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

In A New Jersey Divorce When Is “Cut-Off” Date For Equitable Distribution?

            The date that the Complaint for Divorce was filed by your lawyer in the Family Part of the Superior Court of New Jersey, unless agreed to otherwise by the parties.  As a experienced New Jersey divorce attorney I have had many cases dismissed because the parties reconciled.  However, the lawyers at our law firm will always explain that if things do not work out, we must discuss the pros and cons of establishing a “cut-off” as to what assets are deemed marital and what would otherwise be exempt.  In other words, what assets are subject to be split and which would be considered exempt (i.e., acquired after the “cut off” date).

In Bikoff v. Bikoff, husband David Bikoff appealed a dual final judgment of divorce entered by the Superior Court of New Jersey, Family Part of Sussex County on July 31, 2013, and and order dated September 16, 2013, of the same court that denied his motion for reconsideration, and held that the alimony he was obligated to pay his ex-wife Kathleen Bikoff was taxable to her and tax-deductible to him. In response, Kathleen filed a cross-appeal, and challenged an order dated November 18, 2011, that addressed the enforceability of consent order from 1999. After review, the New Jersey Appellate Division deferred to the factual findings made by the Family Part judge and affirmed both orders.

            David and Kathleen met in 1982, after Kathleen started working at David’s medical practice. They got married in August 1984, but did not have any children together. The couple started living in separate homes in 1992, and Kathleen filed her first divorce complaint in 1994. The parties entered into a consent order in April 1995 that obligated David to pay pendente lite support to Kathleen, in the amount of $ 8,000 a month. The divorce, however, was voluntarily dismissed by both parties in November 1995. As part of the stipulation of dismissal, both parties agreed that if either of them filed a new divorce action within six months, the cut-off date for including for included assets for equitable distribution, determining the value of those assets would be January 31, 1994.

            Kathleen filed a second divorce complaint in June 2009. What resulted was a seventeen-day bench trial that had two phases between May 9, 2011 and February 28, 2013. After the first phase, Judge Gilson of the Family Part of Sussex County concluded that the consent order dated October 25, 1999 was enforceable. He found that both David and Kathleen had full knowledge of the agreed upon terms and had authorized their attorneys to negotiate on their behalf. Kathleen failed to provide any evidence that the consent order was the result of a mistake, surprise, inadvertence, or excusable neglect. Moreover, the judge found that the cut off date for determining equitable distribution, and resolution of economic issues, January 31, 1994, was fair and equitable because, while the parties were still technically married, that had physically separated in 1992, even started new on-going and committed long-term relationships. As such, the judge determined that it would not be fair, under the specific facts of the case, to enforce the 1999 consent order.

            On July 31, 1994, the second phase of the trial began, and Judge Gilson entered a dual judgment of divorce with a detailed forty six page written decision which addressed each asset either party owned, and the claims for support. After this dual judgment of divorce was entered, both David and Kathleen filed motions for reconsideration that were denied by Judge Gilson on September 16, 2013.

            On appeal, David argued that the Family Part made numerous errors in equitably distributing the marital assets. Specifically, the money that Kathleen took after the separation. He also argued that the court did not correctly divide the nonexempt portion of his pension. Finally, David argued that the court erred by not equitably distributing Kathleen’s bank, account, by awarding seven years of alimony, and by not awarding him counsel fees.

            The New Jersey Appellate Division started its opinion by stating that their review of Family Part’s fact-finding is actually very limited. Generally, a Family Part court’s findings will be binding on appeal as long as they are supported by adequate, substantial, credible evidence. Judicial deference to the Family Part is especially important when the bulk of the evidence is mostly testimonial and involves questions of credibility. Furthermore, findings of fact made by a Family Part court are entitled to substantial deference, because Family Part courts have a special expertise in family law matters. As such, a reviewing court of higher jurisdiction will uphold the factual findings that support a trial court decision, so long as they are supported by substantial, adequate, and credible evidence in the record.

            Even though an appellate court does not owe any special deference to a judge’s legal conclusions, still the New Jersey Appellate Division will not disturb the legal conclusions and factual findings of a Family Part judge unless the appellate panel is convinced that they are so clearly inconsistent with or unsupported by the reasonably relevant and credible evidence that they offend the notions of justice, or when it is absolutely clear that the Family Part court has abused its discretion. Then an appellate court will only reverse the Family Part judges decision if it is necessary to make sure that justice is not denied because the  Family Part court’s conclusions are evidently mistaken or off the mark.

            In regards the the specific issues raised by the litigants in Bikoff, the New Jersey Appellate Division applied an abuse of discretion standard, as is appropriate when reviewing challenges to either the allocation method or amounts of equitable distribution awards. Moreover, rulings on alimony issues made by a Family Part court, are not usually overturned unless the appealing party can show that the Family Part either failed to consider relevant legal principles, abused its discretion, or made findings that were not supported by the evidence at hand.

Similarly, the New Jersey Appellate Division will only alter an award of attorney’s fee in clearest case of discretionary abuse.

            After a thorough review of the record in light of the aforementioned legal principles, the New Jersey Appellate Division determined that the Family Part judge’s factual findings were completely supported by the record, and in light of those factual findings Judge Gilson’s legal conclusions were completely sound. The trial judge meticulously reviewed the relevant evidence at hand, and thoroughly explained his reasons in a clear and logical way. In consideration of this review and the record, the appellate panel found that there was no evidence to suggest that there was any judicial action “so wide of the mark” that would require appellate intervention, and affirmed all of the orders that were under review, for the same reasons Judge Gilson expressed them in the first place.

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