Connecticut
Dissipation of Marital Assets May Be Considered
Addressing an issue of first impression, Connecticut's Supreme Court ruled July 1 that, subject to certain limitations, trial courts may consider evidence that a spouse dissipated marital assets prior to the couple's physical separation, for purposes of determining an equitable distribution of property under C.G.S. ' 46b-81. The only restriction on a court's consideration of such evidence is that the actions constituting dissipation occurred either: 1) in contemplation of divorce or separation; or 2) while the marriage was in serious jeopardy or was undergoing an irretrievable breakdown. The case is Finan v. Finan, — A.2d —-, 287 Conn. 491, 2008 WL 2492003 (Conn. 7/1/08).
New Jersey
Domestic Violence Law Loses Some Teeth
In a June 18 ruling in Crespo v. Crespo, FV-09-2682-04, Superior Court Judge Francis Schultz found that the proof required before a court may issue a restraining order to prevent domestic violence is clear-and-convincing evidence of potential harm, not a preponderance of the evidence. With that ruling, Judge Schultz declared New Jersey's 17-year-old Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.) a violation of the Fourteenth Amendment and, thus, unconstitutional. The decision also deemed the New Jersey statute violated the doctrine of the separation of powers because it legislatively imposed procedures on the courts that directly conflicted with those set forth in court rules. The ruling threw out a restraining order issued in 2004 against a man whose former wife said he was harassing her.
The court looked for guidance in its decision making to the U.S. Supreme Court's decision in Mathews v. Eldridge, 424 U.S. 319 (1976). In accordance with Mathews, the court found that the higher standard applied because a fundamental right was at stake: the right of a parent to be with his children. The third Mathews criterion ' that there is a high risk of error if the lower standard of proof is applied ' was also persuasive to the court, as it found the quick calendaring and summary nature of domestic violence actions could lead to hasty, inaccurate decisions.
Cohabitation Not Required For Award of Palimony
The New Jersey Supreme Court ruled June 17 that palimony claims need not be thrown out if the parties did not live together. In Devaney v. L'Esperance, — A.2d —-, 2008 WL 2491976, (N.J. 6/17/08) (NO. A-20 SEPT.TERM 2007), Justice John Wallace Jr. wrote for the 6-1 majority, “We hold that cohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.' Despite its holding, the court declined to give the plaintiff ' a woman who carried on a 20-plus-year relationship with the defendant, an ophthalmologist and her former employer ' the palimony she wanted. The parties had begun their relationship in 1983, when the plaintiff was defendant's office receptionist. Defendant had supported plaintiff in many ways; for example, paying for her education and buying an apartment for her use. However, the plaintiff was unable to prove that defendant had ever promised to support her, a requirement for palimony under In re Estate of Roccamonte, 174 N.J. 381 (2002).
Connecticut
Dissipation of Marital Assets May Be Considered
Addressing an issue of first impression, Connecticut's Supreme Court ruled July 1 that, subject to certain limitations, trial courts may consider evidence that a spouse dissipated marital assets prior to the couple's physical separation, for purposes of determining an equitable distribution of property under C.G.S. ' 46b-81. The only restriction on a court's consideration of such evidence is that the actions constituting dissipation occurred either: 1) in contemplation of divorce or separation; or 2) while the marriage was in serious jeopardy or was undergoing an irretrievable breakdown. The case is Finan v. Finan, — A.2d —-, 287 Conn. 491, 2008 WL 2492003 (Conn. 7/1/08).
New Jersey
Domestic Violence Law Loses Some Teeth
In a June 18 ruling in Crespo v. Crespo, FV-09-2682-04, Superior Court Judge Francis Schultz found that the proof required before a court may issue a restraining order to prevent domestic violence is clear-and-convincing evidence of potential harm, not a preponderance of the evidence. With that ruling, Judge Schultz declared New Jersey's 17-year-old Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.) a violation of the Fourteenth Amendment and, thus, unconstitutional. The decision also deemed the New Jersey statute violated the doctrine of the separation of powers because it legislatively imposed procedures on the courts that directly conflicted with those set forth in court rules. The ruling threw out a restraining order issued in 2004 against a man whose former wife said he was harassing her.
The court looked for guidance in its decision making to the U.S. Supreme Court's decision in Mathews v. Eldridge , 424 U.S. 319 (1976). In accordance with Mathews, the court found that the higher standard applied because a fundamental right was at stake: the right of a parent to be with his children. The third Mathews criterion ' that there is a high risk of error if the lower standard of proof is applied ' was also persuasive to the court, as it found the quick calendaring and summary nature of domestic violence actions could lead to hasty, inaccurate decisions.
Cohabitation Not Required For Award of Palimony
The New Jersey Supreme Court ruled June 17 that palimony claims need not be thrown out if the parties did not live together. In Devaney v. L'Esperance, — A.2d —-, 2008 WL 2491976, (N.J. 6/17/08) (NO. A-20 SEPT.TERM 2007), Justice John Wallace Jr. wrote for the 6-1 majority, “We hold that cohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.' Despite its holding, the court declined to give the plaintiff ' a woman who carried on a 20-plus-year relationship with the defendant, an ophthalmologist and her former employer ' the palimony she wanted. The parties had begun their relationship in 1983, when the plaintiff was defendant's office receptionist. Defendant had supported plaintiff in many ways; for example, paying for her education and buying an apartment for her use. However, the plaintiff was unable to prove that defendant had ever promised to support her, a requirement for palimony under In re Estate of Roccamonte, 174 N.J. 381 (2002).
