I personally had this issue arise twice in my practice, both instances occuring better than eight years ago. Interestingly, they came about at around the same time. The first involved a bogus Alabama divorce obtained by a deceased who subsequently married my client, had two children with her, then died after a long-term marriage. His first wife, who live litterally only a few miles from my client and attended, with my client's permission, her husband's funeral, contested the disposition of his police pension. It was apparent that she had suspicions that the Alabama divorce was a sham. In fact, when I checked archival issues of The Star Ledger, there was a wonderful article about these divorces, to my chagrin, the name of the former judge at the heart of the scam, whose name appeared on the judgment of divorce my client provided appeared. The matter was set for trial in the equity court. My client was clearly not legally married and so she did not qualify as a surviving spouse. There was the equity issue, however, which is where you must turn.
Another involved a female client of senior years who had been divorced several times prior to finally marrying her then husband. As we approached the trial date, my adversary actually made an application, supported by a compund hearsay certification of someone who new someone in Puerto Rico who had suspicions that the Puerto Rican divorce was not valid. On the return date, Judge David Issenman of Union County agreed with me that, even if this ridicuous certification were true, our client would be entitled to essentially the same relief as she would have been entitled to in a divorce from a valid marriage, and that he would start with estoppel and then employ various equitable remedies to reach the same result. Judge Issenman was certainly correct.
For example, in
Kazin v. Kazin, 81
N.J. 85 (1979), the Court nated that <page vol="207" reporter="N.J. Super." no="379">the Divorce Reform Act "both repealed and substantially amended prior legislation controlling marital relationships." 81 <italic>N.J.</italic> at 92. Moreover, <italic>Kazin</italic> recognized that "equitable principles have moved to the forefront," and that</page> <bq>[i]n this legal and social milieu, courts are well counseled to give full range to equitable doctrines in dealing with matrimonial controversies. [<italic>Id.</italic> at 93-94]</bq>
In <italic>Kazin</italic> the Court said that<bq>... estoppel has been applied to thwart a spouse from attacking his or her own divorce. Estoppel has also been applied, however ... to prevent an individual from attacking his spouse's prior divorce... </bq><bq>Estoppel has also been applied, however, where the second husband's involvement in his spouse's prior divorce was relatively passive but, in marrying her, <italic>he himself relied on that divorce.</italic> [81 <italic>N.J.</italic> at 95; emphasis supplied; citations omitted]</bq>
In your case, it would appear clear that your party-opponent relied on the prior divorce when the parties married. I am also assuming that, at no time during their years together, did the party-opponent does question any missing proof of the decree,or if that party did, then never took any steps to persuade your client to provide the necessary proof. You clearly have a winner. If I were the judge and your adversary persisted with this insipid argument, I would consider awarding a counsel fee.
Hope this helps.
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Brielle NJ
(732)603-8585
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Original Message:
Sent: 06-28-2013 13:11
From: John Nachlinger
Subject: No proof of actual "marriage"
Andy, give Raspa v. Raspa, 207 N.J. Super. 371 (Ch. Div. 1985), a read. Different facts, but same principle.
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John Nachlinger Esq.
Cores & Nachlinger, LLC
1001 US 9 N, Suite 205
Howell, NJ 07731
(732) 414-6669
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Original Message:
Sent: 06-28-2013 13:06
From: Andrew Economos
Subject: No proof of actual "marriage"
The parties were married in another state. That state requires that a marriage "license" be taken out prior to the ceremony, and that the officiant return the marriage "certificate" to the clerk of the court that issued the license. If the officiant fails to do so, there will be no record of the marriage in the courts or with the state.
Fast-forward 15 years, and the parties are now involved in divorce litigation. Lo and behold, the officiant never returned the marriage "certificate" and thus, the other state has no official record that the parties were ever married. One spouse is now using this unfortunate fact to allege that they were never "legally" married, and as such, the divorce laws here in New Jersey are not applicable, alleging that there really is no "divorce" to be obtained. Of course, if this were accurate, there would be significant alimony and equitable distribution ramifications. I would like to think in a court of equity, that these parties who have always held themselves out as a married couple, have always filed joint tax returns as a married couple, and up until a few short weeks ago, had no reason to believe that they were potentially not married; would indeed consider them married. (I am ignoring a possible palimony claim for the time being).
Has anyone come across a similar situation before, and does anyone know of any statutory or case law addressing such a situation? Thanks.
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Andrew Economos Esq.
Monroe Twp. NJ
(609)655-8887
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