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Family Law and Divorce Case Law Review--March 24-28, 2014

Every week, we will provide a brief overview of the published family law and divorce cases in New Jersey from the prior week, along with some of the more relevant unpublished decisions, which are reviewed by our divorce attorneys to ensure the best possible representation of our clients. This past week, the following family law cases were published:

Plotnick v. Deluccia, Passaic County, FD-16-00008-14, March 10, 2014: In this trial court decision, a case of apparent first impression in New Jersey or the United States, the putative father was seeking the right to be present at his child's birth, among other matters. After first dispensing with the jurisdictional challenges to the Court's ability to render a decision and detailing the history of case law and statutes giving rights to putative fathers, the Court ultimately held that the father was not entitled to be notified when the mother was going into labor nor was he entitled to be present during the birth because "the mother's constitutionally protected interests before the child is born far outweigh the State's and father's interests during the delivery period."

Donohue v. Donohue, Camden County, FM-04-605-13, March 18, 2014: In this trial court decision, the Court was presented with the issue of determining the appropriate equitable distribution of the husband's pension. The Wife sought to have a survivor annuity attached to the Husband's pension or to have her interest paid presently by computing the present value of her deferred interest in the pension and offsetting it against a separate retirement account. The Husband sought to have the pension divided via QDRO, with the Wife receiving her share at the time the pension went into pay status and without a survivor annuity attached. The court determined that a present value payment of the pension was not appropriate because (a) it could not appropriately determine the present value based upon the expert's testimony and assumptions and (b) the marital estate did not contain sufficient assets to fund the present value distribution of the pension. The court further determined that no survivor annuity should be required based upon a review of the following factors: (1) the length of the marriage; (2) the length of anticipated years of service in the pension plan; (3) the age and health of the parties; (4) the pension options available to the party participating in the pension plan; (5) the financial impact of alternate pension options on both parties; (6) the availability of a survival benefit and its impact on the benefit received; (7) the cash value of the pension should the spouse participating in the pension plan die prior to retirement; (8) the availability of other assets to fund retirement; (9) the financial circumstances of both parties; (10) the availability of life insurance to protect the contingent benefit; and (11) any other factors which may be relevant in the case.

H.S.P. v. J.K., Appellate Division, March 27, 2014: The Appellate Division was confronted with a request by petitioner, the uncle of a juvenile illegal immigrant from India, for custody and a finding that would assist the juvenile in obtaining Special Immigrant Juvenile status. The Court determined that the express objective of the petition was for the juvenile to obtain relief for purposes of his immigration status, rather than for the purpose of obtaining relief from abuse, neglect, or abandonment, as his mother had not abused, neglected, or abandoned him. Therefore, it was proper for the trial court not to make a factual finding which sole purpose would be to provide assistance in an immigration proceeding and had not necessity in the custody determination.

N.B. v. S.K., Appellate Division, March 24, 2014: The Appellate Division reviewed a finding of the trial court which prohibited the presenting of evidence with regard to past violations of civil restraints which had been entered pursuant to a matrimonial settlement agreement which dismissed a then existing Final Restraining Order. Specifically, the Appellate Division identified the legal question to be answered as: what is the significance in a domestic violence action of a defendant's violation of a matrimonial restraining order? The Appellate Division held that evidence of a violation of civil restraints was relevant in determining whether the Defendant had engaged in harassing conduct, noting that harassment must be evaluated in the context in which the alleged communications take place.

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