By Justice Virginia Long (ret.)
Note: This is an edited excerpt of Justice Long’s article in the October 2021 edition of New Jersey Family Lawyer. Members can read the full issue here (login required).
Although I came on the scene as a matrimonial trial judge in the late 1970s, the summaries of the decisions on family law matters from 1948 onward, which are available in the October 2021 edition of New Jersey Family Lawyer, are a trip down memory lane for me. Like you, I have cited those cases so often that they are a part of me.
This reminds me of a July 12, 1816, letter written by Thomas Jefferson in support of revising the Virginia constitution, wherein he observed that:
…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain under the regimen of their barbarous ancestors.
The proverbial arc of justice in New Jersey, as demonstrated in the family law opinions of its Supreme Court, reflects the progress contemplated and prescribed by Jefferson more than two centuries ago. Time and again since its formation in 1948, the Supreme Court has demonstrated its extraordinary foresight in decisions that have stood the test of time. Consider how long ago some of the core principles in family law were established; the trio of Painter v. Painter, Chalmers v. Chalmers, and Rothman v. Rothman (decided 47 years ago, in 1974); Tevis v. Tevis (decided 42 years ago, in 1979); Lepis v. Lepis (decided 41 years ago, in 1980); Beck v. Beck (decided 40 years ago, in 1981); and Crowe v. De Gioia (decided 39 years ago, in 1982). At the same time, in keeping with changes in our collective consciousness, practitioners have witnessed the Supreme Court’s development of the law in areas like adoption, same-sex relationships and marriages, cohabitation and alimony to comport with changes in societal norms and scientific advancement.
Importantly, while adhering to stare decisis, which produces uniformity and predictability in our laws and assists our fellow citizens in ordering their affairs, the Supreme Court has been flexible enough to revisit principles when their underpinnings are shaken, and to devise modified rules, where appropriate.
To be sure, change does not happen overnight. The risk of unintended consequences arising out of a decision based upon a particular set of facts is great. The difficulty and pressure associated with crafting rules and guidelines for lower courts in an area of law that is deeply personal and complex cannot be overstated and the justices deserve kudos for what they have accomplished. But make no mistake about it, advancement in the law is as inextricably tied to the indispensable contribution and input of the bar as it is to that of the bench. Indeed, every new initiative begins in the mind of a lawyer whose efforts at trial and appeal bring it to fruition.
The list of Supreme Court cases in New Jersey Family Lawyer may elicit any number of responses. Some may be surprised to learn the origin of family principles they previously took for granted. Others may experience a sense of nostalgia reviewing cases from a bygone era. While reactions may differ, the intended response to this list is one of inspiration. Like a character in a flip book, every turn of the page brings the law to life, enabling the reader to view each decision within the context of the whole. The foundation may remain the same, but the incremental changes effectuated by both the bench and the bar come together to keep this area of law in motion. So, while it is important to know the law and understand its origins, it is equally important to appreciate the roles that creativity, innovation and societal progress play in its continued development.