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Three Recent Updates in Family Law

Jan 12, 2022 | Written by: Diana N. Fredericks, Esq. |

Each day, new court decisions are released to the public.  These can be from the New Jersey Supreme Court, the Appellate Division, or sometimes even the trial courts.  Some of these decisions are published and others are not.  However, even though unpublished decisions are not binding upon the courts, they can often be instructive on an issue. 

Recently, three cases were decided that are impactful and worth noting, particularly for those who are in the midst of a divorce or other relevant procedure.

1) In December 2021, the Appellate Division released an unpublished decision in the matter of Paul Russak v. Finette Russak. The case emanates from Hunterdon County.  The interesting part of this case rests on a procedural issue or “technicality,” but it is an important one worth noting. 

In the Russak case, the parties were divorcing after four decades of marriage in which the husband was the sole income earner. During the marriage, the husband acquired three pensions, however, at trial, the wife waived equitable distribution from the pensions and instead asked the judge to include the pension income to the defendant as income for purposes of calculating alimony.

After the trial and written summations were filed, the wife’s attorney wrote to the judge advising that her client would not be eligible for Medicaid if she reported alimony income and instead asked the judge to consider dividing the pensions.  The judge ultimately awarded the pensions to the husband and denied the wife’s request because she did not file a formal application (motion) to reopen the record after the trial and summations.

There were credibility issues with the wife in the trial, but same are not relevant to the procedural issues raised on appeal. 

The Appellate Division affirmed the trial court’s decision.  Important for purposes of this blog, the Appellate Division found that the trial court acted appropriately in declining to consider the wife’s request post-trial for equitable distribution of the pensions because if the judge had done so, based on the letter representations of her counsel, the husband would have been denied the right to cross examination or challenge on the issue.  Ultimately the Appellate Division agreed that the wife should have filed a motion to seek to reopen the record. 

This is a teaching point in that these issues should have likely been known before the trial and that by ignoring same (implicitly or explicitly), a party in the case was prejudiced and the outcome was potentially contrary to the party’s best interests because proper procedures were not followed.

2) In July 2021, the decision of B. and F.B. o/b/o S.B. v. Howell Township Board of Education was released. This decision is from the U.S. Court of Appeals for the Third Circuit.  YB and FB were the parents of a 12-year-old with Down syndrome.  The parents requested that the Lakewood School District provide an IEP (individualized education program), which was within the child’s statutory rights.  The school determined it could not do so, but rather provided placement for SB at a private specialty school with the parents’ consent, and with the school district paying the costs of attendance.

The family relocated from Lakewood to Howell.  Howell indicated that it could accommodate the child’s IEP in its public school and therefore would no longer pay for the private school.  The parents disagreed that Howell could provide reasonable educational needs for this child.  The trial court agreed with Howell that it could provide reasonably comparable accommodations for the child and the parents appealed.

The appellate court agreed and found that when a student voluntarily transfers to a new district, the “status quo” no longer exists and, therefore, the parents have to accept the consequences.  Because the parents unilaterally changed the placement of the child, without consent of state or local school officials, the new district is not required to pay for or reimburse for the private school when it can provide “services comparable” to those the student had under the IEP before the transfer.

 So, why are we discussing this in the context of a blog about family law and divorce?  Judge Jones (retired) asked these same questions and raised the relevant concerns when this decision was released. 

When dealing with physical custody in a divorce context with a special needs child, or any child who has an IEP, will a parent be relocating from the current school district, and will that impact the child?   These considerations must be thought through.

What about in the removal context where one parent seeks to take a special needs child from one school district to another (both intra- and inter-state)?

Perhaps the most interesting issue raised is the use of the word “voluntary” in this decision.  What if a parent’s relocation with the child is not voluntary because of financial issues, or a domestic violence restraining order?

While we don’t have answers to these questions today, when crafting settlement agreements or litigating a family law case that involves a special needs child and a possible relocation, the parent and the attorney have to be aware of the significant impact these issues can create.

3) In 2007, the New Jersey Legislature added “irreconcilable differences” to the causes of actions (reasons) upon which one can file for divorce. These are often referred to as grounds for divorce.  Prior to 2007, we often had to use causes of action like extreme cruelty or separation in order to seek a divorce, and the amendment to include irreconcilable differences (which is rather “vanilla”) was welcome by both practitioners and their clients. 

Given the somewhat innocuous tenor of the term “irreconcilable differences,” I have never in my tenure had a client (or adversary) claim that irreconcilable differences do not exist in an attempt to prevent a divorce.  Moreover, there seems to be very little basis, if any, upon which a court would deny a divorce to a litigant claiming irreconcilable differences.   In order to be divorced in the State of New Jersey, the court must find that for a period of six months or more, irreconcilable differences existed between the spouses (a breakdown of the marriage) such that there is no prospect of reconciliation.  If a litigant is filing for divorce and proceeding, this seems somewhat evident and obvious to this writer that the demise of the marriage is inevitable, but apparently that is not universal.

In the recent case of Steiner v. Steiner, the parties were married in 1955 and were in their eighties and nineties when the wife sought a divorce.  The husband attempted to prevent the wife from doing so by claiming the wife was unduly influenced by one of their children and that she (the wife) did not meet the legal standard of irreconcilable differences.

What is notable about the case is that the parties’ marital estate was estimated to be more than $130 million.  Notably, if the husband were successful in dismissing the wife’s complaint for being unable to meet the cause of action, he could (he did) disinherit his wife, which would have relegated her to 1/3 of the marital estate (called net elective share).  Conversely, by way of the divorce, the wife would likely receive ½ of the estate, which at this level is significant and perhaps worth spending $1.7 million in legal fees to preserve!

Ultimately the husband was not successful, and the divorce was granted and upheld on appeal.  It is an interesting case and relevant in that it discusses what the cases and legislature contemplated when adding irreconcilable differences to the causes of action allowable in our State to get divorced. 

Notably, the Appellate Division stated the following:  ‘The judge also noted that these circumstances did not preclude the finding of this ground for divorce because, under New Jersey law, "parties may attempt to reconcile while seeking a divorce, but" a party seeking a divorce should not be penalized for "an unsuccessful attempt" at reconciliation.’  In this regard, the trial judge stated her agreement with the presiding judge's statement in granting bifurcation that "a party seeking a divorce does not need to be completely separated nor 'turn their back' on the other party" and "may still care or be involved in the other party's life but have no intention to remain married to him or her."

Diana Fredericks, Esq.


Diana N. Fredericks, Esq., devotes her practice solely to family law matters.  She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.