By Sheryl J. Seiden, Esq.[1]
As matrimonial practitioners, we are responsible for applying current law to our cases. I have always viewed the Family Law Symposium as a forum to learn about new case law affecting our practice and new arguments that we should be making in our cases. The Symposium provides us with many interesting arguments that we find ourselves using later in the year and thereafter to best represent our clients' interests. The Family Law Symposium has been the breeding ground for new law that develops through our judiciary as a result of the presentations from our distinguished speakers.
Another manner in which new laws are crafted is through legislation. Whereas we can control the arguments we submit to the judiciary, we cannot control the laws that are made in the legislative branch of our government. However, through years of legislative development, the New Jersey State Bar Association ("NJSBA") has established a voice in Trenton, a voice which may be considered by our Assemblymen, Assemblywomen and Senators when new legislation is presented before them. We have even been able to present proposed legislation which legislatures have sponsored as bills in the Assembly/Senate.
Bills To Be Addressed:
The statutes which we will explore are as follows:
Relocation (A339): Last year at the Symposium, together with my colleague, Ronald Lieberman, Esq., we questioned our current law on relocation. We addressed how the Bauers v. O'Connor,167 J. 91 (2001), standard evolved, and can now be challenged based on social science research and the change in the laws of other states relied upon by the Supreme Court of New Jersey in Bauers. While we were hopeful that our presentation would provide a means for challenging our current law through future case law, that process takes a significant amount of time, dedication and finances. While we continue to remain hopeful that change will occur through our judiciary, the Family Law Executive Committee prepared proposed legislation which was approved by the NJSBA, which if enacted would change the standard for a party seeking to relocate outside the State of New Jersey to a best interest's standard. This proposed legislation has been sponsored by Assemblyman Troy Singleton and is pending in the new legislative term.
Palimony (A646): The case of Maeker v. Ross, 219 J. 565 (N.J. 2014), held that the palimony statute does not apply retroactively – meaning that oral agreements to support entered into prior the effective date of the palimony statute, would not be affected by the requirement to be in writing pursuant to the statute of frauds as mandated by the new palimony statute. Notwithstanding this decision, A646 seeks to effectively overturn the Supreme Court of New Jersey's decision in Maeker v. Ross,Supra, by enacting law that requires that all palimony decisions be in writing regardless of whether they were entered into before or after the effective date of the palimony statute.
College Contribution (A327/S813): In response to three cases in 2014 involving litigation against parents seeking contribution to a child's educational expenses, the legislature has enacted a bill which would better define parents' obligation to contribute to the college expenses of their child.
Parenting Time (A157): In an effort to encourage children to exercise parenting time with both parties, the legislature enacted a bill which penalizes one parent for not ensuring continued parenting time for the other parent.
Child Support Emancipation (A2721/S1046): In an effort to address child support obligations that exist in our state despite the emancipation of a child, on January 19, 2016, the New Jersey legislature enacted a law which provides for the automatic termination of child support when a child reaches the age of 19 absent an order stating otherwise, consent of the parties or the Court extends the age beyond 19 based on an application filed by the payee parent.
Presumption of Joint Physical Custody: This bill would create a presumption of joint physical custody in family law cases absent a showing by clear and convincing evidence that joint physical custody is not in the child's best interest. The bill provides an exception for this presumption where a parent is the victim of domestic violence.
Adoption Statute: The Family Law Section, in collaboration with the American Academy of Adoption Attorneys is working to propose certain amendments to the adoption statute, which has not been amended since 1994.
A detailed description of each of the foregoing bills is contained in these Materials.
How the NJSBA Impacts Legislation:
The NJSBA Government Affairs Department is constantly monitoring new legislation that is introduced in the Senate and Assembly and they refer these bills to the sections of the NJSBA that may be affected by the bill. If a bill pertains to a family law related issue, the Family Law Executive Committee, which is a part of the NJSBA, is then provided with an opportunity to review the bill and take a position to support the bill, oppose the bill or support the bill with amendments. This opportunity lets the voice of section be heard and acknowledged by NJSBA.
Then the positions taken by the Family Law Executive Committee, and other sections, are reviewed by the Legislative Committee of the NJSBA ("Legislative Committee"). The Legislative Committee then considers the position taken by the sections that were asked to review the bill and then makes a recommendation on the bill to the Board of Trustees.
Then, the Board of Trustees reviews the recommendation of the Legislative Committee and will take a formal position on the bill – this position then becomes the position of the NJSBA. The Legislative and Government Affairs Department of the NJSBA will then contact legislatures and advocate for the position being advanced. At times, members of the NJSBA are called upon to provide testimony before the Senate or Assembly to advance the position submitted by the NJSBA.
In addition to opining upon pending legislation, the Family Law Section also works on creating new law by preparing proposed legislation. The proposed legislation is taken through the same chain of command as a position on pending legislation. If the pending legislation is supported by the Board of Trustees of the NJSBA, then the next step is for the Legislative and Government Affairs Department of the NJSBA to find a sponsor(s) to support and/or introduce the proposed legislation as a bill.
Conclusion:
In conclusion, the Family Law Section through the NJSBA has been instrumental in supporting, opposing and creating bills that will affect our practice area. Stay tuned as our laws will continue to evolve not only through case law but also through the legislative branch of our Government.
[1] Sheryl Seiden is admitted to practice law in the states of New York and New Jersey. She is founding partner of Seiden Family Law, LLC in Cranford, New Jersey. She is currently the Secretary of the Family Law Executive Committee of the New Jersey State Bar Association ("FLEC"), and a fellow of the American Academy of Matrimonial Lawyers – New Jersey Chapter. She is a former co-chair of the Legislative Committee of the FLEC and has previously served as a member of the committee.