As I New Jersey Divorce Attorney, I have been asked this question more times than I could possibly recall. However, the answer is almost always the same. First, I explain that procedurally we would have to file a post judgment motion to have the matter addressed byNew Jersey Family Court. Then, I explain that before a court will grant a modification to a court order, or final judgment of divorce, the party seeking modification must establish a substantial change in circumstances that renders the enforceability of the original order, agreement, or judgment to be inequitable.
The attorneys at my law firm file motions in the numerous types of cases that full under New Jersey family law, including but not limited to, divorce, child custody, child support and even restraining order hearings. Your lawyer files some motions during the case while others are filed after the case has been concluded. In any event, family law in New Jersey means intensive motion practice, virtually every Friday depending upon the county in our state.
The New Jersey civil court system serves the people of this great state by offering justice and equity, in an increasingly unfair world. It allows litigants and their lawyers to the opportunity to seek the redress and remedy of perceived wrongs. While one of the great parts of this system is how easily people can file motion after motion, this also leads to many people abusing the New Jersey Family Court system in an effort to harass other parties with a constant barrage of potentially harassing and humiliating motions and orders to show cause. The cost of litigating such matters can be quite high, and so it puts those with financial means and professional connections in positions of power over those who do not have the same financial advantages. However, New Jersey courts provide for sanctions against parties to remedy this in the form of counsel fees.
Throughout the years as a New Jersey lawyer, I have served many Subpoenas upon third parties for information that will protect my client’s interests in a divorce. On the other hand, the attorneys at my law firm have filed motions to quash subpoenas, typically on the grounds that the documents that are being requested are not relevant to any of the issues contained in the divorce action. Following, please find a sample Notice of Motion to Quash Subpoena, the Supporting Certification of our (fictitious) client, and a proposed form of Order for a New Jersey family judge’s hopeful signature. Any questions, please contact my office today.
No. Pursuant to this lawyer’s review of New Jersey case law , it is my legal opinion that this would not be deemed a legal marriage. Under N.J.S.A § 37:1-1, a marriage performed without first getting a marriage license, is considered completely void. Furthermore, Pakistani family law also requires that the marriage contract be recorded with the local municipal authorities. Please find the confidential inter-office memo prepared for the attorney’s at our New Jersey family law and divorce law firm.
In a recent case at our law firm, our client asked if he was legally married if he merely had a religious ceremony in front of a few relatives, in Pakistan, and signed a religious wedding contract, but never obtained a marriage license.
Analysis: New Jersey Statute § 37:1-10 abolishes common law and unlicensed marriages. See Yaghoubinejad v. Haghighi, 384 N.J. Super. 339, 341 (2006). (Where a ceremonial marriage in accordance with the religion of Islam was conducted on June 30, 2001 was considered completely void, even though a certificate appeared to show the signature of the person who solemnized the marriage, because the parties failed to obtain a marriage license). While Islamic marriage contracts were found to be enforceable by the court as long as the contract could be enforced on “neutral principles of law,” in Odatalla v. Odatalla, the opinion never stated that the parties failed to get a marriage license. N.J.S.A § 37:1-10 provides that, no marriage contracted on or after December 1, 1939 is valid unless the contracting parties obtained a marriage license, and then performed, by or before any person, religious society, institution or organization authorized by Section 13 of the same statute, to solemnize marriages. Moreover, a failure in any case to comply with both of the prerequisites, will render the supposed marriage completely void. N.J.S.A § 37:1-10.
The effect of N.J.S.A § 37:1-10 is three-fold: (1) it completely abolishes the validity of common law marriages after 1939; (2) requires the production of a marriage license before a ceremony; and (3) requires an authorized person or entity to solemnize the marriage. Yaghoubinejad v. Haghighi, at 341. See also Lee v. Gen. Accident Ins. Co., 337 N.J. Super. 509, 514, (App. Div. 2001) (ceremonial marriage without a license is void). Cf. Lopez v. Lopez, 102 N.J. Super. 253, 255-56, (Ch. Div. 1968) (marriage by proxy void due to absence of a valid license and solemnization). But see Torres v. Torres, 144 N.J. Super. 540, 543 (Ch. Div. 1976) (proxy marriage not void when entered in accordance with law of country where the contract was executed).
In Torres v. Torres, the the marriage in question took place on October 28, 1967, a country that recognized a proxy marriage as a valid ceremony of marriage. The husband had complied with all the necessary legal requirements of the Cuban statute. The marriage was recorded by the proper legal authorities in Havana, Cuba. Furthermore, a certificate of marriage was issued by the Registrar of Vital Statistics in Havana, Cuba. 144 N.J. Super. 540, 543. Even though the court in Torres, refused to set aside the marriage it is important to note that there was no dispute that the marriage had been properly licensed in the Country in which it took place. However, in some countries a marriage be be legally valid even without a license. That does not mean, however, that the Court must consider it valid.
In B-Aka-L . L, the Superior Court annulled a marriage that took place in a church in Italy. N.J. Super. 368. The plaintiff was born on October 1, 1941 in Italy, and moved to Jersey City in 1954. Id. at 371. She returned to Italy with her mother in December of 1965. Her mother then introduced her to the defendant in 1957. They had a religious ceremony on October 31, 1957. She lived with the defendant for 5 weeks, but the plaintiff alleged that the marriage was never consummated. Id. The court held that a marriage arranged by a mother for her daughter to a man in a foreign country who did nothing to enforce his rights as a husband over two years, did not send her anything to enable her to return to him, and only came into court by an attorney when his wife sought to annul the marriage, that this marriage was one for his convenience and should be annulled. Id. at 373. While the defendant had argued that as the marriage was valid under Italian laws, it should also be considered valid here. Id. at 372. The court, however, found that it was appropriate, under its equitable powers to annul it. Id. at 373
In the 1932 case of Sturm v. Sturm, the Court held that “that general rule of law is that a marriage valid where it is performed is valid everywhere,” and “a marriage void where it is performed is void everywhere. 111 N.J. Eq. 579, 582 (1932). While this case is from 1932, I did not find any negative treatment when I shepardized the case. Pakistani family law requires marriage contracts to be recorded with the proper municipal authority. If, in the present case, the couple failed to register the marriage contract in Pakistan, it may be considered void there. A “nikah nama” another word for an Islamic marriage certificate or contract, is issued by a Nikah Registrar, or marriage registrar in Pakistan. Marriage registrars are appointed by the municipality, Panchayat Committee, Cantonment Board or Union Council. The Union Council is located in every municipality. The Pakistan Jurist, a website created by Pakistani legal firm AHS – Advocates & Legal Consultants, explains that a Nikah Nama is a “legal document certifying the solemnization of marriage between a husband and a wife”. The Pakistan Jurist points out that, according to the Muslim Family Laws Ordinance 1961, which applies to all Muslim Pakistani citizens, a Nikah Nama must be registered with a local Union Council, where an original copy of Nikah Nama is kept as public record.
If you or a loved one had any questions, please do not hesitate to contact our office.
In New Jersey a restraining order predicated on harassment cannot be issued if based on a mere expression of opinion that someone finds offensive or upsetting. When I or my associate attorneys prepare for a final restraining order trial with a harassment charge, we focus on the intent or purpose of the According to New Jersey Statute 2C:33-4, harassment is defined as when a person with purpose to harass, makes a communication anonymously or at inconvenient hours, in an offensive manner with the purpose to alarm or seriously annoy the other person. As experienced domestic violence trial lawyers, my law firm embraces that the most important requirement to prove to a Judge of the Superior Court of New Jersey is the purpose to harass. New Jersey courts do not measure the effect of the speech on the victim, but rather look to the purpose of the person making the speech.
In E.M.B. v. R.F.B, son R.F.B appealed from a final domestic violence restraining order entered against him for harassment. On August 18, 2009, a temporary restraining order was entered against him. He was not properly served because the victim, his mother, did not know his present whereabouts. Therefore, an indefinite restraining order was issued against him on August 27, 2009. On September 17, 2009, a final restraining order hearing was held but R.F.B did not appear. The court noted that he had been served by telephone and thus had adequate notice to be present. The court declared he was voluntarily absent from the proceedings. His 88 year-old mother provided evidence.
Fifty-six year old R.F.B lived with his mother in Somerdale. On August 18, 2009 she filed a domestic violence complaint against him because he stole the keys to her car, cell phone, bank book, money, and some jewelry. She also testified that once before he took her wallet and mailed it back to her with the money gone. She categorized his behavior as “controlling” and stated that he also called her a “senile old bitch.” When the court asked her it that language “would annoy her,” she replied that it hurt her. She further testified that he had stolen small things from her before and on one occasion locked her out of the house.
The trial court found that R.F.B had committed domestic violence against her because he committed the predicate act of harassment, enumerated in New Jersey’s Prevention of Domestic Violence Act. The court found her to be a credible witness and made the following findings. The trial judge found that the acts described by E.M.B were harassing acts. She was found to be sincerely embarrassed and hurt while she was weeping at testimony so the judge found that R.F.B acted with a purpose to annoy or to alarm E.M.B. While the court found the predicate act of harassment had been established it failed to specify what section of New Jersey Statute 2C:33-4 was violated. It concluded that a restraining order was necessary to protect E.M.B from future acts of domestic violence. R.F.B appealed and challenged the factual findings of the trial judge and the entry of the final restraining order.
According to New Jersey Statute 2C:25-18, domestic violence is a serious crime against society. There are thousands of victims in the State of New Jersey who are beaten, tortured, and even killed in some extreme cases. There is also a correlation between spousal abuse and child abuse. Children, who may not be physically assaulted, suffer deep and long lasting emotional affects from witnessing domestic violence. In passing New Jersey Statute 2C:25-18, the legislature intended to make sure victims of domestic violence had the maximum protection from abuse that the law could provide.
When hearing a domestic violence case, the trial judge has two responsibilities. The judge must first determine if the victim has proven, by a preponderance of the evidence that one or more acts enumerated in New Jersey Statute 2C:25-19a has occurred. After an act of domestic violence has been established, then the judge must decide whether the court should order a restraining order to protect the victim.
Domestic violence describes a pattern of The Prevention of Domestic Violence Act indicates that the focus of the Legislature was regular serious abuse. This is evidenced by the references to torture, battery, beatings, and killings. Another focus was the long term damage suffered by children who observed the same acts. Some of the remedies provided by the statute are the exclusion of the offender from the marital home, suspension of visitation, monetary relief to the victim, and mandatory counseling. To ensure that victims of domestic violence who were subjected to criminal conduct by their mates had complete access to protection under the legal system, the domestic violence statute incorporated the statutes for homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual conduct, lewdness, criminal mischief, burglary, criminal trespass, and harassment.
According to New Jersey Statute 2C:33-4, harassment is defined as when a person with purpose to harass: makes a communication anonymously or at inconvenient hours, in an offensive manner or any other manner likely to cause annoyance or alarm; strikes, kicks, shoves, or threatens to do so; engages in any other alarming conduct or repeatedly commits acts with the purpose to alarm or seriously annoy the other person; or commits a crime of the fourth degree, acting with ill will, hatred or bias, with a purpose to intimidate based on the other person’s race, color, religion, sexual orientation or ethnicity.
The most important requirement is the purpose to harass. In consideration of the specific facts inE.M.B. v. R.F.B, the New Jersey Appellate Division found that the only communication that could even arguably support a finding of harassment occurred when R.F.B called his mother a “senile old bitch.” While this was no doubt upsetting, the court stated that they do not measure the effect of the speech on the victim, but rather look to the purpose of the person making the speech. According to the 1981 New Jersey Appellate Division case of State v. Fin American Corp., the harassment statute was not enacted to prohibit mere speech, use of language, or other forms of expression. The First Amendment of the United States Constitution permits the regulation of conduct not expression. Therefore, the speech prohibited by the harassment statute must be said with the specific intention of harassing the listener. A restraining order predicated on harassment cannot be issued if based on a mere expression of opinion stated with offensive language. The evidence failed to prove by a preponderance of the evidence that R.F.B called his mother a “senile old bitch” with the purpose to annoy her. Even the thefts would require proof of a purpose to “alarm or seriously annoy.” The factual record does not show that R.F.B acted with any other purpose other than to take his mother’s property as his own.
New Jersey Family Courts’ must consider the totality of the circumstances when determining if the harassment statute has been violated. There was also no evidence of any prior harassing behavior. Evidence of prior thefts does not establish a prior history of domestic violence without proof of the requisite intent to harass. The evidence failed to support a conclusion that R.F.B acted with an intent to alarm or seriously annoy his mother. Therefore, the New Jersey Appellate Division reversed the final restraining order.
My law firm’s lawyers stand prepared to assist anyone facing a final restraining order trial. Thank you.
As an attorney for over twenty years, I could not even guess how many times I have prepared or reviewed a client’s (or adversary’s) New Jersey Child Support Guidelines. Often I am asked about what a cost of living adjustment (“COLA”) represents. I then explain that a COLA revisits a party’s income based on changes in a cost of living index. Frequently, the issue of a cost of living adjustment will arise in the context of modifying child support obligations. This was the case in the recent New Jersey Appellate Division decision of Wexler v. Wexler. Let’s explore.
In the case, the parties married in November 1993 and divorced in May 2008. Two children were born of the marriage. When the parties divorced, each of them had primary residential custody of one of their children. Additionally, the parties’ dual judgment of divorce mandated that the husband pay his ex-wife $52 per week in child support. In April 2011, the wife filed a motion seeking physical custody over her other child who had been living with the father. Furthermore, she motioned the court for more child support. In April 2013 a hearing was conducted and the judge granted the wife the increase in child support she was hoping for. The court increased the husband’s child support obligation to $266 per week retroactive to April 2011. Of course, the husband appealed, but the decision was affirmed in a different opinion.
After the order was entered modifying the husband’s child support obligations, the Probation Division Child Support Enforcement Unit sent the parties notice that the husband’s weekly support obligation would be increased on May 1, 2013 to $278 because of a biennial cost of living adjustment, also known as a COLA. Thereafter on May 13, 2013, the court issued an order applying the COLA and increased the husband’s child support obligation to $278 per week as discussed. Less than a month later in June, the wife filed another motion to require her ex-husband to make his child support payments in a timely fashion and in full each week.
Four days later on June 10, 2013 the Probation Division requested that the court void the COLA. The new judge granted the Division’s request, explaining that the husband’s child support obligation had already been increased in April. Therefore, the court held that the COLA should not be applied until April 2015. Although the decision was in the husband’s favor, he was unaware that the COLA had been voided. Instead, he filed a motion asking the COLA to be cancelled.
On July 31, 2013 the initial trial judge granted the wife’s initial motion and ordered the husband to make a $1500 payment toward his support arrears within one month. If the husband did not make the lump sum payment by the end of the thirty-day period, he would be sanctioned $5 per day until he paid the $1500 in full. Additionally, the court refused to consider the husband’s motion to void the COLA. Oddly, this trial judge was unaware that another trial court had already voided the COLA. Due to this unawareness, the July 31st order mistakenly stated that the husband’s child support obligation was $278 per week, not $266.
The husband again filed a motion to void the COLA, and this time the court considered it. However, the trial court denied the husband’s motion. It held that even though one court had voided the COLA, a new court thereafter entered a new child support obligation on July 31st for $278 based upon changed circumstances. Yet, that statement was a mistake since the July 31st order did not take into consideration that the COLA had already been voided. Disappointed with the outcome, the husband appealed.
On appeal, the husband argued that the trial court erred in finding that his support obligation had been increased on July 31st because of changed circumstances and the Appellate Division agreed. It remanded the case to the trial court to correct the husband’s child support obligation, stating that the trial court judge mistakenly stated in the July 31st order that the weekly obligation was $278. Since the COLA was the sole reason the husband’s child support obligation was increased from $266 to $278, the Appellate Division agreed that the allegation of changed circumstances was a mistake.
Even though the COLA was voided in the Wexler case, often times it is applied in child support cases. For more questions or information on cost of living adjustments, please contact my office today.
In 1988, New Jersey joined with other states in passing the Uniform Premarital Agreement Act. The purpose of the act was and still is simply to govern the law of Prenuptial Agreements (i.e. prenups). Since our state adopted the act, the amount of prenups drafted has steadily increased. At the Law Offices of Edward R. Weinstein, we are here to help ensure safety of your assets upon a divorce by assisting you in understanding the value of entering into a prenuptial agreement.
What is a premarital agreement? 37:2-32
A prenup is an agreement between potential spouses made in consideration of marriage and effective upon the marriage itself. The subject matter of a prenup usually varies from agreement to agreement; however, it is extremely common that the agreement will include provisions for division of property and child/spousal support in the event of a divorce. The purpose of entering into a prenup before marriage is to ensure that whatever assets you enter the marriage with; you also leave the marriage with.
What formalities are required when drafting a premarital agreement? 37:2-33
When drafting a prenup, the agreement must be documented in writing. If terms and conditions of the prenup are only verbally agreed upon, they are considered invalid. In addition to the prenup agreement itself, a statement of each spouse’s assets must be attached prior to the marriage to ensure that those assets remain with the respective spouse. Another required formality of a is that both spouses must sign the agreement and the agreement must have attached to it a list of both parties assets and liabilities. prior to the marriage. If the agreement is not signed in writing by each spouse, it is considered invalid and unenforceable. Both parties are highly advised to have New Jersey Family Lawyers and the Agreement should be finalized as far before the actual wedding date as possible.
What are the contents that go into a premarital agreement? 37:2-34
Pursuant to section 34 of the Uniform Premarital Agreement Act, spouses about to enter into a prenup may contract with respect to the following areas:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
4. The modification or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of public policy.
Will entering into a premarital agreement affect the right of child support? 37:2-35
If you and your spouse decide to enter into a prenup, the agreement will not adversely affect the right of child support should you file for a divorce.
When does the premarital agreement become effective? 37:2-36
A premarital agreement becomes effective as soon as you and your spouse are legally married.
Can my spouse and I make changes to our premarital agreement once we are married? 37:2-37
Once you and your spouse are lawfully married, it is possible to amend your prenup. If you choose to make any changes, all changes must be recorded in writing. Additionally, each party must sign the amended agreement, acknowledging the new additions to the asset list or initial provisions.
When will a premarital agreement be unenforceable? 37:2-38
Pursuant to section 38 of the Uniform Premarital Agreement Act, a prenup agreement will be unenforceable if the party seeking to set aside the prenup proves one of the following:
1. The party executed the agreement unwillingly;
2. The agreement was unjust at the time the enforcement was sought; or
3. That party, before execution of the agreement:
a. Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
d. Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel
Additionally, if the marriage is found to be fraudulent or void for some other reason, the prenup agreement is only enforceable to the extent required to avoid an unjust outcome.
Needless to say as a New Jersey Divorce Attorney, emergent matters arise all too often. Recently, I wrote a piece called, “What is a Motion in a New Jersey Family Law Case.” This article shall discuss “emergency motions,” which in a courtroom is known as an Order to Show Cause.
I often explain to my clients that an Order to Show Cause shall typically be addressed in a matter of days, as opposed to a Motion takes numerous weeks before it is to be heard by the Court. While each and every client’s situation is urgent and important, I politely explain that in Family Court a true emergency that would most likely cause immediate and “irreparable harm” to a child or the client. A typical example is kidnapping and/or removal of a child out of the country or the state of New Jersey.
I was recently hired on a new matter where just 6 months after the divorce was finalized, my client found out that his ex-wife had a meth lab in her home, which exploded and one of the children suffered burns. Within 24 hours my office secured an Order to Show Cause granting my client temporary sole custody pending a full hearing in a few weeks. The children are safe, my client is relived and I am proud of a job well done. Please read on to learn more about how an Order to Show Cause works in New Jersey Family Law cases.
While an action is pending, it is possible to apply for either a temporary restraint or an interlocutory injunction. If you apply for either of the two, you must apply by motion or by order to show cause pursuant to Rule 4:52-2. The procedure for applying for these is significant to note and is laid out in Rule 4:52-1, which is reproduced below.
Rule 4:52-1 Temporary Restraint and Interlocutory Injunction—Application on Filing of Complaint
- (a) Order to Show Cause With Temporary Restraints. On the filing of a complaint seeking injunctive relief, the plaintiff may apply for an order requiring the defendant to show cause why an interlocutory injunction should not be granted pending the disposition of the action. The proceedings shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available. The order to show cause shall not, however, include any temporary restraints or other interim relief unless the defendant has either been given notice of the application or consents thereto or it appears from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon. If the order to show cause includes temporary restraints or other interim relief and was issued without notice to the defendant, provision shall be made therein that the defendant shall have leave to move for the dissolution or modification of the restraint on 2 days’ notice or on such other notice as the court fixes in the order. The order may further provide for the continuation of the restraint until the further order of the court and shall be returnable within such time after its entry as the court fixes but not exceeding 35 days after the date of its issuance, unless within such time the court on good cause shown extends the time for a like period or unless the defendant consents to an extension for a longer period. The order to show cause may be in the form in Appendices XII-G and -H to the extent applicable.
- (b) Order to Show Cause as Process Service. If the order to show cause issues upon the filing of the complaint, no summons shall issue in the action if the order contains the name and address of plaintiff’s attorney, if any, otherwise plaintiff’s address; the time within which defendant shall serve and file an answer upon plaintiff or plaintiff’s attorney as provided by these rules; and a notice to defendant that upon failure to so file and serve an answer, judgment by default may be rendered against the defendant for the relief demanded in the complaint. The order shall be served upon defendant together with a copy of the complaint and any supporting affidavits at least 10 days before the return date and in the manner prescribed by R. 4:4-3 and 4:4-4 for service of summons, unless the court orders a shorter or longer time or other manner of service.
- (c) Hearing Briefs. Oral testimony may be taken in the court’s discretion on the return date of the order to show cause and on the return date of defendant
It is good practice to notify the opposing party of the nature of the relief being sought by way of order to show cause. A majority of Family Court judges will necessitate that you call and speak directly with their law clerks in order to advise them too of the nature of the relief being sought. Furthermore, most judges will consider the Order to Show Cause within a day and then schedule a return date within a week when the court will conduct a hearing, sometimes sooner if the relief sought is because of an emergency. Attached to the Order to Show Cause should be a brief stating the immediate and irreparable harm that will result if the court does not grant the requested relief.
Orders to Show Cause as Original Process
The Appendix to the Court Rules provides model forms for use when filing an Order to Show Cause as original process. Included in any Order to Show Cause are the following elements:
Model Form number one is for use when Rule 4:67 or Rule 5:4-3 permits summary relief.
Rule 4:67 Summary Actions; please visit http://www.judiciary.state.nj.us/rules/r4-67.htm to see all of the provisions of the rule
Rule 5:4-3 Answer, Acknowledgment, Appearance
- (a) Generally. Except as otherwise provided by paragraph (b) hereof or by any other rule or statute, a defendant in a family action shall file an answer in accordance with R. 4:5-3 or a general appearance and, without filing an answer, be heard on issues of custody of children, parenting time or visitation, alimony, child support, equitable distribution, counsel fees and other issues incidental to the proceeding. A defendant may also file an acknowledgment of service in accordance with R. 4:4-6.
- (b) Summary Actions. In summary family actions in which the process fixes a return day, the defendant need not file an answer, appearance or acknowledgment in order to be heard if the defendant appears on the return day.
Model Form number two is used when immediate relief is required due to difficult circumstances and awaiting the return date will cause immediate and irreparable harm. The order can provide relief pending the return date, pursuant to Rule 4:52.
Rule 4:52 Injunctions; please visit http://www.judiciary.state.nj.us/rules/r4-52.htm to see all of the provisions of the rule
Preliminary Injunction on Return Date
Model Form three is the form used when immediate and irreparable harm might occur due to waiting for a typical motion. No relief is sought prior to the return date, pursuant to Rule 4:52.
Rule 4:52 Injunctions; please visit http://www.judiciary.state.nj.us/rules/r4-52.htm to see all of the provisions of the rule
The leading case illustrating this legal provision is Crowe v. DeGioia, 90 N.J. 126 (1982). The court held that preliminary injunctions are only to be used to restore irreparable harm. The court furthered reasoned that harm is not irreparable if “money damages will offer a remedy except in circumstances of severe personal inconvenience.”
Pendente Lite Orders to Show Cause
Once the complaint has been served on the opposing party, the forms of Order to Show Cause do not necessarily have to conform to the model forms for original process.
Please contact my office if you or a loved one faces an emergency in your family at (732) 246-0909 or [email protected]
New Jersey’s Prevention of Domestic Violence Act is one of the most complex areas of the law which is always a challenge even for the most experienced New Jersey Family Lawyer. Let’s explore the differences between a New Jersey Temporary Restraining Order and “Civil Restraints” as well as the pros and cons of each.
A Municipal Court Judge or a Judge of the Family Part, Superior Court of New Jersey, upon good cause to believe that the applicant is potentially in danger, may issue a Temporary Restraining Order. This forbids the defendant from any contact whatsoever with the “victim” until the matter is handled at the Superior Court of New Jersey level. Any and all firearms are immediately seized as well. Law enforcement immediately serves the defendant with the Temporary Restraining Order and advises them of their next Court date; a Final Restraining Order trial in the Family Part of the Superior Court of New Jersey.
Anytime between the service of the Temporary Restraining Order through the actual date of the Final Restraining Order hearing, the defendant may hire a NJ Domestic Violence attorney to try to settle the matter outside of Court. The end result of such an agreement in New Jersey is called Civil Restraints. Civil Restraints is a settlement between the parties which always requires the involvement and guidance of experienced New Jersey Family Attorneys. Civil Restraints and the settlements which they memorialize typically handle many issues which may exist between the parties. Usually, such issues address limited communications (if any) between the parties, financials matters and, when appropriate, any and all concerns involving the parties’ children . However, Civil Restraints do not have nearly the same powers nor protections than a Restraining Order provides to the victim. The obvious question becomes, “Why would anyone enter into Civil Restraints” Let’s continue.
First, if a family relies on the Defendant for support, a Final Restraining Order may cost them their job or even their entire career. Examples of such professions are people who work in law enforcement, the military, teachers and any other jobs where security checks are mandatory. Assuming the defendant is the “bread winner” of the family, the victim now faces a new challenge. If the victim truly fears the defendant, there is no decision to be made and I shall advise them to proceed to a trial and obtain a Final Restraining Order. However, if she believes that if the defendant was willing to remove himself from the home, then she may feel safe once they are no longer living under the same roof in that “pressure cooker,” then Civil Restraints may be the best way to go. This is especially true when children are involved as they obviously are the mercy of their parents for financial support.
Second, the victim, for various reasons, may have a “weak” case. Please be mindful that it is dramatically easier to obtain a New Jersey Temporary Restraining Order than a Final Restraining Order. In such a circumstance, I may discuss the Civil Restraint option with the victim as I may be able to negotiate a better settlement, including his agreeing to stay out of the home, obtaining financial support for my client as well as addressing all custody and parenting time issues. On the other side of the coin, a defendant, even facing a “weak” case, may be wise to take a “sure thing” by settling out of Court than taking the risk of a Final Restraining Order trial, where there are never any guarantees for the defendant no matter how “weak” the victims case may be, especially with an experienced New Jersey Family Lawyer by her side.
Third, when the victim has a “strong” case, they now has great leverage to negotiate the terms of a Civil Restrain scenario. This may allow the victim to gain an advantage if there may be a custody dispute in the immediate future. At a minimum, having one parent voluntarily granted even temporary residential custody to the victim may be a problem in a New Jersey child custody battle down the line. On the other end of the spectrum, a Final Restraining Order against the defendant may be fatal towards their ultimate request for even joint residential child custody.
All told, as the foregoing is terribly complex with so many legal angles to be leery of, it is absolutely essential to have an experienced NJ Domestic Violence lawyer by your side. If you are the victim, you must have an attorney who can determine whether you are a “candidate” for Civil Restraints or if you must have the protections of a Final Restraining Order. On the other side of the coin, the defendant must have a seasoned and savvy Family or New Jersey Divorce Attorney to protect them, be it a Final Restraining Order trial or negotiating a fair Civil Restraint situation in order to best protect them. At the Law Offices of Edward R. Weinstein, you will be rest assured that you shall receive the best guidance under any situation that may arise during this extremely difficult period of life.