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December 11, 2023 Vol. 27, No. 8

August 2023 Case Update

Editor: Laura Morgan

Case Update is a Section of Family Law Member Benefit publication. Not a member of the ABA Section of Family Law? Join now to view premium content.

(Editor's Note: Some cases may be from July 2023, as they were not posted to Westlaw until after I prepared the July 2023 update on August 15, 2023.) 

ADOPTION - SECOND PARENT ADOPTION

In re Adoption of M.E.L., No. 109 MAP 2022, 298 A.3d 118 (Pennsylvania Supreme Court, July 19, 2023):

“Under the Adoption Act, the biological parents of an adoptee must relinquish their parental rights over their child before an adoption of the child may take place. An exception to this relinquishment requirement exists in the context of stepparent adoptions, 23 Pa.C.S. § 2903, or if the parent has demonstrated “cause shown” to excuse the requirement, id. § 2901. In this appeal by allowance, we consider whether a proposed adoption by a mother's long‑term partner, in conjunction with the termination of the biological father's parental rights, may constitute “cause” to excuse the relinquishment requirement with respect to the mother under Section 2901. For the reasons that follow, we affirm the order of the Superior Court remanding this matter to the orphans' court for further consideration of this issue.... [T]here is no dispute that termination of Father's parental rights would be appropriate under Section 2511 if the proposed adoption by Partner satisfies the requirements set forth in the Adoption Act. Nevertheless, because Mother did not, and does not, intend to relinquish her parental rights in consenting to the proposed adoption by Partner, as required by Section 2711(d)(1) of the Act, she must satisfy one of the Act's statutory exceptions to relinquishment in order for the proposed adoption to be effectuated. Given that Mother and Partner are not married and, thus, do not satisfy the spousal exception to relinquishment under Section 2903, we focus our inquiry on whether Mother has demonstrated cause under Section 2901 to allow the adoption to proceed. to satisfy the cause exception to relinquishment under Section 2901 two things must be established. A party must first show why he or she cannot meet the statutory requirements for adoption. This is consistent with the plain language of the statute, which provides that, “[u]nless the court for cause shown determines otherwise, no decree of adoption shall be entered unless ... all other legal requirements have been met.” 23 Pa.C.S. § 2901 (emphasis added). In both R.B.F. and M.R.D., the parties seeking to adopt were legally unable to marry and, thus, could not satisfy the Act's marriage requirement. Upon this showing, the party may then appeal to the court's discretion by demonstrating with clear and convincing evidence why the purpose of Section 2711(d) would nevertheless be fulfilled or unnecessary in their case, despite the parties' inability to fulfill the statutory requirements. Here, in claiming that she has established cause under Section 2901 because the proposed adoption by Partner will facilitate *128 a new parent‑child relationship between Partner and Child, Mother puts the proverbial cart before the horse: before she may demonstrate that the proposed adoption satisfies the purpose underlying Section 2711(d), she must, as an initial matter, explain why she is unable to meet the statutory requirements for adoption. Indeed, while our Court's analysis in R.B.F. and M.R.D. centered more directly on the second portion of the inquiry — i.e., whether the parties could establish that the proposed adoptions in those cases rendered the relinquishment requirement under Section 2711(d) unnecessary — that was because there was no question that the domestic partners in R.B.F., and the mother and grandfather in M.R.D., were legally prohibited from marrying and, thus, could not satisfy the statutory requirements for adoption. By contrast, although Mother concedes that she and Partner do not satisfy the statutory requirements for adoption in this case because they do not intend to marry at this time, she does not allege any legal impediment preventing her and Partner from doing so, and, as noted, the orphans' court made no inquiry on this subject.”

Concurring and dissenting opinions.

AGREEMENTS - PREMARITAL AGREEMENT - PENDENTE LITE SUPPORT

Last v. Superior Court of Orange County, 94 Cal. App.5th 30, 311 Cal. Rptr.3d 791 (California Court of Appeal, Fourth District, Division 3, August 2, 2023):

“Family Code section 1615, subdivision (c)1 (section 1615(c)) creates a presumption “that a premarital agreement was not executed voluntarily” unless the trial court makes five designated findings. In this case, we hold the court had jurisdiction and discretion to award temporary spousal support, notwithstanding a waiver of spousal support in a premarital agreement, because the court did not make, and was not requested to make, the five findings under section 1615(c) that were necessary to rebut the presumption that the premarital agreement was not executed voluntarily.... Although the premarital agreement in this case might appear to satisfy the requirements of section 1615(c)(1) and (2), the trial court made no findings on the subject, and it is the court's findings that rebut the presumption of involuntary execution. Peter did not ask the trial court to conduct a facial review of the agreement and make such findings. Thus, when the court ordered temporary spousal support, the premarital agreement was deemed not to have been voluntarily executed, and, therefore, the spousal support waiver did not prevent the court from awarding Debra temporary spousal support.”

AGREEMENTS - POST-MARITAL AGREEMENT - ENFORCEABILITY - ADULTERY

Lloyd v. Niceta, No. 33 September Term, 2022 (Maryland Supreme Court, August 30, 2023):

Wife filed complaint for absolute divorce on the ground of adultery, seeking to incorporate into divorce decree post-nuptial agreement containing lump sum provision requiring husband to pay wife up to $7 million if he committed adultery. Husband filed counter-complaint, seeking to rescind agreement, asserting that it violated public policy and that provision was an excessive liquidated damages clause, and thus an unenforceable penalty. Held: The provision of the post-nuptial agreement requiring husband to transfer to wife the lesser of $7 million or the value of his 50% share of specified marital assets if he committed adultery constituted a penalty, rather than a punishment for breach of contract under liquidated damages principles, since it would change husband's financial position to his detriment if he engaged in adultery, thereby causing the breakdown of the marriage.

AGREEMENTS - POST-MARITAL AGREEMENT - STRUCTURED SETTLEMENT

Sowards v. Sowards, No. CV‑22‑0065‑PR, 533 P.3d 959 (Arizona Supreme Court, August 17, 2023):

“In this case we consider whether an injury settlement agreement between a married couple and a third party constitutes a valid and binding property settlement or postnuptial agreement. Because the settlement agreement in this case only addresses the disposition of the funds in question as between the third party and the husband and wife and does not address any division of the funds nor any respective rights as between the spouses, we hold that this settlement agreement is not a valid property settlement or postnuptial agreement. ... No party argues that the Agreement is not a valid contract. But the contract is between Husband and Wife as a couple and the settling defendants in a personal injury lawsuit. Nowhere does the Agreement state that Husband and Wife have agreed to distribute their property between each other in a particular way. Although the annuity payment schedule conditions payments to Wife on Husband's death, the Agreement states, “Settling Plaintiffs hereby acknowledge and understand that Settling Plaintiffs will receive Non‑Qualified Periodic Payments payable as follows.” This language indicates that Husband and Wife, as the settling plaintiffs, are to receive the payments under a schedule that simply lays out how the payments are to be made. The Agreement never delineates Husband and Wife as individuals for purposes of an express agreement between the two of them and nowhere provides that the payments are the sole and separate property of Husband or that Wife has no interest in any of the payments.”

AGREEMENTS - PREMARITAL AGREEMENT - WAIVER

Rock v. Rock, No. 22‑AP‑259, 2023 VT 42 (Vermont Supreme Court, August 4, 2023):

Parties abandoned the protections of premarital agreement by failing to follow the provisions of the premarital agreement and by failing to hold each other accountable for failing to do so, and thus agreement was no longer in effect and did not control division of property in divorce action. The parties failed to maintain separate property and never divided living expenses as contemplated by agreement, parties failed to comply with agreement's requirement that wife be compensated entirely through wages for any work for husband's plumbing business, and parties did not strictly comply with the waiver‑of‑spousal‑maintenance provision in agreement. Further, the husband waived the protection of the separate‑property provisions of parties' premarital agreement by commingling wife's funds with his own in investment account; he used these mixed funds to provide a mortgage to limited liability company (LLC), of which husband was the sole member, and having failed to actually segregate his assets from wife's, or to provide a specific accounting of the source of the funds, husband did not prove that these assets were his separate property.

CHILD CUSTODY - HAGUE CONVENTION - HABITUAL RESIDENCE

Tsuruta v. Tsuruta, No. 22‑3014, 76 F.4TH 1107 (United States Court of Appeals, Eighth Circuit, August 10, 2023): 

After mother flew from Japan to Missouri with child and filed petition for divorce in Missouri, father, a citizen of Japan, filed petition for return of their child under the Hague Convention on the Civil Aspects of International Child Abduction to have child returned to Japan. The district court granted the petition, and mother appealed. Held: The district court did not commit clear error in determining that child's habitual residence was Japan prior to date that mother removed child to United States where mother's family resided and where mother filed for divorce, despite mother's assertion that she was coerced into living in Japan and did not intend to make Japan child's home. The child spent most of her time in Japan for three years prior to removal, child attended school and daycare in Japan, and child participated in activities in Japan.

CHILD CUSTODY ‑ JURISDICTION ‑ PKPA

Nygaard v. Taylor, No. 22‑2277 (United States Court of Appeals, Eighth Circuit, August 15, 2023):

Did you know that the PKPA does not apply to Indian Tribes? I didn’t. “We agree with the district court that the PKPA does not apply to Indian tribes. We start with the statute's text. The PKPA provides that “[t]he appropriate authorities of every State shall enforce” valid custody determinations made “by a court of another State.” “State” is defined in turn to “mean[ ] a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.” Absent from this list are Indian tribes. This is significant because “[s]pecific Indian rights”—including the Cheyenne River Sioux Tribe's inherent sovereign authority to determine custody of its minor members - “will not be deemed to have been abrogated or limited” by a federal statute “absent a ‘clear and plain’ congressional intent.”

CHILD CUSTODY - JURISDICTION - UCCJEA - HOME STATE

Nock v. Miranda‑Bermudez, No. 363362 (Michigan Court of Appeals, July 20, 2023):

After the father's ex parte request for temporary emergency order regarding custody and parenting time was granted in California following children's move to Michigan with mother, the mother filed ex parte motion in Michigan seeking sole physical and legal custody of children. The Michigan trial court determined that Michigan had home‑state jurisdiction under the UCCJEA, and granted the mother temporary sole legal and physical custody of the children. Following denial of the father's motion to register California's initial custody decision in Michigan, denial of his motion for reconsideration, and issuance of order granting the mother sole physical and legal custody, the father appealed. Held: (1) California was not the children's home state in the six months preceding the father's filing of his custody action following children's move to Michigan with the mother, and thus California court lacked subject matter jurisdiction over the father's action under UCCJEA, and (2) the California custody order was not subject to full faith and credit based on lack of subject matter jurisdiction under UCCJEA, and thus the Michigan court was required to disregard the California order and to proceed to exercise jurisdiction over the parties.

CHILD CUSTODY - PARENTING TIME - RESTRICTED VISITATION

Roe v. Roe, No. 84893‑COA (Nevada Court of Appeals, July 27, 2023):

Substantial evidence supported the trial court's finding that the severely deteriorating relationship between child and mother, along with the child's wishes, constituted a substantial change in circumstances affecting the child's welfare, as required for modification of custody. BUT, the trial court, in granting father what it called “primary physical custody” of minor child and limiting mother's parenting time to reunification therapy and one six‑hour visit per week, improperly restricted mother's parenting time to such a degree that it unduly infringed upon her parental rights and effectively awarded father sole physical custody without a sufficient legal basis or findings for doing so; order resulted in mother having less parenting time than parents who were incarcerated or residing at in‑person rehabilitation programs, record contained no evidence to suggest that mother had any criminal history, history of substance use or domestic violence, or unfitness, and mother was gainfully employed and in active treatment with a therapist. Further, the trial court improperly delegated its substantive authority regarding child‑custody determinations to a third party by ordering family therapist to determine when mother and minor child were ready for modification of the parties' parenting‑time schedule.

CHILD CUSTODY - RELOCATION - FACTORS - CHILD SUPPORT ARREARS

Burmood v. Anderson, No. 2‑23‑0092, 2023 IL App (2d) 230092 (Illinois Appellate Court, Second District, August 10, 2023):

One factor to consider in a relocation case is “History and Quality of the Parents’ Relationship with the Child.” When considering this factor, the court must consider whether the contesting parent is in arrears in his/her child support. The objecting parent's “failure to satisfy his financial obligations to his children is an important consideration to evaluate when determining the best interests of the children” (citation omitted). “[I]t is important to consider whether an objecting parent is financially supporting the child he wants to prevent from relocating. If he is not, the petitioning parent's request to relocate so she can improve the financial condition of both her and her children should be afforded additional weight. The trial court's failure to consider that [the father] was in arrears in child support and that he was attempting to minimize what income he did earn was improper.”

CHILD SUPPORT - ADULT, DISABLED CHILD - WRIT OF ATTACHMENT

Merrill v. Ewen, No. 20‑P‑1321, 103 Mass. App. Ct. 37 (Massachusetts Appeals Court, July 25, 2023):

The mother filed a complaint alleging father violated separation agreement by failing to pay $11,700 in support and other court‑ordered payments, failing to provide all year‑end statements for trust, failing to provide proof that he changed beneficiary of his life insurance policy to the trustee, and depleting trust funds intended to support parties' daughter, who was disabled and unemancipated. Following the grant of the mother's motion for attachment on the father's residence, and finding that the father was in contempt, the father moved to vacate the attachment, and filed an emergency motion to rescind the writ of execution, and to bar or enjoin all efforts to proceed against his real or personal property. The trial court reduced the writ of attachment from $465,016 to $365,016, on the ground that the father provided the mother with proof of $100,000 in life insurance, determined the attachment was subject and subordinate to amount protected by Homestead Act, rescinded the writ of execution. Held: The mother's motion for attachment on the father's residence was based on the contempt judgment entered when the daughter, although still unemancipated due to disability, was no longer a minor child as defined by the Homestead Act, and thus the mother's requested attachment did not fall within the exception permitting attachment on a homestead for an order of support of a minor child. Thus, the attachment was subordinate and subject to the father's earlier‑recorded homestead declaration. Although the contempt judgment constituted an order in the nature of support as contemplated by the exception in the Act, the Act defined minor child as person aged 21 and under, and daughter was over age 21 when contempt judgment was entered. While this outcome was likely not intended by the Legislature, it was compelled by definition of “minor child” in Act.

(Ed. Note: Massachusetts Legislature: You should amend the Homestead Act, because this result was clearly not intended.) 

CHILD SUPPORT - DEVIATION - CUSTODIAL PARENT’S ABILITY TO SUPPORT

T.T.L. v. F.A.L., No. 2D22‑1750 (Florida District Court of Appeal, Second District, July 26, 2023):

A lesson in how not to calculate a child support order. The trial court ordered the father to pay child support of in amount of $2,110, which deviated from the  guidelines award of from $4,627.81. Why did the court deviate? Because the father had limited interactions with the child, and the mother had an ability to meet the child’s basic needs. No. “The father's choice not to participate in the child's life does not support a reduction in his child support obligation. ... Nor does the mother's ability to provide the child with her basic needs excuse the father from supporting the child.”

(Ed. Note: The mother could have requested an upward deviation from the guidelines based on the father’s limited contact with the child, since the guidelines presume a standard parenting schedule.”

CHILD SUPPORT - IMPUTED INCOME - MANIPULATION OF INCOME

In re Marriage of Cole, No. A16397, 594 Cal.,App.5th 450, 312 Cal. Rptr.3d 220 (California Court of Appeal, First District, Division 3, August 11, 2023):

Father filed request to modify child support based on changed circumstances as a result of his reduced salary. Reduced salary, you say? Hah! As sole principal of his law firm, father had unilateral ability to set his income and he voluntarily and substantially reduced his salary. Despite slashing his annual salary, father maintained relatively affluent lifestyle and relied on other resources to pay his personal and current family expenses that far exceeded his reduced income, father and his new spouse received over $977,000 in account distributions from investment accounts, and father was able to tap certain investment accounts to pay at least $387,245 in credit card charges for his personal and business expenses. Trial court could properly impute income in excess of father's salary based on his earning capacity and the evidence of his law firm's non‑operating reserves that could have added to his salary, and court could consider investment account distributions and credit card payments as evidence supporting its implied finding that it would be unjust and inappropriate to apply the guideline formula for calculating child support under the facts of the case. 

COHABITATION - IMPLIED CONTRACT

Stout v. Knotts, No. 22A‑PL‑1216, 214 N.E.3d 1036 (Indiana Court of Appeals, July 26, 2023):

Ex‑girlfriend brought action against ex‑boyfriend, alleging that parties had implied contract to cohabitate wherein she contributed to rehabilitation and maintenance of home, and that her removal from home and ex‑boyfriend's sale of home without her being compensated for her contributions resulted in ex‑boyfriend's unjust enrichment. Ex‑boyfriend's motion to dismiss for failure to state a claim, which was granted without giving ex‑girlfriend time to respond, and ex‑girlfriend moved to correct error. After motion was granted without giving ex‑boyfriend time to respond, ex‑boyfriend moved to correct error, and ex‑girlfriend moved for judge to recuse himself. (What was with this trial judge not giving parties the opportunity to respond?) The trial court granted ex‑boyfriend's motion to correct error and dismissed complaint. Ex‑girlfriend appealed. Held: (1) Ex‑girlfriend adequately alleged claim for implied contract and unjust enrichment arising from ex‑boyfriend's sale of home without compensation for ex‑girlfriend's contributions, and thus trial court's denial of her motion to correct error regarding trial court's dismissal of her complaint for failure to state a claim was unwarranted. Ex‑girlfriend alleged that she and ex‑boyfriend decided to live together, that she picked house and ex‑boyfriend purchased property and placed it in his name, that she and ex‑boyfriend entered into joint venture to contribute to rehabilitation and renovation of house, that she paid for utilities and contributed money and labor to maintenance of home, that she left personal property behind when she was forced to leave home, and that ex‑boyfriend sold home for profit; (2) Objective person would have had rational basis for doubting trial judge's impartiality, and thus trial court erred in failing to rule on ex‑girlfriend's motion for recusal, for purposes of ex‑girlfriend's action against ex‑boyfriend for implied contract and unjust enrichment arising from ex‑boyfriend's sale of home without compensation for ex‑girlfriend's contributions. Judge's statements went beyond merely expressing skepticism about ex‑girlfriend's claims in her complaint, and clearly expressed disdain, not only for type of relief sought by ex‑girlfriend, but for gender he believed most often sought this type of relief, and judge indicated that he would not provide relief being requested by ex‑girlfriend, regardless of whether law allowed it or there was sufficient evidence to support request.

DIVORCE - GROUNDS - ONE YEAR SEPARATION

Lisann v. Lisann, No. 0120‑22‑4, 78 Va. App. 225, 890 S.E.2d 672 (Virginia Court of Appeals, August 8, 2023):

Virginia Code § 20‑91(A)(9)(a) provides as a ground for divorce,  “A divorce from the bond of matrimony may be decreed ... [o]n the application of [husband or wife] if and when they have lived separate and apart without any cohabitation and without interruption for one year.” The clear language of the statute provides that all that is necessary to satisfy the one year separation is that the parties have lived separate and apart with cohabitation and without interruption. It does not require that the intent to remain separate and apart be without interruption. Yeah, weird. 

DIVORCE - PROCEDURE - SANCTIONS - DEFAULT

JK v. DK, No. SCWC‑18‑0000844 (Hawaii Supreme Court, August 3, 2023):

Trial court abused its discretion in defaulting wife as discovery sanction, in divorce proceeding in which wife failed to attend status hearing and did not meet discovery production deadline, where wife's conduct did not evince a pattern of willful or contemptuous behavior, wife lacked counsel due to inability to find unconflicted, affordable attorney, and trial court did not consider milder sanctions short of default. And by the way, default as a sanction is disfavored. 

INTIMATE PARTNER VIOLENCE - ABUSE - FINANCIAL CONTROL

Hatley v. Southard, No. EO80000 (California Court of Appeal, Fourth District, Division 2, August 1, 2023): 

Background: Wife filed petition seeking a domestic violence restraining order (DVRO) against her estranged husband. The trial court denied the petition, and wife appealed. Held: (1) attempts to control, regulate, and monitor spouse's finances, economic resources, movements, and access to communications are “abuse” under Domestic Violence Prevention Act (DVPA); (2) wife's allegations and evidence that her estranged husband attempted to financially control wife constituted “abuse” under DVPA, and thus, trial court erred by failing to consider wife's allegations and evidence; (3) wife's allegations and evidence that her estranged husband exercised control over wife by limiting and then depriving her of her vehicle and phone constituted abuse, and thus, trial court erred by failing to consider wife's allegations and evidence; and (4) trial court's error in precluding wife from presenting allegations and evidence of several kinds of abusive conduct constituted reversible error.

PROPERTY DIVISION - CLASSIFICATION - FEDERAL EMPLOYEE RETIREMENT SYSTEM (FERS) DISABILITY RETIREMENT

Crocker v. Crocker, No. 5D23‑103 (Florida District Court of Appeal, Fifth District, July 21, 2023):

An employer‑sponsored disability pension generally does not constitute a marital asset subject to equitable distribution in marriage dissolution proceedings; only the retirement portion of a disability pension is subject to equitable distribution in a marriage dissolution proceeding. Therefore, the trial court must determine what portion of the pension represents compensation for pain and suffering, disability, and disfigurement and what portion, if any, represents retirement pay. Here, the husband's pre‑age 62 Federal Employee Retirement System (FERS) Disability Retirement benefits were not intended to replace a retirement pension but, instead, were intended to replace husband's income lost from disability, and thus benefits were non-marital asset not subject to equitable distribution in marriage dissolution proceeding, even though benefits were approved by retirement services office and husband's benefit booklet referred to him as a “disability retiree” receiving “disability retirement” benefits. No evidence supported a conclusion that benefits were intended to replace retirement pension by providing support for husband after he left job. 

PROPERTY DIVISION - CLASSIFICATION - MILITARY PENSION

Porter v. Porter, No. 57168‑4‑II, 533 P.3d 465 (Washington Court of Appeals, Division 2, August 8, 2023): 

Dissolution decree providing that wife was entitled to “50 [percent] of [husband's] military retirement pension” reflected intention of court that wife receive one‑half of the community portion of husband's military retired pay. Salary increases from husband's rank promotion during his recall to military service after dissolution of 17‑year marriage were based on community efforts and thus were part of community portion of husband's military retirement, in which wife had one‑half interest pursuant to dissolution decree, where husband worked for military for entirety of marriage, and without his prior years of service, husband likely would not have reached the rank he did solely during the recall‑to‑service period.

SPOUSAL SUPPORT - CHANGE OF CIRCUMSTANCES - RETIREMENT

Downing v. Downing, No. 2019‑001980 (South Carolina Court of Appeals, July 26, 2023): 

Husband failed to demonstrate that his retirement constituted material change in circumstances warranting reduction of alimony obligation under post‑separation settlement agreement. The husband's required annual payouts from deferred compensation benefit assets constituted income, his back‑of‑the‑envelope calculations were speculative and failed to reflect known actual value of distributed stock assets or how much distributions were spent as opposed to reinvested, husband made significant post‑retirement credit card charges for international travel and dining and regularly paid credit card balances in full, husband had income from sources other than those he disclosed, and there was no evidence that husband was unable to meet his alimony obligation.

PROPERTY DIVISION - INSURANCE PROCEEDS - UNJUST ENRICHMENT

McAnulty v. Standard Insurance Company, No. 22‑1099 (United States Court of Appeals, Tenth Circuit, August 28, 2023): 

Insured's first wife filed state court action against insured and insured's second wife, claiming unjust enrichment and seeking imposition on her behalf of constructive trust on proceeds of insured's life insurance policy. After removal, the United States District Court dismissed complaint, and plaintiff appealed. Held: (1) as matter of first impression, when spouse violates divorce decree by changing beneficiary on life insurance policy or letting policy lapse and acquiring new policy naming later spouse as beneficiary, first spouse may recover insurance proceeds from second spouse; (2) first wife pled plausible unjust enrichment claim; and (3) first wife pled plausible claim for imposition of constructive trust. Reversed and remanded.

SPOUSAL SUPPORT - TERM - STAY AT HOME PARENT

Karas v. Karas, No. S‑22‑693, 314 Neb. 857, 993 N.W.2d 473 (Nebraska Supreme Court, August 4, 2023): 

“[I]t was reasonable for the district court to limit the alimony award to 15 years. Brian has a bachelor's degree in business and has held various jobs before and after taking time off work to care for the parties’ children. And although Brian's career was interrupted by the parties’ decision for him to stay home to care for their children, there was evidence that Leslie asked him to return to work when the children were of school age and he refused. Brian testified that his current income is not enough to cover his monthly expenses, but he presented no evidence that he will not be able to obtain better paying employment or another source of income in the next 15 years. Brian testified that he had been treated for cancer, but that it did not impair his ability to work; nor did he present evidence that it will affect his earning potential in the future. Leslie contributed the significant majority of the parties’ income during the marriage. And while Leslie's earning potential is significantly greater than Brian's, she testified that her income will decrease after she retires. We note that Brian may also be able to receive Social Security benefits when he reaches retirement age. Under these facts, we cannot say that it was an abuse of discretion to limit the alimony award to 15 years.”

SPOUSAL SUPPORT - TERMINATION - COHABITATION

Cardali v. Cardali, No. A‑25 September Term 2022, 087340 (New Jersey Supreme Court, August 8, 2023):

First, the definition of “cohabitation” set forth in Konzelman v. Konzelman, 729 A.2d 7, and the factors identified in that decision applied, as opposed to factors set forth in amended statute governing motions to suspend or terminate alimony based on cohabitation, since parties' property settlement agreement, which was incorporated in their dual judgment of divorce and which provided that ex‑husband's obligation to pay alimony would terminate upon ex‑wife's cohabitation, was executed before the enactment of amended statute. But does it really matter? “We view the procedure for a prima facie showing of cohabitation in cases governed by N.J.S.A. 2A:34‑23(n) to be virtually identical to the procedure for a prima facie showing of cohabitation in cases governed by Konzelman, and we thus address the requirements for such a showing in both categories of cases.”  No, you don’t have to proffer evidence on all the factors. “Instead, if the movant presents a certification supported by competent evidence as to at least some of the relevant factors, and if that evidence, if unrebutted, would sustain the movant's burden of proof as to cohabitation, the trial court should find that the movant has made a prima facie showing even if the spouse or civil union partner receiving alimony presents a certification contesting facts asserted by the movant.”

LAW REVIEW ARTICLES OF INTEREST:

Emma Guida, Terms and Conditions Matter: Marriage Equality in Birthright Citizenship, 32 Tul. J. L. & Sexuality 245 (2023)

Angela K. Upchurch, Parenting in a Post‑Pandemic World: The Impact of COVID‑19 on Child Custody Disputes, 15 Elon L. Rev. 123 (2023)

NEWS ITEMS OF INTEREST:

In Celebrity Divorce News:

Kevin Costner’s child support obligation is only $63,209, less than half of what his estranged wife was getting in temporary support, and about a quarter of what she originally asked for.  

But Christine Baumgartner isn’t done. She’s asking for $855,000 in attorneys fees to cover her challenge to their prenup.

But wait! Costner and Baumgartner have settled!

Alli Rosenbloom, Halle Berry and Olivier Martinez Finalize Divorce After 8 Years of Legal Proceedings, CNN, August 23, 2023.

Other News Items of Interest:

Rebecca Onion, The Controversial Parenting Theory That’s Showing Up in Court Everywhere, Slate, September 14, 2023.

Christy Bieber, Adam Ramirez, Leading Causes of Divorce: 43% Report Lack of Family Support, Forbes Advisor, August 15, 2023.

Ellen Trachman, Are Surrogacy Liens a Form of Infertility Discrimination?, Above the Law, August 23, 2023.

Carolyn Elefant, Can Lawyers Legally and Ethically Record Conversations with Clients Using Artificial Intelligence?, MyShingle.com, July 27, 2023.