Family Law

  • 1.  Relation Back to First Complaint

    Posted 10-19-2014 08:48 AM
    The question is this:  complaint filed in 2013 by prior lawyer. The case was filed in the wrong county, after some back and forth, the prior lawyer voluntarily dismissed the case.  A year later second lawyer is retained and files a new case in the proper county. 
     
    In terms of equitable distribution of pension and other benefits, does it relate back to filing of first complaint, or not.  Parties separated prior to filing of first complaint.
     
    Thank you.
     
    GERALDENE SHERR DUSWALT
    ATTORNEY AT LAW
    QUALIFIED MEDIATOR
    Admitted in New York and New Jersey
    1812 Front Street
    Scotch Plains, New Jersey 07076

    1133 Broadway, Suite 708
    New York, N.Y. 10010

    Telephone: (908) 322-5160
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    E-mail: [email protected]
    [email protected]

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    General practice of law serving the legal needs of the community; family and matrimonial law, bankruptcy, debtor/creditor, consumer, municipal court, real estate, wills, civil litigation.


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  • 2.  RE: Relation Back to First Complaint

    Posted 10-19-2014 08:55 AM
    Did the first lawyer prepare a tolling agreement for the parties preserving the first filing date?
    A motion to transfer venue could have been filed rather than dismissal.
    The parties can agree that the ED date is the first complaint.

    Alice M. Plastoris, Esq.
    (973) 538-7070
    Sent from my iPad

    THIS IS A CONFIDENTIAL ATTORNEY CLIENT PRIVILEGED COMMUNICATION.



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  • 3.  RE: Relation Back to First Complaint

    Posted 10-20-2014 07:16 AM
    The first lawyer did not prepare a tolling agreement and I have no idea why they did not simply move to change venue. I believe he was just incompetent.  If the parties do not agree, I am assuming that there is no tolling and the accrual is from the date of the current complaint. Would anyone argue differently?
     
    Thanks,
     
     
    GERALDENE SHERR DUSWALT
    ATTORNEY AT LAW
    QUALIFIED MEDIATOR
    Admitted in New York and New Jersey
    1812 Front Street
    Scotch Plains, New Jersey 07076

    1133 Broadway, Suite 708
    New York, N.Y. 10010

    Telephone: (908) 322-5160
    Facsimile: (908) 654-3970
    E-mail: [email protected]
    [email protected]

    Web Site: www.duswaltlawfirm.com

    General practice of law serving the legal needs of the community; family and matrimonial law, bankruptcy, debtor/creditor, consumer, municipal court, real estate, wills, civil litigation.


    This e-mail and any documents accompanying this e-mail may contain information from the law office of Geraldene Sherr Duswalt, Esq. that is intended to be for the use of the individual or entity named in this e-mail transmission and which may be confidential, privileged or attorney work product. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this e-mail is strictly prohibited. If you receive this e-mail in error, please notify the sender at once.



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  • 4.  RE: Relation Back to First Complaint

    Posted 10-20-2014 10:05 AM
    The date of the first complaint might be controlling for purposes of equitable distribution.  See Genovese v. Genovese, 392 NJ Super 215 (App. Div 2007).

    -------------------------------------------
    Russell Gale, Esq.
    Managing Attorney
    Central Jersey Legal Services
    313 State Street, Suite 308
    Perth Amboy, NJ 08861
    732-324-1613 Ext. 2310
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  • 5.  RE: Relation Back to First Complaint

    Posted 10-20-2014 11:06 AM
    Absent a reconciliation (resumption of cohabitation and relationship, commingled finances, etc), the date of the first complaint would control.  The purpose of using the date of the complaint to cap the marital estate is that it provides evidence that the marriage is no longer a viable enterprise (Brandenburg, Painter).  Once that fact has been established, I think there would have to be evidence that the marriage was "reanimated" after it was legally dead as a result of the complaint being filed.

    Haven't had it come up precisely in the context of a subsequent divorce complaint, but I've had it come up in the context of FD complaints and DV complaints -- in both instances, judges said that the entry of such a complaint was compelling evidence that the marriage was dead and that the date of those complaints was the correct date for e.d. purposes.

    -------------------------------------------
    David Perry Davis, Esq.
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
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  • 6.  RE: Relation Back to First Complaint

    Posted 10-20-2014 11:16 AM
    Actually, amend that slightly -- just looked it up.  Absent a written agreement to the contrary, the filing date of an FD complaint should NOT be used as the cutoff for e.d., since a judgment of separate maintenance isn't a "legal separation" (makes sense - parties still file taxes jointly, can share heath insurance, etc).  I'd go tell the judge who said otherwise that she was wrong, but she's in the App Div now and could always change the law to make herself right  :-)

    The filing of a complaint for divorce that is dismissed for non-prosecution, though, IS a cutoff date.  See Portner ( http://scholar.google.com/scholar_case?case=16619562447270225539 ); Husband filing complaint in Pennsylvania that was ultimately dismissed "signaled his rejection of marital ties and should be taken to mark the end of the marital partnership for the purpose of sharing in after-acquired property."

    I wonder what the "correct" result would actually be when an FRO is issued?  On the one hand, as a judge said, it's concrete evidence that the marriage is no longer viable (being prohibited from even communicating, etc).  On the other, the mere entry of an FRO wouldn't "unlink" the parties for taxes or insurance purposes.

    Anyway - first complaint is the date, I believe.

    -------------------------------------------
    David Perry Davis, Esq.
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax: 609-737-3222
    ------------------------------------------- 


  • 7.  RE: Relation Back to First Complaint

    Posted 10-20-2014 03:44 PM
    Thank you to all who replied, great answers and this was really helpful. 
     
    Gerri Duswalt
     
    GERALDENE SHERR DUSWALT
    ATTORNEY AT LAW
    QUALIFIED MEDIATOR
    Admitted in New York and New Jersey
    1812 Front Street
    Scotch Plains, New Jersey 07076

    1133 Broadway, Suite 708
    New York, N.Y. 10010

    Telephone: (908) 322-5160
    Facsimile: (908) 654-3970
    E-mail: [email protected]
    [email protected]

    Web Site: www.duswaltlawfirm.com

    General practice of law serving the legal needs of the community; family and matrimonial law, bankruptcy, debtor/creditor, consumer, municipal court, real estate, wills, civil litigation.


    This e-mail and any documents accompanying this e-mail may contain information from the law office of Geraldene Sherr Duswalt, Esq. that is intended to be for the use of the individual or entity named in this e-mail transmission and which may be confidential, privileged or attorney work product. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this e-mail is strictly prohibited. If you receive this e-mail in error, please notify the sender at once.



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  • 8.  RE: Relation Back to First Complaint

    Posted 10-20-2014 08:01 PM
    Hi Geraldine,

    I know you said you have seen enough . . . but . . .

    I looked at the cases cited by other commenters.  I continue to believe that you are stuck with the second complaint date as your ED cutoff, absent unusual circumstances and very strong proofs.

    Look at Judge Lihotz's opinion for the App. Div. in Genovese, shown below these comments.

    In it, she restates the NJSC's rulings in Painter and Portner, as follows:

    "In Painter v. Painter, 65 N.J. 196, 217, 320 A.2d 484 (1974), the Court first considered the meaning of the statutory phrase "during the marriage" to discern what assets were subject to equitable distribution. The Court concluded that, as a practical matter, the statute could not be applied literally, that is, from the date of the wedding ceremony to the entry date of a JOD. Ibid. The Court also rejected, as "unworkable," the utilization of an expansive interpretation of the phrase that would exclude from equitable distribution those assets "acquired after it could be shown that there was an irretrievable breakdown of the marriage." Ibid. Recognizing the inability to "establish with any reasonable precision when a breakdown of the marital relationship has become irretrievable," ibid., the Court adopted a pragmatic approach, fixing the marriage end date for purposes of determining what property will be eligible for distribution, as the date the complaint for divorce was filed. Id. at 218, 320 A.2d 484. The Court remained mindful, however, that the rule established would not "provide certain and ready answers to all questions which may arise as to whether particular property is eligible for distribution" and that "[i]ndividual problems must be solved, as they arise, within the context of particular cases." Id. at 218 n. 7, 320 A.2d 484. The Painter rule was later modified in those instances where the parties entered into a written or oral agreement to separate and distribute marital assets prior to filing a complaint for divorce. See DiGiacomo v. DiGiacomo, 80 N.J. 155, 159, 402 A.2d 922 (1979); Smith v. Smith, 72 N.J. 350, 361-62, 371 A.2d 1 (1977); Carlsen v. Carlsen, 72 N.J. 363, 370-71, 371 A.2d 8 (1977). However, a lengthy separation accompanied by the division of some assets and the payment of support was found insufficient to support a conclusion that the marital partnership terminated prior to the date of a divorce complaint. Brandenburg v. Brandenburg, 83 N.J. 198, 207, 416 A.2d 327 (1980).
    **666 Again, in Portner v. Portner, 93 N.J. 215, 216, 460 A.2d 115 (1983), the question of what marks the end of the parties' marriage arose. There the plaintiff wife filed for separate maintenance in New Jersey and the defendant husband filed a complaint seeking divorce in Pennsylvania, which was dismissed for lack of prosecution. Ibid. The plaintiff then amended her New Jersey complaint to demand divorce. Ibid. The Court reversed our holding, which had concluded that the terminal date of the marriage *225 was the date the defendant filed his Pennsylvania complaint for divorce, stating:
    The Painter rule encompasses more than the mere filing of an unmeritorious complaint for divorce. We hold that under the Painter rule in order for a divorce complaint to mark the end of the marriage for the purposes of equitable distribution, the complaint must commence a proceeding which culminates in a final judgment for divorce.
    ....There are ... very practical and sensible reasons why the trial court should not treat the unilateral filing of a spurious complaint as marking the end of the marriage for equitable distribution purposes. To do so would involve the court in a consideration of a myriad of issues such as the reason for filing of the complaint, the reason for its dismissal, and the relationship of the parties after its dismissal.... We adopted the Painter rule to avoid the necessity of the court and the parties spending inordinate amounts of time and money in seeking the ever-elusive date when their marriage truly ended."

    My takeaway is this, Geraldine.  In New Jersey, the mere filing of a divorce complaint that is later withdrawn is insufficient to declare the endpoint of a marriage.  Absent a signed settlement agreement on property issues or a complaint that eventuates in a Final Judgment of Divorce, you must show a withdrawn complaint, coupled with solid evidence of a separation that shows the irretrievable breakdown of the marriage.  The Genovese case is illustrative.  There, the husband obtained a NY divorce -- and immediately remarried his girlfriend.  The wife obtained a reversal of the divorce judgment on appeal in New York, and the husband then pursued three successive complaints for divorce in NJ before he got it right.  The NJ trial judge in the last case used the date of the NY divorce filing as the endpoint for E.D., an exception to the rule, even though that complaint did not eventuate in a divorce.  Why?  Because it was an unmistakable ending point to the marriage.  The man remarried after the New York divorce was granted.  Even though his divorce case was later thrown out, Husband was able to prove to the satisfaction of the trial court and the Appellate Division that the marriage had unmistakably ended.

    Maybe you have facts that set your client's case into one of those unusual categories.  But it is NOT the case that a first divorce filing that is withdrawn, by itself, is sufficient to demonstrate the irretrievable breakdown of the marriage. 

    Portner is still good law.  The NJ courts do not want parties (or trial judges) to spend time proving exceptions to the rule.  The rule remains, as the Supreme Court stated in that case, "We hold that under the Painter rule in order for a divorce complaint to mark the end of the marriage for the purposes of equitable distribution, the complaint must commence a proceeding which culminates in a final judgment for divorce."  (Emphasis added).

    The cases cited in Genovese explain another reason not to pull the E.D. trigger too fast: equity.  Marriages are joint economic and emotional enterprises.  People do unexpected and even foolish things:  they separate, move out, move back, date, and disagree about what any of that activity meant, or even if it occurred.  As a matter of public policy, the courts do not want to declare equitable distribution cutoff dates unless and until the couples themselves declare a clear intention to end the marriage "in the usual ways":  by filing for a divorce that ends in a judgment or entering into a full and final property settlement agreement.  Short of that, the E.D. cutoff date continues in real time.

    Conclusion:  Absent unusual and clear evidence of the death of the marriage, a withdrawn divorce complaint is NOT the endpoint for equitable distribution.  The complaint culminating in an actual divorce is.

    Respectfully,

    Hanan Isaacs

    =======================================

    392 N.J.Super. 215
    Superior Court of New Jersey,
    Appellate Division.
    Sebastiano GENOVESE, (a/k/a Sam Genovese), Plaintiff-Respondent,
    v.
    Mercedes GENOVESE, Defendant-Appellant.
    Submitted Jan. 30, 2007.Decided April 17, 2007.

    Synopsis

    Background: Wife filed complaint for divorce, alleging separation. Husband answered complaint and filed counterclaim for divorce, alleging, among other bases for relief, desertion. The Superior Court, Chancery Division, Family Part, Hudson County, entered dual final judgment of divorce, rejected wife's claim for alimony, and equitably distributed husband's pension between the parties. Wife appealed.
    Holding: The Superior Court, Appellate Division, Lihotz, J.T.C., temporarily assigned, held that coverture period for purposes of determining equitable distribution of husband's pension was date he filed first divorce petition in another state.
    Affirmed.
    LIHOTZ, J.

    Defendant Mercedes Genovese appeals from certain provisions of the Dual Final Judgment of Divorce, which was filed on April 24, 2006. We are not persuaded the trial court erred in its decision and, accordingly, we affirm.
    The parties were married on September 21, 1974. This was the first marriage for each party. No children were born of the marriage. Plaintiff Sebastiano Genovese moved from the former marital home on October 10, 1993, to pursue another relationship. Since that time, the parties have resided in separate residences. Each party also expressed that there existed no reasonable prospect of reconciliation of their marital differences.
    Plaintiff filed his first complaint seeking divorce in the State of New York on April 24, 1994. The request was granted and a judgment of divorce (JOD) was entered in December 1997. Plaintiff remarried. Defendant appealed the entry of the JOD, attacking the grounds alleged for divorce. On May 10, 1999, the JOD was reversed and plaintiff's complaint was dismissed by the New York Supreme Court, Appellate Division, because the evidence was legally insufficient to establish constructive abandonment, the divorce grounds plaintiff had pled. Thereafter, plaintiff filed complaints for divorce in New Jersey in 2001, 2002, and 2003, all of which were dismissed for lack of jurisdiction because plaintiff was found not to be a bona fide resident of this state. The present matter commenced on February 24, 2005, when plaintiff filed a complaint for divorce alleging separation. Defendant answered the complaint and filed a counterclaim for divorce alleging, among other bases for relief, desertion.

    . . .

    Defendant's final challenge, regarding the equitable distribution of plaintiff's pension assets, focuses on the trial court's finding of the marriage end-date for purposes of fixing the coverture period. Defendant contends the asset should be valued as of the date the instant action was commenced. We must decide whether the trial court mistakenly exercised its broad authority to divide the parties' property or whether the result reached was bottomed on a misconception of law or findings of fact that are contrary to the evidence. Valentino, supra, 309 N.J.Super. at 339, 707 A.2d 168; Wadlow v. Wadlow, 200 N.J.Super. 372, 382, 491 A.2d 757, (App.Div.1985). It is well-settled that, upon dissolution of a marriage, New Jersey law allows for "an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by ... either [party] during the marriage...." N.J.S.A. 2A:34-23h. Pension benefits derived from the joint efforts of the parties are subject to equitable distribution. Moore v. Moore, 114 N.J. 147, 154-55, 553 A.2d 20 (1989). To determine an appropriate allocation of each spouse's respective interest in a pension, a coverture fraction is utilized. Faulkner v. Faulkner, 361 N.J.Super. 158, 165, 824 A.2d 283 (App.Div.2003). "The coverture fraction is the proportion of years worked during the marriage to total number of years worked." Eisenhardt v. Eisenhardt, 325 N.J.Super. 576, 580, 740 A.2d 164 (App.Div.1999).
    Defendant argues that as a matter of law the marriage did not end until the last New Jersey complaint was filed, in which case the court erred in limiting the amount of defendant's pension acquired during the marriage to that sum accruing on a date prior to that filing.
    In Painter v. Painter, 65 N.J. 196, 217, 320 A.2d 484 (1974), the Court first considered the meaning of the statutory phrase "during the marriage" to discern what assets were subject to equitable distribution. The Court concluded that, as a practical matter, the statute could not be applied literally, that is, from the date of the wedding ceremony to the entry date of a JOD. Ibid. The Court *224 also rejected, as "unworkable," the utilization of an expansive interpretation of the phrase that would exclude from equitable distribution those assets "acquired after it could be shown that there was an irretrievable breakdown of the marriage." Ibid. Recognizing the inability to "establish with any reasonable precision when a breakdown of the marital relationship has become irretrievable," ibid., the Court adopted a pragmatic approach, fixing the marriage end date for purposes of determining what property will be eligible for distribution, as the date the complaint for divorce was filed. Id. at 218, 320 A.2d 484.
    The Court remained mindful, however, that the rule established would not "provide certain and ready answers to all questions which may arise as to whether particular property is eligible for distribution" and that "[i]ndividual problems must be solved, as they arise, within the context of particular cases." Id. at 218 n. 7, 320 A.2d 484.
    The Painter rule was later modified in those instances where the parties entered into a written or oral agreement to separate and distribute marital assets prior to filing a complaint for divorce. See DiGiacomo v. DiGiacomo, 80 N.J. 155, 159, 402 A.2d 922 (1979); Smith v. Smith, 72 N.J. 350, 361-62, 371 A.2d 1 (1977); Carlsen v. Carlsen, 72 N.J. 363, 370-71, 371 A.2d 8 (1977). However, a lengthy separation accompanied by the division of some assets and the payment of support was found insufficient to support a conclusion that the marital partnership terminated prior to the date of a divorce complaint. Brandenburg v. Brandenburg, 83 N.J. 198, 207, 416 A.2d 327 (1980).
    Again, in Portner v. Portner, 93 N.J. 215, 216, 460 A.2d 115 (1983), the question of what marks the end of the parties' marriage arose. There the plaintiff wife filed for separate maintenance in New Jersey and the defendant husband filed a complaint seeking divorce in Pennsylvania, which was dismissed for lack of prosecution. Ibid. The plaintiff then amended her New Jersey complaint to demand divorce. Ibid. The Court reversed our holding, which had concluded that the terminal date of the marriage  was the date the defendant filed his Pennsylvania complaint for divorce, stating:
    The Painter rule encompasses more than the mere filing of an unmeritorious complaint for divorce. We hold that under the Painter rule in order for a divorce complaint to mark the end of the marriage for the purposes of equitable distribution, the complaint must commence a proceeding which culminates in a final judgment for divorce.
    ....
    There are ... very practical and sensible reasons why the trial court should not treat the unilateral filing of a spurious complaint as marking the end of the marriage for equitable distribution purposes. To do so would involve the court in a consideration of a myriad of issues such as the reason for filing of the complaint, the reason for its dismissal, and the relationship of the parties after its dismissal.... We adopted the Painter rule to avoid the necessity of the court and the parties spending inordinate amounts of time and money in seeking the ever-elusive date when their marriage truly ended.
    [Portner, supra, 93 N.J. at 220-23, 460 A.2d 115.]
    67 These cases persuade us that the Painter rule remains the most practical rule to ascertain when a marriage has ended for the purposes of determining those assets acquired during the marriage and therefore, subject to equitable distribution. Generally, property qualifies for equitable distribution "when it is 'attributable to the expenditure of effort by either spouse' during marriage," Pascale v. Pascale, 140 N.J. 583, 609, 660 A.2d 485 (1995)(quoting Painter, supra, 65 N.J. at 214, 320 A.2d 484), and "for purposes of the equitable distribution of marital assets, a marriage is deemed to end on the day a valid complaint for divorce is filed that commences a proceeding culminating in a final judgment of divorce." Portner, supra, 93 N.J. at 225, 460 A.2d 115; see also Heller-Loren v. Apuzzio, 371 N.J.Super. 518, 530, 853 A.2d 997 (App.Div.2004).
    8 "While these rules govern the eligibility of assets for equitable distribution, they do not prescribe the manner of that distribution." Brandenburg, supra, 83 N.J. at 210, 416 A.2d 327. Employing the three-step analysis articulated in Rothman v. Rothman, 65 N.J. 219, 232, 320 A.2d 496 (1974), once the trial judge decides what specific property of each spouse is eligible for distribution, she must then determine its value for purposes of *226 such distribution, and decide the most equitable allocation between the parties after analysis of the statutory factors set forth in N.J.S.A. 2A:34-23.1. Rothman, supra, 65 N.J. at 232, 320 A.2d 496. It is in that process that the trial court would consider a lengthy marital separation, recognizing "[t]he contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property." N.J.S.A. 2A:34-23.1i; see also Brandenburg, supra, 83 N.J. at 210, 416 A.2d 327.
    9We remain mindful that "the division of property upon divorce is responsive to the concept that marriage is a shared enterprise, a joint undertaking, that in many ways it is akin to a partnership," Rothman, supra, 65 N.J. at 229, 320 A.2d 496, which values "[t]he nonremunerated efforts of raising children, making a home, performing a myriad of personal services and providing physical and emotional support ... among other noneconomic ingredients of the marital relationship...." Carr v. Carr, 120 N.J. 336, 347, 576 A.2d 872 (1990) (quoting Gibbons v. Gibbons, 174 N.J.Super. 107, 112-13, 415 A.2d 1174 (1980)). Marital assets acquired in the course of that joint undertaking fairly should be included in the marital estate subject to equitable distribution. Logic also dictates that assets acquired after that enterprise or partnership ceases should not be so included.
    In this matter, the problems posed in Painter, Brandenburg, and Portner in demarcating the end of the parties' marriage are not presented. The facts here provide "incontrovertible evidence," Smith, supra, 72 N.J. at 361, 371 A.2d 1, that the marital partnership terminated prior to the filing of the New Jersey divorce complaint, allowing for the pinpointing of the time this marriage "irretrievably broke-down." Specifically, not only was a contested divorce action filed and trial held, but also after entry of the New York JOD, defendant remarried. These facts evidence more than a "mere physical separation," see Brandenburg, supra, 83 N.J. at 207, 416 A.2d 327, and it is without question that the New York divorce action was filed to end the marriage, not for the *227 "manifestly unfair" purpose of terminating defendant's interest in plaintiff's pension assets. Portner, supra, 93 N.J. at 221, 460 A.2d 115. No clearer fact of the present marriage's breakdown could be presented than plaintiff's remarriage, such that the mechanical application of the Painter bright-line rule works an injustice. See also Zappala v. Zappala, 222 N.J.Super. 169, 172-74, 536 A.2d 308 (App.Div.1988).
    We thus conclude that the facts of this case present another exception to the Painter rule and accordingly, we affirm the trial court's opinion.
    Affirmed.


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    Hanan Isaacs Esq.
    Kingston NJ
    (609)683-7400
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