To: Our Clients and Friends

From: Todd M. Sahner, Esq.

Date: August 2005

Re: Family Law update

   A number of recent decisions by our Appellate Courts have clarified and dealt with matters that frequently arise in divorce litigation. This Memorandum summarizes those decisions.

In Randazzo v. Randazzo, the Supreme Court held that the trial Court has the power and discretion, while a divorce is pending, to order the sale of marital assets, including but not limited to the marital home, prior to the entry of a Final Judgment of Divorce, when the circumstances of the case warrants such relief. In addition, the Supreme Court held that a trial Court also has the power to distribute the proceeds from such sale prior to a Final Judgment if it serves the best interest of the parties. Previously, the law in this area was very unsettled with an older Appellate Division decision generally standing for the proposition that courts lack the authority to order the prejudgment sale and distribution of marital property without consent of the parties. There were limited exceptions where financial circumstances made it impossible to maintain assets such as the marital home, but the general rule hamstrung the parties until the divorce was finally resolved by the Court or settlement. This case now makes it clear that trial courts have the power to order the sale of assets, as well as the distribution of proceeds while the divorce is still pending. Left for future determination by trial and appellate courts is when circumstances warrant such relief.

In a second Supreme Court decision, Mani v. Mani, the Court for the first time addressed the extent to which marital fault could be a factor in determining alimony or an award of counsel fees. The Court held that marital fault is irrelevant to alimony determinations except in two limited circumstances. First, where the marital fault has affected the parties’ economic life, fault may be considered in calculating the amount of alimony that should be paid. As an example of this type of fault, the Court stated "if a spouse gambles away all savings and retirement funds, and the assets are inadequate to allow the other spouse to recoup her share, an appropriate savings and retirement component may be included in the alimony award." Second, where the marital fault "so violates societal norms that continuing economic bonds between the parties would confound notions of simple justice," fault may be considered in determining whether alimony should be permitted at all. Examples given by the Court here included barring alimony payments to a dependent spouse who has attempted to murder the other, or deliberately infected a spouse with a loathsome disease. With regard to counsel fees, the Court concluded that marital fault is irrelevant.

In Feldman v. Feldman, the Appellate Division addressed the thorny issue of religious upbringing and education for children of a divorced couple. The father of the children, who was Jewish, had joint custody and was the primary caretaker. The mother was Catholic. The Appellate Division decided that in a case where the parents have joint legal custody, (a) the primary caretaker of the children has the sole right to make decisions regarding the religious upbringing of the children, and (b) secondary caretaker does not have the right to enroll the children in religious training classes in a different religion over the other parent's objections, even during that parent’s parenting time. This rule applies even where the parties’ Settlement Agreement or Final Judgment of Divorce is silent on this issue. The Court was careful to state that its ruling does not prohibit the other parent (here the mother) from taking the children to religious services of her choice during her parenting time, but at the same time, the mother does not have the right to formally educate the children in her religion.

If you have any questions about the impact of any of these cases, please feel free to contact: Todd M. Sahner, Esq.or MaryJane Dobbs, Esq