I can lie and pretend to watch educational series, all law dramas, during my limited free time between work and two little kids, but I will be honest and tell you that reality TV runs on repeat between my husband’s sports (or during…). Divorce and family law have always been a theme throughout the shows, so much so that Bravo played a Girlfriend’s Guide to Divorce as a scripted series (for better or worse). But, over the last year, family law themes have creeped their way into some of our most beloved/longer series regulars, going back to the domestic violence on the Jersey Shore that was allowed to just play out through the current headlines of revenge pornography which is also domestic violence, and many divorces/child custody issues between. So, here is the first of my series touching upon the family law themes in more recent reality tv and how they’d be addressed in New Jersey. I hope this brings some light entertainment during an otherwise difficult time, and perhaps some education, too.
Former spouses/cohabitants who refuse to move out of the house: Why not move and instead live in purgatory? Simply put, with joint real estate or a marital residence, one party can buy out the other party’s interest in the home or, if neither wants to keep the house, it’s sold. But, until then, no one is forced out of the house in New Jersey unless: (1) a temporary restraining order forcing a defendant out of the house and (2) the case of Roberts and its progeny, which predated the domestic violence law, and provided for limited circumstances that enables a court to remove a spouse/cohabitant from the house even when it’s jointly titled (think extreme physical cruelty, or a parent who returns sporadically without notice and displaying substance abuse issues that places the children in harm’s way (read a blog post on Roberts restraints here). However, in domestic violence cases, if the party/defendant is removed from the house on a temporary restraining order but then the plaintiff/alleged victim doesn’t prevail at the final restraining order hearing, the defendant can go right back in; and, Roberts restraints are few and far between to say the least. Without domestic violence and/or Roberts restraints, what happens? Like most of our law, depends on your case. Here, it’s a recipe for disaster. A party can be paranoid that the other can hear what their saying/see what they are doing, a party can threaten to call the police … think The Break Up”, in real life and with less laughs. So, why stay? In the case of parties without children together, it’s spite and/or financial, or possibly trust that a party would not maintain the residence in the optimal way for a future sale or buy out… but, more likely, they do not yet know which party will retain the house and/or whether they will sell the house.
In a typical divorce / non-dissolution (never married but have children together) matter, staying in the house together after a ‘break up’ can also be spite/financial/trust to maintain the house, but most commonly, staying together in the house is ‘for the children’ – – walking out of the house would leave the children with the other spouse, which isn’t recommended absent a custody arrangement solidified by agreement or court order. Why? Without an enforceable agreement or order, each parent has equal rights to the children. Said another way, neither parent has a greater entitlement to time with the children than the other. Leaving the children in the home with the other parent, without an agreement or court order, enables that parent to control the other parent’s physical time with the children – how often, how long, where, etc. Apart from the children, the other common response is because parties do not yet agree who will retain the house and buy out the other’s interest, or if the house will be sold (like Tom and Ariana).
A common misconception is that one party refuses to leave a house because that party would lose equitable distribution rights in some capacity. However, apart from a party possibly not taking proper care of the house, or the fear that once you are out you will not get back in for buy out purposes, it’s actually custody that keeps the parties living together. The irony is sometimes it’s the children who suffer when parents stay in the home but are dysfunctional together (ie: opening mail, which by the way, is a federal offense and could also lead to a temporary restraining order depending on the totality of the circumstances, and other potential issues).
Both of those issues incident to the breakdown of the relationship can be resolved at the outset of a matter. Indeed, New Jersey Courts attempt to address custody and parenting time before financial issues through a mandatory custody and parenting time mediation session free-of-charge at the Courthouse, and parties can agree upon the disposition of a house in cases that warrant that discussion at the outset. Whether the issues are actually addressed in a productive manner depends upon the circumstances of each matter.
If you’re in a situation where you want to escape a joint living arrangement, reach out to your attorney about working on getting terms in place that will enable a physical separation without compromising your legal position.
Announcing a Split After a Short-Term Marriage But Assets Acquired While Dating:
In the world of reality TV, divorce is no stranger. But what happens when the couple grew their assets together before their marriage? For example, a couple whose relationship drove ratings and caused each party – or one more than the other – to increase his/her income and assets before their marriage, and then they marry. What are they entitled to? in New Jersey, the length of marriage for equitable distribution is date of marriage to date of complaint or termination. Thus, if one or both parties made money off the other prior to the marriage, and that money was kept separate from marital assets during the marriage, then that money is not subject to equitable distribution. If they pooled their assets pre- or post-marriage, then they are not shielded from distributing the entire ‘pot’. Likewise, in a long-term marriage where on party became the star and the other did not, and maybe was not even featured, the income earned by the ‘star’ spouse is all marital regardless of into what account it was deposited – in New Jersey, generally all income except passive income on exempt assets is marital property subject to equitable distribution. Thus, the savings and assets created from that star power during the marriage are also marital and subject to equitable distribution. Of course, the parties could have a prenuptial agreement to prevent this but that is less likely if they were not wealthy prior to their marriage and their wealth accumulated during their marriage. While in a state like New York, they may have been able to enter into an enforceable Postnuptial Agreement, that is not true for New Jersey – a state that frowns upon Postnuptial Agreements. It’s not unlikely to have a Prenup because Prenups are only for the wealthy; it’s unlikely to have a Prenup in this scenario because generally people assume Prenups are only for the wealthy. To the contrary, a Prenup is an important discussion for most couples.
Stay tuned for some more reality tv insight related to NJ family law. Let’s have some fun with it!
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