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The Burden of Proof in Divorce Cases - How to Win or Lose Divorce Issues
Definitions
  1. Burden of Proof

    • Blacks Law Dictionary, Sixth Edition, 1990. (Lat. Onus probandi.) - In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.

      Burden of proof is a term which describes two different concepts; first, the "burden of persuasion", which under traditional view never shifts from one party to the other at any stage of the proceeding, and second, the "burden of going forward with the evidence", which may shift back and forth between the parties as the trial progresses. Ambrose v. Wheatley, D.C. Del., 321 F. Supp. 1220, 1222.

      The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence. Calif. Evid. Code. 115.

      Term has been used to mean either the necessity of establishing a fact, that is, the burden of persuasion, or the necessity of making a prima facie showing, that is, the burden of going forward. State Farm Life Ins. Co. vs. Smith, 29 Ill. App. 3d 942, 331 N.E. 2d 275, 278.

      "Burden of establishing" a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence. U.C.C. 1-201(8).

    • Webster Seventh New Collegiate Dictionary, 1966. - The duty of providing a disputed assertion or charge.

    • New Jersey Rules of Evidence, Richard J. Biunno, 1999. - R. 101(b)(1) - "Burden of Persuasion" means the obligation of a party to meet the requirements of a Rule of Law that the fact be proved, either by a preponderance of the evidence of by clear and convincing evidence or beyond a reasonable doubt, as the case may be.

    • Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 274 (1958). - When the evidence demonstrates the tender hypothesis as a rational inference, that is to say, a presumption grounded in a preponderance of the probabilities according to the common experience of mankind.

  2. Preponderance of the Evidence

    • Blacks Law Dictionary, Sixth Edition, 1990 - A standard of proof in civil cases, is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Braud v. Kinchen, La. App., 310 So.2d 657, 659. With respect to burden of proof in civil actions, means greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability. The word "preponderance" means something more than "weight"; it denotes a superiority of weight, or outweighing. The words are not synonymous, but substantially different. There is generally a "weight" of evidence on each side in case of contested facts. But juries cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side.

      That amount of evidence necessary for the Plaintiff to win a civil a case. It is that degree of proof which is more probable than not.

      Preponderance of evidence may not be determined by the number of witnesses, but by the greater weight of all evidence, which does not necessarily mean the greater number of witnesses, but opportunity for knowledge, information possessed, and manner of testifying determined by the weight of testimony.

    • Webster Seventh New Collegiate Dictionary, 1966. - preponderance \ 1 : a superiority in weight or in power, importance, or strength. 2 a : a superiority or excess in number or quantity; b : majority

    • New Jersey Rules of Evidence, Richard J. Biunno, 1999. - Comment. R. 101(b)(1)[5] - The first standard of proof under N.J.R.E. 191(b)(1) is "preponderance of the evidence, " and is applicable in the normal civil case. State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994). See 9 Wigmore on Evidence (3d.ed.1940), 2498, at 325.

      Under this standard, a civil litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met. See Cvelich v. Erie Railroad Co., 120 N.J.L. 414 (Sup. Ct.), aff'd 122 N.J.L. 26 (E. & A. 1938), cert. den. 307 U.S. 633 (1939); Rothman v. City of Hackensack, 1 N.J. Tax 438, 441-443 (Tax Ct. 1980), aff'd 4 N.J. Tax 529 (App. Div. 1981). See also Kiczula v. American Nat. Can Co., 310 N.J. Super. 293, 303-304 (App. Div. 1998) (workers' compensation). Circumstantial evidence in civil cases has been defined as "a mere preponderance of probabilities." Kita v. Borough of Lindenwold, 305 N.J. Super. 43,50 (App.Div.1997).

      It is often said that the term "preponderance of the evidence" means the greater weigh of credible evidence in the case. It does not necessarily mean the evidence of the greater number of witnesses, but means that evidence which carriers the greater convincing power to our minds. State v. Lewis, 67 N.J. 47, 49 (1975). Note that although the better practice is to include the definition of the term in the charge to the jury, failure so to do does not in itself constitute plain error, particularly where counsel has provided such a definition to the jury. Id. at 50-51.

      Precisely what is needed to satisfy this standard must be decided on a case-by-case basis. The evidence must be such as to lead a reasonably cautious mind to a given conclusion. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 274-275 (1958). See also Kiczula v. American Nat. Can Co., supra; Laffey v. City of Jersey City, 289 N.J. Super, 292, 303 (App. Div.), certif. den. 146 N.J. 500 (1996). The burden is not satisfied by guess or conjecture. For the burden of persuasion to be sustained, the evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the triers of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience. Joseph v. Passaic Hospital Ass'n., 26 N.J. 557, 574-575 (1958).

  3. Clear and Convincing

    • Blacks Law Dictionary, Sixth Edition, 1990. - That proof which results in reasonable certainty of the truth of the ultimate fact in controversy. Lepre v. Caputo, 131 N.J. Super 118, 328 A.2d 650, 652. Proof which requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Clear and convincing proof will be shown where the truth of the facts asserted is highly probable. In re Estate of Lobe, Minn. App., 348 N.W. 2d 413, 414. See also Beyond a reasonable doubt; Burden of proof; Clear evidence of proof.

    • Civil Model Jury Charges, Fourth Edition, N.J. ICLE, 1992. - With regard to (state here the factual issue(s) to be proved), it is the obligation of (state here the party or parties upon whom the burden of proof rests) to prove those allegations by clear and convincing evidence. Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue.

      The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.

    • Webster Seventh New Collegiate Dictionary, 1966. - clear \ c : easily understood : unmistakable; 4 a : capable of sharp discernment : keen; b : free from doubt : sure

      convince \ [ L convincere to refute, convict, prove, fr. com - + vincere to conquer] 1 a : to overcome by argument; b : overpower, overcome; 2 demonstrate, prove; 3 : to bring by argument to assent or belief

      convincing \ having power to convince of its truth, rightness, or reality; plausible; syn see valid

    • New Jersey Rules of Evidence, Richard J. Biunno, 1999. - Comment. R. 101(b)(1)[6] - The second standard, clear and convincing evidence, falls somewhere between the ordinary civil standard of preponderance of the evidence and the criminal standard of beyond a reasonable doubt. Aiello v. Knoll Gold Club, 64 N.J. Super. 156, 162 (App. Div 1960). Clear and convincing evidence should produce in the mind of the trier of fact "a firm belief or conviction as to the truth of the allegations sought to be established." Matter of Purrazella, 134 N.J. 228, 240 (1963). It must be "so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Matter of Seaman, 133 N.J. 67, 74 (1993), quoting Aiello v. Knoll Golf Club, supra, at 162.

      This higher standard of proof apparently arose when courts of equity were faced with claims that were unenforceable at law under the Statute of Wills, the Statute of Frauds or the Parol Evidence Rule. It undoubtedly was developed because of the concern that such claims would frequently be fabricated. Herman & MacLean v. Huddleston, 459 U.S. 375, 388, n.27 (1983). The clear and convincing standard may also be imposed on a party where the adverse party is at a gross disadvantage in disputing an allegation, in order to "restore a fair balance between the adversarial positions of the parties." State v. Sugar, 100 N.J. 214, 239-240 (1985). It also has been said that the standard is "reserved for the protection of important interests." Caro v. Sher, 296 N.J. Super. 594, 602 (Ch. Div. 1996).

      The principles of due process require the application of the clear and convincing proof standard "when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding in that it takes away liberty or permanently deprives individuals of interests that are clearly fundamental or significant to personal welfare."" In re Polk License Revocation, 90 N.J. 550, 563 (1982).

  4. Prima Facie

    • Blacks Law Dictionary, Sixth Edition, 1990. - Prima facie \ Lat. At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. State ex. Rel. Herbert v. Whims, 68 Ohio App. 39, 38 N. E. 2d 596, 599, 22 O.O. 110. See also Presumption.

      Prima facie case \ Such as will prevail until contradicted and overcome by other evidence. Pacific Telephone & Telegraph Co. v. Wallace, 158 Or. 210, 75 P.2d 942, 947. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded. In re Hoafland's Estate, 126 Neb. 377, 253 N. W. 416.

      A prima facie case consists of sufficient evidence in the type of case to get plaintiff past a motion for directed verdict in a jury case or motion to dismiss in a non-jury case; it is the evidence necessary to require defendant to proceed with his case. White v. Abrams, C.A. Cal., 495 F.2d 724, 729. Courts use concept of "prima facie case" in two senses: (1) in sense of plaintiff producing evidence sufficient to render reasonable a conclusion in favor of allegation he asserts; this means plaintiff's evidence is sufficient to allow his case to go to jury, and (2) courts use "prima facie" to mean not only that plaintiff's evidence would reasonably allow conclusion plaintiff seeks, but also that plaintiff's evidence compels such a conclusion if the defendant produces no evidence to rebut it. Husbands v. Com. of Pa., D.C.,Pa., 395 F.Supp. 1107, 1139.

      Prima facie evidence. Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contracted, will remain sufficient. Evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which supports, but which may be contradicted by other evidence. State v. Haremza , 213 Kan. 201, 515 P.2d 1217, 1222.

      That quantum of evidence that suffices for proof of a particular fact until the fact is contradicted by other evidence; once a trier of fact is faced with conflicting evidence, it must weigh the prima facie evidence with all of the other probative evidence presented. Godesky v. Provo City Corp., Utah, 690 P.2d 541, 547. Evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced. An inference or presumption of law, affirmative or negative of a fact, in the absence of proof, or until proof can be obtained or produced to overcome the inference.

    • Webster Seventh New Collegiate Dictionary, 1966. - prima facie \ [L] : at first view : on the first appearance

  5. Presumption

    • Blacks Law Dictionary, Sixth Edition, 1990. - An inference in favor of a particular fact. A presumption is rule of law, statutory or judicial, by which finding of fact, until the presumption is rebutted. Van Wart v. Cook, Okl. App., 557 P2d 1161, 1163. A legal devise which operates in The absence of other proof to require that certain inferences be drawn from the available evidence. Port Terminal & Warehousing Co. v. John S. James Co., D.C.Ga., 92 F.R.D. 100,106.

      Rebuttable presumption. In the law of evidence, a presumption which may be rebutted by evidence. Otherwise called a "disputable" presumption. A species of legal presumption which holds good until evidence contrary to it is introduced. Beck v. Kansas City Public Service Co., Mo. App. 48 S.W. 2d 213, 215. It shifts burden of proof. Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 362, 76 L.Ed. 772. It gives particular effect to certain group of facts in absence of further evidence, and presumption provides prima facie case which shifts to defendant the burden to go forward with evidence to contradict or rebut fact presumed. Gulle v. Boggs, Fla., 174 So.2d 26, 28. And which standing alone will support a finding against contradictory evidence. Lieber v. Rigby, 34 Cal. App.2d 582, 94 P. 2d 49, 50. See also Presumption.

    • Webster Seventh New Collegiate Dictionary, 1966. - presumption \ [ME presumpcion, fr. OF presumption, fr.. LL praesumption-, praesumptio presumptuous attitude (fr. L) & L praesumption-, praesumptio assumption, fr. praedumptus, pp. of praesumere] 1 : presumptuous attitude or conduct : audacity 2 a : an attitude r belief dictated by probability : assumption b : the ground, reason, or evidence lending probability to a belief 3 : a legal inference as to the existence or truth of a fact not certainly known drawn from the known or proved existence of some other fact.

    • New Jersey Rules of Evidence, Richard J. Biunno, 1999. - R. 301. EFFECT OF PRESUMPTION. - Except as otherwise provided in Rule 303 or by other law, a presumption discharges the burden of producing evidence as to a fact (the presumed fact) when another fact (the basic fact) has been established.

      If evidence is introduced tending to disprove the presumed fact, the issue shall be submitted to the trier of fact for determination unless the evidence is such that reasonable persons would not differ as to the existence or nonexistence of the presumed fact. If no evidence tending to disprove the presumed fact is presented, the presumed fact shall be deemed established if the basic fact is found or otherwise established. The burden of persuasion as to the proof or disproof of the presumed fact does not shift to the party against whom the presumption is directed unless otherwise required by law. Nothing in this rule shall preclude the judge from commenting on inferences that may be drawn from the evidence.

    • R. 301[9]. The Quantum of Evidence Necessary to Rebut a Presumption. - The Rule does not characterize the type or quantum of evidence required to rebut a presumption. See In re Politowicz, 124 N.J. Super. 9, 14 (App. Div. 1973); Lionshead Woods v. Kaplan Bros., supra, at 683, interpreting the parallel provisions of 1967 rule 14. However, the first sentence of the second paragraph of N.J.R.E. 301 makes it clear that for the presumption to be rebutted as a matter of law, the contradicting evidence must be strong enough so that after its admission reasonable men would differ as to whether the presumed fact could be found. Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div), certif. den. 56 N.J. 479 (1970).

      New Jersey cases have used divorce language in discussing the quantum of proof necessary to rebut or "overcome" a presumption. Thus, the courts have held necessary for that purpose: "any evidence", Dwyer v. Ford Motor Co., 36 N.J. 487 (1962); "sufficient evidence", Turro v. Turro, 38 N.J. Super. 535, 539 (App. Div. 1956); "sufficient competent evidence", Aetna Life Insurance Co. v. City of Newark, 10 N.J. 99, 105 (1952).

Burden of Proofs in Divorce Issues - A to Z

Adultery - The party alleging adultery has the burden of proving their case. However, the law gives a spouse the right to divorce an offending mate, and the court should not emasculate that right by requiring certainty of proof to a degree made unattainable by the conditions under which we live. Universal use of speedy automobiles, difficulty of pursuit, frequently impossible of undetected pursuit, good roads leading, not only through well settled areas to popular centers, but also through lonely stretches to distant isolations; a plethora of roadside cabins in other places of private resort without meticulous registration or close identification of guests; these and other modern facilities create opportunity for acts of intimacy, which are exceedingly difficult to be proved. Each case must, beyond fundamental rules, be decided upon the complex congeries of facts of which it is composed, and the decision furnishes little precedent for the disposal of later cases, just as it is not tightly controlled by the determination of earlier ones. Eberhard v. Eberhard, 4 N.J. 548 (1950). Proof of adultery may be established by circumstantial evidence. Opportunity and inclination to comment adultery will satisfy that burden.

Alimony Modification - The party seeking modification of an alimony award has the burden of demonstrating a change of circumstances warranting relief from support or maintenance obligations. In reviewing a modification application, the primary factors assessed to determine whether the form of marital standard of living is being maintained are: dependent spouses needs, that spouses ability to contribute to the fulfillment of those needs, and supporting spouse's ability to maintain dependent spouse at the former standard; other criteria include whether change of circumstances likely to be continuing and whether agreement or decree explicitly provided for the change; temporary circumstances are an insufficient basis for modification. Innes v. Innes, 117 N.J. 496 (1990).

When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances has substantially impaired the ability to support himself or herself. This requires full disclosure of the dependent spouses financial status, including tax returns. When the movant is seeking modification of child support, the guiding principle is the "best interest of the children." A prima facie showing would, then, require a demonstration of the child's needs have increased to an extent for which the original arrangement does not provide. Only after the movant has made this prima facie showing should the respondent's ability to pay become a factor for the court to consider. Therefore, once a prima facie case is established, tax returns or other financial information should be ordered. Lepis v. Lepis, 83 N.J. 157 (1980).

Annulment - Plaintiff has the burden in an annulment suit to adduce suit proofs which are "clear and convincing." Godfrey v. Shatwell, 38 N.J. Super. 501,506 (Ch. Div. 1955).

Ante-Nuptial Agreement - The party seeking to enforce an Ante-Nuptial Agreement must bear the burden of proving there was full financial disclosure to the other party and will place the burden on the person who can most easily fulfil it. Marschall v. Marschall, 195 N.J. Super. 16.32 (Ch. Div. 1984). This case applies to Ante-Nuptial Agreements prior to the statutory provisions of N.J.S.A. 37:2-38.

N.J.S.A. 37:2-38 provides that the burden of proof to set aside a pre-marital agreement shall be upon the party alleging the agreement to be unenforceable. A pre-marital agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that: (a) the party executed the agreement involuntarily; or (b) the agreement was unconscionable at the time the enforcement was sought; or (c) that party, before execution of the agreement - (1) was not provided full and fair disclosure of the earnings, property and financial obligations of the other party, (2) did not voluntarily and expressly waived, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, (3) did not have or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party, or (4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel; (d) the issue of unconscionability of pre-marital agreements shall be determined by the court as a matter of law. (eff. 11/3/88)

Cohabitation - There is a rebuttal presumption of changed circumstances arising upon prima facie showing of cohabitation, and burden of proof, which is ordinarily on party seeking modification, shifts to dependent spouse to show there is no actual economic benefit. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998).

Once it is established that the supported spouse is cohabiting, the burden of proof shifts to the supported spouse to show that the cohabitant is contributing exactly the cost of his support in order to avoid reduction in alimony. It would be unreasonable to place the burden of proof on the party not having access evidence necessary to support that burden of proof. Frantz v. Frantz, 256 N.J. Super. 90, 92 (Ch. Div. 1992).

A Husband who sought modification of alimony award granted to the Wife, on the ground of change of circumstances, was entitled to a benefit of rebuttable presumption, that the man, whom the former wife was living within the marital home, was contributing to expenses of that household, thus reducing the Wife's needs. Grossman v. Grossman, 120 N.J. Super. 193, 197 (Ch. Div. 1974).

The test is whether "when cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief." Boardman v. Boardman, 314 N.J. Super. 347 (App. Div. 1998).

Constructive Desertion - In a suit by Husband, for divorce, on the ground that the wife, who had lived in the same house with him had persistently and unjustifiably refused to have sexual relations with him, Husband's evidence was insufficient to satisfy burden imposed on him of establishing, by preponderant and collaborated testimony, that Wife had continuously, willfully and obstinately deserted him. Tucker v. Tucker, 142 N.J. EQ. 687 (N.J. Err. And App.). The elements of a cause of action for divorce based upon desertion must be established by clear and satisfactory proof, and in cases where desertion is charged to be constituted by denial of matrimonial intercourse, requirement is that proof be clear and convincing, and corroborated as to each element. Kirk v. Kirk, 39 N.J. Super. 341 (App. Div. 1956). N.J.S.A. 2A:34-2b provides, "Willful and continued desertion for the term of twelve or more months, which may be established by satisfactory proof, that the parties have ceased to cohabit as man and wife" establishes a cause of action for divorce.

Custody Modification - The party seeking modification of an initial custody determination must show by a preponderance of evidence a change of circumstances warranting modification, even though it could reasonably be concluded that a child would benefit from joint custody. Mastropole v. Mastropole, 181 N.J. Super. 130 (App. Div. 1981).

Exclusive Control of Evidence - A party who has almost exclusive control of evidence get to prove or disprove a fact, will regularly be required to carry the burden on that issue. Anderson v. Samberg, 67 N.J. 291, cert. den. 423 U.S. 929 (1975). This is similar to Res Ipsa Loquitur. Ordinarily, the law does not assist an innocent plaintiff at the expense of an innocent defendant. However, in this case, an unconscious or helpless patient suffered an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery - a foreign object was left in the body. Those who had custody of the patient and owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment, can be called to account for their default.

Fraud - Fraud is never presumed but must be clearly and convincingly proved through the use of direct or circumstantial evidence by the party who asserts it. To demonstrate fraud in equity actions, proofs must be clear and convincing in order to produce firm belief or conviction in the mind of the trier of fact as to the truth of the allegations the party seeks to establish. Schmidt v. Schmidt, 220 N.J. Super. 45 (Ch. Div. 1987). The defendant contended that his ex-wife perpetrated a fraud upon the court when she filed a motion seeking support arrears by withholding the fact that the parties' children were adopted by her present husband. The court ruled that the judgment for arrears was not the result of fraud because the arrears were calculated only to the date of the adoption.

Gifts Exempt from Equitable Distribution - The burden of proof is upon the party attempting to establish that a gift is not subject to equitable distribution. A gift is a transfer without consideration requiring an unequivocal donative intent on the part of the donor, actual or symbolic delivery of the subject matter of the gift, and an absolute and irrevocable relinquishment of ownership by the donor. Sleeper v. Sleeper, 184 N.J. Super. 548. (App. Div. 1982).

Gifts between spouses are presumed gifts. To rebut the presumption, one must establish facts antecedent to or contemporaneous with the purchase or else immediately afterwards, so as to be, in fact, part of the same transaction and this proof must be certain, definite, reliable and convincing leaving no reasonable doubt of the intention of the parties. Ringold v. Ringold, 93 N.J. EQ. 357 (Ch. Div. 1922).

Marriage - The burden of proving the marriage is upon the plaintiff, and must include proves that the plaintiff was legally in a position to enter into a valid marriage. Kazen v. Kazen, 161 N.J. Super. 174, 181 (App. Div. 1978).

Marriage Presumption - The last of two or more marriages is presumptively valid. The presumption of validity may only be overcome by clear and convincing evidence that (1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was not terminated by death or divorce before the latest marriage. Newburgh v. Arrigo, 88 N.J. 529 (1982). This presumption relates to the validity of prior divorces and the estoppel argument. Both principles recognize the reality of the policy to recognize current marriages as opposed to have technically finding persons to prior dissolved marriages.

Modification of Order, Judgment or Decree as to Support - The parties seeking modification of support obligations has the burden of showing "change circumstances" as would warrant relief from support or maintenance provisions involved. Lepis v. Lepis, 83 N.J. 139 (1980).

No Fault Divorce - N.J.S.A. 2A:34-2d creates a cause of action for divorce where the husband and wife live separate and apart in different habitations for a period of at least eighteen (18) or more consecutive months, and there is no reasonable prospect of reconciliation "provided further that after the eighteen (18) month period there shall be a presumption that there is no reasonable prospect of reconciliation." Thus, after the plaintiff testifies to the eighteen (18) month period and their belief that there is no reasonable prospect for reconciliation, the burden shifts to the defendant to overcome the presumption. In practice, most judges are of the opinion that if one party does not believe there is a reasonable prospect of reconciliation, there can not be a reasonable prospect of reconciliation.

Parental Rights - A denial of parental rights may only be ordered upon a clear and convincing proof by contact between parent and child will cause physical or emotional harm to the child, or where it is demonstrated that the parent is unfit. , 257 N.J. Super. 590 (Ch. Div. 1992). In recognition of the grave importance of parental rights, it is usually held that the denial of those rights are ordered only upon clear and convincing proof.

Parenting Time (Visitation) - The parent taking parenting time has the burden of proving the right to parenting time. Cosme v. Figueroa, 258 N.J. Super. 337 (Ch. Div. 1992).

Paternity of Emancipated Children - A court may not order blood test or permit, a paternity action, to continue where the father's claim of paternity conflicts with the presumption establish by N.J.S.A. 9:17-43(a)(1) (presumption of paternity during marriage), unless the court determines by clear and convincing evidence that it is in the best interest of the emancipated child. M.F. v. N.H., 252 N.J. Super. 420 (App. Div. 1991).

Prior Marriage - The law of New Jersey does not require a plaintiff to prove the validity of a prior divorce or the party's marriage. Rather, once plaintiff shows that the parties were, in fact, married, the burden of proving invalidity shifts to the defendant and it must be met by clear and convincing evidence. Raspa v. Raspa, 207 N.J. Super. 371, 377 (Ch. Div. 1985). Cites Newburgh v. Arrigo, 88 N.J. 529 (1982) which held as follows:

--- irrespective of the factual context in which the issue may arise, the last of two or more marriages is presumptively valid. The presumption of validity may be overcome only by clear and convincing evidence that ; (1) there was a prior marriage, (2) the prior marriage was valid, (3) the prior marriage was not terminated by death or divorce before the latest marriage -- Further, --- when one attacks the validity of a divorce obtained in a foreign state or country, the challenger must prove all asserted defects, including lack of jurisdiction in the foreign court. In all respects, the burden rests, not upon the party defending the most recent marriage, but upon the challenger to demonstrate the invalidity of the prior divorce.

Reformation of Property Settlement Agreement - Clear and convincing proof is required to justify reformation of a marital contract. Marital settlement agreements are enforceable if they are equitable and just. However, a marital agreement may only be reformed when, to a common mistake or when a mistake of one party accompanied by the fraudulent knowledge of the other, it does not express the real agreement of the parties. Reformation is premised upon mistake in the preparation of the agreement and there must be clear and convincing proof that the contract in its reformed, and not original form is the one that the contracting party understood and meant it to be. Capanearv v. Salzano, 222 N.J. Super. 407 (App. Div. 1988), Brodzinsky v. Pulek, 75 N.J. Super. 40, (App. Div. 1962).

Rehabilitative Alimony - When a person seeks rehabilitative alimony, while the burden of proof does not increase, such person must prove additional proofs in order for the court to make a reasonable and rational determination. There must be presented competent evidence upon which the court will base a rehabilitative alimony award; otherwise, such an award would be complete conjecture, which the court is not permitted to do. If a party seeks particular relief, they must specifically seek and prove facts which support that claim. Finelli v. Finelli, 263 N.J. Super. 403, 407 (N.J. Super. 1992).

Removal of Children from Jurisdiction - The burden is upon the parent seeking to remove a child from a state. N.J.S.A. 9:2-02 provides, "when such children are natives of this state, or have resided five (5) years within its limits, they shall not be removed out of its jurisdiction without their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon good cause shown, shall otherwise order." The focus of the "cause" requirement is not the benefit that will accrue to the custodial parent, but on the best interest of the children and on the preservation of their relation with the non-custodial parent. N.J.S.A. 9:2-2 implicates the best interest of the child has manifested through visitation with a non-custodial parent. Short of an adverse effect upon the non-custodial parent's visitation rights, or other aspects of the child's best interest, the custodial parent should enjoy the same freedom of movement as the non-custodial parent. The moving party has the burden to establish the following: (1) the custodial parent has a good faith reason for moving; (2) that the move will not be inimical to the best interest of the children or adversely effect visitation rights of the non-custodial parent. The burden remains with the non-custodial parent to prove that, as a result of relocation, visitation will be affected in way that will prove harmful to the children. Winer v. Winer, 241 N.J. Super. 510, 518 (App. Div. 1990). If the move requires a substantial change in the visitation schedule, proofs concerning the perspective advantages of the move, the integrity of the motive of the party, and the development of a reasonable visitation schedule. Holder v. Polanski, 111 N.J. 352, 353 (1998).

Risk Assessment - The person seeking the risk assessment has the burden of proof by a preponderance of evidence. Cosme v. Figueroa, 258 N.J. Super. 337 (Ch. Div. 1992).

Service of Pleadings - There is a presumption that the facts in a sheriff's return of service are true bear to overcome this presumption. The opponent must establish by clear and convincing evidence that the facts are not as stated in the sheriff's return of service. Morales v. Santiago, 217 N.J. Super. 496 (App. Div. 1987).

Stock Options - The owner and participant in a employer provided stock option program (ISOP), has the burden of proving that they are not subject to equitable distribution. Elkin v. Sabo, 310 N.J. Super. 462, 472 (App. Div. 1998).

Termination of Parental Rights - The burden of proof and proceeding to terminate parental rights is by clear and convincing evidence. N.J.S.A. 30: 4C-15 and N.J. Division of Youth and Family Services v. K. M., 136 N.J. 546 (1994).

Visitation Out-of-State - It is the objecting party's burden to show the proposed visitation of a child, out of the State of New Jersey, that it is not in the best interest of the children. Comas v. Comas, 257 N.J. Super. 590 (Ch. Div. 1992). A request by a father for a two week uninterrupted summer visitation with his two children was deemed reasonable, unless there was an affirmative showing by the mother, that it would not be in the best interest of the children.

Visitation Termination - Evidence that a certain aspect of visitation poses a threat to a child's welfare must be carefully considered by the court. The burden of proof is the lightest available civil burden, by the preponderance of the evidence. Comas v. Comas, 257 N.J. Super. 590 (Ch. Div. 1992).

Equitable Remedies vs. Burden of Proofs

Family Part is a court of equity. The Supreme Court in Kazen v. Kazen, 81 N.J. 85 (1979) held that the Divorce Reform Act , "both were appealed and substantially amended prior legislation controlling marital relationships." Kazen recognized that "equitable principles have moved to the forefront, and that in this legal and social milieu, courts are well counseled to give full range to equitable doctrines in dealing with matrimonial controversies. " Id. at 93-94. The Kazen court applied estoppel to thwart a spouse from attacking his spouse's prior divorce. See also Raspa v. Raspa, 207 N.J. Super. 371 (Ch. Div. 1985).

The doctrine of equitable estoppel is established when one engages in conduct amounting to a representation or omission of material facts, the truth of which is unknown to another, who is induced to rely upon the same. Usually, the party making the representation is later estopped from denying the truth thereof. By the same token, quasi estoppel is where an individual is not permitted to "blow both hot and cold," taking a position in consistent with prior conduct, if this would injure another, regardless of whether that person has actually relied thereon. Kazen at 94. Therefore, a party who participated in a foreign divorce may be equitably estopped from raising the invalidity of the foreign divorce. A party who did not participate in the foreign divorce, who does not raise the invalidity during a long term marriage, likewise, will be quasi estopped to raise the invalidity under the quasi estoppel theory.

Pre-marital property acquired during a period of co-habitation is not to be equitably distributed pursuant to N.J.S.A. 2A:34-23. However, our courts have recognized that the equitable powers of the court permit a remedy in those situations. The courts has specifically held that the equitable remedies, such as resulting trust, constructive trust, quantum meruit and other equitable remedies, are available to divorce litigants. If further, and implied or expressed pre-marital contract to share in the distribution of property acquired during the co-habitation period, covers a different subject matter. See Rolle v. Rolle, 219 N.J. Super. 535 (Ch. Div. 1987).

A family court has the equitable powers to require a person to submit to the jurisdiction of the Jewish ecclesiastical court and to get a Bet Din. As stated in Burns v. Burns, 223 N.J. Super. 219, 226 (N.J. Super. 1987), "In doing equity, the court has power to adapt the equitable remedies to the particular circumstances of each particular case."

Although, seemingly preempted by federal jurisdiction, our family courts have invoked the equitable power to allocate Federal Income Tax exemptions for dependent children to non-custodial spouses. Gwodz v. Gwodz, 234 N.J. Super. 56 (App. Div. 1989).

Even in light of the domestic violence statute, which specifically and statutorily creates criteria for removal of a defendant from the marital residence, the courts have preserved their equitable powers to remove a party from the marital residence without establishing domestic violence. N. B. v. T. B. 297 N.J. Super. 35 (App. Div. 1997). The sale of the marital residence may be ordered by the court, pendente lite, despite the absence of statutory authority. The courts have now utilized their equitable powers to interpret N.J.S.A. 2A: 34-23 to give the matrimonial judge broad discretion and authority to fashion sagacious remedies, on a case by case basis, which will achieve justice and fulfill the needs of litigants. Pelo v. Pelo, 300 N.J. Super. 634 (Ch. Div. 1996). A Pelo court permitted the sale of the marital residence, pendente lite, and held that proper evaluation of the impact of the maintenance of property of the parties' economic well-being, are important and that the statute, which appears to prevent a family court judge from distributing property until the final divorce, should be interpreted as follows:

"A statute should not be given an arbitrary construction, according to the strict letter, but rather one that will advance the sense and meaning fairly deducible from the context. The reason of the statute prevails over the literal sense of the terms; the obvious policy is n implied limitation on the sense of the general terms, and a touch tone for the expansion of narrower terms."

In Jacobitty v. Jacobitty, 135 N.J. 571 (1994), and the court went outside of the statutory context, and ordered Mr. Jacobitty to establish a trust from his assets to fund future alimony for Mrs. Jacobitty. N.J.S.A. 2A:34-25, only permits the purchase of life insurance for that purpose. However, because of Mr. Jacobitty age, he could not obtain life insurance.

Equitable Maxims and Equitable Defenses
  • Equity Suffers No Right to be Without a Remedy
  • Equity Regards Substance Rather than Form
  • Equity Regards That as Done Which Ought to be Done
  • Equity Imputes an Intention to Fulfill an Obligation
  • Equality is Equity
  • Where Equities are Equal the First in Time Will Prevail
  • Equity Follows the Law
  • Equity Acts in Personam, Not in Rem
  • Equity Aids the Vigilant, Not Those Who Sleep on Their Rights
  • He Who Seeks Equity, Must do Equity
  • He Who Comes Into Equity, Must Come With Clean Hands
  • Where a Loss Must be Borne by One of Two Innocent Persons, Equity Will Impose the Loss on That Party Whose Act First Could Have Prevented the Loss
  • Equity Prevents Mischief
  • Equity Delights in Amicable Adjustments
  • A Court of Equity Seeks To Do Justice, and Not Injustice
  • A Court of Equity Ought To Do, or Delights in Doing, Justice Completely, and Not By Halves.


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New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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