Avoiding Domestic Partnership Pitfalls
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Posted: Wednesday, February 06, 2008
by Susan Chana Lask Esq
Law Offices of Susan Chana Lask
Domestic Partnership laws are new and growing. You can avoid and defend against domestic partnership pitfalls in Court. Using a real life New Jersey case where a New Jersey attorney claiming he is the "domestic partnership" expert, this article will show you how to fight back when such an attorney abuses the law. Notably, check your State's laws as usually attorneys can not claim they are experts unless the State certifies an attorney as an expert in a certain field.
"Domestic partnership is a status distinct from marriage" and
"The bill draws . . . legal distinctions to reflect the continuing difference between each (marriage and domestic partnership) . . . property acquired by one partner during a domestic partnership is treated as the property of that individual, unlike in a marriage where joint ownership may arise by law." Id. (NJ Assem. Comm. State., A.B. 3743, 12/11/2003).
Thus, New Jersey has the most restrictive domestic partnership statute in the area of property rights because it does not allow the creation of a marriage type relation nor joint property ownership to domestic partners. The policy behind the DPA's restrictions against a Court in a termination proceeding to disengage itself with property and equitable distribution issues appears to be because the DPA is more of a health care proxy, being a simplified statute giving limited rights with a simplified procedure to terminate based on certain causes of action filed in the family court.
Civil Unions Are Akin to Marriages
The only statute mandating property or equitable distribution is the Civil Union Statute NJSA 37:1-31 effective February 20, 2007. It makes clear that it shall not override the parties' DPA status that was filed before the Civil Union's effective date of February, 2007, unless those parties file for a civil union, to wit:
" This act shall not alter the rights and responsibilities of domestic partnerships existing before the effective date of this act, ... Entry into a civil union, when joined by both parties to an existing domestic partnership, shall operate to terminate the domestic partnership. N.J.S.A. 26:8A-4.1
Limited Domestic Partnership Rights Remain if a Civil Union is Not Filed
Same-sex partners who entered into a domestic partnership prior to the February, 2007 date of the Civil Union Act are eligible to either remain in a domestic partnership or enter into a civil union, terminating the domestic partnership. N.J.S.A. 26:8A-4.1. New Jersey Attorney General Stuart Rabner issued N.J. Formal Opinion No. 3-2007, 2007 WL 749807 (N.J.A.G.) on February 16, 2007, confirming "The rights and responsibilities of domestic partnerships existing before the effective date of L. 2006, c. 103 (the Civil Union Act") will not be altered. N.J.S.A. 26:8A-4.1. N.J.S.A. 26:8A-4.1 repeates that exact language in the statute.
Defending Against the Abusive Attorney & Client
A. When Lawyers Lie
Unfortunately, some lawyers will lie and file frivolous pleadings to make money. Your goal is to attack every lie.
In this real life New Jersey case, the parties had no joint assets and the partnership ended in less than 22 months. The one partner who disappeared out of state was warned not to take the other partners funds she was holding in trust. She took the funds anyhow with her attorney accompanying her to the bank by his office and having her sign the funds over to him to depsoit in his attorney escrow account, refusing to notify anyone he made that deposit. The lawyer and his client immediately demanded by letter the other domestic partner agree to paying $100,000.00 in 2 days, never disclosing he took the claimed funds, and threatening legal action against the partner whom he knew did not want her private life exposed. The other partner obtained a court order against the attorney and his client to return the converted funds. The attorney and the client retaliated with an ex parte proceeding in another court, never disclosing the true facts to the court nor that they converted funds subject to a court order, obtained unlawful restraints, including free speech restraints, and tried to have the court prevent the partner from any other civil or criminal filings against the attorney and his unscrupulous client filed a fraudulent lis pendens before they docketed an action and filed an amended complaint, including palimony in further retaliation when the partner sued the attorney and the other partner for conspiracy, conversion and other actions regarding their misconduct.
B. No Lawyer Should Restrain Your Freedom of Speech Unless They Have Something to Hide
If an attorney attempts to restrain your free speech, fight it because they have something to fear-namely the discovery of their misconduct. In this example, it is incredible that a licensed attorney would attempt to abridge free speech when States do not justify such injunctions. THE NEW JERSEY CONSTITUTION OF 1947,ARTICLE I. RIGHTS AND PRIVILEGES provides for free speech. You only have to be careful of defamation, which would be a false statement. if you are not making a false statement or you are making an opinion, then noone should abridge your rights to speak freely. If you want to state that someone stole or embezzled your property and it is true, then you have every right to make that statement.
C. Palimony Should Not Be Abused in Domestic Partnership Cases
It is incredible that a licensed attorney would make a palimony claim in a less than 22 month domestic partnership termination proceeding. "A critical element of a palimony claim is cohabitation for a significant period of time." McDonald v. Estate of George Mavety, 383 N.J.Super.347, 360, 891 A.2d 1218 (App.Div.), certif. denied,187 N.J. 79, 899 A.2d 302 (2006); The appellate division held 2 1/2 years was deemed not a significant period to support a palimony claim. In re Estate of Sasson, 387 N.J.Super. 459, 904 A.2d 769 N.J.Super.A.D.(2006 ) . Sasson distinguished cases where historically palimony was granted in long term cohabitations of over 10 years and more. In this case, the parties were not even together for 2 years.
Palimony elements also mandate whether plaintiff gave adequate consideration for an alleged promise of support. McDonald v. Estate of Mavety, 383 N.J.Super. 347(2006). Palimony claims require a bargained for detriment or form of consideration given as mandated for a palimony claim. Estate of Sasson, 387 N.J.Super. 459 (appellate div, 2006). To reach that element, in this case, the partner falsely alleged she was "induced" to forego her career upon defendant's promise to support her. That same partner makes over $1,500 a week in her career, which she never made nor had before meeting her partner who managed her career, which she failed to disclose to the court in her bizarre palimony claim.
When a party lies, attack them with logic, law and the facts. Also, garner your witness affidavits because liars usually leave a long trail of past victims, who are great witnesses to explain to the court the deceptive ex-partner.
D. Go After the Unethical Attorney & their Client
At all costs, do not let attorneys perpetuate lies to the courts. Demand monetary sanctions from the court by filing a motion against both the attorney and the client for lying in court papers. File a perjury criminal complaint against both of them. File an ethics complaint against the attorney.
In this example case, a disqualification motion was filed based un balancing the "competing interests" of "the ‘need to maintain the highest standards of the profession' " and " ‘a client's right freely to choose his counsel.' " Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 536 A.2d 243 (N.J.,1988). Here, it was argued counsel acted eggregiously and beyond the bounds of professionalism, being conspirators and witnesses to the conversion and contempt of a court order, then deliberately deceiving a Judge.
Pursuant to New Jersey DR 1-102(A)(1) a lawyer shall not violate a disciplinary rule; DR 1-102(A)(3) a lawyer shall not engage in illegal conduct that adversely reflects on his fitness to practice law; DR 1-102(A)(4) a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation; DR 1-102(A)(6) a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law. In a matter of 3 short weeks the attorney in this case violated Family Court Rule 1:14 mandates that the Rules of Professional Conduct "shall govern the conduct of the members of the bar" appearing before the Family Court . Note for the Court violations of Codes of Ethics, disciplinary rules and conduct evincing illegal activities of 2C:20-5 (d) and (g) theft by extortion; 2C:20-3 Theft by unlawful taking or disposition, 2C:20-4 Theft by deception, 2C:20-6 Theft of property …delivered by mistake, 2C:20-7 Receiving stolen property, 2C:2-6 Liability for conduct of another; complicity andf 2C:5-2 Conspiracy.
Also, know that misconduct in this example can violate R.P.C. 3.3.(a) providing that a Lawyer shall not knowingly" (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting in an illegal, criminal or fraudulent act by the client"; and "(5) fail to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal…." and R.P.C. 3.3. "(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse. Here, it was argued the partner and her counsel deliberately did not disclose to the Court their secreting the disputed funds in counsel's trust account and hid pertinent facts to the court, such as an email from the unscrupulous partner admitting she would not take the property. They disturbingly filed only certain emotionally distressing calls of the victimized partner without explaining those calls were in response to the other partner's threats to steal.
E. Cases Hold Attorneys Who Lie Must be Disbarred
In Brundage v. Estate of Carambio, 394 N.J.Super. 292 (Supr. Ct, 2007) the court held the attorney's failure to notify the tribunal of a related matter violated the attorney's ethics duty of candor to the tribunal and mandated vitiating a settlement because of that failure to disclose. In Kingsdorf v. Kingsdorf, 351 N.J.Super. 144,(N.J.Super.A.D.,2002) held that an attorney who failed to disclose a material fact to a tribunal constituted a fraud upon the court, and resulted in vacating a judgment obtained by that non-disclosure. Kingsdorf also holds that the failure to disclose a material fact to a tribunal is an ethical violation.RPC 3.3(a)(5), and while the Rules of Professional Conduct do not provide an independent cause of action, they should be considered by the court in determining, balancing,and weighing the equities of the parties .
The Supreme Court has disbarred attorneys who have acted similarly. In the Matter of Jerome BRICKER, An Attorney at Law, 90 N.J. 6, 446 A.2d 1195 found upon disbarring an attorney who schemed with others to take property belonging to someone else then lied to the courts as to his involvement that "It is intolerable that he perverted the administration of justice by lying to the Courts in which he was trusted as an attorney." and "...misdeeds are the antithesis of an attorney's obligation to uphold and honor the law." In Brundage v. Estate of Carambio, 394 N.J.Super. 292 (Supr. Ct, 2007) the court held the attorney's failure to notify the tribunal of a related matter violated the attorney's ethics duty of candor to the tribunal, and it actually vitiated a settlement resulting from the attorney deception to the tribunal .
Most closely related to the facts of this matter is the Supreme Court's holding in In re DeLuca 62 N.J. 133 (1973). DeLuca holds that an attorney's participation in an attempt at any form of extortion requires disbarment. There a client claimed to have innocently discovered stolen goods and retained an attorney to ascertain whether a reward is available for return of the goods. The DeLuca Court held that the attorney should either stay out of the affair entirely or advise the client to return the goods over to the police or the owner, awaiting such reward, if any, as may be paid in the ordinary course, and should not seek to negotiate reward as a condition for return of the goods.
This article is certainly not all inclusive and is intended only as a brief explanation of the legal issue presented. Not all cases are alike and it is strongly recommended that you consult an attorney if you have any questions with respect to any legal matters.
Any questions and/or comments with respect to this topic or any other topic, please call or write:
Law Offices of Susan Chana Lask
244 Fifth Avenue, Suite 2369
New York, NY 10001
This Article has been viewed 565 times. (Not updated in real-time.)Top-level comments on this article: (1 total)
» left by Anonymous 5 years 90 days ago.
What an informative article. Thank God someone gives us advice about how to handle the worst part of any case-they lying lawyer on the otehr side. Courts should take this seriously!