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The Burden of Proof in Divorce Cases - How to Win or Lose Divorce Issues
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.
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
New Jersey has five types of spousal support. Rehabilitative alimony is a short-term monetary award that allows a spouse to go back to school or obtain training to re-enter the workforce. Limited duration alimony is awarded in cases of a short marriage when rehabilitative alimony doesn't apply. Reimbursement alimony is awarded when one spouse makes a personal sacrifice so that the other spouse could receive professional or career training. Alimony pendente lite is awarded when a divorce is pending so that both parties can maintain their current standard of living until a final judgment is made. Finally, there is permanent alimony which is usually appropriate in long term marriages and typically terminates upon the death of either party or remarriage.
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