violation by “leveling down”: that is, rather than giving unmarried fathers and their children the benefit of the more generous standard in the citizenship statute, the Court nullified that standard for unmarried American mothers and their children. www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf
Howell v. Howell , 137 S. Ct. 1400 (May 15, 2017). A veteran’s ex-wife filed a motion to enforce the divorce decree’s division of military retirement pay after the veteran waived a portion of such pay in order to collect nontaxable service-related disability benefits. The Supreme Court held that states were prohibited from increasing, pro rata, the amount a divorced spouse received each month from his/her veteran’s retirement pay in order to indemnify the divorced spouse to restore that portion of retirement pay lost due to veteran’s post-divorce waiver of retirement pay to receive service-related disability benefits. The Court did not rule out the parties agreeing to such indemnification, although later cases have misinterpreted Howell to so hold. The Court also did not rule out increasing alimony to account for the lost property benefit. www.supremecourt.gov/opinions/16pdf/15-1031_hejm.pdf
Obergefell v. Hodges , 576 U.S. 644, 135 S. Ct. 2584 (June 26, 2015). The Supreme Court held that the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples.” As we all know, the game-changing nature of this decision cannot be overstated. This decision led to Pavan v. Smith, ___ U.S. ___, 137 S. Ct. 2075 (June 16, 2017), which held that an Arkansas statute that denied married same-sex couples access to the constellation of benefits that Arkansas linked to marriage was unconstitutional to the extent that the statute treated same-sex couples differently from opposite-sex couples. (The Arkansas statute generally required the name of the mother’s male spouse to appear on the child’s birth certificate when the mother conceived the child by means of artificial insemination, but allowed omission of the mother’s female spouse from her child’s birth certificate.) www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
U.S. v. Windsor , 570 U.S. 744, 133 S. Ct. 2675 (June 26, 2013). In many ways, this case teed up Obergefell. The Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections. In a nutshell, Edie Windsor and Thea Spyer were married in Canada. New York state, where the parties lived, recognized their marriage as valid. When Thea died, the federal government refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers. Edie challenged DOMA, alleging that DOMA violates the Equal Protection principles of the U.S. Constitution because it recognizes existing marriages of heterosexual couples, but not of same-sex couples, despite the fact that New York State treats all marriages the same. On June 26, 2013, the U.S. Supreme Court ruled that Section 3 of DOMA is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections. www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

Cases from the Federal Court of Appeals

Brackeen v. Haaland , 994 F.3d 249 (5th Cir. April 6, 2021). I have included this case because the United States Supreme Court granted certiorari on February 28, 2022. In this case, Texas, Indiana, Louisiana, and individual plaintiffs sued the federal government, contending that the Indian Child Welfare Act is unconstitutional. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case. The Fifth Circuit Court of Appeals, hearing the case en banc, held that parts of the law were constitutional and parts were unconstitutional: 1) ICWA’s mandatory placement preferences violated equal protection; 2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine; 3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment; 4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA); 5) BIA regulations were not entitled to Chevron deference; and 6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care. Look for the Supreme Court decision in the future. www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV2.pdf
Andochick v. Byrd , 709 F.3d 296 (4th Cir. March 4, 2013), cert. denied, 134 S. Ct. 235 (2013). In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285, 129 S. Ct. 865, 172 L. Ed.2d 662 (2009), the Supreme Court held that an ERISA plan administrator must distribute benefits to the beneficiary named in the plan, notwithstanding the fact that the named beneficiary signed a waiver disclaiming her right to the benefits. The Kennedy Court left open the question of whether, once the benefits were distributed by the administrator, the plan participant’s estate could enforce the named beneficiary’s waiver against her. In Andochick, the Fourth Circuit took up the question left open by Kennedy and held that ERISA does not preempt “post- distribution suits to enforce state-law waivers“ against ERISA beneficiaries. Thus, wife number one and wife number two are free to duke it out with each other. www.ca4.uscourts.gov/opinions/121728.P.pdf

State Supreme Court Cases

Stone v. Thompson , 428 S.C. 79, 82, 833 S. E.2d 266, 267 (July 24, 2019), reh’g denied (Oct. 16, 2019). A wave of statutes across the country in the 1960s and 1970s abolished common law marriage. One of the last holdouts was South Carolina. This decision abolished common law marriage in South Carolina. “Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it.“ This decision may be the bellwether for the remaining holdouts to abolish common law marriage. www.sccourts.org/opinions/HTMLFiles/SC/27908.pdf

Laura W. Morgan, Esq., is the owner/operator of Family Law Consulting in Amherst, Massachusetts. She provides legal research, writing, and advocacy services; legal memoranda; precis of transcripts; and other written products for trial or appellate court advocacy to family lawyers nationwide. www.famlawconsult.com

Defining “Habitual Residence” in the Hague Convention SCOTUS defined “habitual residence” and proclaimed a uniform legal standard for the first time – altering the trajectory of U.S. Hague Convention jurisprudence on this issue.

A Tale of Two Family Law Appeals For the family lawyer, these cases illustrate the importance of creating and “protecting” the record in the course of a trial or other evidentiary hearing.

U.S. Supreme Court Tackles Discrimination Against Same-Sex Couples Laura W. Morgan, the owner of Family Law Consulting, sums up the constitutional developments in the cases of discrimination against same-sex couples.

About the Author

Diana Shepherd, CDFA®

Diana Shepherd has over 30 years of experience as a marketing, branding, SEO, copywriting, editing, and publishing expert. As Content Director for Family Lawyer Magazine, Divorce Magazine , and Divorce Marketing Group , she oversees all corporate content development and frequently creates SEO-friendly videos, podcasts, and copy for family law and financial firms. The Co-Founder of Divorce Magazine and Divorce Marketing Group, Diana is an award-winning editor, published author, and a nationally recognized expert on divorce, remarriage, finance, and stepfamily issues. She has written hundreds of articles geared towards both family law professionals and divorcing people, and she has both performed and taught on-page SEO for 20+ years. Diana spent eight years as the Marketing Director for the Institute for Divorce Financial Analysts® (IDFA®), and she has been a Certified Divorce Financial Analyst® since 2006. While at IDFA, she wrote, designed, and published The IDFA Marketing Guide , and she also created seminars for CDFA professionals to present to family lawyers (approved for CLE), as well as to separated and divorcing individuals. She has represented both DMG and IDFA at industry conferences and events across North America, and she has given marketing as well as divorce financial seminars at many of those conferences.

The Ten Most Important Family Law Cases Reported in 2020

By: John P. Paone, Jr. *

In 2020, the year of the pandemic, COVID-19 had a profound impact upon the practice of law. With courthouses being closed and trials coming to a halt throughout the state, the development of the case law was slowed. Many practitioners continue to resort to mediation and arbitration to move cases that they have been unable to move through the court system. However, matters resolving by way of Alternate Dispute Resolution (ADR) do not advance the case law. Nevertheless, despite these headwinds, 2020 had its share of important cases impacting the practice of family law.

Judge Fischer’s decision in allowing testimony via video teleconferencing was almost prescient. Judge Mawla’s decision on how to determine alimony made clear that there is no “alimony formula” and that there are no shortcuts to the tasks of quantifying the marital lifestyle and ability to pay. These and reported cases on the appointment of guardians, Social Security disability, palimony, household members and dating relationships in the context of domestic violence, and other matters made for an interesting year under unusual, if not unprecedented, circumstances.

The following are my selections for the ten most important family law cases reported in 2020.

Pathri v. Kakarlamath , 462 N.J. Super. 208 (App. Div. 2020)

Issue : Did the trial court err in denying the plaintiff’s request to testify at his divorce trial by contemporaneous video transmission despite the fact that there is no court rule which expressly permits video testimony of witnesses?

Holding : Yes. Although there is no court rule in New Jersey which addresses testimony by contemporaneous video transmission in matrimonial actions, trial courts should evaluate such requests on a case-by-case basis in which judges are to consider the following factors: 1.) the witness’ importance to the proceeding; 2.) the severity of the factual dispute to which the witness will testify; 3.) whether the factfinder is a judge or jury; 4.) balancing the costs of having the witness appear physically rather than in another form; 5.) whether the witness’ inability to be present in court at time of trial was foreseeable or preventable; or 6.) the witness’ difficulty in appearing in person. These factors should have been addressed by the trial court since it was evident that the plaintiff was in India and could not travel to the United States due to issues with securing a visa.

Discussion : The plaintiff (“Husband”) and defendant (“Wife”) came to the United States from India in 2007 and had two children during the marriage. The Husband filed a Complaint for Divorce in 2018 and shortly thereafter returned to India to live. During the litigation, the children were residing with the Wife in Maryland.

The matter was scheduled for trial in June 2019. A week before the trial was to begin, the Husband’s attorney filed a motion in limine to permit the Husband to testify at trial from India by contemporaneous video transmission since he was unsuccessful in obtaining a visa to travel back to the United States. The trial judge denied the Husband’s application in finding that testimony in this form would prevent her ability to assess the credibility of the Husband at trial.

The Husband filed an interlocutory appeal with the Appellate Division on an emergent basis and that court stayed the divorce trial and granted leave to appeal. Thereafter, the Appellate Division vacated the trial court’s denial of the Husband’s motion in limine and remanded the matter back to the trial court for further proceedings.

Although the Appellate Division noted that there is no controlling statute which addresses video transmission of trial testimony in matrimonial matters, it looked to other areas of law in which courts have become more flexible and progressive as to other forms of witness testimony which do not require the physical appearance by the witness. Notably, telephone testimony is authorized in guardianship cases when determining whether an individual is incapacitated. Juries who serve in personal injury trials are oftentimes confronted with videotaped testimony of physicians and then must determine the weight and creditability to give to such testimony. Video transmission testimony has also been permitted in certain municipal and criminal court proceedings.

The Appellate Division also reviewed case precedent such as State v. Santos , 201 N.J. 129, 139 (2012) in which the New Jersey Supreme Court made clear that the rules do not expressly require live in-person testimony nor do they outright exclude it either. The Santos case relied on an earlier case titled Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp. , 229 N.J. Super. 264 (App. Div. 1988), which set forth the criteria in which telephonic testimony may be allowed. Specifically, the Appellate Division in Aqua Marine explained that exigency and certainty in the witness’ identity must satisfied to permit testimony by telephone.

While the Appellate Division acknowledged that Aqua Marine preceded by many years the advent of other electronic communications such as Skype and FaceTime, the case offers considerable insight and guidance as to how New Jersey family courts must approach issues when circumstances beyond a witnesses’ control render them unable to physically appear at trial. The Appellate Division made clear that while the law has not progressed in the same degree as technology, courts must have an appreciation for the extraordinary advances in technology and to allow flexibility in the law where appropriate.

The Court also took note that Federal Rule of Civil Procedure 43(a) allows for trial testimony by contemporaneous video transmission when good cause is present and with appropriate safeguards. The federal rules are designed to strike a balance between the compelling circumstances befalling a witness and the imposition of safeguards since in-person testimony remains the preferred form of evidence.

Based on its comprehensive review of New Jersey case law and the federal rules, the Appellate Division declared that trial courts should consider the following factors when faced with a request to appear electronically or by another medium: 1.) the witness’ importance to the proceeding; 2.) the severity of the factual dispute to which the witness will testify; 3.) whether the factfinder is a judge or jury; 4.) balancing the costs of having the witness appear physically rather than in another form; 5.) whether the witness’ inability to be present in court at time of trial was foreseeable or preventable; or 6.) the witness’ difficulty in appearing in person.

In the present matter, it was clear that the trial judge gave no consideration to many of the above mentioned factors. The Appellate Division pointed out that since the Husband moved to India shortly after he filed the Complaint for Divorce, the trial judge has a right to inquire as to the facts and circumstances surrounding the Husband’s travel arrangements and what steps the Husband could have taken in advance of his departure to avoid the need for relief on the eve of trial. The Husband’s need for relief in this situation should then be balanced against considerations such as the cost of travel, prejudice as to delay in the case’s disposition, and the factfinder’s difficulty in evaluating the credibility and authenticity of the witness as to significant substantive issues that may impact the outcome of the trial. Thus, the Appellate Division required the trial judge to revisit these issues on remand so as to allow the Husband an opportunity to make a more fulsome presentation in an effort to meet his burden as to the necessity of videotaped testimony.

Observation : The importance and usefulness of video testimony as addressed in the Pathri v. Kakarlamath opinion has come to the forefront since the coronavirus pandemic and has had a significant impact on how courts have conducted divorce trials and plenary hearings in the Family Part. Pursuant to Directive #12-20 which was promulgated by the New Jersey Administrative Office of the Courts on April 27, 2020, divorce trials as well as other court events may proceed remotely by utilizing virtual platforms such as Zoom or Microsoft Teams. These mediums enable parties, witnesses, and attorneys with access to the internet to participate in video court proceedings. Divorce trials and post-judgment plenary hearings may take place remotely with or without the parties’ consent . New Jersey courts continue to monitor the efficacy of virtual hearings on a case-by-case basis and take into consideration such factors as the available resources, the type of event, and the participants as video hearings will undoubtedly have its limitations depending on the unique facts and circumstances of each case.

This case also demonstrates proper use of a motion in limine. Practitioners should be advised that effective September 1, 2020, R. 4:25-8 went into effect which provides clarity for the procedure for bringing a motion in limine. As a general rule, these motions do not have a dispositive impact on a litigant’s entire case (like a summary judgment motion under R. 4:46 which must be filed at least 30 days prior to trial). They must be filed at least seven (7) days prior to trial and relate to the conduct of trial including presentation of evidence at trial.

S.W. v. G.M., 462 N.J. Super. 522 (App. Div. 2020)

Issue : Did the trial court abuse its discretion and depart from the legal principles set forth in Crews v. Crews , 164 N.J. 11 (2000), by fixing an alimony award for the defendant without making a precise and numeric determination as to the marital lifestyle?

Holding : Yes. Although the trial court made determinations as to the parties’ incomes and their ability to earn, it failed to give due to consideration to the crux of the alimony analysis which is to evaluate and quantify the marital lifestyle budget. Trial courts in matrimonial actions are required to make a finding of the marital lifestyle by articulating the characteristics of the lifestyle and thereafter quantifying it. In the instant matter, the trial judge did not make any findings as to the marital budget and devised the alimony award in primary part by relying on the defendant’s current lifestyle budget while improperly supplementing it with expenses that the defendant once enjoyed during the marriage.

Discussion : In February 2018, the Appellate Division remanded portions of this matrimonial matter back to the trial court in which the trial judge was directed to specifically quantify the marital lifestyle of the parties for alimony purposes and to make any adjustments to the life insurance award that the plaintiff (“Husband”) was to maintain as part of his obligation to pay alimony to the defendant (“Wife”).

It was established during trial that the parties were involved in a long-term marriage in which they had three children who were all emancipated. The Husband was the sole breadwinner of the marriage and was employed as a Senior Managing Director of a restructuring firm in which he had average earnings of $1,313,000.00 per year prior to the filing of the Complaint for Divorce. Conversely, the Wife had been out of the workforce for decades and the trial judge found that the Wife did not have the ability to earn any income.

With regard to the marital lifestyle, the trial court noted that the parties had a high-end and upscale standard of living in which they did not save and engaged in spendthrift means. Notably, the parties owned twelve boats during the marriage and enjoyed exclusive privileges such as country club memberships, yacht club membership, and dinner club benefit. The Husband’s Case Information Statement (“CIS”) indicated that the parties had a vacation budget of $60,000.00 per year while the Wife alleged in her CIS that vacation expenses were $150,000.00 per year. The parties were also involved in expensive hobbies and activities, in particular the Wife claimed to spend $100,000.00 on a photography venture. The Husband’s CIS reflected total marital expenses of $80,853.00 per month while the Wife’s Case Information Statement listed the total marital lifestyle to be $92,147.00 per month.

After reviewing the testimony and evidence submitted by the parties, the trial judge initially ordered permanent alimony payable to the Wife at a rate of $22,000.00 per month from the Husband’s draw from his company and $186,000.00 per year payable from the bonus for a total yearly obligation of $450,000.00. The trial judge further ordered the Husband to maintain life insurance in the amount of $4,000,000.00 to secure his alimony obligation to the Wife.

Following the Appellate Division remanding the matter back to the trial court for further proceedings so that it could make numerical findings as to the marital lifestyle, the trial court entered an Order on August 27, 2018 in which it increased the Husband’s alimony obligation to $36,792.00 per month but credited the Husband’s pendente lite support based on the increase. The trial judge also reduced the Husband’s life insurance obligation from $4 million to $2.2 million.

The trial court pronounced that the alimony calculus was based in part on the Wife’s most recent CIS which reflected post-separation lifestyle expenses of $22,000.00 per month. Although the trial court acknowledged that the parties had lived beyond their means for many years, and that their marital lifestyle exceeded the Husband’s income from his draws and expense account, it concluded that the Wife’s alimony award should be adjusted to $36,792.00 per month. The trial judge made clear that the Wife excluded spending categories in the current lifestyle budget of her CIS that were previously enjoyed during the marriage and should be taken into account in order for the Wife to achieve a lifestyle reasonably comparable to the marriage.

After the trial court entered its amended Final Order following the remand as to alimony and life insurance, the Wife filed an appeal in claiming that the trial judge did not adhere to the Appellate Division’s instructions about evaluating the marital lifestyle and further based its alimony award on pendente lite support which was a far cry from the marital lifestyle. Specifically, the Wife contends that the trial judge should have utilized the budget for the intact family and then assign a post-divorce budget for her.

The Appellate Division again reversed the decision of the trial court and remanded it back below for further proceedings. The Appellate Division found it to be troublesome that the trial judge disregarded the marital budget altogether and without rhyme or reason decided to supplement the Wife’s current budget with some expenses enjoyed during the marriage. The Court explained that this methodologic is inherently flawed and also inconsistent with the trial judge’s findings that the marital lifestyle was greater than the Husband’s income.

The Appellate Division noted that in many cases similar to the present factual scenario, parties who are married tend to live beyond their means in which their spending far and away exceeds their income. However, it is the role of the factfinder to make appropriate findings of fact as to the reasons underlying the inflated lifestyle, whether it be from loans, parental support, or otherwise, and to then calculate the marital lifestyle for purposes of support. The trial judge is free to utilize the testimony of the parties, the Case Information Statements of the parties which are admitted into evidence, expert analysis or reports if available, or other evidence that may be available in the record in order to calculate the marital lifestyle.

The Appellate Division also pointed out that there is no short cut or formulaic approach in fashioning an alimony award and that due consideration must be given to all the applicable factors as set forth in N.J.S.A. 2A:34-23. For example, there are some lifestyle expenses which may not be associated with either party when addressing alimony since they are expenses which go towards the support of the unemancipated children such as daycare, camps, lessons, and babysitting. There are other expenses which may be satisfied by an asset or third-party source which have no relevance to the alimony issue such as private school tuition for the unemancipated children. Thus, the trial court must endeavor to quantify the marital lifestyle before it may be able to make a proper determination as to the alimony award.

Similarly, the Appellate Division concluded that the amount of the Husband’s life insurance and extent of Mallamo credits being sought must also be remanded to the trial court. The Appellate Division noted that without there being a clear understanding as to the amount of the Husband’s alimony obligation, the trial court would in essence be ruling upon these ancillary issues and claims blindly without having the full picture as to the nature of the marital lifestyle and the amount of the alimony award.

Observation : S.W. v. G.M. makes clear that quantifying the marital lifestyle in order to determine a dependent spouse’s reasonable needs is the critical polestar for New Jersey courts when fixing a proper alimony award. This case reaffirms the guiding principles in Lepis v. Lepis that when support of an economically dependent spouse is at issue, courts must evaluate the following factors: 1.) the dependent spouse’s needs; 2.) that spouse’s ability to contribute to the fulfillment of those needs; and 3.) the supporting spouse’s ability to maintain the dependent spouse at the former marital standard. Courts must review these factors while also taking into consideration that neither party has a greater entitlement to the marital standard of living. The marital lifestyle cannot be artificially created based on what a trial judge believes that a spouse may need in order to meet their lifestyle. In this case, the trial court departed from the multi-step analysis in Lepis by failing to determine the Wife’s reasonable needs based on the lifestyle which the parties enjoyed during the marriage. Instead, it mistakenly relied on the Wife’s post-complaint expenses based on the limited pendente lite support which she received as the benchmark for establishing the Wife’s alimony award. However, this approach runs afoul of the principle that the needs of a dependent spouse are predicated on the marital lifestyle for an intact family rather than a current lifestyle which does not accurately reflect the marital standard.

This case makes clear that not all expenses incurred during the marriage comprise the marital lifestyle of the dependent spouse. So if the supporting spouse golfs and the dependent spouse does not, these golfing expenses do not become a part of the alimony calculus.

The Appellate Division provides clarity on determining the proper amount of life insurance to secure support obligations. Look at the Microsoft time value of money calculator and the article by Cutler & Durst referred to in the decision for guidance for ensuring that the life insurance amount “neither only meet a beneficiary’s bare needs, nor be a windfall.”

S.T. v. 1515 Broad Street, LLC , 241 N.J. 257 (2020)

Issue: Did the trial court follow proper legal procedures by appointing a guardian ad litem on behalf of the plaintiff to determine whether the plaintiff was mentally incapacitated and therefore incapable of evaluating the merits of her case without a hearing?

Holding : No. Before depriving the plaintiff of the right to manage her legal affairs and control of the direction of the litigation, the trial court should have conducted a hearing to determine whether the plaintiff lacked sufficient capacity to govern herself and make decisions regarding the case by reason of mental illness or intellectual disability. Although it was understandable that plaintiff’s attorney had significant concern as to whether the plaintiff understood the import of the settlement proposal that was conveyed in her matter, it was improper for the trial court to cede its responsibility from making an independent fact-finding inquiry as to the plaintiff’s alleged mental incapacity. Thus, in the absence of a guardianship hearing and a judicial finding by clear and convincing evidence that the plaintiff lacked the requisite mental capacity to decide how to proceed in her lawsuit, the trial court did not have the authority to appoint a guardian ad litem on her behalf to accept a settlement against the plaintiff’s wishes.

Discussion : The plaintiff was a forty-four (44) year old chemical engineer who was a refugee from Vietnam and served in the United State Army. On March 11, 2008, the plaintiff was leaving her place of work when she was struck in the head by a metal object which fell from above the doorway for the building.

Approximately one year following the accident, the plaintiff was declared permanently disabled by the Social Security Administration and she was diagnosed by her clinical psychologist as suffering from cognitive, anxiety, and depression disorders. In addition, her forensic psychiatrist diagnosed the plaintiff with post-concussion syndrome, major depressive disorder, post-traumatic migraine disorder, intracranial hypertension, and left trigeminal neuralgia.

In February 2010, the plaintiff filed a civil complaint seeking damages for serious injuries suffered as a result of the alleged negligence of the building owner and other responsible parties. During the course of the litigation, the defendants made an initial settlement proposal of $475,000.00 in an attempt to settle the case. This offer was rejected by the plaintiff.

Based on the belief by the plaintiff’s attorney that she was suffering from significant cognitive and mental impairments and that the rejection of the settlement offer was not in her best interests, her attorney made an application with the trial court to request the appointment of a guardian ad litem . The court subsequently granted the application without the necessity of a hearing and further allowed the guardian ad litem to assess the plaintiff’s mental capacity in order to determine whether she was capable of making an informed decision as to the settlement offer and the strengths and weaknesses of her case.

As part of his role in the case, the guardian ad litem reviewed numerous materials including discovery which had been produced and medical records. The guardian ad litem also interviewed the plaintiff twice in person and another time over the telephone. The guardian ad litem thereafter reported to the court that based on his review of the documentation and interviews with the plaintiff, that he should be empowered with the authority to make a decision as to whether it is in the best interests of the plaintiff to settle her case or proceed with trial.

An agreement was ultimately struck to settle the plaintiff’s lawsuit for $625,000.00. Based on this resolution, the court conducted a “friendly hearing” to evaluate the reasonableness and fairness of the settlement and to decide whether it should be approved. After the hearing concluded, the trial judge determined that the terms of the agreement were acceptable and it approved the deal over the plaintiff’s vehement objection which was noted at the hearing.

The plaintiff appealed the decision of the trial court to uphold the settlement in primary part based on her claim that it was improper for the court to relieve her of the right to manage her affairs and make decisions in her case. However, the Appellate Division disagreed with the plaintiff and affirmed the ruling by the trial court.

In support of its holding, the Appellate Division found that there was good cause for the trial court to appoint a guardian ad litem based on the certification and representations provided by the plaintiff’s counsel that the plaintiff was mentally incapable of making decisions impacting the outcome of her case. The Appellate Division also noted that there was ample evidence to support the trial court’s decision to approve the settlement.

Following the decision by the Appellate Division, the plaintiff filed a petition for certification with the New Jersey Supreme Court which challenged the ruling in the lower courts. The plaintiff claimed that the trial court unjustly stripped her of the right to decide whether to settle or proceed to trial which was contrary to established legal procedures and a violation of her due process rights.

Upon review of the salient facts and record below, the New Jersey Supreme Court reversed the judgment by the Appellate Division and vacated the settlement approved by the trial court. The New Jersey Supreme Court found that the trial court improperly abdicated its fact finding role by failing to hold a guardianship hearing to assess the plaintiff’s mental capacity before rendering its decision to appoint a guardian ad litem . The Court declared that by the trial court not conducting a hearing when the issues as to the plaintiff’s alleged mental condition were brought to light, the plaintiff lost the right to control the lawsuit on her terms and thereby empowered the guardian ad litem to settle the case without going through proper legal channels to do so.

Justice Albin, in writing the majority opinion for the Court, addressed the interplay between R. 4:26-2 and R. 4:86 which offers guidance as to how the case should have proceeded. Under 4:26-2(b), the trial court may appoint a guardian ad litem for an allegedly mentally incapacitated person in order to “advise the court as to whether a formal competency hearing is necessary and if so, to represent the alleged mentally incapacitated person at that hearing.” In this case, the plaintiff’s ability to comprehend and manage her affairs was clearly in dispute such that a competency hearing should have been scheduled and undertaken by the trial court.

If the trial court had adhered to the procedures as set forth in R. 4:26-2, it would have known to invoke the rigorous procedural safeguards of R. 4:86 which provide that an action for the appointment of a guardian must include a guardianship complaint and two affidavits from qualified medical professionals as to whether the plaintiff is unfit and unable to govern her affairs and to the extent to which she retain sufficient capacity to manage specific areas such as making certain legal decisions. However, none of the essential procedural steps and requirements were followed in this case which necessitated the reversal and remand by the New Jersey Supreme Court.

Observation : While this case does not arise out of a Family Part action, it has immense importance for our area of practice. Frequently, judges are called upon in Family Part matters to appoint a guardian ad litem to make decisions for a party. Prior to S.T. v. 1515 Broad Street, LLC, these appointments were regularly made without a formal competency hearing. After this case, before depriving a party of the right to control the direction of his or her case, the court must hold a hearing to determine whether the party lacks sufficient capacity to govern and manage affairs by reason of mental illness or intellectual disability. For an excellent discussion of the RPCs, what the attorney can or cannot do and differences between a general guardian and a guardian ad litem, see Tracy Julian, Rules and Procedures When You’re Concerned About Your Client’s Mental Health, Vol. 226 No 3 New Jersey Law Journal (January 20, 2020).

C.C. v. J.A.H. , 463 N.J. Super. 419 (App. Div. 2020)

Issue : Did the trial court properly conclude that the parties who never had an in-person “date” were involved in a “dating relationship” within the context of the Prevention Against Domestic Violence Act (PDVA) in order to support the entry of a Final Restraining Order (FRO)?

Holding : Yes. Although the parties never experienced a single in-person date, never visited each other’s homes, or met each other’s friends and family members, the parties engaged in an exorbitant string of intimate communications such that their interaction constituted a dating relationship within the meaning of the PDVA.

Discussion : The parties met at a fitness center in the summer of 2018 in which the plaintiff (age 22) was employed as the general manager and the defendant (age 42) was a member at the gym. The defendant would exercise at the gym approximately three to five times per week in which on almost every occasion he sought the plaintiff’s attention an engaged in intimate conversations about her personal life.

The defendant eventually gave the plaintiff his telephone number but plaintiff did not call him until later in 2018. Many of the messages which were exchanged between the plaintiff and defendant were sexually provocative and explicit in nature. Over the following weeks, the defendant declared his romantic interest in the plaintiff. Over the course of one day the parties exchanged more than thirty (30) messages which the plaintiff described as flirting. Although the parties at different points made clear their intentions to go on a date, they never met outside the fitness center.

By November 2018, the parties had exchanged 1097 text message and continued to communicate face-to-face at the gym. During that month, the plaintiff messaged the defendant that she was not interested in a romantic relationship and no longer saw the need to communicate with him except for as a friend. In response, the plaintiff received a barrage of crude, disparage, and abusive text messages in which the defendant threatened to contact the plaintiff’s employer in order to have her fired for allegedly taking an unauthorized photograph at the gym.

The plaintiff ultimately conducted an internet search of the defendant’s name and discovered that he had been convicted of stalking and harassing a woman in Pennsylvania. Upon learning of this information, the plaintiff contacted local police and was advised to obtain a restraining order. Although the TRO which was obtained by the plaintiff in December 2018 was dissolved for procedural reasons not on the merits, the plaintiff sought a second TRO in March 2019 and subsequently amended her TRO in April 2019.

Although the defendant did not testify at the final hearing, he filed a motion seeking to dismiss the TRO based on the argument that there were insufficient facts to establish that the parties were involved a dating relationship in order for the plaintiff to receive protection under the PDVA. The trial court disagreed with the defendant and further found that the defendant committed harassment which was a predicate act of domestic violence and that there was a need to grant a FRO in order to protect the plaintiff.

The defendant took the matter up on appeal maintaining in pertinent part that there was no basis to issue a FRO since the parties did not have a dating relationship and a FRO was not needed in order to protect the plaintiff against future acts of abuse. Upon review of this matter, the Appellate Division affirmed the decision of the trial court that the parties were in a dating relationship and that the entry of a FRO was appropriate.

The Appellate Division referred to the factors set forth in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003) adopted in S.K. v. J.H., 426 N.J. Super. 230, 235 (App. Div. 2012) for determining whether the parties were involved in a dating relationship: (1) Was there a minimal social interpersonal bonding of the parties over and above casual fraternization?; (2) How long did the alleged dating activities continue prior to the acts of domestic violence?; (3) What were the nature and frequency of the parties’ interactions?; (4) What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly?; (5) Did the parties demonstrate an affirmation of their relationship by statement or conduct?; and (6) Are there any other unique reasons to support the claim that a dating relationship exists?

While the Appellate Division acknowledged no one factor is determinative, it pronounced that the proliferate and intimate communications between the parties extended beyond mere casual fraternization and was evidence of minimal social interpersonal bonding. The Appellate Division found relevant the exchange of 1300 text messages between the parties and frequent personal interactions between the parties. It also made reference to the plaintiff’s testimony that the messages between her and the defendant were flirtatious and that their relationship started out as a friendship but then progressed to an intimate level. Thus, there was substantial credible evidence in the record to conclude that the parties’ personal communications and interactions qualified as a dating relationship under the PDVA. This decision is consistent with the objective of affording a victim of domestic violence with as much protection as possible under the PDVA and the prevalence of virtual communications in the ever-changing world.

The Appellate Division also made clear that while there was no prior history of domestic violence between the parties, this is not a requirement in order to determine whether a FRO is necessary for the plaintiff’s protection. In fact, a single act or series of events within a short period of time can constitute domestic violence for the purpose of issuing a FRO without the need of a prior history of abuse between parties. In this case, the incessant and overtly hostile text messages by the defendant in which he threatened to contact the plaintiff’s employer in an effort to have her fired and to file a civil lawsuit against the plaintiff based on a frivolous claim that the plaintiff took an unauthorized photograph of him at the gym were found to be egregious acts of harassment that justified entry of a FRO, even in the absence of any history of prior domestic violence.

Observation : The Appellate Division’s decision in C.C. v. J.A.H. represents another example of the growing expansion of victim’s rights under the New Jersey Prevention Against Domestic Violence Act (“PDVA”). For purposes of establishing a “dating” relationship under the PDVA, the concept of dating is no longer only associated with the traditional customs and societal norms of in-person socializing and physical intimacy. In fact, it is becoming increasingly common for dating or romantic partners in a relationship to communicate exclusively through social media outlets such as Facebook, Twitter, and Instagram and online dating applications such as Tinder and OKCupid. This has especially become prevalent during the coronavirus pandemic where couples are unable to spend time together and have had to rely on communicating remotely through electronic or virtual platforms. The opinion by the Appellate Division in C.C. clearly demonstrates the progressive view of New Jersey courts and how domestic violence laws in New Jersey are able to adapt and change with the current times.

But see S.K. v. J.H. supra., where parties who go on a single date are held to not be in a dating relationship. In the words of the court, a single date would give far too much weight to the word “dating” and too little weight to the word “relationship.”

See also L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011) where 18 text messages were deemed not to constitute harassment as the court found no intent to harass. Meaning that there is texting…and…there is texting.

Gormley v. Gormley , 462 N.J. Super. 433 (App. Div. 2019)*

Issue : Was the conclusion by the trial court that the Wife could not rely on the Social Security Administration’s (“SSA”) determination of disability as prima facie evidence of her inability to work for purposes of imputing income for alimony and child support adequately supported by New Jersey law?

Holding : No. When the SSA has determined that a party is disabled, a presumption of disability is established which then shifts the burden to the opposing party to overcome and refute that presumption. To the extent that the trial court relied on the decision in Gilligan v. Gilligan , 428 N.J. Super . 69 (Ch. Div. 2012), in support of its finding that a SSA determination is not sufficient to establish prima facie evidence of disability, its reliance on Gilligan is misplaced and improper.

Issue : Did the trial court commit error by failing to impute income to the Husband based on his earnings in the years immediately preceding trial?

Holding : Yes. The trial court erred by not considering the Husband’s current earnings or his earning capacity in order to determine whether he had the financial means to pay support to the Wife and contribute to her marital lifestyle. Rather, alimony was calculated based on income which the Husband earned five years before the trial date.

Issue : Did the trial court also commit error by finding that there was “good cause” to deviate from the New Jersey Child Support Guidelines because the Wife had sole custody of the daughter and the Husband did not have any parenting time?

* Decided 2019, approved for publication 2020.

Holding : Yes. The trial court’s determination not to apply the Child Support Guidelines rests on impermissible grounds since the elimination of a party’s parenting time is not good cause to deviate from the Guidelines since they take into account the amount of parenting time when calculating child support.

Discussion : The parties were married in 2000 and the Husband filed for divorce in 2015. They had one child during the marriage who resided with the Wife and her parents at that time that this action commenced.

During the parties’ marriage, the Wife suffered from multiple sclerosis. The Wife was determined to be disabled by the SSA in 2002 and was unemployed at the time of trial. Conversely, the Husband was employed in a commission-based job and earned $150,000 in the two years immediately prior to trial. However, the Husband had earnings of only $46,644.56 for five months in 2018 and had begun reducing his work schedule in order to pursue studying psychology and researching parental alienation. The Husband contended that he had reduced income based on a new commission formula instituted by his employer.

After a thirteen (13) day trial, the trial court entered an order which granted sole legal custody of the parties’ child to the Wife, awarded alimony to the Wife at the rate of $200.00 per week, and fixed child support at $90.00 per week but did not calculate child support based on the New Jersey Child Support Guidelines. Notably, in reaching a determination as to alimony, the trial court imputed income to the Wife at the rate of $240 per week and observed in its opinion that the Wife did not exhibit limitations or deficiencies at trial which would inhibit her from being able to work. The trial court also noted that there was no evidence that the Wife was told by a medical professional that she was unable to work.

After the Wife’s Motion for Reconsideration was denied, she thereafter filed an appeal of the trial court’s award of alimony and child support. Upon review of the trial record and relevant law, the Appellate Division vacated the ruling of the trial court and remanded it for further proceedings. The Appellate Division found in pertinent part that the trial court improperly imputed income to the Wife and not to the Husband and incorrectly deviated from the New Jersey Child Support Guidelines.

With regard to the Wife’s claim that she was disabled and could not work, the Appellate Division explained that the trial court should have relied on its decision in Golian v. Golian , 344 N.J. Super. 337 (App. Div. 2001). Golian makes clear that when a SSA has formally adjudicated a party to be disabled, this constitutes a prima facie evidence of disability and that they are unable to be gainfully employed. The burden then shifts to the opposing party to sufficiently refute this presumption. The Appellate Division noted that the trial court overlooked Golian and instead relied on Gilligan v. Gilligan , 428 N.J. Super. 69 (Ch. Div. 2012), which held that an award of social security disability alone was not sufficient to establish the Wife’s inability to work. However, Gilligan is not controlling law nor is it the appropriate legal standard.

The Appellate Division added that the Husband failed to proffer any evidence at trial to rebut the presumption of the Wife’s disability despite having the Wife examined by medical experts and the opportunity to review medical records. Thus, it was error for the trial judge to have required the Wife to present other evidence to support her claim of disability and that she was unable to obtain remunerative employment.

As to the Husband’s earnings for purposes of calculating support, the Appellate Division also took issue with the trial court not imputing income to the Husband based on his most current earnings history. It looked to the evidence in the trial record which showed that in 2017 the Husband reported a gross income of $150,000 and in 2018, the Husband was on pace to have a gross income of approximately $100,000.00 based on paystubs which he had submitted at trial. Instead, the trial court only reviewed the Husband’s earnings in the six years prior to the parties’ separation in 2012 which was far less than what he was currently earning and not based on his most recent commission-based earnings. The Appellate Division determined that not only was the examination of the Husband’s income by the trial court improper, but it should have considered averaging the Husband’s income in the years after the complaint was filed and before the divorce was finalized since commissions often tend to fluctuate over a period of time. The trial court failed to undertake this analysis thereby committing reversible error.

Finally, the Appellate Division found that the trial court did not establish good cause to deviate from the New Jersey Child Support Guidelines. The Court pronounced that the absence of parenting time for the Husband is not a legitimate reason to forgo calculating child support based on the Guidelines since the amount of time that the child spends with each parent is already taken into account in the Guidelines. Moreover, while the trial judge may have believed that she was remedying an injustice since the Husband would not be having contact with the child, the injustice must be viewed from the perspective of the child since the Guidelines are always predicated on the best interests of the child.

Observation: Judge Lawrence R. Jones (Ret.) authored the opinion in Gilligan which was a reported decision . The Appellate Division now rejects the holding in Gilligan and re-affirms its holding in Golian from 2001 that a SSA finding of disability raises a presumption of disability and shifts the burden to the party contesting the disability to refute the presumption. The Appellate Division makes clear that evidence in rebutting the presumption of disability could include “lay testimony, expert testimony, or medical records, consistent with the Rules of Evidence as the trial court deems appropriate.” Therefore, in some cases lay testimony may be enough to rebut the presumption.

Trial courts often mistake marital lifestyle with ability to pay. Marital lifestyle requires us to look at how the parties actually lived during the marriage. Ability to pay is not based on historical marital earnings, but on current earnings or what someone’s present capacity to earn may be. Looking at income earned historically to somehow limit the present ability to pay alimony is reversible error.

Deviation from the Child Support Guidelines requires good cause under R. 5:6A. Parenting time or the lack thereof is not good cause to deviate. After Pascale v. Pascale, 140 N.J. 583 (1995), the Child Support Guidelines were revised to account for a parenting time credit. If for whatever reason a party has no parenting time, then there is no credit and the Guidelines amount prevails. Put simply, the Guidelines account for no parenting time and therefore such a situation gives no cause for deviation.

Ippolito v. Ippolito , N.J. Super. _(App. Div. 2020)

Issue : Does N.J.S.A . 2A:13-5 allow for the attachment of an attorney’s lien against a client’s interest in a marital asset if the court later determines that the client’s interest in the marital asset should be awarded to the adverse party in satisfaction of other obligations?

Holding : No. N.J.S.A . 2A:13-5 allows for the attachment of an attorney’s lien only on “a verdict, report, decision, award, judgment or final order in his client’s favor” and if the attorney’s former client received nothing at final hearing, then there is no “award or judgment” to which the attorney’s lien could attach.

Discussion : After the plaintiff (hereinafter “the Wife”) filed the divorce action in 2012, the defendant (hereinafter “the Husband”) retained the Law Offices for representation in the divorce action. During the divorce proceedings sometime in 2014, the trial court ordered that the proceeds of the sale of one of the parties’ homes (slightly more than $1.1 million in sale proceeds) be placed in escrow pending resolution of the litigation. Despite earnings of $2.5 million per year, the Husband ran up a $241,639.67 account receivable with his attorney. The Law Offices subsequently withdrew from the case, with the trial court granting an attorney’s lien in the amount of $241,639.67 on the property that the Husband would be entitled to at the end of the litigation pursuant to N.J.S.A. 2A:13-5.

After the conclusion of the divorce trial in 2016, the trial court found that the Husband had, among other things, engaged in “extreme and purposeful misconduct, repeatedly violated court orders, failed to provide full discovery about significant marital assets, and interfered with witnesses and the sale of marital assets.” Notwithstanding the trial court’s recognition of the Husband’s “theoretical entitlement to half the marital assets in making his equitable-distribution findings,” because of the Husband’s failure to comply with his support obligations and other directives, the judge awarded the Wife all of the remaining marital assets, including the monies held in escrow.

After entry of the divorce judgment, the Law Offices moved in the trial court for payment of the firm’s outstanding fees from the fund. The trial court rendered an oral decision on April 16, 2020, and held that the Wife had a more equitable claim to the monies held in escrow than the Law Offices and, except for an allowance of $20,000, the trial court ordered that the monies held in escrow be transferred to the Wife. The Law Offices appealed the trial court’s decision to award only $20,000.00 in counsel fees from the fund and the Wife filed a cross-appeal arguing that there was no legitimate reason for the trial court to award even $20,000.00 to the Law Offices.

In appealing, the Law Offices argued that the trial court misinterpreted N.J.S.A . 2A:13-5 and “failed to recognize the equities that supported granting it a higher priority” than the Wife. Ultimately, the Appellate Division rejected the Law Offices’ arguments essentially for two reasons. First, the Appellate Division reasoned that N.J.S.A . 2A:13-5 allows for the attachment of an attorney’s lien only on “a verdict, report, decision, award, judgment or final order in his client’s favor” and the Husband received nothing at final hearing so there was no “award or judgment” to which the lien could attach. The Appellate Division further reasoned that even if the lien could attach to the “momentary acknowledgement of [Husband’s] potential right to half a marital asset ultimately awarded to the Wife,” the trial judge had the right to decide which claim had priority [i.e. the Law Offices’ counsel fee lien or Wife’s equitable claim] and the Appellate Division agreed that the Wife’s equitable claim had priority, especially considering the Husband’s “recalcitrant and malicious conduct” which caused his share of equitable distribution to be reduced to zero.

With regard to the Wife’s cross-appeal, the Appellate Division reversed the trial court’s order granting a $20,000 allowance to the Law Offices from the escrow fund, ruling that paying the attorney from the escrow fund would effectively shift the Husband’s obligation to pay fees to the Wife. The Appellate Division explained that such a ruling would be wholly inconsistent with the trial court’s determination that the Wife should be entitled to the entire marital estate due to the Husband’s egregious litigation conduct and refusal to pay his support obligations. The Appellate Division added that the trial court’s sympathy for the Law Offices should play no role in his ultimate determination as to lien priority.

Observation : This case is extremely important. It stands for the proposition that attorneys should constantly be mindful of who they choose to represent. If you are an attorney representing a client who consistently acts in bad faith during the divorce litigation, you should be concerned with how this bad faith may affect the ultimate outcome of the divorce matter and how his affects your ability to get paid, whether by way of lien or otherwise.

In this case, the attorney’s position was essentially that when the court awards equitable distribution, first the attorney’s lien must be satisfied before utilizing the Husband’s equitable distribution interest to satisfy the claims of the Wife. The court did not see it that way and instead weighed the equities of whether the Husband’s interest should be paid to his attorney or the Wife. Insofar as paying the attorney would work to satisfy an obligation of the Husband and was tantamount to awarding assets to the Husband; and insofar as the Husband in this case was a bad actor; the court concluded that the equities fell with the Wife.

This is another case where attorneys are cautioned against running up six figure account receivables on the assumption that they will get paid in the end. Attorneys should demand that clients pay their bills current. When clients do not have the ability to pay, attorneys should petition the court under R. 5:3-5(c) “to sell, mortgage, or otherwise encumber or pledge assets…to permit both parties to fund the litigation.” Failing that, an attorney should move to withdraw from representation under R. 5:3-5(e)…preferably before a six figure account receivable is generated.

Amzler v. Amzler , 463 N.J. Super. 187 (App. Div. 2020)

Issue : Did the trial court incorrectly apply N.J.S.A. 2A:34-23(j)(2) rather than N.J.S.A. 2A:34-23(j)(3) in terminating the plaintiff’s alimony obligation based on the plaintiff having retired before reaching full retirement age?

Holding : Yes. The trial court’s finding that N.J.S.A. 2A:34-23(j)(2) controlled for purposes of the plaintiff’s application was made in error as N.J.S.A. 2A:34-23(j)(2) applies only to final alimony orders or agreements established after September 10, 2014, which is the effective date of the 2014 amendments to the alimony statute. Since the parties’ Matrimonial Settlement Agreement was entered into prior to the effective date of the 2014 amendments, the plaintiff’s application to terminate alimony should have been evaluated by the trial court under N.J.S.A. 2A:34-23(j)(3).

Discussion : The plaintiff (“Husband”) and defendant (“Wife”) executed a Matrimonial Settlement Agreement (“MSA”) in 2009 which required the Husband to pay permanent alimony to the Wife at the rate of $21,600.28 per year. The parties’ MSA included an anti- Lepis provision which precluded the modification of the Husband’s alimony obligation due to a substantial change in circumstances based on the voluntary reduction in income of either party.

After the parties’ divorce, the Husband continued his employment as a chief underground technician at PSE&G and declined to retire early in 2013 in order to recover the money which he lost in the divorce. However, the Husband ultimately decided to retire July 2017, at the age of fifty-nine (59), which is the point in which he received full retirement benefits through his PSE&G pension.

Upon the Husband’s retirement from PSE&G, the Wife responded by filing a Motion which in pertinent part sought to enforce the Husband’s alimony obligation. The Husband countered by filing a Cross-Motion seeking to modify or terminate his alimony obligation based on his retirement from the workforce which was necessary due to medical reasons. Based on the competing claims and allegations in the parties’ Certifications, the trial court scheduled a plenary hearing to adjudicate the matter.

During the plenary hearing on April 2, 2018, the trial court heard testimony from a certified vocational expert who opined that the Husband’s employment with PSE&G amounted to a labor-intensive position and that his extensive medical issues, which included significant knee pain, would prevent him from continuing to perform his work responsibilities. When the trial judge questioned whether there were any reasonable alternatives in which the Husband may be able to continue employment, the expert testified that the Husband could find employment as a security guard or automobile parts delivery person but that these occupations would offer lower pay and minimal benefits. The expert also proffered that the Husband was not qualified for an office role within PSE&G and that there were few, if any, available opportunities for training within the company.

With regard to the issue of retirement, the plaintiff testified that the parties contemplated during the marriage that he would retire at the age of fifty-five (55). The plaintiff further testified that the average age of retirement for employees at his company was 59.5 years of age and due to the demanding physical labor which is typical for his position, many employees did not continue working into their late sixties.

Contrary to the Husband’s testimony, the Wife testified that she did not anticipate the Husband retiring soon and believed that he would continue working for another thirteen (13) years. The Wife also made clear on direct examination that she would not be able to meet her needs solely on her earnings and the Husband’s 401 and pension for which she received her marital portion from the Husband in equitable distribution.

After the conclusion of the plenary hearing, the trial judge issued an oral decision on September 12, 2018 which denied the Wife’s Motion and granted the Husband’s Cross Motion to terminate his alimony obligation. The trial judge applied the factors under N.J.S.A. 2A:34-23(j)(2) in ultimately terminating the Husband’s alimony obligation. Although the Wife filed a Motion for Reconsideration in contending that error was committed by the trial court insofar as N.J.S.A. 2A:34(j)(3) should have governed the analysis, the Wife’s Motion for Reconsideration was denied.

The Wife thereafter sought to appeal the ruling by the trial court claiming that it proceeded under improper statutory grounds. Upon review of the matter, the Appellate Division agreed with the Wife in finding that subsection (j)(2) was not applicable to the case at bar. Specifically, the Appellate Division found that subsection (j)(2) only applies to retirement applications in which final orders and agreements were entered into after the amendments to the alimony statute were made effective on September 10, 2014.

The Appellate Division reasoned that this statutory construction is consistent with its decision in Landers v. Landers , 444 N.J. Super. 315 (App. Div. 2016). In Landers , the Appellate Division considered the applicability of subsection (j)(1) and found that based on the express language as set forth in subsection (j)(3) that the New Jersey Legislature intended for subsection (j)(1) to govern alimony orders and agreements subsequent to the 2014 amendments.

Although the language of (j)(2) suggests that the rule applies regardless of whether the alimony order or agreement was before or after the 2014 amendments, the Appellate Division relied on Landers and noted that when read in context with the other subparts of N.J.S.A. 2A:34-23(j), the Legislature clearly intended for (j)(2) to apply only to orders and agreements after the 2014 amendment. The Court explained that to reach a different result would be to undermine binding agreements that were based on the law in effect at the time of their execution.

Since the MSA was signed by the parties in 2009 which was prior to when the 2014 amendments to the alimony statute were enacted, the Husband’s retirement before full retirement age must be examined under the lens of N.J.S.A. 2A:34-23(j)(3). Thus, Appellate Division remanded the matter in order for the trial court to conduct a review of the Husband’s application to terminate alimony under N.J.S.A. 2A:34-23(j)(3).

Observation : When proceeding on a post-judgment application to modify or terminate alimony based on retirement, family law practitioners should be mindful of the distinction between subpart (j)(2) versus subpart (j)(3) under N.J.S.A. 2A:34-23. While subpart (j)(2) and subpart (j)(3) include many identical factors for courts to consider such as the age and health of the parties, the obligor’s generally accepted age of retirement in their field of employment, the obligor’s motives for retiring, and ability of the obligor to maintain support payments following retirement, subpart (j)(3) requires the courts to also consider the ability of the obligee to have saved adequately for retirement. It is the inclusion of this standard in subpart (j)(3) which is the basis for why the Appellate Division found that the New Jersey Legislature intended to draw a distinction between applicants who proceed under this section of the statute compared to subpart (j)(2). Thus, applicants who seek to retire early must proceed under subpart (j)(3) if their agreement or order was established before September 10, 2014 while subpart (j)(2) is reserved for applicants who have an agreement or order that was entered on or after September 10, 2014. Understanding the distinction between these two provisions is imperative as it may ultimately mean the difference between winning your case at trial versus having your application dismissed without prejudice for procedural reasons.

There was also an anti- Lepis provision in this case that stated that a “voluntary reduction in income of either party” would not constitute a substantial change in circumstances. The trial court did not consider whether the Husband’s early retirement was a “voluntary reduction” subject to the anti- Lepis provision of the MSA. On remand, the Appellate Division directed the trial court to address this issue. Practitioners should be reminded that drafting a settlement agreement is one of the most important functions in representing a client. Writing clearly (to be understood years later by persons not involved in the settlement) and comprehensively (addressing all issues known and knowable thoroughly) is another indicia of great lawyering.

C.N. v. S.R. 463 N.J. Super. 203 (Ch. Div. 2020)

Issue: In the absence of a writing which is required in order for a cohabitating party in a relationship to sustain a palimony claim, is partition a viable equitable remedy where the cohabitating party claims to have an ownership interest in real estate?

Holding : Yes. A partition action remains an available remedy for unmarried cohabitants who do not reduce to writing their palimony agreements as required by the amendment to the Statute of Frauds on January 18, 2010. An unmarried cohabitant who is asserting a partition claim against real property must be able to show that they are involved in a joint venture or enterprise entitling them to a share of the asset. In this case, the plaintiff contributed substantial resources and efforts to the acquisition and maintenance of the property which was sufficient to establish that he was involved in a joint undertaking with the defendant and that his partition claim was proper.

Discussion : C.N. (hereinafter “plaintiff”) and S.R. (hereinafter “defendant”) were involved in a romantic relationship in 2010 and began cohabitating shortly thereafter. The parties had a child together in 2016. Although the parties had a destination wedding ceremony in 2018, they never legally married.

In March 2012, the parties purchase a home in which the deed and mortgage were placed in the defendant’s name only. Despite the property being in the defendant’s name solely, the plaintiff was heavily involved in the purchase of the home including, but not limited to, selecting and communicating with the realtor, providing $10,000.00 of the $15,000.00 down payment, selecting and paying the inspector, choosing the closing attorney, and negotiating a $10,000 seller’s concession.

During the parties’ relationship, the defendant made eighty-seven to ninety of the ninety-six monthly mortgage payments. While the defendant made most of the mortgage payments, the plaintiff paid the vast majority of the home’s maintenance costs such as gas, electric, water, sewer, security, landscaping services, garbage, and pest control. The plaintiff also purchased household furnishings and was involved with the home contractors. Furthermore, the plaintiff retained a lawyer to appeal the town’s property tax assessment for the home.

Upon the deterioration of the parties’ relationship in 2019, the defendant filed a complaint in July 2019 seeking custody and child support. The plaintiff responded by filing an answer and counterclaim seeking parenting time and financial relief. The trial court permitted the plaintiff to amend his pleadings in September 2019 at which time he sought partition of the parties’ residence as an additional cause of action.

After attempts to resolve the matter at mediation failed, the trial court bifurcated the custody and financial issues and scheduled trial on the partition issue. The trial on the partition action took place over two days in which only the parties testified. Following the conclusion of the trial, the trial judge entered an order granting the plaintiff’s partition claim.

In its opinion, the trial court made clear that while the plaintiff could not prevail on a palimony claim since no promise for support between the cohabitating parties was reduced to writing as required by N.J.S.A. 25:1-5(h) for the Statute of Frauds, this law does not prevent the plaintiff from successfully asserting a partition claim. While the trial court noted that the language in the statute which requires that a “promise for support or other consideration” must be in writing is not unequivocally clear, it found that the lack of any direct reference to partition actions or agreements in subsection (h) in the Statute of Frauds was extremely telling and spoke volumes that the New Jersey Legislature never intended subsection (h) to the Statute of Fraud to address partition of real property in the absence of a writing among unmarried, cohabitating persons who were engaged in a joint venture.

Based on the testimony and other evidence presented at trial, the trial court determined that the parties were in a joint venture such that the plaintiff’s partition claim with regard to the real property in dispute was a viable equitable remedy. The trial record supported the plaintiff’s position that he was intimately involved in the negotiation, acquisition, maintenance, and upkeep of the real property. Although the plaintiff did not make many payments towards the mortgage for the home while the parties were cohabiting, the plaintiff paid the large majority of the home’s utilities, maintenance, and security costs, among other expenses. These actions are consistent of a joint venture which is a limited-purpose partnership in which the following factors are generally present: (1) contribution of money, property, effort, knowledge, skill, or other asset to a common undertaking; (2) joint property interest; (3) right of mutual control or management; (4) expectation of profit, or presence of an adventure; (5) right to participate in profits; and (6) limitation of the objective to a single undertaking.

The trial court observed that the plaintiff’s financial and physical responsibilities in connection with the household clearly demonstrated mutual control and ownership for which the plaintiff testified at trial that he genuinely believed at closing the property would be his forever home. Accordingly, the trial court determined that equity and fairness demanded that relief be granted in the plaintiff’s favor.

Observation : On January 18, 2010, the New Jersey Legislature addressed the difficulties with regard to oral palimony agreements by amending the Statute of Frauds, N.J.S.A. 25:1-5(h), to require that palimony agreements be reduced to writing in order to be binding. However, the decision by the trial court in C.N. v. S.R. is an important reminder that the Statute of Frauds is not an absolute bar in cases where cohabiting parties have not reduced a promise for support or other consideration to a signed writing. In addition to partition, there are a number of other legal and equitable theories of relief which may be asserted by a litigant in order to overcome the Statue of Frauds such as partial performance, unjust enrichment, quantum meruit, quasi-contract, equitable estoppel, and fraud. Although many of these equitable claims are not common in the family law arena, they provide a potential avenue of relief for parties who, by virtue of their conduct, have formed a relationship which is contractual in nature, even though a formal writing evidencing this contract may never have been created.

Practitioners should be aware of an unreported opinion, Moynihan v. Lynch, ___ N.J. Super. ___ (App. Div. 2020) where the Appellate Division recently rejected the equitable remedy of partial performance to get around the Statute of Frauds requirement of a writing for palimony agreements. Moynihan also rejected a challenge to the new statute on the grounds that it violates the contract clause of the New Jersey and United States Constitutions because it requires independent legal counsel for palimony contracts to be enforced. The court held that requiring a lawyer to review a written palimony agreement in order for that agreement to be enforceable is not a substantial impairment to the right of contract.

Ferrer v. Colon , 463 N.J. Super. 12 (Ch. Div. 2019) *

Issue : For purposes of calculating child support, may the Court find a party to be underemployed and impute income based on available overtime hours offered by an employer rather than the overtime hours the party actually worked in the past?

Holding : No. Overtime pay is “sporadic income,” which is fluctuating income that may be offered, but is not guaranteed to an employee. When sporadic income is included under the New Jersey Child Support Guidelines (hereinafter “guidelines”), it is averaged over a period of time not to exceed three years. The trial court explained that averaging overtime pay is fair because it considers that a party may work multiple overtime hours in one year and not at all in a different year. Although, the trial court proffered that it would consider including all available overtime pay in the guidelines when a party has consistently worked the maximum overtime hours provided by an employer, in this case, there was no evidence that the plaintiff worked all available overtime hours offered by her employer.

Discussion: The parties were never married, but their romantic relationship resulted in the birth of one child in 2006. After the parties’ relationship ended, the plaintiff (hereinafter “the mother”) filed an application for child support from the defendant (hereinafter “the father”), which child support obligation was calculated pursuant to the guidelines and codified in an Order dated February 24, 2011. Sometime thereafter in 2019, the mother filed an application to increase child support based on a substantial change in circumstances, including both parties’ increased incomes and the elimination of the father’s other dependent deduction.

With respect to their incomes, both parties worked for the city of Newark as full time police officers. Each party received a salary and earned additional income through overtime hours and second jobs. The parties stipulated to the father’s weekly income including overtime pay. The only disputed issue was the mother’s income.

The mother argued that her income should be calculated using her police officer’s salary plus the average of what she earned in the past from overtime pay and second jobs. The father contended that the mother had available overtime hours beyond the hours she actually worked. Accordingly, the father argued that the mother was underemployed and requested that the trial court impute income to the mother based on the available overtime hours offered by her employer.

The trial court discussed that the guidelines consider overtime income as “sporadic income” and include it in a party’s gross income by “averaging the amount of [overtime] income over the previous 36 months or from the first occurrence from its receipt, whichever time is less.” Although the trial court noted that it has some discretion to disregard or modify the guidelines, doing so required a showing of good cause. Pursuant to Appendix IX-A of the guidelines, a showing of good cause is either “the presence of other relevant factors which may make the guidelines inapplicable” or proof that “injustice would result from the application of the guidelines.”

The trial court discussed that averaging overtime pay is fair because it prevents a party from improperly reducing support by working less, but it also considers that a party may work multiple overtime hours in one year and not at all in a different year. In addition, the trial court reviewed the pertinent case law and determined that imputation of income beyond full-time employment must be done so in accordance with the parties’ past practices. See e.g. Elrom v. Elrom , 439 N.J. Super. 424 (App. Div. 2014); Storey v. Storey , 373 N.J. Super . 464 (App. Div. 2004). Here, the mother did not have a history of working all available overtime hours offered by her employer. Accordingly, the trial court found no basis to impute to plaintiff an additional income beyond her annual salary and an average of what she earned in the past from overtime hours and second jobs.

Observation : Calculating child support based on available overtime pay instead of averaging the overtime pay actually earned might work to punish a party for having employment where overtime work is freely available. Furthermore, it would appear unfair to require one party to work harder than the other party who does not have the opportunity to work overtime, especially if there was no history of this practice during the marriage. Pursuant to Ferrer v. Colon, when calculating child support, a party’s income shall include the average of past earnings from overtime.

While this is not an alimony case, keep in mind that in alimony actions, the issue of overtime pay can conflict with the right of both parties to share leisure time or time away from work. For a discussion of leisure time and the marital lifestyle, See F. Louis, the Far-Reaching Impact of Crews, New Jersey Family Lawyer.

S.C. v. J.D., 462 N.J. Super. 452 (Ch. Div. 2019)*

Issue : Does a defendant who is a half-sibling of the victim and whose parents are separated but as a child spent meaningful, regular periods of time with the half-sibling victim at the home of the parent of alternate residence qualify as a “household member” in order to establish jurisdiction under the Prevention Against Domestic Violence Act?

Holding : Yes. A defendant may simultaneously have two households creating jurisdiction under the Prevention Against Domestic Violence Act where his parents are separated and where the victimized half-sibling resides with the shared parent. The fundamental key to this inquiry is that the defendant must be substantially integrated into the household of the parent of alternate residence such that they are part of a modern, blended family unit.

Discussion : The plaintiff (“Samantha”) obtained a temporary restraining order against the defendant (“Jake”) alleging assault and terroristic threats as predicate acts of domestic violence. By way of brief background, the parties are half-siblings in which they share the same father. After Jake’s birth, his parents divorced and agreed that Jake’s father, as the non-custodial parent, would have free and liberal visitation with Jake.

In early 1990, Jake’s mother obtained a final restraining order against Jake’s father after which time the parties came to an agreement whereby Samantha’s mother, who was in a relationship with Jake’s father, would supervise parenting time between Jake and his father. Other than for a six-month period which led to the final restraining order, Jake spent substantial, regular, and continuous time at his father’s home during his youth and Jake’s father consistently exercised bi-monthly parenting time with Jake which included overnights during the school year with increased parenting time during the summer.

Following Samantha’s birth, Samantha’s mother quit her job to say at home with the children. During this time, Jake would regularly stay with his father, Samantha’s mother, and his half-siblings every other weekend as well as during holidays. Jake and Samantha would play sports and enjoy other bonding activities together in which he was part of the family unit. Although Jake did not have a bedroom, his time at the family home was frequent enough that he left many of his clothes, toiletries, and other belongings there.

After Jake left the family home to attend college, the in-person contact between Jake and Samantha decreased. This was largely due to academic pursuits, work responsibilities, and geographical proximity. However, the parties continued to see each other during holidays, special occasions, and family gatherings. They most recently had seen each other in November 2018 at a family birthday party.

Following the entry of the temporary restraining order which Samantha obtained against Jake, the trial court was presented with the legal issue as to whether Jake qualified as a household member pursuant to the Prevention Against Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35, such that Samantha could be afforded protection under the statute. The trial court determined that jurisdiction under the PDVA was proper and the entry of a temporary restraining order was valid since the language of the statute must be flexible to accommodate the ever-changing dynamics in modern families.

In its reasoning, the trial court observed that the case law has evolved in recent years such that the PDVA applies even in instances where the parties have not resided together for a period of many years. The trial court noted that in N.G. v. J.P. , 426 N.J. Super. 398 (App. Div. 2012), it was determined that there was jurisdiction under the PDVA since the defendant’s behavior arose out of the parties’ earlier household relationship notwithstanding the fact that the parties stopped residing together since 1960 and has no contact for almost 20 years.

The trial court also found R.G. v. R.G. , 449 N.J. Super. 208 (App. Div. 2017), to be instructive where the Appellate Division held that the PDVA applied even though the parties had not resided together for more than 30 years. The trial court made clear that the reported case law since the omnibus amendments to the PDVA were enacted in 2015 have placed an emphasis on broadening the rights of domestic violence victims so as to create a floor not a ceiling when it comes to jurisdictional determinations.

The trial court further explained that residing under a single roof is not dipositive when deciding whether a person is to be considered a household member under the PDVA. Notably, when dealing with a situation of separated parents, a child may be a household member of two residences simultaneously, provided that the parent of alternate residence exerts meaningful, regular parenting time with the child and the child is substantially integrated in the family unit. Here, it was clear that Jake was an integral part of the family household and had a close relationship with Samantha in which he spent significant periods of time with her from the time of her birth until he went to college.

The trial court found that the facts of the case demonstrated a substantially integrated, modern, blended family which the PDVA was specifically designed to address. This interpretation is consistent with public policy in New Jersey to assure that minor children have frequent and continuing contact with both the custodial and non-custodial parent after separation or dissolution of the marriage. The trial court declared that carving out an exception to the household member classification of the PDVA for those children who have separated or divorced parents would create a perverse result which is inconsistent with the intent of the New Jersey Legislature. Notwithstanding the limited and infrequent contact that the parties may have had as adults, they continued to have a meaningful and close relationship which made Samantha and Jake household members and established jurisdiction under the PDVA.

Observation : S.C. v. J.D. represents another example of the growing trend in which New Jersey courts have expanded the reach of the PDVA in order to protect victims of domestic violence. In this case, parties who are involved in an incident of domestic violence may qualify as “household members” in order to establish jurisdiction under the PDVA even where they did not live together on a regular basis and were not part of a traditional intact family structure. This decision by the Monmouth County Family Part is relevant because it demonstrates that the PDVA is applicable even in situations where there is a timeshare arrangement due to divorce or separation. Here, the fact that the defendant and the victim were not household members in the traditional mold was not dispositive since they both spent a significant amount of time together as part of a modern, blended family unit. This case offers insight as to how domestic violence law in New Jersey has evolved as there are many parties who did not grow up in an intact family and courts have been increasingly flexible so as to allow the definition of household member under the PDVA to accommodate the changes in modern family structures.

The polestar in these close “household member” cases appears to be the extent to which the alleged acts of domestic violence arose from a prior domestic relationship. For example, step children who only lived together between ages 2 and 4 and had only a remote, fleeting or transient relationship are not likely to be considered household members if later in life they re-connect and an act of violence occurs. In S.C. v. J.C., the parties developed a “meaningful relationship” through the time the defendant left for college. That relationship was serious enough that thereafter the parties maintained on-going contact engaging socially, spending time at each other’s residence, and sharing family celebrations.

Sample of Cases Involving Divorce

Sample divorce cases handled by david wilkinson.

David has more than a decade of litigation experience in family law matters, including divorce. He has handled the simplest divorce cases by providing hourly consulting services and where he acted to simply draft the appropriate documents. He has also served as a private mediator for many divorce cases wherein he assists parties in identifying and negotiating all the issues in their case (including issues such as custody, visitation, spousal support, child support, division of assets and debts, title issues, and so forth).

David also previously served as a settlement judge and assisted parties to divorce cases resolve their disputes at court. He served for many years as a judge pro tem for this purpose, during which time he received accolades for his service to the community. He also gained valuable experience in learning how to deal with difficult litigants and attorneys in high-conflict divorce matters.

As a result of his years of experience, David can describe many interesting and notable divorce cases. Here are several such cases:

In a matter involving a crooked Husband and deadbeat father, David represented the Wife throughout the entire case including trial. The Husband refused to disclose his assets and income for a significant period of time, avoided discovery demands, provided false information to the court, and failed to pay the proper amount of child support for his children. He was also the owner of a bar/club that was a popular venue in a famous location, for which he neglected to provide any relevant information during the divorce case. Husband sought spousal support from the Wife because she earned a significant income through her employment. After significant preparation, Mr. Wilkinson was able to elicit testimony from a number of witnesses that testified as to Husband’s crooked and lying ways. He showed the court that the Husband was untrustworthy in all respects. Ultimately, the court imputed a significant income to the Husband, denied his request for support, ordered him to pay a significant sum of money to Wife for the assets that he claimed he didn’t own, sanctioned Husband to the tune of tens of thousands of dollars, and the court refused to grant the Husband any relief he sought at trial.

In a case involving a marriage in which the Husband and Wife had been married for over ten years but then separated for over twenty-five years, David and his associate represented the Husband during a trial to determine the date in which the parties’ separated from each other. This date is important because the court treats the financial interests of the parties differently depending upon the length of marriage. Husband argued that the parties’ separated over twenty five years earlier and the Wife argued that the parties only recently separated. While the trial was progressing, Mr. Wilkinson and the opposing counsel remained open to negotiation to try and resolve the case without relying on the court to ultimately make a decision, which one party would certainly not be happy. These negotiations resulted in a complete resolution on all issues right in the middle of the trial.

In a recent Plymouth County case that went to trial, David represented a wife married to her husband for more than twenty years. The husband had abused the wife during the marriage, verbally, mentally and emotionally. The wife earned over 4 times what the husband earned and the husband was seeking alimony from the wife. During trial, David produced testimony from witnesses that saw the abuse over many years, provided testimony that contradicted what the husband was claiming, and provided some information as to husband’s ability to work, which allowed the court to attribute income to husband even though he was receiving disability. The judge provided a thirteen page written judgment in the case, ordering that David’s client was not obligated to pay any alimony whatsoever, and for the husband to sell most of his belongings and provide the sale proceeds to the wife.

David represented a retired fire chief in a divorce case involving complicated issues of division of retirement and pension accounts and interests and the division of real property. Mr. Wilkinson and Wife’s attorney sat down together at the outset of the case to outline the issues and obtained the necessary and appropriate documentation so that all parties were completely informed. A complete and formal settlement agreement was reached by the parties only several weeks after the filing of the divorce complaint, saving parties months or years of litigation and thousands of dollars in attorney fees.

In a case involving the partnership of two same-sex parties, Mr. Wilkinson was able to file a series of aggressive motions immediately after the inception of the filing of the petition. At the first hearing, Mr. Wilkinson was able to significantly out-perform the opposing counsel and the court entered extremely favorable orders for Mr. Wilkinson’s client, which set the tone for the case and enabled the parties to reach a complete agreement.

Mr. Wilkinson represented a Certified Public Accountant (CPA) in the drafting and execution of his premarital agreement before he married Wife. Unfortunately, after several years it was clear the marriage was not going to work out. Accordingly, Mr. Wilkinson filed a petition on behalf of the CPA Husband to terminate the parties’ marital relationship and cited the terms of the premarital agreement as controlling the issues of division of assets and spousal support. The Wife was found and served in the State of New York, but she did not timely file a response. Mr. Wilkinson filed a motion to proceed by “default” (i.e. without the Wife’s participation in the case) and ultimately Husband was granted the divorce and everything he requested.

In one of the more complex matters, Mr. Wilkinson represented the Wife in an extremely litigious divorce case involving child custody, child and spousal support, international evidence issues, division of assets including several businesses located in the United States and in Mexico, real property including a high value commercial property, and the most devious party and attorney on the other side of the case. After years of dealing with the lying, manipulative and deceptive acts of the opposing party and countless hearings and weeks of trial, ultimately Mr. Wilkinson secured orders that directed all property owned by the parties to be awarded to the Wife, along with sanctions and other penalties against the Husband.

The above cases are a small sample of the cases handled by Mr. Wilkinson. To request a private, initial consultation with Mr. Wilkinson in Boston or downtown New Bedford, please call our office today or send us an email . You will be able to share your situation with Mr. Wilkinson and he will be able to provide you with some insight as to his experience with the issues involved in your case and provide you with options. Contact us today.

(206) 547-1486

Case Studies in Family Law, Divorce & Child Custody

General custody, a stalking spouse.

The father, a high tech computer expert, had taken it upon himself to bug the entire house, including the phones and home computer. At the same time, the mother discovered hard core pornography on the home computer, a click away from the children’s Disney games. The computer was forensically downloaded by a computer consultant and a private investigator was hired to de-bug the home. With all of the evidence of the father’s dysfunctional behavior, a parenting plan was reached in mediation in which he agreed to go for a deviancy evaluation and went from supervised visitation to weekend visits over the course of many months.

Non-Parental Custody

Grandparents sought custody of their teenage daughter’s child after she abandoned the child. The child’s father refused to have any relationship with the child. We successfully established paternity on the out-of-state father and obtained a parenting plan granting the grandparents custody of the child.

International Custody

Threats to remove the child from the country.

The mother had married an Afghani national, who was a professional working in the United States. The mother was rightly concerned about having the father take their daughter out of the country. Our experienced family law team negotiated a parenting plan with many safeguards and had immigration flag the child to prevent a kidnapping situation.

Return of A Child

The father removed the child from the State of Washington to a country that was not a signatory to the Hague Convention. We filed a motion for contempt against the father. The court granted our motion and ordered the father to jail pending the return of the child.

Substance Abuse

The mother and father followed a parenting plan based on equal custody for several years. When the child hit adolescence, he became addicted to drugs and alcohol and stopped attending school. The mother was in denial regarding the extent of the child’s addiction. We successfully helped the father obtain a parenting plan changing child custody so that he could ensure the child successfully completed in-patient treatment.

The mother suffered from severe alcoholism warranting monthly in-patient treatment. The father was a high-level executive in a large local corporation who struggled to help the mother with her alcoholism during the entire relationship. Our office helped the father obtain a parenting plan limiting the mother’s visitation to supervised visits, subject to intermittent alcohol testing.

Mental Health Allegations

Professional family.

A stay-at-home mom married to a health care professional prided herself on her abilities as a wife and mother. The father was a demanding perfectionist. During the divorce, the father turned the mother’s homemaking abilities against her, and accused her of having an obsessive-compulsive personality disorder (OCD). Based on the mother’s alleged OCD, the father tried to get custody of the children. We brought in psychological experts and our client, the mother was awarded custody at trial.

Wrongful Sex Abuse

A father was accused of sexually abusing his children. After much litigation, including mental health evaluations of both parents, it was discovered that the mother had made false accusations. The psychologists determined that the mother’s abuse history had caused her to be “hyper-vigilant” about possible sex abuse. My client, the father, received forty percent residential time with his children.

Domestic Violence Issues

Mother as victim.

A mother had been the victim of ongoing psychological abuse by the father, who had drug and alcohol problems. After psychological evaluations of both parties, the father was ordered into anger management, while the mother went into a domestic violence shelter. A parenting plan was ultimately reached by agreement wherein the father had supervised visitation. Our client, the mother, went back to school with the proceeds of the financial settlement and is doing well parenting her daughter alone.

Father Wrongfully Accused

A mother strategically accused a father of domestic violence and obtained a Domestic Violence Protection Order against the father to gain a leg up on the divorce process by legally restricting his visitation. We hired a professional parenting evaluator who performed psychological testing on both parents and determined that the mother’s allegations were unfounded. Ultimately, we negotiated the dismissal of the Protection Order and obtained a parenting plan providing the father equal residential time.

Division of Marital Assets

Valuing a family owned business.

A husband and wife owned a successful business and were in deep disagreement about the value of the business and how to split their assets. Working with financial professionals and business lawyers, our family law team was able to mediate a settlement in which both parties received substantial assets as well as a piece of ongoing business.

Long-Term Marriage with Complex Financial Assets

The husband and wife had a 30 year marriage and owned a privately held Pacific Northwest business. Working with a team of financial professionals, we successfully traced the community and separate property interests in the estate, valued the business and considered various tax ramifications and advantages to successfully reach a settlement where the wife received one-half of the assets, spousal maintenance and established children’s trusts.

Dissolution of Long-Term Marriage with Lifetime Spousal Maintenance Award at Trial

A fifty-year marriage where the husband had been the primary breadwinner and the wife was the secondary breadwinner. The wife accused the husband of squandering several million dollars in a Swiss bank account. Our firm represented the husband in tracing separate property and community property interests in their estate. At trial, our firm successfully defended the husband against the wife’s claims of hiding assets. The husband was awarded one half of the wife’s retirement income as spousal maintenance and his share of the family home.

Amicable “Short-term” Marriage with No Children

The husband and wife were married for 3 years. The primary assets included the wife’s pension, the couple’s vehicles, the husband’s recording business, and their home. We represented the wife in a low-cost settlement where she walked away with the pension in full, the home and one of the vehicles.

If you have further questions concerning these issues or other issues involved in your Seattle or Bellevue-Redmond divorce, or want to arrange a confidential consultation, please contact us today. We have offices in Seattle and Bellevue-Redmond and can meet with you in one or both of those locations as needed. We look forward to meeting you and helping you achieve the divorce solutions you seek.

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Divorce Laws In Action: Real-Life Case Studies And Their Outcomes

Andrew A. Baldree

Table of contents.

Are you going through a divorce or considering filing for one? Knowing the outcomes of real-life divorce cases can help you understand how the law works in your state.

In this article, you will learn about three different case studies and their outcomes regarding property division, child custody, and alimony.

Divorce can be a tough and emotional process, but understanding the legal aspects of it can make it easier for you. By looking at real-life examples, you can see how the court applies the law to different situations and make informed decisions about your own case.

Keep reading to learn about the outcomes of these cases and the factors that influenced them.

Key Takeaways

Real-life divorce cases can provide valuable insights into divorce laws in your state.
Property division can be a complex process that requires proper documentation and evidence of contributions to the marital estate.
Child custody decisions are based on factors beyond the child’s preference and the court’s ultimate goal is to make a decision that is in the child’s best interest.
Alternative dispute resolution methods such as mediation or collaborative law can be a more efficient and less contentious way to resolve legal issues in a divorce.

Case Study 1: Property Division

Let’s take a closer look at how property division played out in a real-life divorce case.

Marital assets are often one of the most contentious issues in a divorce, and this case was no exception. The couple had been married for 10 years and had accumulated a significant amount of assets during that time, including a house, cars, and investments. The legal process for dividing these assets can be complex, and both parties had to provide documentation and evidence of their contributions to the marital estate.

After several months of negotiation and court hearings, a judge ultimately divided the assets based on each party’s contributions and needs. The wife received the house, while the husband received a portion of the investments and one of the cars.

While neither party was completely satisfied with the outcome, the legal process ensured that the division was fair and equitable.

This case highlights the importance of being prepared and having legal representation when going through a divorce, especially when it comes to the division of marital assets.

Case Study 2: Child Custody

You might be surprised to learn that, when it comes to deciding child custody in a divorce, the court takes into account a number of factors beyond just who the child prefers to live with. Factors such as the emotional and physical well-being of the child, the relationship between the child and each parent, and the ability of each parent to provide for the child’s needs are all taken into consideration.

Additionally, joint custody, where both parents share equal responsibility for the child’s upbringing, is often favored over sole custody, where one parent has primary custody and the other has visitation rights.

When it comes to child custody, emotions often run high. The thought of not being able to see your child every day can be overwhelming and heart-wrenching. The fear of losing your child to an abusive or neglectful parent can be paralyzing.

For children, the thought of having to choose between their parents can be traumatic. It’s important to remember that the court’s ultimate goal is to make a decision that is in the best interest of the child, even if it’s not what either parent wants.

So, while the process may be difficult, it’s important to trust in the legal system and focus on creating a stable and loving environment for your child, regardless of whether you are awarded joint or sole custody.

Case Study 3: Alimony

If you’re going through a separation, it’s important to understand how alimony can impact your financial future. Alimony, also known as spousal support, is a payment made by one spouse to the other after a divorce or separation. While the intention behind alimony is to help the lower-earning spouse maintain their standard of living, it can also come with tax implications and duration limits.

To illustrate the potential impact of alimony, let’s take a look at a fictional case study. John and Jane were married for 10 years before they decided to separate. During their marriage, John was the primary breadwinner, while Jane took care of their children and worked part-time. In their divorce settlement, John was ordered to pay Jane $1,500 in alimony per month for a duration of five years. However, John was unaware that alimony payments are taxable income for the recipient and tax-deductible for the payer. With a combined federal and state tax rate of 30%, Jane’s net income from alimony would only be $1,050 per month. This table shows the breakdown of their financial situation:

	John	Jane
Gross Monthly Income	$8,000	$2,500
Alimony Payment	-$1,500	$1,500
Taxable Income	$6,500	$4,000
Taxes (30%)	-$1,950	-$1,200
Net Income	$4,550	$1,050

As you can see, the tax implications of alimony can significantly impact the financial situation of both parties. Additionally, it’s important to note that many states have duration limits on alimony payments, which means that the payments will only be made for a certain period of time. Understanding these factors can help you make informed decisions during your divorce negotiations.

Common Factors in Divorce Cases

Understanding the common factors involved in the dissolution of a marriage can provide valuable insight into the complexities of the legal process.

One of the most common factors in divorce cases is the financial impact. Divorce can be expensive, and many couples find themselves struggling to divide assets and liabilities fairly. This can lead to lengthy court battles and bitter disputes over money. Additionally, the financial impact of divorce can be felt for years to come, as both parties adjust to living on a single income and paying for expenses on their own.

Another common factor in divorce cases is the emotional toll it takes on both parties. Divorce is often a difficult and emotional process, and it can be especially challenging when children are involved. Parents may find themselves struggling to co-parent effectively, and children may experience feelings of anger, confusion, and sadness. Additionally, the emotional impact of divorce can be felt long after the legal process is complete, as both parties adjust to life without their former spouse.

Understanding these common factors can help individuals going through a divorce to navigate the legal process and seek support for the emotional challenges they may face.

Alternative Dispute Resolution

Using alternative dispute resolution, such as mediation or collaborative law, can be a more efficient and less contentious way to resolve legal issues in a divorce.

Mediation is a process where a neutral third party facilitates communication between the spouses to reach an agreement. This process allows the parties to control the outcome rather than leaving it up to a judge. Mediation is often less expensive and quicker than traditional litigation, and it can be less stressful and better for the children involved.

Collaborative divorce is another alternative method that involves both parties and their lawyers agreeing to work together to reach a settlement. This approach removes the threat of going to court and allows for a more collaborative and respectful process. Collaborative divorce can be particularly useful in cases where there are complex financial or child-related issues.

In contrast, traditional divorce involves each party retaining their own lawyer and fighting it out in court. This process can be lengthy, expensive, and emotionally draining. Overall, alternative dispute resolution can be a more positive and productive way to navigate the divorce process.

Frequently Asked Questions

How long does the divorce process typically take.

On average, the duration of a divorce process can vary depending on whether the case is uncontested or contested. In uncontested cases, where both parties agree on the terms of the divorce, the process can be completed relatively quickly, often within a few months.

However, in contested cases, where there are disagreements over issues such as child custody or property division, the process can take significantly longer, sometimes lasting several years.

It’s important to note that each case is unique and there are many factors that can impact the length of the process.

Can I file for divorce without a lawyer?

Yes, you can file for a DIY divorce without a lawyer. However, it’s important to note that divorce can be a complex legal process, and having legal assistance can be beneficial.

If you choose to file for a DIY divorce, you’ll be responsible for completing and filing all necessary paperwork, as well as ensuring that all requirements for your state are met. This can include attending court hearings and mediating any disputes with your spouse.

It’s important to carefully consider your options and the potential consequences before proceeding with a DIY divorce. If you’re unsure about the process, seeking legal assistance may be the best choice for you.

How is child support calculated in a divorce case?

Calculating child support in a divorce case involves following the child support guidelines established by your state. These guidelines take into account various factors such as the income of both parents, the number of children involved, and any special needs of the children.

Other factors that may affect the calculation of child support include the amount of time each parent spends with the children, childcare expenses, and medical expenses.

It’s important to note that child support is not just a financial obligation, but a legal responsibility to ensure the well-being of your children.

What happens if one party violates the terms of the divorce settlement?

If one party violates the terms of a divorce settlement, there may be serious consequences. The violating party may be held in contempt and face legal action. Contempt consequences range from fines to even jail time.

It’s important to take any violations seriously and seek legal advice if necessary to ensure that the terms of the settlement are upheld. Remember that violating the terms of a divorce settlement is not only illegal, but it can also have a significant impact on the well-being of any children involved.

It’s important to communicate any concerns with the other party and seek legal assistance if necessary to ensure that the settlement is enforced.

How can a prenuptial agreement affect the outcome of a divorce case?

If you’re considering getting married, it may be worth discussing the benefits and limitations of a prenuptial agreement with your partner. A prenuptial agreement can protect your assets and make the divorce process smoother if the marriage ends.

By outlining the division of property and spousal support ahead of time, you can avoid lengthy court battles and potentially save money on legal fees. However, prenuptial agreements have their limitations. They cannot dictate child custody or support arrangements, and they may not hold up in court if they’re deemed unfair or one-sided.

Ultimately, whether a prenuptial agreement is right for you depends on your individual circumstances and priorities.

Congratulations, you’ve now learned about real-life divorce case studies and their outcomes. From property division to child custody and alimony, these cases highlight the complexities and challenges of divorce law.

However, there are common factors that can impact the outcome of a divorce case, such as the length of the marriage, financial circumstances, and the presence of children.

It’s important to note that divorce doesn’t have to be a contentious process. Alternative dispute resolution methods, such as mediation and collaborative law, can help couples work together to reach a mutually beneficial agreement.

Ultimately, the goal of divorce law is to provide fair and just outcomes for all parties involved. By understanding the intricacies of divorce law, you can navigate the process with confidence and make informed decisions for your future.

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10 Essential Steps To Take After Experiencing Domestic Violence

If you’ve experienced domestic violence, it’s important to know that you are not alone and that there are steps you can take to protect yourself and begin the healing process. Here are ten essential steps to consider taking: First and foremost, seek medical attention

The Impact Of Technology On Parental Rights: Pros And Cons

Do you remember the days when parents had to rely solely on their instincts and trust when it came to monitoring their children’s activities? Well, those days are long gone. Thanks to technology, parents can now monitor their children’s every move with just a

A Closer Look At The Most Effective Divorce Counseling Methods

Are you going through a divorce and feeling overwhelmed with emotions? Do you feel like you need someone to talk to who can help you cope with the changes in your life? Seeking counseling during a divorce can be a helpful tool for managing

Division Of Assets: Splitting Retirement Funds And Investments

Divorce is never easy, and one of the most challenging aspects can be dividing your assets fairly. Retirement funds and investments are often the most valuable assets a couple owns, but they can also be the most complicated to split up. Whether you are

Divorce Settlements: Mediation Vs. Court Battles, A Comparative Analysis

If you’re going through a divorce, one of the biggest challenges you’ll face is figuring out how to divide your assets and come to a settlement agreement. There are two main approaches to resolving this issue: mediation and court battles. Both approaches have their

8 Key Considerations For Divorced Couples Navigating Retirement

Are you recently divorced and approaching retirement? It can be a daunting time, but with careful planning and consideration, you can navigate this new stage of life with confidence. Here are eight key considerations to keep in mind as you navigate retirement as a

Divorce And Remarriage In Different Religions: A Comparative Study

When it comes to divorce and remarriage, religion can play a significant role in shaping beliefs and attitudes. Different religions have varying views on these topics, with some embracing divorce and remarriage while others condemning them. A comparative study of divorce and remarriage in

The Dos And Don’ts Of Choosing A Divorce Counselor

Are you going through a divorce and feeling overwhelmed by the emotional and legal aspects of the process? Seeking the guidance of a divorce counselor can provide valuable support during this difficult time. However, choosing the right counselor can be a daunting task. With

Child Custody In Divorce Settlements: 5 Key Considerations

When going through a divorce, one of the most challenging and emotional issues is determining child custody arrangements. It’s important to remember that the focus should always be on the best interests of your child. As you navigate through this process, there are five

A Review Of Smartphone Apps Designed To Support Domestic Violence Victims

Are you or someone you know a victim of domestic violence? If so, you may want to consider utilizing a smartphone app to help support you through this difficult time. In recent years, there has been an increase in the development of apps designed

The Top 3 Bestselling Books On International Divorce: A Review

Are you going through a divorce that involves multiple countries and legal systems? It can be overwhelming to navigate the complexities of international divorce, but luckily there are resources available to help you through it. In this article, we will review the top 3

Division Of Assets: Splitting Insurance Policies In A Divorce

When going through a divorce, one of the most complex and emotional aspects is dividing assets. This includes everything from bank accounts and real estate to personal belongings and investments. However, one area that often gets overlooked is insurance policies. From health and life

11 Factors Courts Consider In Granting An Annulment

Are you considering getting an annulment? If so, it’s important to understand the factors that courts consider when deciding whether to grant one. An annulment is a legal process that declares a marriage to be invalid, essentially erasing it from existence. Unlike a divorce,

John was 24 and Ann was 20 when they met on Tinder. When Ann fell pregnant just a few months later, parties decided to get married. Unfortunately, the relationship was marked with frequent quarrels from the start and did not improve after the birth of their daughter, Mary.

Though the plan was for Ann to move in with John to live with his mother and siblings, Ann dragged her feet on this, preferring to raise Mary with the help of her own mother.

John tolerated this arrangement for some time, visiting Ann and Mary daily after work. However, he became increasingly unhappy when Ann would control the time he had with Mary. Often, he would be on his way to Ann’s home when she would text to let him know that she was busy or had taken Mary out. Things came to a head during a Christmas dinner at John’s home when an argument ensued and John refused to return Mary to Ann.

Ann applied for an order under the Guardianship of Infants’ Act for Mary to be returned to her care and for her to have custody and care of Mary. Mary was 9 months old at the time.

Parties attended mediation where we managed to persuade John to consider a shared care arrangement where Mary would spend equal time with each parent. However, Ann rejected the proposal.

At the hearing, the Court accepted our argument that Ann was gatekeeping and preventing John from spending time with Mary. The Court also noted that Ann was studying part-time and did not have any care plan in place. On the other hand, John’s mother had taken a sabbatical and they planned to hire a domestic helper to help care for Mary whilst he was at work. Finally, though the Court noted that usually very young children are placed in the care of the mother, this was not the default position and the Court would still consider what was in the child’s best interest. As such, the Court awarded care of the child to John.

Jasmine and Carl were in a relationship and decided to move to Singapore together. Life was good and they decided to take the next step by tying the knot in a beautiful ceremony in Bali. Soon after, Jasmine became pregnant with Jane. Jasmine felt that Carl became more distant during her pregnancy and this became even more obvious after Jane’s birth. However, Jasmine was very much committed to the marriage and constantly made excuses for Carl’s behaviour.

When she became pregnant with their second child, Carl’s behaviour worsened. By this time, it was obvious that he had a drinking problem. Jasmine would find bottles of alcohol which Carl had hidden around the house. His emotional abuse worsened and there were also instances of physical violence. Jasmine was overwhelmed, having to essentially care for 2 young children on her own whilst trying to keep her marriage intact.

She first approached us to write a letter to her Carl, reiterating her commitment to the marriage but insisting that he had to seek help. When he ignored her letter, we were instructed to commence divorce proceedings . Carl left the matrimonial home when he was served the divorce papers. However, a few months later, he promised he had changed and asked to return. Jasmine agreed and we withdrew the divorce.

Just 4 months after that, Jasmine came back to us with instructions to commence divorce proceedings again. All Carl’s promises were mere lip service and he had quickly reverted back to his old ways. The tension at home was affecting the children and Jasmine felt that she had done all she could to save the marriage. Once again, Carl left home when he was served the divorce papers and refused to participate at all in the divorce proceedings. He also made no effort to see the children save for the occasional video calls.

Whilst this caused some difficulties to Jasmine, we obtained an order for substituted service and took all the necessary steps to push the matter forward. Throughout this process, Jasmine established a routine for the children and whilst life as a single mother was challenging, she found she was at peace without Carl in her life. At the ancillary matters hearing, the Court accepted our argument that Jasmine should have sole custody and care of the children due to Carl’s disappearance from the children’s life.

Dan and Nadia’s short and tumultuous marriage soon ended in a highly acrimonious divorce soon after moving to Singapore. Nadia had a daughter from a previous relationship who was brought up by Dan as his own daughter. The couple also had a daughter together. Soon after applying for custody of the children, Nadia fled Singapore with the children back to her home country. As there was no Hague Convention Treaty in place, Dan had no recourse to seek the return of the children even though he was awarded care and control of them in the Singapore proceedings.

After about 2 years, Nadia decided to return to Singapore and allowed Dan to re-establish contact with the girls. However, about a year later, parties’ relationship deteriorated and Nadia again sought to prevent Dan from any contact with the girls. In various application filed in Court, Nadia succeeded in having the care and control order reversed in her favour. However, Dan was given liberal access. He was contented with that as it was never his intention to cut out the mother and simply wanted to have regular scheduled time with the girls.

Things took a turn for the worse when Dan agreed for Nadia to return to her home country to visit her family with the children. This was to be for a period of about 30 days. However, Nadia took this opportunity to remain out of Singapore, refusing to return with the girls. After making efforts to negotiate with her for several months, Dan instructed us to apply for an injunction for the girls to be returned to Singapore. We succeeded as the Court agreed that Singapore was their habitual residence. The mother could not simply uproot the children without the father’s consent. Further, it was clear she had no plans, wanting instead the freedom to decide on her own what was best for the children and having no qualms in cutting off contact with Dan when she saw fit.

Despite the Court Order, Nadia refused to return.

Dan took the next step of applying for care and control to once again be made in his favour on the basis that the mother was unable to act in the children’s best interests and had repeatedly defied Court Orders. Dan also commenced contempt of court proceedings. At the hearing, the Court agreed with our arguments and granted care and control of the girls to Dan.

Unfortunately, at time of writing, the girls remain out of Singapore. However, the mother has in the past few weeks indicated her consent for the children to return to Singapore and has cooperated thus far with the necessary immigration applications. We look forward to the day when the girls are returned to their father and regain some semblance of normalcy in their lives.

If you find yourself facing a similar situation or would like to find out more about how we can help you, please contact us for a confidential consultation.

Judicial Branch of California

Family division, contact the family court.

Telephone: Court Telephone Numbers Email: [email protected]

What does Family Court help with?

The following types of Family Law cases are heard in Family Court. Click on the links below to visit our Self-Help pages with more information:

divorce, legal separation, nullity
establishing parentage
restraining orders/domestic violence (see online Ex Parte for information on orders already filed)
child support/spousal support/family support
child custody and visitation
mediation and arbitration

Family Court Services has information about programs and classes offered regarding custody mediation.

Family cases online

If you would like to see information about a particular case or find out about a hearing date, visit our Case Information Portal . However, you will not be able to look up information on confidential cases, including cases involving adoptions, mental health issues and custody petitions for parents who have not married.

Getting help

For help understanding Family Court processes and to learn about Resources that can help you, visit the Court’s family Self-Help pages .

You can get help in person at the Self-Help Center in downtown San Jose.

For more Self-Help information about cases that involve children:

Guardianship, name change and adoption are in Probate
Child abuse and neglect cases are in Juvenile Dependency
Children’s violations of criminal law are in Juvenile Justice

Community Family Resources

See Family Resources in the Self-Help section of our website.

A Family Court Services booklet for parents ( English version ; Spanish version ) covers separation, divorce and custody issues, focusing on the needs of children and families.

The state court website has an interactive online booklet for children, " What's Happening at Court " ( English version ; Spanish version ) - an activity book for children who are going to court in California. (There are also print/PDF versions in English and Spanish .)

County resources include the Child Abuse Council , working to prevent and heal child abuse.

The County Department of Child Support Services (DCSS) works with families so that children receive support that meets their financial, medical, and emotional needs.

The Judicial Council of California has videos for children, teens, and parents covering some of the issues involved in going through a divorce. See Families Change - Your Guide to Separation and Divorce .

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Alimony Case Studies in Divorce

The following alimony case studies are examples and may give you some idea of what kind of factors a court may consider in your alimony case :

Permanent Alimony (under the law prior to September 2014): Long-Term Marriage with Stay-at-Home Parent

Open durational alimony (under the law as reformed in september of 2014): long-term marriage with stay-at-home parent, limited duration alimony: intermediate length marriage with higher-earning wife, limited duration alimony: intermediate length marriage with two working parents, no alimony: shorter marriage with equal earning power.

The following is a fairly typical example of a case in which a court might have ordered permanent alimony under the law predating September of 2014. The case involves an 18-year marriage, which most courts would have considered “long-term,” particularly since one spouse was a stay-at-home parent throughout most of the marriage. As always, keep in mind that court results often differ markedly even in cases with very similar facts:

Jennifer and Peter were married for 18 years before their divorce case went to court. At that time Peter was 52 years old and Jennifer was 48. They had three school-aged children, Alicia, age 16, John, age 13, and Stephanie, age 10. Jennifer is a college graduate. She has no health problems but has not worked outside of the home since Alicia’s birth. Peter, who is also in good health, earns approximately $180,000 per year plus an annual bonus. The bonus is not guaranteed and varies in amount, but has averaged about $25,000 per year for each of the past three years.

Peter argued in court that Jennifer should be able to support herself now that the children were all in school. He also argued that his annual bonus should be left out of any alimony determination, because it was not guaranteed.

The court determined that Jennifer was able to seek full-time employment but that due to her lack of recent job experience, she could expect to earn only about $25,000 per year. The court imputed this amount to her as part of the alimony calculation. Rather than include Peter’s bonus income in the base alimony award, the court added it on as a percentage amount, ordering him to pay Jennifer $50,000 per year, plus 28% of any future bonuses. The entire amount would be permanent alimony , and therefore taxable to Jennifer as income and tax deductible for Peter.

How would Jennifer and Peter’s case be analyzed under the reformed law?

The first major difference is that their 18-year marriage would no longer be considered “long-term.” Under the reformed law, open durational alimony (alimony without a defined ending date) has replaced permanent alimony, but a court cannot order open durational alimony after a marriage lasting less than 20 years without finding “exceptional circumstances.” Jennifer could ask the court to consider circumstances such as her age, the degree of her economic dependency during the marriage, and the sacrifices in earning power she made during the marriage, but unless the court specifically finds her circumstances to be “exceptional,” she can only receive “limited durational alimony” for a maximum term of 18 years.

If Peter and Jennifer had been married for 20 years or longer, the court could award open durational alimony. The next major difference under the reformed law, however, is that regardless of whether the duration of the award was left open or set at 18 years, if Peter reached full retirement age at 67, he would be permitted to terminate the payments at that time—after only 15 years—unless Jennifer could convince the court that the payments should not end. She could argue, for example, that she needed the payments to continue because her own income was low, that she would not reach full retirement age for another four years, and that Peter could still afford to make the payments. Under the old law, she would not have been required to initiate these arguments. If Peter retired at age 67, it would have been up to him to request a reduction or termination of the award and to demonstrate why he was unable to continue making payments.

Another difference that did not go into effect in 2014 but will be a factor in alimony cases finalized in 2019 or later, is that alimony will no longer be tax deductible by the payer or taxable as income to the payee. This means that Peter would likely be ordered to pay less after 2019 than before 2019. With the higher earner now bearing the brunt of tax payments for alimony, there will tend to be less money available to go around. Divorcing spouses need to negotiate to make sure that neither is disproportionately affected by the change in tax law.

The following case demonstrates that alimony awards are not restricted according to gender. Many women now earn significantly more than their husbands. The same factor analysis applies even when the tables are turned.

Jacob and Eva divorced after 12 years of marriage, when Eva was 40 and Jacob 42. They had two children together, Elise, who is currently six years old, and Willie, who is currently two. Neither Jacob nor Eva has any health issues. Eva earns a high income at a job involving frequent travel. She spends a total of between one and two weeks per month away from home on business. Her current annual salary is approximately $350,000.

Jacob currently works part-time from home earning approximately $30,000 per year. He drives Elise, who is in the first grade, and Willie, who attends day care for three hours each morning, to and from school and other activities. He also cares for the children at home in the afternoons.

Notably, under the law predating September of 2014, some courts might have considered a marriage of 12 years to be a long marriage justifying an award of permanent alimony rather than a marriage of “intermediate length,” calling only for durational alimony. “Intermediate” was never a specifically defined length of time; courts tended to base such decisions on other relevant factors, such as the age, health, and future earning power of each spouse. Under the reformed law, after a marriage of 12 years, an alimony award would be limited to a maximum term of 12 years, barring exceptional circumstances.

As the following case demonstrates, alimony awards do not just follow marriages in which labor was divided along strictly traditional lines, with one spouse tending the home and children while the other earned the income. Even when both spouses have been continuously employed throughout a marriage, some level of alimony may be appropriate due to significant disparities in income:

Sylvia is currently 32 years old and Marshall is 39. They were married for eight years. Both Sylvia and Marshall have college degrees and are in good health. They have one child, Matthew, who is currently in kindergarten. Sylvia took a few months of maternity leave immediately after Mathew was born, but has otherwise been fully employed throughout the marriage. She currently earns about $45,000 per year. Marshall has also been fully employed throughout the marriage and is currently earning $75,000 per year.

The court ordered Marshall to pay Sylvia  limited duration alimony  of $7,500 per year (neither taxable for Sylvia as income nor tax-deductible for Marshall), for a period of four years.

As illustrated by the following case, alimony is not always necessary or appropriate. While this couple was married for only six years, significant alimony would have been unlikely even if the marriage had been considerably longer, due to the very similar earning power of each spouse. On the other hand, if the marriage had continued and David, who now has an MBA, experienced a substantial increase in income while Sarah’s income remained the same, the outcome may have been different. The outcome also may have been different had David relied on Sarah’s income rather than on student loans for tuition and living expenses while earning his graduate degree. In the former case, Sarah might have been entitled to reimbursement alimony :

Sarah and David divorced after six years of marriage. At the time of the divorce, Sarah was 32 and David was 33. Both were in good health and they had no children together.

David is a college graduate who also recently earned an MBA. His current income is $110,000 per year. He has substantial student loan debt, which he will be solely responsible for after the divorce. Sarah is also a college graduate, currently earning about $95,000 per year.

The court declined to award alimony to either spouse, finding that both Sarah and David were fully self-supporting.

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Too poor to divorce.

The rules are complicated, and there aren’t enough pro bono lawyers to help

The process for getting an uncontested divorce in Philadelphia is so complex that it practically requires an lawyer. If you can afford an lawyer, this process is an inconvenience. If you can’t, it can keep you trapped in marriage.

A six-year-long study by Harvard Law School’s Access to Justice Lab (A2J Lab) evaluated and analyzed the effectiveness of pro bono representation in divorce cases in Philadelphia County. The recently released study found that people who received legal representation were 87% more likely to achieve a divorce than people without it.

Harvard Law School Professor D. James Greiner , faculty director of the A2J Lab, said legal practitioners have begun to question whether court procedure is effectively preventing access to justice. The A2J Lab, which aims to provide decision makers with scientific evidence about what works in access to justice, embarked on the study to determine how representation changes outcomes for people seeking divorce.

Over the past several years, the A2J Lab worked with two dedicated research collaborators— Philadelphia VIP , a pro bono services organization, and the Philadelphia Family Court —to compare results for people seeking uncontested divorces. Because there weren’t enough pro bono attorneys to offer everyone representation, the study was able to compare two groups: those offered representation and those not offered representation.

Researchers found that the two groups had radically different outcomes. Those for whom Philadelphia VIP tried to find a free lawyer were nearly four times as likely — 54.1 percent versus 13.9 percent — to have a divorce case on record with the Philadelphia Family Court, and five times as likely — 45.9 percent versus 8.9 percent — to have received a divorce. The numbers of eligible clients who received offers of representation was similarly lopsided. Only 15% of eligible folks received an offer of representation during the study.

According to Greiner, most of the people in the study were too poor to have any assets and income that would require complicated arrangements, and they still struggled to complete their divorces without legal aid.

“These weren’t complicated cases—just a divorce, without a property division or a custody or support order. The comparison groups weren’t different. The study was a randomized control trial, the same kind of study the law requires to figure out whether new cancer drugs are effective, so the groups were (statistically) the same except for the Philadelphia VIP offer,” said Greiner. “Representation proved to be crucial in navigating the system.”

Researchers also examined the steps required to get a divorce in Philadelphia. Among the findings, they identified just how difficult it is to navigate the process, which included multiple forms and waiting periods. According to Greiner, the complexity arose from multiple sources, from the Pennsylvania Rules of Civil Procedure to existing self-help materials.

In a Dec. 12 op-ed in the Philadelphia Inquirer , Greiner wrote: “Some requirements were just extreme for nonlawyers to have to complete: filling out forms with obscure jargon, such as ‘Praecipe to Transmit the Record to the Prothonotary’ or ‘In Forma Pauperis Petition,’ figuring out which paperwork to file across multiple waiting periods, and using a typewriter — not a printer, not a pen, but a typewriter — to complete a form only available from the courthouse.”

Pro bono hours dedicated to these divorce cases made a big difference. But there were nowhere near enough pro bono hours to go around: again, resources were such that only 15% of eligible divorce-seekers received an offer.

“In a system where pro bono hours are a scarce and precious resource, we shouldn’t make our legal system so complex that we have to burn those hours on a really simple legal transaction,” said Greiner.

The complete paper, “Trapped in Marriage,” is available on SSRN .

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Life-Changing Divorce and Child Custody Battles – A Case Study

Schreier & Housewirth Family Law in Fort Worth, TX - Image of child with his father

After struggling in an abusive marriage for seven years, Billy needed to break free from Allison and her explosive behavior.

Billy had an overwhelming concern - protecting his son Jason and making sure he was appointed primary joint managing conservator.

An Overwhelming Problem – Son Jason

Complicating the case was the fact that 7-year-old Jason had been diagnosed with oppositional-defiant disorder and responded to the structure only his father was able to provide.

To complicate it even more, Allison refused to acknowledge that Billy was better able to meet Jason’s needs and refused to reach an agreement without trial and also believed that she, as Jason’s mother, would have an advantage in court.

The Schreier & Housewirth Approach To Child Custody Battles

The goal here was to dig deep into the facts, leaving no stone unturned, to convince the trial court to award Billy custody.

To do so, we spent hours identifying teachers, counselors, and family friends who would testify as to Jason’s needs and how he responded so much better to Billy’s calm and consistent parenting.

Most importantly, Billy was prepared for Allison’s attacks on his character, having worked with us for hours preparing his testimony and response to cross-examination.

Problem Overcome – A Challenged Child Is In The Right Hands

After two days of testimony, the court awarded Billy full custody of Jason including the power to make medical, psychological, and educational decisions on behalf of Jason.

Parenting Jason will always be a challenge; however, with court orders backing him up, Billy has the tools he needs to protect Jason with a safe, stable home.

With more than 20 years of experience in Family Law, Schreier & Housewith Family Law Firm knows how to help challenged children of divorce live in the environment they need to thrive and grow.

If your divorce involves a troubled child, don't try to handle it alone – we can help.

Schreier & Housewirth Family Law

1329 college avenue, suite 100 fort worth tx 76104, 817-923-9999.

Gregory L. Housewirth is a Board-Certified Family Law Specialist practicing in Fort Worth Texas. With 30 years of family law experience, Mr. Housewirth has represented hundreds of clients in divorce, custody, CPS, modification, and grandparent cases. In addition, Mr. Housewirth is a qualified family law mediator and a member of Collaborative Law Texas, a practice group dedicated to promoting collaborative divorce in Texas.

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Changing the face of family law: A retrospective on some of the seminal family law decisions of the last 20 years

This article relates to:

Financial settlements

2020 brings about the anniversaries of many seminal cases which are still at the forefront of every case, we explore a few of them

As many a law student knows, there are reported cases, and reported cases , the latter being those cases which have not only been decided by the highest courts in the land, but which have fundamentally shifted the legal landscape, shaped societal changes and the way in which family law cases are decided.

Coincidentally, 2020 brings about the anniversaries of many of these seminal cases which are still at the forefront of every case. We explore a few of them.

Sharing and Fairness: White v White [2000] UKHL54

20 years ago, the then House of Lords dealt with a farming case following a 30-year marriage, and introduced some fundamental changes to the way family lawyers approach cases.

It is somewhat chastening, looking back, to realise that it took until the year 2000 for the court to introduce a starting point of ‘sharing’ in financial cases arising on divorce, whereby “ equality should be departed from only if, and to the extent that, there is good reason for doing so ”.

The court also stated what seems self-evident now, that “ There should be no bias in favour of the money-earner and against the home-maker and the child-carer ”.

The House of Lords urged ‘fairness’ above all else and recognised that an equal division of the assets would not result in fairness in all cases. Each case is determined on its own facts, applying a range of criteria set out in s25 Matrimonial Causes Act 1973.

The existence of inherited wealth or property acquired before the marriage could, the House of Lords said, dictate a move away from equality. In this case, Mrs White received 43% to recognise an inheritance received by her husband shortly before separation.

Prenuptial Agreements and Self-Determination of Outcome: Radmacher v Granatino [2010] UKSC 42

It is 10 years since the Supreme Court gave its landmark decision in the case of Radmacher v Granatino .

It is impossible to accurately gauge the volume of agreements being signed in the UK, as entering into a prenuptial agreement is a highly confidential and personal decision. However, anecdotally, family lawyers across England and Wales have reported a significant increase in the number of people seeking advice and entering into prenups since the Supreme Court heard the case of Radmacher v Granatino in 2010, which found that prenuptial agreements should be given decisive weight in divorce proceedings. This is certainly our experience at Weightmans.

The court shifted the emphasis towards holding a party to account subject to safeguards being adhered to. Prenups are not guaranteed to be binding, as this would require a change in the law/statute, but they are very likely to be upheld as “ the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

Prenuptial agreements are typically associated with celebrities and the super wealthy, but the reality is quite different. They are growing in popularity with entrepreneurs, people with shares in a limited company, or those with a stake in a family business. Equally, people who have received an inheritance (be it large or small) may feel that this money should be considered separately to matrimonial assets. Occasionally it is the protection of future shareholdings or a future windfall that is the motivating factor, or ensuring that children from a first marriage do not lose out on their inheritance as a result of a divorce.

Inevitably, with more prenuptial agreements being entered into, more cases are being tested in court. However, subject to a number of requirements and formalities being complied with, a prenup may well be upheld. Even if adjusted by the court, a prenup can result in a significantly different, and less generous outcome than if no prenup had been entered into. See our previous article .

Non-disclosure: Sharland and Gohil [2015] UKSC 60

It has been five years since the Supreme Court judgments in Sharland and Gohil.

Before Sharland , in matrimonial cases the Court of Appeal had made it clear that even potentially fraudulent non-disclosure would not necessarily affect a settlement if it could be said that the Court’s knowledge of the true position would not have resulted in a substantially different order.

The decision of the Supreme Court made it very clear that ‘fraud unravels all’.

The general legal rule in commercial law is that misrepresentation (fraudulent, careless or innocent) or non-disclosure (in the cases where a duty of full disclosure exists) makes a resulting contract liable to be set-aside, providing the misrepresentation or non-disclosure is material. The Sharland and Gohil decisions clarified that fraud now has the same effect in matrimonial proceedings as it does in the commercial world.

The Supreme Court made it clear that this rule would only not apply in circumstances where the fraud would not have influenced a reasonable person to agree to the matrimonial settlement. The burden of proving the fraud was not influential on the settlement now lies, quite properly, with the party perpetrating the fraud and not with the party seeking to set-aside the settlement agreement (the victim of the fraud).

Divorce law reform: Owens v Owens [2018] UKSC 41

Finally, some fundamental and positive law reform anticipated to benefit thousands of divorcing families, following the Supreme Court decision of Owens two years ago.

For over 20 years family lawyers had been calling for ‘no fault divorce’. 2018 saw a contested divorce case ( Owens ), in itself a rarity, arrive before the Supreme Court. It hit the headlines, creating a perfect storm for the cry for reform.

Mrs Owens wanted to divorce her husband of 40 years because she believed their marriage had broken down irretrievably. Mrs Owens had petitioned for divorce after leaving the family home in 2015, declaring Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Mr Owens refused to agree to a divorce, which sparked a series of legal hearings in the Family Court and Court of Appeal, before ending in the Supreme Court. Mrs Owens actually lost her Supreme Court fight in July 2018 and is not able to divorce her husband until this year (2020).

Mrs Owens’ application failed as she did not meet the criteria set by legislation initially introduced in 1969. Since then social norms have changed enormously about what conduct may or may not be seen as ‘reasonable’ to put up with during a marriage. However, Mrs Owens failed to meet the legal test which was the Supreme Court’s concern.

The high profile case was a unique opportunity to raise support for divorce reform.

The Divorce, Dissolution and Separation Act 2020 has now been passed and given Royal Assent. It reforms the law so that no fault divorce will be available once the Act comes into force, currently anticipated to be Autumn 2021.

Fiona is a Partner in our family law team with over 20 years' experience dealing exclusively with family law issues.

For support and guidance on any family law issues, contact our expert family law solicitors .

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Case Studies

Family Law Case Studies

Pre 'no fault' divorce law came into effect (april 2022), rebecca and simon: divorce.

Rebecca (49) and Simon (51) have been married for 30 years and do not have any children. They live in a three bedroom house. Simon works full-time as a business analyst and has a collection of old and valuable motor cars. Rebecca works part-time in a travel agency.

Recently Rebecca has spent very little time with Simon, does not help with household tasks and has also started to sleep in the spare bedroom of their house. As a result of Rebecca’s behaviour, Simon has decided that he would like a divorce, although he is concerned how a divorce would affect him financially. What does he need to consider?

Simon could file a petition for divorce on the basis that the marriage has irretrievably broken down. To prove this he will have to show one of five facts: adultery, unreasonable behaviour, two years separation with Rebecca’s consent, five years separation without Rebecca’s consent or desertion. Simon could petition based on Rebecca’s behaviour which has led Simon to believe he cannot reasonably be expected to live with Rebecca. Simon will need to cite examples of her behaviour which have led to the breakdown of their marriage.

Once the petition has been issued, Rebecca will be served with a copy and she will need to file a form at court called an Acknowledgement of Service. The court will firstly pronounce a Decree Nisi and six weeks and one day later Simon can apply for the Decree Absolute. The Decree Absolute is often delayed until an agreement has been reached about finances.

Family finances are dealt with separately from the divorce process. In order to ascertain the full value of the family assets, both Simon and Rebecca should undertake full financial disclosure. It is important to note that the division of family finances is unaffected by the reasons for the breakdown of the marriage save for very specific circumstances such as severe financial misconduct.

The court will attempt to ensure that there is a fair division of the matrimonial assets to provide adequate housing for both Simon and Rebecca. Various factors will be taken into account to determine what a fair settlement might be. The entire capital accumulated between the couple would be taken into account, to include but not limited to savings held in their respective sole names and other assets which would include Simon’s collection of motor cars.

Simon should be aware that on the basis of the length of their marriage and the fact that he earns a considerably larger salary than Rebecca, Rebecca may need some spousal maintenance (monthly income) from him to supplement her income. Rebecca would also be encouraged to maximise her income by for example, increasing her working hours.

Simon should be made aware that due to the length of their marriage, Rebecca may be entitled to a share of his pension.

Simon should contact a family law solicitor who can provide him with legal advice about his options for the divorce and the finances.

Philippa and Robert: Divorce

Phillipa (53) and Robert (55) have been married for 35 years and have one child together who is living independently. They live in a three bedroom house in Kent. Robert works full-time as a business analyst for a bank and enjoys collecting rare and valuable war medals. Phillipa works part-time in a confectionary shop.

Over the last few years, Robert and Phillipa have grown apart and have spent less time together, with Robert travelling for his work and Phillipa regularly attending confectionary fairs in Devon. Two months ago, Robert returned home and Phillipa told him that she had fallen in love with another man and she wanted a divorce. Robert reluctantly agreed to a divorce but is concerned how a divorce would affect him financially. What does he need to consider?

Robert could file a petition for divorce on the basis that the marriage has irretrievably broken down. To prove this he will have to show one of five facts: adultery, behaviour, two years’ separation with Phillipa’s consent, five years separation without Philippa’s consent or desertion. Robert could petition based on Phillipa’s adultery but in order to do this, Phillipa would have to agree to sign a statement confirming that the adultery took place. Alternatively, Robert could issue the petition based on Phillipa’s behaviour and he would have to provide examples of this behaviour.

Once the petition has been issued, Phillipa will be served with a copy and she will need to file a form at court called an Acknowledgement of Service. The court will firstly pronounce a Decree Nisi (interim decree of divorce) and six weeks and one day later Robert can apply for the Decree Absolute (final decree of divorce). The Decree Absolute is often delayed until an agreement has been reached about the finances.

Family Finances

Family finances are dealt with separately from the divorce process. In order to ascertain the full value of the family assets, both Robert and Phillipa should undertake full financial disclosure. It is important to note that the division of family finances is unaffected by the reasons for the breakdown of the marriage save for in very specific circumstances such as severe financial misconduct. The starting point is an equal division but various additional factors will then be taken into account to determine what a fair settlement might be.

Capital and Housing Needs

As Robert and Phillipa’s child lives independently, the court will simply need to ensure that there is a fair split of the matrimonial assets to provide adequate housing for both Robert and Phillipa. The entire capital accumulated between the couple would be taken into account, which would include but is not limited to Robert’s valuable war medals, savings, policies, shares and bonds.

Robert should be aware that on the basis of the length of their marriage and the fact that he earns a considerably larger salary than Phillipa, Phillipa may need some spousal maintenance (monthly income) from him to supplement her income. Phillipa would also be encouraged to maximise her income by for example, increasing her working hours.

Robert should be made aware that due to the length of their marriage, Phillipa may be entitled to a share of his pension.

Robert should contact a family law solicitor who can provide him with legal advice about his options for the divorce and the finances.

John & Emma: Divorce and the family finances

John (42) and Emma (40) have been married for 14 years and they have two children together; Ruby who is 10 years old and Lucas who is 7 years old. They live in a 3 bedroom house in Kent. John works full time as an IT Consultant and Emma works part-time as a senior sales assistant, which fits around the children’s school hours.

Over the last few years, John and Emma have grown apart. John recently moved out of the family home and has told Emma that he now wants a divorce. Emma has reluctantly agreed to divorce, but she is very concerned about how she and the children will manage financially. What does Emma need to consider?

Either party could file a petition for a divorce but as John wants a divorce he could file a petition for divorce on the basis that the marriage has irretrievably broken down. To prove this he will have to show one of five facts: adultery, behaviour, two years separation with Emma’s consent, five years separation without Emma’s consent, or desertion. John could issue the petition now based on Emma’s behaviour which be finds unreasonable and intolerable to live with and he would have to give examples of this behaviour. This could be difficult for Emma to accept but they could agree the wording of the petition before it is issued. It is difficult and expensive to contest a divorce petition once issued at court. As Emma has reluctantly agreed to divorce, she can negotiate the wording of the petition rather than defending the proceedings.

Once the petition is issued, Emma will be served with a copy and she will need to file a form at court called an Acknowledgment of Service which she must complete and return to the court within 7 days of receipt. Once John has made an application for the first divorce order, the court will firstly pronounce the Decree Nisi (interim decree of divorce) and six weeks and one day later John can apply for the Decree Absolute (final decree of divorce). The Decree Absolute is often delayed until after an agreement has been reached about the finances.

Family finances

The family finances are dealt with separately to the divorce process itself. John and Emma should undertake full financial disclosure to determine the true value of all the matrimonial assets. The starting point is an equal division of all the assets and then various factors must be considered to determine what would be a fair settlement. In summary, Emma may want to consider the following:

a) Capital and housing needs:

The court will want to make sure that the children are securely and adequately housed. Emma should consider how much capital there is (including savings and investments), her housing needs, her mortgage capacity and how much equity is in the family home. John may also need some capital to rehouse himself.

Emma may need some spousal maintenance (monthly income) from John to supplement her income so she can support herself and maintain the family home. Emma should also consider whether she can increase her hours at work to increase her income which she would be expected to do by the court.

c) Child maintenance:

John has a liability to pay to Emma child maintenance for both children. The amount will depend on his income but it is likely that he will be required to pay 20% of his net income. If John has the children to stay with him overnight for more than 52 nights per year, the child maintenance he pays will be reduced.

If John or Emma wanted to assess John’s child meaintenance obligations, an initial assessment can be made on the Child Maintenance Service calculator at: https://www.gov.uk/calculate-child-maintenance

d) Pensions:

Emma should consider whether John has any pensions, their value and the value of her own pensions.

Emma should contact a family law solicitor who can provide her with legal advice about her options for the divorce and the finances.

"Amazing representation in very difficult circumstances I have suffered very difficult divorce proceedings lasting 2 years, financial resolution and child matters. I was advised logically and realistically, this enabled me to assess and manage my own expectations but also gave me the ability to not be rash or overreact. Eventually, following the advice and understanding the proceedings has led me to the contact I wanted with my children. The financial was agreed to a fair level and prevented a final hearing. I cannot praise the service I received enough, fast to respond, very knowledgable, quality advice and very approachable. Even in the darkest moments, I always felt relieved and confident once I had spoken to Claire."

"I have enormous respect for the solicitors there - they are meticulous, insightful and entirely client-friendly. In terms of general communication, approachability and professionalism, I can only commend Clarkson Wright & Jakes."

"My divorce proved to be the most emotional, unsettling and testing time I have ever experienced. CWJ provided the professional advice and support to steer me through this difficult time"

"They were extremely professional, empathetic in terms of the issues they were dealing with, realistic and gave advice in a sensitive and professional manner."

‘The Family Law team in CWJ is known for its provision of clear and strategic advice. They are a delight to work with."

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Divorce and child custody

Divorce may influence well-being, with many individuals experiencing depression, loneliness and isolation, self-esteem difficulties, or other psychological distress. Parental divorce may also have negative effects on the psychosocial adjustment of children and adolescents.

Child custody refers to the care, protection, and supervision of a child. After divorce or separation, a court may grant custody to one or both parents following a child custody evaluation.

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Mental health clinicians can help people think through the practical implications of divorce, such as impact on caregiving and medical decision-making plans

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COMMENTS

Family Law: Divorce Case Summaries
Julian v Julian (1972) 116 SJ 763, Cusack J. H and W, both about 60 and in poor health, separated after more than 25 years' marriage, the day after H retired from the police force. Five years' later, H (who wanted to marry another woman) petitioned for divorce, but W successfully opposed it.
Top Ten Family Law Cases from the Last Ten Years
State Supreme Court Cases. Stone v. Thompson, 428 S.C. 79, 82, 833 S. E.2d 266, 267 (July 24, 2019), reh'g denied (Oct. 16, 2019). A wave of statutes across the country in the 1960s and 1970s abolished common law marriage. One of the last holdouts was South Carolina.
Family Law Cases Outline
Family Law Cases Outline. Family law governs issues such as marriage, divorce, spousal support, child custody, and child support. Constitutional questions sometimes arise, such as the fundamental right to marry and to make parenting decisions. Other sources of family law include statutes, such as state laws prescribing procedures for marriage ...
The Ten Most Important Family Law Cases Reported in 2020
With courthouses being closed and trials coming to a halt throughout the state, the development of the case law was slowed. ... After entry of the divorce judgment, the Law Offices moved in the trial court for payment of the firm's outstanding fees from the fund. The trial court rendered an oral decision on April 16, 2020, and held that the ...
Sample of Cases Involving Divorce
As a result of his years of experience, David can describe many interesting and notable divorce cases. Here are several such cases: In a matter involving a crooked Husband and deadbeat father, David represented the Wife throughout the entire case including trial. The Husband refused to disclose his assets and income for a significant period of ...
Case Studies in Family Law, Divorce & Child Custody
During the divorce, the father turned the mother's homemaking abilities against her, and accused her of having an obsessive-compulsive personality disorder (OCD). Based on the mother's alleged OCD, the father tried to get custody of the children. We brought in psychological experts and our client, the mother was awarded custody at trial.
Divorce Laws In Action: Real-Life Case Studies And Their Outcomes
Real-life divorce case studies and their outcomes revealed. Discover how divorce laws work in action. Click now for eye-opening insights!
Financial Matters After Divorce
H and W divorced and W sought maintenance pending suit. The family's financial affairs were complicated, but theit capital assets were well over £1m and H had an annual income of more than £100k. In the circumstances, the judge ordered H to pay W interim maintenance at a rate equivalent to £25k per annum.
Case Study: 3 Stories of Divorce & Child Custody
Case Study: 3 Stories of Divorce & Child Custody. (Names and some identifying facts have been changed) 1. John's Story: Where care and control of an infant daughter was awarded to the father. John was 24 and Ann was 20 when they met on Tinder. When Ann fell pregnant just a few months later, parties decided to get married.
Family Division
The County Department of Child Support Services (DCSS) works with families so that children receive support that meets their financial, medical, and emotional needs. The Judicial Council of California has videos for children, teens, and parents covering some of the issues involved in going through a divorce. See Families Change - Your Guide to ...
Subject
The Case Study Teaching Method; Harvard Law Case Studies A-Z; Free Materials; Blog; Shop By Category; Harvard Law Case Studies A-Z; Free Materials; Program; Role Play; Workshop-Based Case Study; Discussion-Based Case Study; DVD; Subject; Sabrineh Ardalan; Sharon Block; Robert Bordone; Emily M. Broad Leib; Chad Carr; Robert Clark; John Coates ...
Alimony Case Studies in Divorce
The following alimony case studies are examples and may give you some idea of what kind of factors a court may consider in your alimony case: ... Specializing in Divorce & Family Law: Weinberger Divorce & Family Law Group LLC dedicate 100% of their practice to family and matrimonial law. Headed by divorce expert Bari Z. Weinberger, having ...
Family Court: Final Judgment of Divorce
The final judgment in a divorce proceeding ends the marriage between the couple. The parties are no longer married once the judge signs the settlement agreement. The parties must follow all court orders and agreements in the final judgment. The only way to change anything in the divorce decree is to return to court and ask the judge to change ...
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Set a trial date. Complete your final financial disclosures. Go to a settlement conference. Research the law. Gather evidence. Making formal requests for information from your spouse (conduct discovery) Ask witnesses to come to court (issue a subpoena) Plan what you'll tell the judge (your own testimony) You may need to prepare a trial brief.
Too poor to divorce?
A six-year-long study by Harvard Law School's Access to Justice Lab (A2J Lab) evaluated and analyzed the effectiveness of pro bono representation in divorce cases in Philadelphia County. The recently released study found that people who received legal representation were 87% more likely to achieve a divorce than people without it.
Life-Changing Divorce and Child Custody Battles
817-923-9999. Gregory L. Housewirth is a Board-Certified Family Law Specialist practicing in Fort Worth Texas. With 30 years of family law experience, Mr. Housewirth has represented hundreds of clients in divorce, custody, CPS, modification, and grandparent cases. In addition, Mr. Housewirth is a qualified family law mediator and a member of ...
Key family law cases of the last 20 years
The Divorce, Dissolution and Separation Act 2020 has now been passed and given Royal Assent. It reforms the law so that no fault divorce will be available once the Act comes into force, currently anticipated to be Autumn 2021. Fiona is a Partner in our family law team with over 20 years' experience dealing exclusively with family law issues.
Divorce in California
In California, you get a divorce by starting a court case. No one has to prove someone did something wrong to cause the divorce (this is called no fault divorce). You can get a divorce even if the other person doesn't want one. You can divorce to end a marriage or domestic partnership. A legal separation has a similar process, you can use these ...
PDF Bargaining in the Shadow of the Law: The Case of Divorce
2. Custody. The remaining element of the bargain concerns the custodial duties and rights of the parents. By varying the time the child spends with each parent, and by assigning particular child-rearing tasks to one parent or the other, a divorce settlement may divide prerogatives in many different ways.
A 20-year prospective study of marital separation and divorce in
Remarriages and stepfamilies are an increasingly common family structure (Guzzo, 2017).In Canada and the U.S., more than half of adults who divorce eventually remarry and one in three marriages is a remarriage for one or both partners (Ambert, 2009; Lewis & Kreider, 2015).Many remarrying individuals bring children from a previous union into their new household to form a stepfamily.
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Family Law Case Studies
John & Emma: Divorce and the family finances. John (42) and Emma (40) have been married for 14 years and they have two children together; Ruby who is 10 years old and Lucas who is 7 years old. They live in a 3 bedroom house in Kent. John works full time as an IT Consultant and Emma works part-time as a senior sales assistant, which fits around ...
Divorce and child custody
Divorce and child custody. Divorce may influence well-being, with many individuals experiencing depression, loneliness and isolation, self-esteem difficulties, or other psychological distress. Parental divorce may also have negative effects on the psychosocial adjustment of children and adolescents. Child custody refers to the care, protection ...