Vol. 5, No. 1 {Spring 2000}

A quarterly newsletter designed to provide legal information that family counselors and therapists can use to help their patients. {Spring 2000}

On September 13, 1999, the New Jersey State Legislature enacted alimony amendments that increase the types of alimony the Courts can award in a divorce case. Until now, alimony was either permanent or rehabilitative.

In awarding alimony, the Courts now must first decide if permanent alimony is warranted or not. If not, the Courts have the power to mandate other forms of alimony, such as term alimony, rehabilitative alimony, or reimbursement alimony.

Term alimony, as its name suggests, is alimony awarded for a set period of time. During this time, a recipient is supposed to improve his or her earning capacity to a level where alimony is no longer appropriate.

However, the legislation does not address situations in which a recipient makes no effort to improve earning capacity or is unsuccessful in trying to improve earning capacity. In such cases, the parties could end up in court for a long time. The truth is that the changes made by the Legislature do not always help the parties toward an amicable resolution of disputes.

A husband and wife have been married for eight years. The wife worked before their five-year-old child was born. The husband has been the sole provider since then.

The couple divorces, and the court decides that this situation merits term alimony, not permanent alimony, and gives the wife three years to bring her earning capacity to the level where she can be self-supporting. In the course of the three years, the wife meets a new love and spends her time with him, neglecting her work. At the end of the three years she says, "Sorry, I am not able to support myself. I have tried, but I have not been successful." Should the former husband have to keep supporting her? I think not.

On the other hand, there may be a woman with young children who is committed to going back to work and taking care of herself financially and yet cannot manage to do it. Should the former husband have to help out in a case like that? I say yes.

The end result of this legislative amendment change is thatžonce againžthe attorneys are the only ones who win!

One problem I face as a family lawyer is dealing with a parent who wants to control the other parent's involvement in the everyday life of their children. Sometimes the desire to control is based on good faith reasons.

For instance, the custodial parent may argue that the children's need for continuity means that they should sleep regularly in only that parent's home. Or the custodial parent may claim that the children need consistency in other aspects of their lives. Both of these may be valid reasons for exerting control. However, sometimes the real reason for exerting control is that the custodial parent is still angry with the other parent.

As a family lawyer, it is my duty to investigate the reason(s) a custodial parent demands control over the other parent's involvement with the children and to make sure that they are valid ones. It is not my duty to immediately file papers with the court for requests that are unreasonable.

I believe that all parents should be given opportunities to be intimately involved with their children and should be able to be involved without "strings" attached. I urge you, as mental health professionals, to question your clients when they tell you they are afraid for their children's safety when the children are with the other parent. I also urge you to encourage the non-custodial parent to be involved as much as possible on an everyday basis with their children, regardless of the fact that they may be "controlled" by the other parent.

The New Jersey State Court of Appeals is considering a case that may have an impact on all future suits claiming emotional distress under the Law Against Discrimination. The issue is whether or not plaintiffs will be required to submit to a psychiatric exam.

In the case before the Court, the plaintiff alleged that fellow workers caused him physical and emotional distress by sexually harassing him. The lower court held that the plaintiff's claim for emotional distress under the Law Against Discrimination had made the plaintiff's mental condition a point of controversy. Thus, according to the lower court, an expert should be allowed to conduct an examination of the plaintiff's mental condition.

The decision of the Court of Appeals may change the way such cases are conducted in the future. If the Court affirms the decision of the lower court, psychiatric examinations may become mandatory in all suits seeking damages for emotional distress under the Law Against Discrimination.

You may be interested in an article I have recently come across. It deals with a sensitive topic: When can a mental health professional divulge confidential patient information? The article is based on a case in which a patient told a doctor that the patient had performed an act of oral sex on a minor child. The doctor then contacted DYFS, in compliance with the statute that says if you believe a child has been subjected to abuse; you shall report it to DYFS. The client maintained that the information given to the doctor was privileged. The conflict was about the resistance of the client to deal with this type of issue in therapy and get help versus the fear of being arrested.

The article is very interesting, and I recommend it highly. Please call my office (973-746-5590) for a complimentary copy.

Pamela Cerruti has been named a fellow of the American Academy of Matrimonial Lawyers. She is one of only 76 attorneys in New Jersey to achieve this distinction.

Fellows of the Academy are appointed only after meeting a set of rigorous criteria. In addition to passing an examination, candidates must provide letters from judges and from adversaries in support of their appointment. The final step is a review of all the court proceedings the candidates have been involved in for the previous five years.

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