Pursuant to N.J.S.A. 3B:8-12 [N.J.S.A. 3B:8-1, et. seq., the Elective Share Statute], “the surviving spouse or domestic partner may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent’s estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse or domestic partner, extend the time for election upon notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.”

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

The Elective Share Statute originally appeared on NJ Family Issues on January 20, 2012.

Under the version of N.J.S.A. 3B:3-3(b) prior to the February 27, 2005 amendments, a surviving spouse was entitled to $50,000, plus 50% of the balance if there are issue from the marriage.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Surviving spouse originally appeared on NJ Family Issues on January 20, 2012.

The federal Defense of Marriage Act, Pub. L. No. 104–199, 110 Stat. 2419 (Sept. 21, 1996), codified in pertinent part at 1 U.S.C. § 7 (“DOMA”), violates the equal protection rights afforded under the Fifth Amendment of the United States Constitution, both under heightened scrutiny and under rational basis review. There is no valid governmental basis for DOMA. DOMA violates the equal protection rights as recognized under the due process clause of the Fifth Amendment.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The federal Defense of Marriage Act violates the equal protection rights as recognized under the due process clause of the Fifth Amendment originally appeared on NJ Family Issues on June 15, 2011.

The validity of a marriage is determined by the law of the jurisdiction where the marriage ceremony was performed. Capossa v. Colonna, 75 N.J. Eq. 39, 37 (Ch. 1923), aff’d, 96 N.J. Eq. 385 (E. & A. 1924).

In the context of a divorce proceeding, the fact of a marriage between parties may be established by testimony of the parties or other extrinsic evidence. Balazinski v. Lebid, 65 N.J. Super. 483, 492-93 (App. Div. 1961).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

In the context of a divorce proceeding, the fact of a marriage between parties may be established by testimony of the parties or other extrinsic evidence originally appeared on NJ Family Issues on December 30, 2010.

Whereas N.J.S.A. 37:1-2 establishes the requirements for the lawful performance of a marriage “in this State,” The validity of a marriage is determined by the law of the jurisdiction where the marriage was performed. Capossa v. Colonna, 95 N.J. Eq. 35, 37 (Ch. 1923), aff’d, 96 N.J. Eq. 385 (E. & A. 1924). Where a marriage was performed outside New Jersey, the requirements for the marriage were subject to the laws of that jurisdiction. In the absence of evidence to the contrary, the court may properly accepted the sworn testimony of both parties at the time of the divorce hearing that they were joined in marriage by virtue of a ceremony performed in another jurisdiction.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The validity of a marriage is determined by the law of the jurisdiction where the marriage was performed originally appeared on NJ Family Issues on December 22, 2010.

Under New Jersey law an engagement ring is deemed a conditional gift so that the ring is returnable if the engagement is broken. Aronow v. Silver, 223 N.J. Super. 344, 347 (Ch.Div. 1987). However, Aronow was not decided in the context of an existing impediment to marriage where the parties were both aware of the impediment. The court in Aronow did, however, consider the issue of fault, stating:

The majority rule in this country concerning the disposition of engagement rings is a fault rule: the party who unjustifiably breaks the engagement loses the ring. The minority rule rejects fault. […] New Jersey courts have considered the question in only four published opinions, with split results. This court, not bound by any of those opinions, joins the minority.

Aronow v. Silver, 223 N.J. Super. 344, 347 (Ch. Div. 1987).

Other states have since followed this no fault rule, which has been referred to as the “modern rule.” Thorndike v. Demirs, 2007 Conn. Super. LEXIS 1944 (Conn. Super. Ct. July 26, 2007); Fowler v. Perry, 830 N.E.2d 97, 106 (Ind. Ct. App. 2005); Fierro v. Hoel, 465 N.W.2d 669, 672 (Iowa Ct. App. 1990); Heiman v. Parrish, 942 P.2d 631, 637 (Kan. 1997); Brown v. Thomas, 127 Wis. 2d 318, 329 (Wis. Ct. App. 1985); Lindh v. Surman, 742 A.2d 643 (Pa. 1999).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Under New Jersey law an engagement ring is deemed a conditional gift so that the ring is returnable if the engagement is broken originally appeared on NJ Family Issues on December 7, 2010.

In this case, Plaintiffs challenge a November 2008 voter-enacted amendment to the California Constitution (“Proposition 8” or “Prop 8”).

The court concluded: Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that oppositesex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

For more information, go HERE.

Special thank you to Brian Boyle, Esq., who brought this decision to my attention.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

California Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license originally appeared on NJ Family Issues on August 4, 2010.

In this case, at the time of the marriage, both spouses agreed to be united “under the law of Islam.” Pursuant to Islamic customs, a sum of $12,500 was paid to the ex-wife as an initial payment of “sadaq” or “mahr” by the ex-husband or his family. ^[1]

An expert testified that under Islamic law a marriage is a civil contract and that the payment and retention of the sadaq is contingent upon neither party having fault that leads to the termination of the marriage. ^[2] The expert opined that, under Islamic law and customs, the court would have the authority to order the $12,500 initial payment of sadaq to be returned, if it made a finding that the ex-wife was “at fault” in precipitating the divorce.

Under Islamic law and customs the payment of a sadaq is refundable if there is a proven impediment to the marriage such as a spouse’s undisclosed mental illness. See Alicea v. New Brunswick Theological Seminary, 128 N.J. 303, 313 (1992) (noting the relevance of religious customs and principles in certain civil disputes, particularly with respect to contractual promises that can be decided by applying neutral principles of law).

See related Blog Post by Jennifer Weisberg Millner, Esq.

For more information about Marriage Ceremony in Islam: the Basics, go HERE and HERE.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

1. See, e.g., Odatalla v. Odatalla, 355 N.J. Super. 305, 311-14 (Ch. Div. 2002) (describing the facets of a mahr agreement under Islamic customs).
2. According to the expert, sadaq is divided into two parts; one that is paid to the wife at the time of marriage and one that is payable upon either the death of the husband or the dissolution of the marriage. The expert indicated that, if the wife is found to be at fault in the dissolution, she could forfeit her claim to the deferred sadaq payment.

Pursuant to Islamic customs, a sum of money is paid to the wife as an initial payment of sadaq or mahr by the husband or his family originally appeared on NJ Family Issues on June 23, 2010.

New Jersey has long recognized that “[a] marriage contracted while one of the parties is lawfully married to another is void ab initio and not merely voidable.” Hansen v. Fredo, 123 N.J. Super. 388, 389 (Ch. Div. 1973). Thus, by alleging and proving defendant’s bigamous relationship, plaintiff was entitled to whatever benefits flowed from the conclusion that she was never married to defendant.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A marriage contracted while one of the parties is lawfully married to another is void ab initio and not merely voidable originally appeared on NJ Family Issues on June 16, 2010.

The participants in an extramarital affair may owe duties of care towards third parties — the spouses. This may be particularly relevant when dealing with sexually transmitted diseases.

Faced with this issue, this N.Y. trial court held that: if one negligently exposes a married person to a sexually transmissible disease without informing that person of his exposure, it is reasonable to anticipate that the disease may be transmitted to the married person’s spouse; and, the duty to warn a sexual partner or otherwise take precautions to prevent the transmission of a known venereal disease should be extended to the spouse as well.

See also: Alleged ‘Other Man’ Had Duty to Tell Husband if He Had Herpes, Says Judge, by Noeleen G. Walder, published on Law.com.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The participants in an extramarital affair may owe duties of care towards third parties — the spouses; this may be particularly relevant when dealing with sexually transmitted diseases originally appeared on NJ Family Issues on June 7, 2010.