Capitol Report

Capitol Report

May 1, 2023

Supreme Court asked to establish uniform procedures for alimony modification based on cohabitation

New Jersey State Bar Association President Jeralyn L. Lawrence appeared as amicus before the state Supreme Court last week, arguing that the bench and the bar need guidance for alimony modification motions based on cohabitation of the alimony recipient to be addressed uniformly throughout state courts. Lawrence took to the well of the Court in Cardali v. Cardali, which centers around the proofs required to establish a prima facie showing of cohabitation in applications to modify or terminate alimony. Lawrence authored the NJSBA amicus brief along with NJSBA President-Elect Timothy F. McGoughran, Family Law Section Chair Derek M. Freed and section members Catherine Murphy and Brian G. Paul.

The Justices focused on burden shifting and discovery, peppering the parties with questions about the feasibility of the three-part test the NJSBA proposed as a solution. The NJSBA asked the Court to adopt a Lepis-type standard to be applied uniformly. The three-step process would require a prima facie showing of cohabitation – without the necessity of proving financial entanglements, shifting the burden of proof to the payee to prove there is no cohabitation; the ability to obtain discovery for this purpose; and a case management conference to determine if there are any genuine issues of material fact necessitating a plenary hearing. If there are no genuine issues, a motion for summary judgment should be permitted, the Association argued. If there are genuine issues of material fact, then a plenary hearing would be conducted.

The New Jersey Chapter of the American Academy of Matrimonial Attorneys also participated as amicus curiae in the matter in support of a uniform procedure. The Court reserved decision in the case.

AOC head says New Jersey’s judicial vacancy crisis no longer looms…it’s here

Administrative Director of the Courts Judge Glenn A. Grant told the Assembly and Senate Budget committees that judicial vacancies has hit crisis proportions resulting in a domino effect on the judicial system and litigants who seek to resolve disputes

“The main message is the same as it has been for several years now. For the past three years, the court system has operated with an average of more than 50 vacancies,” said Judge Grant. “A year ago, we warned of the need to reduce that number to a manageable level of between 25 and 30. We are no longer headed toward a crisis. We are in the middle of one.”

The NJSBA remains outspoken on the issue of judicial vacancies, especially following the Administrative Office of the Courts’ announcement that two vicinages affecting six of New Jersey’s 21 counties suspended civil and matrimonial trials with limited exceptions.

“The Judiciary can’t solve this problem,” NJSBA President Jeralyn L. Lawrence said recently. “There’s only two branches of government that can solve this problem. Our governor and our Legislature cannot figure out who to put on the bench.”

The NJSBA has been vocal about the toll the judicial vacancy crisis is taking on the legal system and has met with senators and the governor’s counsel asking them to take immediate steps to advance judicial nominations—some of whom have been waiting years to be moved forward.

The Association remains committed to working with both the governor’s office and the Legislature to end the crisis.