THE BURDEN OF PROOF IN DIVORCE CASES
HOW TO WIN OR LOSE DIVORCE ISSUES
BY: MARK GRUBER, J.D., LLM
DEFINITIONS
1.
BURDEN OF PROOF
A.
BLACKS LAW DICTIONARY, SIXTH EDITION, 1990. (Lat. Onus probandi.) In the law of evidence, the necessity or duty of affirmatively proving a fact or facts
in dispute on an issue raised between the parties in a cause. The obligation of a
party to establish by evidence a requisite degree of belief concerning a fact in the
mind of the trier of fact or the court.
Burden of proof is a term which describes two different concepts; first, the
“burden of persuasion”, which under traditional view never shifts from one party
to the other at any stage of the proceeding, and second, the “burden of going
forward with the evidence”, which may shift back and forth between the parties
as the trial progresses. Ambrose v. Wheatley, D.C. Del., 321 F. Supp. 1220,
1222.
The burden of proof may require a party to raise a reasonable doubt concerning
the existence or nonexistence of a fact or that he establish the existence or
nonexistence of a fact by a preponderance of the evidence, by clear and
convincing proof, or by proof beyond a reasonable doubt. Except as otherwise
provided by law, the burden of proof requires proof by a preponderance of the
evidence. Calif. Evid. Code. § 115.
Term has been used to mean either the necessity of establishing a fact, that is,
the burden of persuasion, or the necessity of making a prima facie showing, that
is, the burden of going forward. State Farm Life Ins. Co. vs. Smith, 29 Ill. App. 3d
942, 331 N.E. 2d 275, 278.
“Burden of establishing” a fact means the burden of persuading the triers of fact
that the existence of the fact is more probable than its non-existence. U.C.C. § 1201(8).
B.
WEBSTER SEVENTH NEW COLLEGIATE DICTIONARY, 1966. – The duty of
providing a disputed assertion or charge.
C.
NEW JERSEY RULES OF EVIDENCE, Richard J. Biunno, 1999. – R. 101(b)(1)
- “Burden of Persuasion” means the obligation of a party to meet the
requirements of a Rule of Law that the fact be proved, either by a preponderance
of the evidence of by clear and convincing evidence or beyond a reasonable
doubt, as the case may be.
D.
Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 274 (1958). - When the
evidence demonstrates the tender hypothesis as a rational inference, that is to
say, a presumption grounded in a preponderance of the probabilities according to
the common experience of mankind.
2.
PREPONDERANCE OF THE EVIDENCE
A.
BLACKS LAW DICTIONARY, SIXTH EDITION, 1990 – A standard of proof in
civil cases, is evidence which is of greater weight or more convincing than the
evidence which is offered in opposition to it; that is, evidence which as a whole
shows that the fact sought to be proved is more probable than not. Braud v.
Kinchen, La. App., 310 So.2d 657, 659. With respect to burden of proof in civil
actions, means greater weight of evidence, or evidence which is more credible
and convincing to the mind.
That which best accords with reason and
probability. The word “preponderance” means something more than “weight”; it
denotes a superiority of weight, or outweighing. The words are not synonymous,
but substantially different. There is generally a “weight” of evidence on each side
in case of contested facts. But juries cannot properly act upon the weight of
evidence, in favor of the one having the onus, unless it overbear, in some
degree, the weight upon the other side.
That amount of evidence necessary for the Plaintiff to win a civil a case. It is that
degree of proof which is more probable than not.
Preponderance of evidence may not be determined by the number of witnesses,
but by the greater weight of all evidence, which does not necessarily mean the
greater number of witnesses, but opportunity for knowledge, information
possessed, and manner of testifying determined by the weight of testimony.
B.
WEBSTER SEVENTH NEW COLLEGIATE DICTIONARY, 1966. –
preponderance \ 1 : a superiority in weight or in power, importance, or
strength. 2 a : a superiority or excess in number or quantity; b : majority
C.
NEW JERSEY RULES OF EVIDENCE, Richard J. Biunno, 1999. – Comment.
R. 101(b)(1)[5] - The first standard of proof under N.J.R.E. 191(b)(1) is
“preponderance of the evidence, “ and is applicable in the normal civil case.
State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994). See 9 Wigmore on
Evidence (3d.ed.1940), §2498, at 325.
Under this standard, a civil litigant must establish that a desired inference is more
probable than not. If the evidence is in equipoise, the burden has not been met.
See Cvelich v. Erie Railroad Co., 120 N.J.L. 414 (Sup. Ct.), aff’d 122 N.J.L. 26
(E. & A. 1938), cert. den. 307 U.S. 633 (1939); Rothman v. City of Hackensack,
1 N.J. Tax 438, 441-443 (Tax Ct. 1980), aff’d 4 N.J. Tax 529 (App. Div. 1981).
See also Kiczula v. American Nat. Can Co., 310 N.J. Super. 293, 303-304 (App.
Div. 1998) (workers’ compensation). Circumstantial evidence in civil cases has
been defined as “a mere preponderance of probabilities.” Kita v. Borough of
Lindenwold, 305 N.J. Super. 43,50 (App.Div.1997).
It is often said that the term “preponderance of the evidence” means the greater
weigh of credible evidence in the case. It does not necessarily mean the
evidence of the greater number of witnesses, but means that evidence which
carriers the greater convincing power to our minds. State v. Lewis, 67 N.J. 47,
49 (1975). Note that although the better practice is to include the definition of the
term in the charge to the jury, failure so to do does not in itself constitute plain
error, particularly where counsel has provided such a definition to the jury. Id. at
50-51.
Precisely what is needed to satisfy this standard must be decided on a case-bycase basis. The evidence must be such as to lead a reasonably cautious mind to
a given conclusion. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 274-275
(1958). See also Kiczula v. American Nat. Can Co., supra; Laffey v. City of
Jersey City, 289 N.J. Super, 292, 303 (App. Div.), certif. den. 146 N.J. 500
(1996). The burden is not satisfied by guess or conjecture. For the burden of
persuasion to be sustained, the evidence must demonstrate that the offered
hypothesis is a rational inference, that it permits the triers of fact to arrive at a
conclusion grounded in a preponderance of probabilities according to common
experience. Joseph v. Passaic Hospital Ass’n., 26 N.J. 557, 574-575 (1958).
3.
CLEAR AND CONVINCING
A.
BLACKS LAW DICTIONARY, SIXTH EDITION, 1990. - That proof which
results in reasonable certainty of the truth of the ultimate fact in controversy.
Lepre v. Caputo, 131 N.J. Super 118, 328 A.2d 650, 652. Proof which requires
more than a preponderance of the evidence but less than proof beyond a
reasonable doubt. Clear and convincing proof will be shown where the truth of
the facts asserted is highly probable. In re Estate of Lobe, Minn. App., 348
N.W.2d 413, 414. See also Beyond a reasonable doubt; Burden of proof; Clear
evidence of proof.
B.
CIVIL MODEL JURY CHARGES, FOURTH EDITION, N.J. ICLE, 1992. - With
regard to (state here the factual issue(s) to be proved), it is the obligation of
(state here the party or parties upon whom the burden of proof rests) to prove
those allegations by clear and convincing evidence. Clear and convincing
evidence is evidence that produces in your minds a firm belief or conviction that
the allegations sought to be proved by the evidence are true. It is evidence so
clear, direct, weighty in terms of quality, and convincing as to cause you to come
to a clear conviction of the truth of the precise facts in issue.
The clear and convincing standard of proof requires that the result shall not be
reached by a mere balancing of doubts or probabilities, but rather by clear
evidence which causes you to be convinced that the allegations sought to be
proved are true.
C.
WEBSTER SEVENTH NEW COLLEGIATE DICTIONARY, 1966. – clear \ c :
easily understood : unmistakable; 4 a : capable of sharp discernment : keen; b :
free from doubt : sure
convince \ [ L convincere to refute, convict, prove, fr. com - + vincere to conquer]
1 a : to overcome by argument; b : overpower, overcome; 2 demonstrate, prove;
3 : to bring by argument to assent or belief
convincing \ having power to convince of its truth, rightness, or reality;
plausible; syn see valid
D.
NEW JERSEY RULES OF EVIDENCE, Richard J. Biunno, 1999. – Comment.
R. 101(b)(1)[6] – The second standard, clear and convincing evidence, falls
somewhere between the ordinary civil standard of preponderance of the
evidence and the criminal standard of beyond a reasonable doubt. Aiello v. Knoll
Gold Club, 64 N.J. Super. 156, 162 (App. Div 1960). Clear and convincing
evidence should produce in the mind of the trier of fact “a firm belief or conviction
as to the truth of the allegations sought to be established.” Matter of Purrazella,
134 N.J. 228, 240 (1963). It must be “so clear, direct and weighty and convincing
as to enable either a judge or jury to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue.” Matter of Seaman, 133 N.J.
67, 74 (1993), quoting Aiello v. Knoll Golf Club, supra, at 162.
This higher standard of proof apparently arose when courts of equity were faced
with claims that were unenforceable at law under the Statute of Wills, the Statute
of Frauds or the Parol Evidence Rule. It undoubtedly was developed because of
the concern that such claims would frequently be fabricated. Herman &
MacLean v. Huddleston, 459 U.S. 375, 388, n.27 (1983). The clear and
convincing standard may also be imposed on a party where the adverse party is
at a gross disadvantage in disputing an allegation, in order to “restore a fair
balance between the adversarial positions of the parties.” State v. Sugar, 100
N.J. 214, 239-240 (1985). It also has been said that the standard is “reserved for
the protection of important interests.” Caro v. Sher, 296 N.J. Super. 594, 602
(Ch. Div. 1996).
The principles of due process require the application of the clear and convincing
proof standard “when the threatened loss resulting from civil proceedings is
comparable to the consequences of a criminal proceeding in that it takes away
liberty or permanently deprives individuals of interests that are clearly
fundamental or significant to personal welfare."” In re Polk License Revocation,
90 N.J. 550, 563 (1982).
4.
PRIMA FACIE
A.
BLACKS LAW DICTIONARY, SIXTH EDITION, 1990. - Prima facie \ Lat. At
first sight; on the first appearance; on the face of it; so far as can be judged from
the first disclosure; presumably; a fact presumed to be true unless disproved by
some evidence to the contrary. State ex. Rel. Herbert v. Whims, 68 Ohio App.
39, 38 N. E. 2d 596, 599, 22 O.O. 110. See also Presumption.
Prima facie case \ Such as will prevail until contradicted and overcome by other
evidence. Pacific Telephone & Telegraph Co. v. Wallace, 158 Or. 210, 75 P.2d
942, 947. A case which has proceeded upon sufficient proof to that stage where
it will support finding if evidence to contrary is disregarded. In re Hoafland’s
Estate, 126 Neb. 377, 253 N. W. 416.
A prima facie case consists of sufficient evidence in the type of case to get
plaintiff past a motion for directed verdict in a jury case or motion to dismiss in a
non-jury case; it is the evidence necessary to require defendant to proceed with
his case. White v. Abrams, C.A. Cal., 495 F.2d 724, 729. Courts use concept of
“prima facie case” in two senses: (1) in sense of plaintiff producing evidence
sufficient to render reasonable a conclusion in favor of allegation he asserts; this
means plaintiff’s evidence is sufficient to allow his case to go to jury, and (2)
courts use “prima facie” to mean not only that plaintiff’s evidence would
reasonably allow conclusion plaintiff seeks, but also that plaintiff’s evidence
compels such a conclusion if the defendant produces no evidence to rebut it.
Husbands v. Com. of Pa., D.C.,Pa., 395 F.Supp. 1107, 1139.
Prima facie evidence. Evidence good and sufficient on its face. Such evidence
as, in the judgment of the law, is sufficient to establish a given fact, or the group
or chain of facts constituting the party’s claim or defense, and which if not
rebutted or contracted, will remain sufficient. Evidence which, if unexplained or
uncontradicted, is sufficient to sustain a judgment in favor of the issue which
supports, but which may be contradicted by other evidence. State v. Haremza,
213 Kan. 201, 515 P.2d 1217, 1222.
That quantum of evidence that suffices for proof of a particular fact until the fact
is contradicted by other evidence; once a trier of fact is faced with conflicting
evidence, it must weigh the prima facie evidence with all of the other probative
evidence presented. Godesky v. Provo City Corp., Utah, 690 P.2d 541, 547.
Evidence which, standing alone and unexplained, would maintain the proposition
and warrant the conclusion to support which it is introduced. An inference or
presumption of law, affirmative or negative of a fact, in the absence of proof, or
until proof can be obtained or produced to overcome the inference.
B.
5.
WEBSTER SEVENTH NEW COLLEGIATE DICTIONARY, 1966. - prima facie \
[L] : at first view : on the first appearance
PRESUMPTION
A.
BLACKS LAW DICTIONARY, SIXTH EDITION, 1990. - An inference in
favor of a particular fact. A presumption is rule of law, statutory or judicial,
by which finding of fact, until the presumption is rebutted. Van Wart v.
Cook, Okl. App., 557 P2d 1161, 1163. A legal devise which operates in
The absence of other proof to require that certain inferences be drawn from the
available evidence. Port Terminal & Warehousing Co. v. John S. James Co.,
D.C.Ga., 92 F.R.D. 100,106.
Rebuttable presumption. In the law of evidence, a presumption which may be
rebutted by evidence. Otherwise called a “disputable” presumption. A species of
legal presumption which holds good until evidence contrary to it is introduced.
Beck v. Kansas City Public Service Co., Mo. App. 48 S.W. 2d 213, 215. It shifts
burden of proof. Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 362, 76 L.Ed.
772. It gives particular effect to certain group of facts in absence of further
evidence, and presumption provides prima facie case which shifts to defendant
the burden to go forward with evidence to contradict or rebut fact presumed.
Gulle v. Boggs, Fla., 174 So.2d 26, 28. And which standing alone will support a
finding against contradictory evidence. Lieber v. Rigby, 34 Cal. App.2d 582, 94
P.2d 49, 50. See also Presumption.
B.
WEBSTER SEVENTH NEW COLLEGIATE DICTIONARY, 1966. presumption \ [ME presumpcion, fr. OF presumption, fr.. LL praesumption-,
praesumptio presumptuous attitude (fr. L) & L praesumption-, praesumptio
assumption, fr. praedumptus, pp. of praesumere] 1 : presumptuous attitude or
conduct : audacity 2 a : an attitude r belief dictated by probability : assumption b :
the ground, reason, or evidence lending probability to a belief 3 : a legal
inference as to the existence or truth of a fact not certainly known drawn from the
known or proved existence of some other fact.
C.
NEW JERSEY RULES OF EVIDENCE, Richard J. Biunno, 1999. R. 301. EFFECT OF PRESUMPTION. - Except as otherwise provided in Rule
303 or by other law, a presumption discharges the burden of producing evidence
as to a fact (the presumed fact) when another fact (the basic fact) has been
established.
If evidence is introduced tending to disprove the presumed fact, the issue shall
be submitted to the trier of fact for determination unless the evidence is such that
reasonable persons would not differ as to the existence or nonexistence of the
presumed fact. If no evidence tending to disprove the presumed fact is
presented, the presumed fact shall be deemed established if the basic fact is
found or otherwise established. The burden of persuasion as to the proof or
disproof of the presumed fact does not shift to the party against whom the
presumption is directed unless otherwise required by law. Nothing in this rule
shall preclude the judge from commenting on inferences that may be drawn from
the evidence.
R. 301[9]. THE QUANTUM OF EVIDENCE NECESSARY TO REBUT A
PRESUMPTION. - The Rule does not characterize the type or quantum of
evidence required to rebut a presumption. See In re Politowicz, 124 N.J. Super.
9, 14 (App. Div. 1973); Lionshead Woods v. Kaplan Bros., supra, at 683,
interpreting the parallel provisions of 1967 rule 14. However, the first sentence of
the second paragraph of N.J.R.E. 301 makes it clear that for the presumption to
be rebutted as a matter of law, the contradicting evidence must be strong enough
so that after its admission reasonable men would differ as to whether the
presumed fact could be found. Harvey v. Craw, 110 N.J. Super. 68, 73 (App.
Div), certif. den. 56 N.J. 479 (1970).
New Jersey cases have used divorce language in discussing the quantum of
proof necessary to rebut or “overcome” a presumption. Thus, the courts have
held necessary for that purpose: “any evidence”, Dwyer v. Ford Motor Co., 36
N.J. 487 (1962); “sufficient evidence”, Turro v. Turro, 38 N.J. Super. 535, 539
(App. Div. 1956); “sufficient competent evidence”, Aetna Life Insurance Co. v.
City of Newark, 10 N.J. 99, 105 (1952).
BURDEN OF PROOFS IN DIVORCE ISSUES - A TO Z
1.
Adultery. The party alleging adultery has the burden of proving their case.
However, the law gives a spouse the right to divorce an offending mate, and the court should
not emasculate that right by requiring certainty of proof to a degree made unattainable by the
conditions under which we live. Universal use of speedy automobiles, difficulty of pursuit,
frequently impossible of undetected pursuit, good roads leading, not only through well settled
areas to popular centers, but also through lonely stretches to distant isolations; a plethora of
roadside cabins in other places of private resort without meticulous registration or close
identification of guests; these and other modern facilities create opportunity for acts of intimacy,
which are exceedingly difficult to be proved. Each case must, beyond fundamental rules, be
decided upon the complex congeries of facts of which it is composed, and the decision
furnishes little precedent for the disposal of later cases, just as it is not tightly controlled by the
determination of earlier ones. Eberhard v. Eberhard, 4 N.J. 548 (1950). Proof of adultery may
be established by circumstantial evidence. Opportunity and inclination to comment adultery will
satisfy that burden.
2.
Alimony Modification. The party seeking modification of an alimony award has
the burden of demonstrating a change of circumstances warranting relief from support or
maintenance obligations. In reviewing a modification application, the primary factors assessed
to determine whether the form of marital standard of living is being maintained are: dependent
spouses needs, that spouses ability to contribute to the fulfillment of those needs, and
supporting spouse’s ability to maintain dependent spouse at the former standard; other criteria
include whether change of circumstances likely to be continuing and whether agreement or
decree explicitly provided for the change; temporary circumstances are an insufficient basis for
modification. Innes v. Innes, 117 N.J. 496 (1990).
When the movant is seeking modification of an alimony award, that party must
demonstrate that changed circumstances has substantially impaired the ability to support
himself or herself. This requires full disclosure of the dependant spouses financial status,
including tax returns. When the movant is seeking modification of child support, the guiding
principle is the "best interest of the children." A prima facie showing would, then, require a
demonstration of the child's needs have increased to an extent for which the original
arrangement does not provide. Only after the movant has made this prima facie showing
should the respondent's ability to pay become a factor for the court to consider. Therefore,
once a prima facie case is established, tax returns or other financial information should be
ordered. Lepis v. Lepis, 83 N.J. 157 (1980).
3.
Annulment. Plaintiff has the burden in an annulment suit to adduce suit proofs
which are "clear and convincing." Godfrey v. Shatwell, 38 N.J. Super. 501,506 (Ch. Div. 1955).
4.
Ante-Nuptial Agreement. The party seeking to enforce an Ante-Nuptial
Agreement must bear the burden of proving there was full financial disclosure to the other party
and will place the burden on the person who can most easily fulfil it. Marschall v. Marschall,
195 N.J. Super. 16.32 (Ch. Div. 1984). This case applies to Ante-Nuptial Agreements prior to
the statutory provisions of N.J.S.A. 37:2-38.
N.J.S.A. 37:2-38 provides that the burden of proof to set aside a pre-marital agreement
shall be upon the party alleging the agreement to be unenforceable. A pre-marital agreement
shall not be enforceable if the party seeking to set aside the agreement proves, by clear and
convincing evidence, that: (a) the party executed the agreement involuntarily; or (b) the
agreement was unconscionable at the time the enforcement was sought; or (c) that party,
before execution of the agreement - (1) was not provided full and fair disclosure of the earnings,
property and financial obligations of the other party, (2) did not voluntarily and expressly
waived, in writing, any right to disclosure of the property or financial obligations of the other
party beyond the disclosure provided, (3) did not have or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the other party, or (4) did not
consult with independent legal counsel and did not voluntarily and expressly waive, in writing,
the opportunity to consult with independent legal counsel; (d) the issue of unconscionability of
pre-marital agreements shall be determined by the court as a matter of law. (eff. 11/3/88)
5.
Cohabitation. There is a rebuttal presumption of changed circumstances
arising upon prima facie showing of cohabitation, and burden of proof, which is ordinarily on
party seeking modification, shifts to dependent spouse to show there is no actual economic
benefit. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998).
Once it is established that the supported spouse is cohabiting, the burden of proof shifts
to the supported spouse to show that the cohabitant is contributing exactly the cost of his
support in order to avoid reduction in alimony. It would be unreasonable to place the burden of
proof on the party not having access evidence necessary to support that burden of proof.
Frantz v. Frantz, 256 N.J. Super. 90, 92 (Ch. Div. 1992).
A Husband who sought modification of alimony award granted to the Wife, on the
ground of change of circumstances, was entitled to a benefit of rebuttable presumption, that the
man, whom the former wife was living within the marital home, was contributing to expenses of
that household, thus reducing the Wife's needs. Grossman v. Grossman, 120 N.J. Super. 193,
197 (Ch. Div. 1974).
The test is whether "when cohabitant supports or subsidizes the other under
circumstances sufficient to entitle the supporting spouse to relief." Boardman v. Boardman, 314
N.J. Super. 347 (App. Div. 1998).
6.
Constructive Desertion. In a suit by Husband, for divorce, on the ground that
the wife, who had lived in the same house with him had persistently and unjustifiably refused to
have sexual relations with him, Husband's evidence was insufficient to satisfy burden imposed
on him of establishing, by preponderant and collaborated testimony, that Wife had
continuously, willfully and obstinately deserted him. Tucker v. Tucker, 142 N.J. EQ. 687 (N.J.
Err. And App.). The elements of a cause of action for divorce based upon desertion must be
established by clear and satisfactory proof, and in cases where desertion is charged to be
constituted by denial of matrimonial intercourse, requirement is that proof be clear and
convincing, and corroborated as to each element. Kirk v. Kirk, 39 N.J. Super. 341 (App. Div.
1956). N.J.S.A. 2A:34-2b provides, "Willful and continued desertion for the term of twelve or
more months, which may be established by satisfactory proof, that the parties have ceased to
cohabit as man and wife" establishes a cause of action for divorce.
7.
Custody Modification. The party seeking modification of an initial custody
determination must show by a preponderance of evidence a change of circumstances
warranting modification, even though it could reasonably be concluded that a child would benefit
from joint custody. Mastropole v. Mastropole, 181 N.J. Super. 130 (App. Div. 1981).
8.
Exclusive Control of Evidence. A party who has almost exclusive control of
evidence get to prove or disprove a fact, will regularly be required to carry the burden on that
issue. Anderson v. Samberg, 67 N.J. 291, cert. den. 423 U.S. 929 (1975). This is similar to Res
Ipsa Loquitur. Ordinarily, the law does not assist an innocent plaintiff at the expense of an
innocent defendant. However, in this case, an unconscious or helpless patient suffered an
admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery - a
foreign object was left in the body. Those who had custody of the patient and owed him a duty
of care as to medical treatment, or not to furnish a defective instrument for use in such
treatment, can be called to account for their default.
9.
Fraud. Fraud is never presumed but must be clearly and convincingly proved
through the use of direct or circumstantial evidence by the party who asserts it. To demonstrate
fraud in equity actions, proofs must be clear and convincing in order to produce firm belief or
conviction in the mind of the trier of fact as to the truth of the allegations the party seeks to
establish. Schmidt v. Schmidt, 220 N.J. Super. 45 (Ch. Div. 1987). The defendant contended
that his ex-wife perpetrated a fraud upon the court when she filed a motion seeking support
arrears by withholding the fact that the parties’ children were adopted by her present husband.
The court ruled that the judgment for arrears was not the result of fraud because the arrears
were calculated only to the date of the adoption.
10.
Gifts Exempt from Equitable Distribution. The burden of proof is upon the
party attempting to establish that a gift is not subject to equitable distribution. A gift is a transfer
without consideration requiring an unequivocal donative intent on the part of the donor, actual or
symbolic delivery of the subject matter of the gift, and an absolute and irrevocable
relinquishment of ownership by the donor. Sleeper v. Sleeper, 184 N.J. Super. 548. (App. Div.
1982).
Gifts between spouses are presumed gifts. To rebut the presumption, one must establish facts
antecedent to or contemporaneous with the purchase or else immediately afterwards, so as to
be, in fact, part of the same transaction and this proof must be certain, definite, reliable and
convincing leaving no reasonable doubt of the intention of the parties. Ringold v. Ringold, 93
N.J. EQ. 357 (Ch. Div. 1922).
11.
Marriage. The burden of proving the marriage is upon the plaintiff, and must
include proves that the plaintiff was legally in a position to enter into a valid marriage. Kazen v.
Kazen, 161 N.J. Super. 174, 181 (App. Div. 1978).
12.
Marriage Presumption. The last of two or more marriages is presumptively
valid. The presumption of validity may only be overcome by clear and convincing evidence that
(1) there was a prior marriage, (2) the prior marriage was valid, and (3) the prior marriage was
not terminated by death or divorce before the latest marriage. Newburgh v. Arrigo, 88 N.J. 529
(1982). This presumption relates to the validity of prior divorces and the estoppel argument.
Both principles recognize the reality of the policy to recognize current marriages as opposed to
have technically finding persons to prior dissolved marriages.
13.
Modification of Order, Judgment or Decree as to Support.
The parties seeking modification of support obligations has the burden of showing
"change circumstances" as would warrant relief from support or maintenance provisions
involved. Lepis v. Lepis, 83 N.J. 139 (1980).
14.
No Fault Divorce. N.J.S.A. 2A:34-2d creates a cause of action for divorce where
the husband and wife live separate and apart in different habitations for a period of at least
eighteen (18) or more consecutive months, and there is no reasonable prospect of reconciliation
“provided further that after the eighteen (18) month period there shall be a presumption that
there is no reasonable prospect of reconciliation.” Thus, after the plaintiff testifies to the
eighteen (18) month period and their belief that there is no reasonable prospect for
reconciliation, the burden shifts to the defendant to overcome the presumption. In practice,
most judges are of the opinion that if one party does not believe there is a reasonable prospect
of reconciliation, there can not be a reasonable prospect of reconciliation.
15.
Parental Rights. A denial of parental rights may only be ordered upon a clear
and convincing proof by contact between parent and child will cause physical or emotional harm
to the child, or where it is demonstrated that the parent is unfit. Comas v. Comas, 257 N.J.
Super. 590 (Ch. Div. 1992). In recognition of the grave importance of parental rights, it is
usually held that the denial of those rights are ordered only upon clear and convincing proof.
16.
Parenting Time (Visitation). The parent taking parenting time has the burden
of proving the right to parenting time. Cosme v. Figueroa, 258 N.J. Super. 337 (Ch. Div. 1992).
17.
Paternity of Emancipated Children. A court may not order blood test or
permit, a paternity action, to continue where the father’s claim of paternity conflicts with the
presumption establish by N.J.S.A. 9:17-43(a)(1) (presumption of paternity during marriage),
unless the court determines by clear and convincing evidence that it is in the best interest of the
emancipated child. M.F. v. N.H., 252 N.J. Super. 420 (App. Div. 1991).
18.
Prior Marriage. The law of New Jersey does not require a plaintiff to prove the
validity of a prior divorce or the party's marriage. Rather, once plaintiff shows that the parties
were, in fact, married, the burden of proving invalidity shifts to the defendant and it must be met
by clear and convincing evidence. Raspa v. Raspa, 207 N.J. Super. 371, 377 (Ch. Div. 1985).
Cites Newburgh v. Arrigo, 88 N.J. 529 (1982) which held as follows:
… irrespective of the factual context in which the issue may arise, the last of
two or more marriages is presumptively valid. The presumption of validity may
be overcome only by clear and convincing evidence that ; (1) there was a
prior marriage, (2) the prior marriage was valid, (3) the prior marriage was not
terminated by death or divorce before the latest marriage… Further, … when
one
attacks the validity of a divorce obtained in a foreign state or country, the challenger must
prove all asserted defects, including lack of jurisdiction in the
foreign court. In all respects, the burden rests, not upon the party defending the most
recent marriage, but upon the challenger to demonstrate the invalidity of the
prior divorce.
19.
Reformation of Property Settlement Agreement. Clear and convincing proof
is required to justify reformation of a marital contract. Marital settlement agreements are
enforceable if they are equitable and just. However, a marital agreement may only be reformed
when, to a common mistake or when a mistake of one party accompanied by the fraudulent
knowledge of the other, it does not express the real agreement of the parties. Reformation is
premised upon mistake in the preparation of the agreement and there must be clear and
convincing proof that the contract in its reformed, and not original form is the one that the
contracting party understood and meant it to be. Capanearv v. Salzano, 222 N.J. Super. 407
(App. Div. 1988), Brodzinsky v. Pulek, 75 N.J. Super. 40, (App. Div. 1962).
20.
Rehabilitative Alimony. When a person seeks rehabilitative alimony, while the
burden of proof does not increase, such person must prove additional proofs in order for the
court to make a reasonable and rational determination. There must be presented competent
evidence upon which the court will base a rehabilitative alimony award; otherwise, such an
award would be complete conjecture, which the court is not permitted to do. If a party seeks
particular relief, they must specifically seek and prove facts which support that claim. Finelli v.
Finelli, 263 N.J. Super. 403, 407 (N.J. Super. 1992).
21.
Removal of Children from Jurisdiction. The burden is upon the parent
seeking to remove a child from a state. N.J.S.A. 9:2-02 provides, "when such children are
natives of this state, or have resided five (5) years within its limits, they shall not be removed out
of its jurisdiction without their own consent, if of suitable age to signify the same, nor while under
that age without the consent of both parents, unless the court, upon good cause shown, shall
otherwise order." The focus of the "cause" requirement is not the benefit that will accrue to the
custodial parent, but on the best interest of the children and on the preservation of their relation
with the non-custodial parent. N.J.S.A. 9:2-2 implicates the best interest of the child has
manifested through visitation with a non-custodial parent. Short of an adverse effect upon the
non-custodial parent's visitation rights, or other aspects of the child's best interest, the custodial
parent should enjoy the same freedom of movement as the non-custodial parent. The moving
party has the burden to establish the following:
(1) the custodial parent has a good faith
reason for moving; (2) that the move will not be inimical to the best interest of the children or
adversely effect visitation rights of the non-custodial parent. The burden remains with the noncustodial parent to prove that, as a result of relocation, visitation will be affected in way that will
prove harmful to the children. Winer v. Winer, 241 N.J. Super. 510, 518 (App. Div. 1990). If
the move requires a substantial change in the visitation schedule, proofs concerning the
perspective advantages of the move, the integrity of the motive of the party, and the
development of a reasonable visitation schedule. Holder v. Polanski, 111 N.J. 352, 353 (1998).
22.
Risk Assessment. The person seeking the risk assessment has the burden of
proof by a preponderance of evidence. Cosme v. Figueroa, 258 N.J. Super. 337 (Ch. Div.
1992).
23.
Service of Pleadings. There is a presumption that the facts in a sheriff’s return
of service are true bear to overcome this presumption. The opponent must establish by clear
and convincing evidence that the facts are not as stated in the sheriff’s return of service.
Morales v. Santiago, 217 N.J. Super. 496 (App. Div. 1987).
24.
Stock Options. The owner and participant in a employer provided stock option
program (ISOP), has the burden of proving that they are not subject to equitable distribution.
Elkin v. Sabo, 310 N.J. Super. 462, 472 (App. Div. 1998).
25.
Termination of Parental Rights. The burden of proof and proceeding to
terminate parental rights is by clear and convincing evidence. N.J.S.A. 30: 4C-15 and N.J.
Division of Youth and Family Services v. K. M., 136 N.J. 546 (1994).
26.
Visitation Out-of-State. It is the objecting party’s burden to show the proposed
visitation of a child, out of the State of New Jersey, that it is not in the best interest of the
children. Comas v. Comas, 257 N.J. Super. 590 (Ch. Div. 1992). A request by a father for a
two week uninterrupted summer visitation with his two children was deemed reasonable, unless
there was an affirmative showing by the mother, that it would not be in the best interest of the
children.
27.
Visitation Termination. Evidence that a certain aspect of visitation poses a
threat to a child’s welfare must be carefully considered by the court. The burden of proof is the
lightest available civil burden, by the preponderance of the evidence. Comas v. Comas, 257
N.J. Super. 590 (Ch. Div. 1992).
EQUITABLE REMEDIES vs. BURDEN OF PROOFS
Family Part is a court of equity. The Supreme Court in Kazen v. Kazen, 81 N.J. 85
(1979) held that the Divorce Reform Act , "both were appealed and substantially amended prior
legislation controlling marital relationships." Kazen recognized that "equitable principles have
moved to the forefront, and that in this legal and social milieu, courts are well counseled to give
full range to equitable doctrines in dealing with matrimonial controversies. " Id. at 93-94. The
Kazen court applied estoppel to thwart a spouse from attacking his spouse's prior divorce.
See also Raspa v. Raspa, 207 N.J. Super. 371 (Ch. Div. 1985).
The doctrine of equitable estoppel is established when one engages in conduct
amounting to a representation or omission of material facts, the truth of which is unknown to
another, who is induced to rely upon the same. Usually, the party making the representation is
later estopped from denying the truth thereof. By the same token, quasi estoppel is where an
individual is not permitted to "blow both hot and cold," taking a position in consistent with prior
conduct, if this would injure another, regardless of whether that person has actually relied
thereon. Kazen at 94. Therefore, a party who participated in a foreign divorce may be equitably
estopped from raising the invalidity of the foreign divorce. A party who did not participate in the
foreign divorce, who does not raise the invalidity during a long term marriage, likewise, will be
quasi estopped to raise the invalidity under the quasi estoppel theory.
Pre-marital property acquired during a period of co-habitation is not to be equitably
distributed pursuant to N.J.S.A. 2A:34-23. However, our courts have recognized that the
equitable powers of the court permit a remedy in those situations. The courts has specifically
held that the equitable remedies, such as resulting trust, constructive trust, quantum meruit and
other equitable remedies, are available to divorce litigants. If further, and implied or expressed
pre-marital contract to share in the distribution of property acquired during the co-habitation
period, covers a different subject matter. See Rolle v. Rolle, 219 N.J. Super. 535 (Ch. Div.
1987).
A family court has the equitable powers to require a person to submit to the jurisdiction
of the Jewish ecclesiastical court and to get a Bet Din. As stated in Burns v. Burns, 223 N.J.
Super. 219, 226 (N.J. Super. 1987), "In doing equity, the court has power to adapt the equitable
remedies to the particular circumstances of each particulr case."
Although, seemingly preempted by federal jurisdiction, our family courts have invoked
the equitable power to allocate Federal Income Tax exemptions for dependent children to noncustodial spouses. Gwodz v. Gwodz, 234 N.J. Super. 56 (App. Div. 1989).
Even in light of the domestic violence statute, which specifically and statutorily creates
criteria for removal of a defendant from the marital residence, the courts have preserved their
equitable powers to remove a party from the marital residence without establishing domestic
violence. N. B. v. T. B. 297 N.J. Super. 35 (App. Div. 1997). The sale of the marital residence
may be ordered by the court, pendente lite, despite the absence of statutory authority. The
courts have now utilized their equitable powers to interpret N.J.S.A. 2A: 34-23 to give the
matrimonial judge broad discretion and authority to fashion sagacious remedies, on a case by
case basis, which will achieve justice and fulfill the needs of litigants. Pelo v. Pelo, 300 N.J.
Super. 634 (Ch. Div. 1996). A Pelo court permitted the sale of the marital residence, pendente
lite, and held that proper evaluation of the impact of the maintenance of property of the parties'
economic well-being, are important and that the statute, which appears to prevent a family court
judge from distributing property until the final divorce, should be interpreted as follows:
"A statute should not be given an arbitrary construction, according to the strict
letter,
but rather one that will advance the sense and meaning fairly deducible
from the
context. The reason of the statute prevails over the literal sense of the terms; the obvious
policy is n implied limitation on the sense of the general terms,
and a touch tone for the
expansion of narrower terms."
In Jacobitty v. Jacobitty, 135 N.J. 571 (1994), and the court went outside of the statutory
context, and ordered Mr. Jacobitty to establish a trust from his assets to fund future alimony for
Mrs. Jacobitty. N.J.S.A. 2A:34-25, only permits the purchase of life insurance for that purpose.
However, because of Mr. Jacobitty age, he could not obtain life insurance.
EQUITABLE MAXIMS AND EQUITABLE DEFENSES
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Equity Suffers No Right to be Without a Remedy
Equity Regards Substance Rather than Form
Equity Regards That as Done Which Ought to be Done
Equity Imputes an Intention to Fulfill an Obligation
Equality is Equity
Where Equities are Equal the First in Time Will Prevail
Equity Follows the Law
Equity Acts in Personam, Not in Rem
Equity Aids the Vigilant, Not Those Who Sleep on Their Rights
He Who Seeks Equity, Must do Equity
He Who Comes Into Equity, Must Come With Clean Hands
Where a Loss Must be Borne by One of Two Innocent Persons,
Equity Will Impose the Loss on That Party Whose Act First Could Have
Prevented the Loss
Equity Prevents Mischief
Equity Delights in Amicable Adjustments
A Court of Equity Seeks To Do Justice, and Not Injustice
A Court of Equity Ought To Do, or Delights in Doing, Justice Completely,
and Not By Halves.
MARK GRUBER, J.D., L.L.M.
Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney
L.L.M., New York University 1984; Juris Doctorate, Vermont Law School 1976
Fellow, American Academy of Matrimonial Lawyers 1988 - present; Divorce Arbitrator and
Mediator; Institute of Continuing Legal Education Lecturer; Domestic Violence, Domestic Torts,
Family Law Skills and Methods Instructor; Author, The Basic Guide to New Jersey Divorce with
Forms and Court Rules;” Chair, Family Law Committee of Sussex County Bar Association, Host
of cable television show "Law Talk" 1985 - present.