Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Do I Divorce My Spouse Who Is In Jail?

            In New Jersey, it is best to hire a lawyer who only handles divorce cases because divorcing a spouse who is incarcerated in jail is quite complex.  Issues with respect to child custody are challenging, for obvious reasons.  How to proceed in the Family Part of the Superior Court of New Jersey is complicated even for the most seasoned attorney.  How are assets and debts handled?  (Depends upon the facts of the case and the nature of the crime).  These issues require a divorce lawyer to ensure every “I” is dotted and every “t” is crossed.  Below I analyze what happened to a prisoner who was not represented by a lawyer in his divorce.

            In Kaplan v. Kaplan, ex-wife Helena Kaplan appealed from an order of the Superior Court of New Jersey, Family Part of Middlesex County dated December 5, 2014 that her denied for motion for reconsideration of two orders entered by the Family Part in October 2014. The motion was denied after the court found that her motion was tantamount to an attempt for the Family Part to reconsider the final judgment of divorce that was entered in May 2013. On appeal, Helena argued six points: (1) that the Family Part did not correctly evaluate spousal support because it imputed income on to her, and inappropriately analyzed the factors in calculating an alimony obligation; (2) the Family Part should not have granted her ex-husband Allan an $ 45,000 credit for equitable distribution; (3) the court incorrectly ignored her request for a payment of $ 30,370.56; (4) the Family Part incorrectly denied her request for a return of personalty; (5) the Family Part should not have awarded her ex-husband with counsel fees; and (6) the Family Part inappropriately based its denial of her cross-motion on a misunderstanding of a procedural rule.

            In response, Allan contended that the court acted appropriately when it: established alimony for his benefit, equitably distributed the marital assets, and awarded him with counsel fees. He also argued that the Family Part correctly found that Helena failed to establish the existence of any change of circumstance that could warrant a reduction of her support obligations under the final judgment of divorce. The New Jersey Appellate Division reviewed the arguments and the factual record and affirmed the order of the Family Part.  The New Jersey Appellate Division explained that under Rule 2:5-1(f)(3)(A), Helena’s appeal was barred, procedurally, as it related to any alleged defect in the final judgment of divorce. Helena never filed an appeal for the final judgment of divorce, and missed the forty five day deadline to appeal from the final judgment of divorce by years. Moreover, her case information statement only mentioned the orders from October, and did not explicitly state that she was appealing those orders. As such, neither the October orders nor the final judgment of divorce were subject to the New Jersey Appellate Division’s review. By filing her current appeal Helena was essentially trying to circumvent the court rules and have the Family Part reconsider the judgment of divorce that was entered in May 2013, even though she had missed her opportunity to do so by years not months. The New Jersey Appellate Division would not let this stand.

            Helena and Allan got married in 1992 and divorced a little over a year later in May 2013. They did not have any children together. The final judgment of divorce that was entered after trial provided for equitable distribution of the former couple’s marital assets. This included the sale of the marital house. The proceeds were to be divided equally, and $ 45,000 was to be given to Allan from Helena’s share to account for his pre-marital contribution towards its purchase. The Family Part also awarded Allan with limited duration alimony for a period of five years. The judgment of divorce directed that Helena was to pay him $ 583.33 every month for a total of $ 7,000 a year. This amount was to put into a trust for Allan’s benefit, and his brother was named as the trustee. In addition, the final judgment of divorce acknowledged that through the equitable distribution, the Family Part court, awarded Allan with $ 27,500 in attorney’s fees.

            Helena filed a motion for reconsideration almost immediately. In her motion, Helena requested the Family Part to recalculate the award of alimony by vacating the court’s imputation of $ 9,000 on to her and then vacate the alimony award itself. Both Allan and Helena wanted the Family Part to alter the previous equitable distribution of specific assets. While the court did deny the motion, it also corrected a mathematical error in the first calculation of equitable distribution and amended the final judgment of divorce to reflect the correction.

            The Family Part granted a motion Allan filed on 2013 which held Helena in violation of litigant’s rights because she failed to establish an alimony trust, as the final judgment of divorce had ordered her to do, she refused to list the marital house for sale, and she failed to make payments to Allan to satisfy her equitable distribution obligations under the final judgment of divorce. While the court granted Allan’s motion, it also denied Helena’s cross motion to modify the final judgment of divorce to authorize her to buy out Allan's interest in the marital home.

            After the marital home was sold, Allan filed a motion in September of 2014, and sought the distribution of the proceeds from sale to satisfy Helena’s obligations under the final judgment of divorce. Conversely, Helena filed a cross-motion to terminate the alimony obligation and vacate the requirements under the final judgment of divorce to pay towards the equitable distribution that she was required to make to her ex-husband. She challenged the Family Part’s first award of alimony, in her supporting certification, and asked for the alimony obligation to be reconsidered. She also challenged the Family Part’s award of equitable distribution. Curiously, Helena did not allege any change of circumstances from the time the final judgment of divorce was entered, only that she did not agree with the Family Part’s decision. She did however, attach a letter from a doctor which stated that she was undergoing treatment for Stage I breast cancer similar to earlier versions of the same letters submitted before the final judgment of divorce was entered.

            On October 10, 2014, the Family Part entered an order that granted Allan’s motion and denied Helena’s cross-motion. The Court cited the paramount 1980 New Jersey Supreme Court case of Lepis v. Lepis, and found that Helena failed to demonstrate any changed circumstances that would warrant the relief from spousal support that she requested in her cross-motion. In response, Helena filed a motion of reconsideration of the orders entered in October, again seeking a modification of various sections of the final judgment of divorce. Allan filed a cross-motion in response and sought the denial of Helena’s cross-motion in addition to counsel fees. In an oral decision, the Family Part denied Helena’s motion and found that she failed to abide by the requirements for a motion for reconsideration enumerated in Rule 4:49-2, because she did not specify the issues or controlling decisions that she believed that Family Part had overlooked or decided incorrectly. Notably, the court found that Helena’s motion was an attempt to have the court reconsider its decision for the final judgment of divorce. Helena appealed the decision.

            The New Jersey Appellate Division explained that under Rule 2:5-1(f)(3)(A), Helena’s appeal was barred, procedurally, as it related to any alleged defect in the final judgment of divorce. Helena never filed an appeal for the final judgment of divorce, and missed the forty five day deadline to appeal from the final judgment of divorce by years. Moreover, her case information statement only mentioned the orders from October, and did not explicitly state that she was appealing those orders. As such, neither the October orders nor the final judgment of divorce were subject to the New Jersey Appellate Division’s review, and the orders of the Family Part were affirmed.