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Family Lawyer
Vol. 6, No. 2 {Fall 2002}
A semiannual newsletter designed to provide legal information that family
counselors and therapists can use to help their patients.
Emotional Impact of the Complaint for Divorce
In New Jersey there are only two kinds of divorce--"no-fault"
divorce and divorce with cause. In a no-fault divorce, as the name implies,
there are no accusations of blame for the failed marriage between the parties.
Instead, a couple may file for divorce after having lived in separate residences
for 18 months. (Living in different rooms in the same house does not qualify
as living in separate residences.)
When a couple divorces for cause, the reason usually is emotional cruelty
or adultery. If my client is the defendant in this type of divorce, I know
that receiving the complaint is likely to generate some strong emotions.
It is difficult for any of us to read a legal document that accuses us of
being an unsatisfactory spouse or lover, or of neglecting our children.
Even when the charges are untrue, the defendant spouse will become emotionally
upset.
Sealing the record
Rarely does anyone read the complaint for divorce other than the litigants,
their attorneys, and the judge (on the day of divorce). However, defendants
often fear the possibility that the charges in the complaint could be used
against them by employers or others.
Thus, clients will ask me if they can have the record sealed to preserve
their privacy. This can be tricky. In the United States, court documents
are open to the public. If both parties agree to seal the record, rarely
will the court object. However, as the complaint can be used by a vengeful
plaintiff to hurt the defendant, the plaintiff is usually not eager to seal
the record.
New Jersey rules state, "The court, upon demonstration of good cause,
and notice to all
interested parties, shall have the authority to order that a Family Part
file, or portion thereof, be sealed." As no one really knows what "good
cause" means, the law favors public access.
What can clients do? Plaintiff spouses should be urged not to use the divorce
complaint as a vehicle to display their anger. In the event that a plaintiff
spouse is unreasonable and does write embarrassing stories about the defendant,
the defendant should be encouraged to file an answer that specifically denies
the allegations.
Proper use of testing in child custody evaluations
The Minnesota Multiphasic Personality Inventory, also known as the MMPI-2,
is the most popular test instrument used by experts for determining child
custody. Yet it is known that errors occur in the administration, scoring
and interpretation of the test.
Administration
The MMPI-2 should be administered in a quiet area. It should not be completed
elsewhere, at the patient’s leisure, and returned at the next appointment.
When this happens, there are no guarantees that the patient actually took
the test or completed it without help.
It is important to determine beforehand if there are conditions that may
affect the patient’s ability to take the test, such as reading impairments
or medication issues. Finally, the test should be given in the patient’s
native language. (It is also available on audiotape.)
Scoring
Scoring errors include scanner errors and using the wrong norm group. The
answers must be marked dark enough for the scanner to read.
It appears that most experts use "normal group" as the norm, when
patients dealing with custody issues may be far from normal. Test givers
should have the latest version of the test, which has different norms available.
Interpretation
Relying too much on the computer-generated interpretation can skew the interpretation.
The best results come when testers take the time to verify the hypothesis
themselves. It is important to obtain patterns and compare them with the
research and professional literature.
Given the importance of the MMPI-2, test givers should be well trained in
its use. One way to get trained is to take continuing education courses
in forensic testing.
New case law about name changes
An applicant sought a name change so she could hyphenate her last name with
that of her "life partner." The trial judge denied the request.
The judge felt that the name change would lead the public to wrongfully
assume that New Jersey recognizes same-sex marriages.
The New Jersey Appellate Court reversed the decision. The law has always
been that a person can change his or her name as long as it is not for fraudulent
or criminal purposes. A judge may not deny a name change because of personal
views or philosophy. The trial judge’s denial constituted an abuse
of discretion, according to the Appellate Court.
My Clients Ask About. . . . .
Landlord-Tenant Disputes
These are civil cases in which either the landlord or the tenant may be
the plaintiff. The complaint is filed in the county office of the Special
Civil Part where the rental property is located. Tenants usually file because
repairs have not been made, for breach of habitability, failure to return
rent deposit, or illegal lockout. Landlords file for reasons such as nonpayment
of rent, violation of building rules, or a tenant’s conviction for
a drug offense. Before filing a complaint, a landlord must give the tenant
written notice.
Both landlord and tenant must appear in court to testify as to the truth
of the accusations. Substitutes, such as a friend reading a tenant’s
written statement, are not permitted. Supporting documents are also required,
such as leases, bills, rent receipts, photographs, canceled checks, and
letters or notices from the landlord.
If a tenant has failed to pay rent and is not claiming that the landlord
has failed to make necessary repairs, the tenant will be required to pay
the rent due by bringing cash or a money order to court. If a landlord wins
a suit for issues other than nonpayment of rent, the court will grant a
Judgment of Possession, and the tenant will have approximately six days
to move out.
A tenant cannot be locked out of rented premises or have belongings removed
from those premises if the landlord does not have a Judgment of Possession.
If the landlord does not return the security deposit within 30 days of the
court order, the tenant must file a complaint with the Special Civil Part
to obtain the deposited money.
Pamela Cerruti is now recognized as a Certified Matrimonial
Law Attorney by the New Jersey Supreme Court
The Family Lawyer is published quarterly by Pamela M. Cerruti, Esq.,
for mental health and social service professionals. This publication is
intended to provide information to its readers. It is not intended to
offer legal or professional advice. For more information, please contact:
Pamela M. Cerruti, Esq.
45 Park St., Montclair, NJ 07042
Tel: 973-746-5590
Fax: 973-509-0308
Website: http://www.Cerruti-FamilyLaw.com
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