Palimony In New Jersey

Two cases involving palimony were decided in the last six months, both having interesting twists of fate. In the first case, decided February, 2006, a man and woman shared a romantic extra marital relationship for over seventy years. Although the parties shared almost all their time together, they didn't cohabit during the seventy years. The Court found that to prove a case for palimony you must show 1) the parties cohabited. 2) They held themselves in a marriage type relationship. 3) During the period of cohabitation, the finacially supporting partner promised the dependant partner that he/she would support him/her for life; and 4) The promise was made in exchange for valid consideration. After weighing these factors, the court did not award palimony.

In the second case, decided later that same month, a very affluent couple lived in separate residences owned by one of the parties for quite some time and acted as though they were married. The court found that because they did not actually cohabit, they did not meet the criteria for palimony. The lesson to be learned, whether a gay couple or straight couple is if you don't live together with your partner, despite holding yourselves out as married, you cannot hold your parttner to be financially responsible to you upon a breakup. More importantly, if you do live together, have an agreement prepared as to the rights and duties of each partner in the event of a breakup.

 

Desperate Housewives

Paternity fraud is the new Family Law problem in the United States. The problem is that DNA evidence may show that the man is not the father, but the courts are making him pay child support anyway! The majority of the states still have laws on the books (38 states) that require men to pay child support even though they are not the biological father. It's based on English common law which holds that a man is always legally presumed to be the father of a child born of the marriage. New Jersey has this law. Many states are passing laws that would end child support if a man proves he is not the father. These cases are a double edged sword. It could provoke considerable grief for any father who is emotionally attached to a child who finds out, years later, he is not the father. Think about the impact on the child. It could be devastating. Although the father may feel betrayed, the child could be traumatized to learn that the man he/she thought was his/her father and who loved him goes to court to ask to be declared a non-father. Perhaps there should be a statute of limitations.

A New Jersey Appellate Court recently declared that a man could sue the biological father for reimbursement for raising his child. The case involved a man who found out 30 years later he was not the biological father. The court said he could sue because he had been duped. I ask, wasn't it the biological mother who duped him as well! The case is pending on appeal before the Supreme Court.

Immigration Sponsors Beware!

In a case of first impression, a U. S. District Court held an immigrant ex-husband was responsible to his immigrant ex-wife for damage and performance of his contractual obligation because he signed for a form I-864, an Affidavit of Support. In essence he sponsored her for Legal Permanent Residency during the marriage. Through the divorce process the wife was unable to collect support. The wife then sued on the contract. The court ordered the sponsor/husband to pay $18,000 and to continue to support his ex-wife until the contract ended in 10 years! Every sponsor pledges to maintain each immigrant (could be a wife and childre) at 125 percent of the poverty level. Many times the Affidavit of Support is signed by a friend or other family member. Caution your clients that there is a real obligation in the event the person they sponsored cannot take care of themselves financiallly.

Once a divorce is imminent, both parties need to make plans about where they will live after the divorce. The most important document prepared during this time is the budget. It is the foundation for alimony and for determining the marital life style. Couples (togethe or individually) need to review their check registers or canceled checks for the last three years and categorize all the expenses. Then they should do the same thing with three years of credit card purchases. Finally, they should list all the things paid for with cash, and categorize them, too. This summary will help define their marital life style.

Adoption Issues:

Should New Jersey Allow Open Adoptions?

An open adoption includes a child's right to have continuing contact with the biological parents. New Jersey Statutes do not include a right to open adoption. As a result, in New Jersey a court cannot enforce visitation agreements between adoptive parents and the biological parents even if the visitation is in the child's best interest.

Many different scenarios could pose problems for the child. An example would be a young mother agrees to allow an unrelated family to adopt her child on condition that she be entitled to visitation after adoption. This type of agreement is unenforceable even though visitation may be in the best interest of the child. Courts should be allowed to use their discretion to allow and modify visitation on a case by case basis.

Secondly, our courts encourage settlement. If there is a contested adoption, and the biological parent is willing to settle if allowed post-adoption visitation, then the inability to allow for the visitation will result in increased litigation.

Thirdly, a problem could arise if an unsophisticated mother believe that the "off the record" word of the adoptive parents to have visitation is allowed. Adoptive parents may have a selfish motive to tell the biological parent anything she wants to hear in order to get the adoption finalized, only to change their mind after the adoption. Open adoptions need to be reconsidered by our Judiciary for the reasons set forth above.

Second Adoption Issue

Beginning September 1, 2006, the state judiciary will require that all stepparents and other residents in a home, aged 18 and over, undergo extensive background checks before adoptions are approved. If anyone in the home has a questionable background, a more in-depth investigation can be ordered.

Cases in the News

Contribution to College

The New Jersey Appellate Division recently found that a non-custodial parent should not have to contribute to the college loans of his/her estranged daughter. The non-custodial parent did not have an ongoing relationship with his daughter although he wanted one. The child went to a private college and did not seek contribution from her father. The father paid child support during the college years. After the child graduated college, the father filed to terminate child support and the determine the child emancipated. The mother moved to have the father reimburse the child for college tuition. The court found

that the custodial parent's application for college contribution was too late.

Important to note, a relationship between a non-custodial parent and the child is not required for the child to ask for financial assistance for college costs. As soon as practical, the custodial parent should communicate with the other parent concerning college selection and the cost to attend college.

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