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New Jersey Statutes Annotated

New Jersey Rules of CourtPart VI. Rules Governing Practice in the Law Division, Special Civil Part

Rule 6:4. Proceedings Before Trial

R. 6:4-1

6:4-1. Transfer of Actions

Currentness

(a) Consolidation With Actions in Other Courts. An action pending in the Special Civil Part may be transferred to another court for consolidation with an action pending in such other court in accordance with R. 4:38-1.

(b) Transfer When Recovery Will Exceed Monetary Limit. A plaintiff, after commencement of an action in the Special Civil Part, but before the trial date, may apply for removal of the action to the Law Division, on the ground that it appears likely that the recovery will exceed the Special Civil Part monetary limit by (1) filing and serving in the Special Civil Part an affidavit or that of an authorized agent stating that the affiant believes that the amount of the claim, when established by proof, will exceed the sum or value constituting the monetary limit of the Special Civil Part and that it is filed in good faith and not for the purpose of delay; and (2) filing in the Law Division and serving a motion for transfer. The Law Division shall order the transfer if it finds that there is reasonable cause to believe that the amended claim is founded on fact and that it has reasonable chance for success upon the trial thereof.

(c) Transfer When Counterclaim Exceeds Monetary Limit. A defendant filing a counterclaim in excess of the Special Civil Part monetary limit may apply for removal of the action to the Law Division by (1) filing and serving in the Special Civil Part the counterclaim together with an affidavit or that of an authorized agent stating that the affiant believes that the amount of such claim, when established by proof, will exceed the sum or value constituting the monetary limit of the Special Civil Part and that it is filed in good faith and not for the purpose of delay; and (2) filing in the Law Division and serving a motion for transfer. The Law Division shall order the transfer if it finds that there is reasonable cause to believe that the counterclaim is founded on fact and that it has reasonable chance for success upon the trial thereof.

(d) Transmission of Record; Costs. Upon presentation of an order transferring an action to the Law Division, the clerk of the Special Civil Part shall transmit the papers on file in the court, together with copies thereof, to the deputy clerk of the Superior Court in the county of venue.

(e) Remand to Special Civil Part. Upon the settlement or dismissal of a Law Division action with which a Special Civil Part action has been consolidated, the Law Division on its own motion or the motion of a party may remand the action for trial in the Special Civil Part, provided, however, that no such action shall be remanded to a county other than that in which the consolidated Law Division action would have been tried. If the plaintiff in a Special Civil Part action so transferred or consolidated is the prevailing party, the Law Division on plaintiff’s or its own motion may remand the action to the Special Civil Part for the county in which it was instituted for the entry of judgment and taxation of costs.

(f) Fees on Transfer to Special Civil Part. If the plaintiff in an action transferred to the Special Civil Part thereafter prevails, $15.00 of the fee paid to the clerk of the court from which the action was transferred shall be taxed as part of the costs whether the transfer was to the Special Civil Part of the same or another county.

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(g) Transfer of Landlord/Tenant Actions. A motion to transfer a summary action for the recovery of premises to the Law Division pursuant to N.J.S.A. 2A:18-60, shall be made by serving and filing the original of said motion with the Clerk of the Special Civil Part no later than the last court day prior to the date set for trial. The motion shall be returnable in the Special Civil Part on the trial date, or such date thereafter as the court may determine in its discretion or upon application by the respondent for more time to prepare a response to the motion. Upon the filing of the motion, the Special Civil Part shall take no further action pending disposition of the motion. If the motion is not resolved on the original trial date, the court may require security for payment of rent pending disposition of the motion. If the motion is granted, the Clerk shall transmit the record in accordance with R. 6:4-1(d). If the motion is denied, the court shall set the action expeditiously for summary hearing.

Credits

Note: Source R.R. 7:6-1(a)(b)(c)(d)(e). Paragraph (b) adopted and former paragraphs (b)(c)(d)(e) redesignated June 29, 1973 to be effective September 10, 1973; paragraph (g) amended July 21, 1980 to be effective September 8, 1980; paragraph (f) amended November 2, 1987 to be effective January 1, 1988; paragraphs (a), (b), (c), (d), (e) and (g) and captions of paragraphs (b), (c) and (e) amended November 7, 1988 to be effective January 2, 1989; paragraph (g) amended July 14, 1992 to be effective September 1, 1992; paragraph (d) amended July 13, 1994 to be effective September 1, 1994; paragraph (d) amended July 19, 2012 to be effective September 4, 2012.

R. 6:4-1, NJ R LAW DIV CIV PT R. 6:4-1Current with amendments received through August 15, 2014.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

B. Summary Actions for Recovery of Premises (Refs & Annos)

N.J.S.A. 2A:18-60

2A:18-60. Removal of proceedings into law division

Currentness

At any time before an action for the removal of a tenant comes on for trial, either the landlord or person in possession may apply to the Superior Court, which may, if it deems it of sufficient importance, order the cause transferred from the Special Civil Part to the Law Division.

Credits

Amended by L.1991, c. 91, § 66, eff. April 9, 1991.

Notes of Decisions (19)

N. J. S. A. 2A:18-60, NJ ST 2A:18-60Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 6. Specific Civil Actions

Chapter 42. Landlord and Tenant; Rights and Remedies (Refs & Annos)Article 3. Civil Action for Re-Entry (Refs & Annos)

N.J.S.A. 2A:42-10.12

2A:42-10.12. Rebuttable presumption; notice to quit or alteration of tenancy as reprisal

Currentness

In any action or proceeding instituted by or against a tenant, the receipt by the tenant of a notice to quit or any substantial alteration of the terms of the tenancy without cause after:

a. The tenant attempts to secure or enforce any rights under the lease or contract, or under the laws of the State of New Jersey, or its governmental subdivisions, or of the United States; or

b. The tenant, having brought a good faith complaint to the attention of the landlord and having given him a reasonable time to correct the alleged violation, complains to a governmental authority with a report of the landlord’s alleged violation of any health or safety law, regulation, code or ordinance; or

c. The tenant organizes, becomes a member of, or becomes involved in any activities of, any lawful organization; or

d. Judgment under section 2 of this act1 is entered for the tenant in a previous action for recovery of premises between the parties; shall create a rebuttable presumption that such notice or alteration is a reprisal against the tenant for making such attempt, report, complaint, or for being an organizer of, a member of, or involved in any activities of, any lawful organization. No reprisal shall be presumed under this section based upon the failure of a landlord to renew a lease or tenancy when so requested by a tenant if such request is made sooner than 90 days before the expiration date of the lease or tenancy, or the renewal date set forth in the lease agreement, whichever later occurs.

Credits

L.1970, c. 210, § 3, eff. Sept. 30, 1970.

Notes of Decisions (4)

Footnotes

1N.J.S.A. § 2A:42-10.11.

N. J. S. A. 2A:42-10.12, NJ ST 2A:42-10.12Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 6. Specific Civil Actions

Chapter 42. Landlord and Tenant; Rights and Remedies (Refs & Annos)Article 3. Civil Action for Re-Entry (Refs & Annos)

N.J.S.A. 2A:42-10.11

2A:42-10.11. Grounds for judgment for tenant in unlawful action for possession by landlord

Currentness

In any action brought by a landlord against a tenant to recover possession of premises or units to which this act is applicable, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise, judgment shall be entered for the tenant if the tenant shall establish that the notice to quit, if any, or the action to recover possession was intended for any of the reasons set forth in subsections a, b, c, or d of section 1 of this act.1

Credits

L.1970, c. 210, § 2, eff. Sept. 30, 1970.

Notes of Decisions (1)

Footnotes

1N.J.S.A. § 2A:42-10.10.

N. J. S. A. 2A:42-10.11, NJ ST 2A:42-10.11Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 6. Specific Civil Actions

Chapter 42. Landlord and Tenant; Rights and Remedies (Refs & Annos)Article 3. Civil Action for Re-Entry (Refs & Annos)

N.J.S.A. 2A:42-10.10

2A:42-10.10. Reprisal as unlawful grounds for civil action for re-entry; action for damages or other appropriate relief by tenant

Currentness

No landlord of premises or units to which this act is applicable shall serve a notice to quit upon any tenant or institute any action against a tenant to recover possession of premises, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise:

a. As a reprisal for the tenant’s efforts to secure or enforce any rights under the lease or contract, or under the laws of the State of New Jersey or its governmental subdivisions, or of the United States; or

b. As a reprisal for the tenant’s good faith complaint to a governmental authority of the landlord’s alleged violation of any health or safety law, regulation, code or ordinance, or State law or regulation which has as its objective the regulation of premises used for dwelling purposes; or

c. As a reprisal for the tenant’s being an organizer of, a member of, or involved in any activities of, any lawful organization; or

d. On account of the tenant’s failure or refusal to comply with the terms of the tenancy as altered by the landlord, if the landlord shall have altered substantially the terms of the tenancy as a reprisal for any actions of the tenant set forth in subsection a, b, and c of section 1 of this act.1 Substantial alteration shall include the refusal to renew a lease or to continue a tenancy of the tenant without cause.

Under subsection b of this section the tenant shall originally bring his good faith complaint to the attention of the landlord or his agent and give the landlord a reasonable time to correct the violation before complaining to a governmental authority.

A landlord shall be subject to a civil action by the tenant for damages and other appropriate relief, including injunctive and other equitable remedies, as may be determined by a court of competent jurisdiction in every case in which the landlord has violated the provisions of this section.

Credits

L.1970, c. 210, § 1, eff. Sept. 30, 1970.

Notes of Decisions (29)

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Footnotes

1Subsecs. a., b., and c. of this section.

N. J. S. A. 2A:42-10.10, NJ ST 2A:42-10.10Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 6. Specific Civil Actions

Chapter 42. Landlord and Tenant; Rights and Remedies (Refs & Annos)Article 3. Civil Action for Re-Entry (Refs & Annos)

N.J.S.A. 2A:42-10.1

2A:42-10.1. Warrant or writ for removal; writ of possession; issuance; stays

Currentness

Notwithstanding any other provisions of law, in any action brought by a landlord against a tenant to recover possession of premises or unit used for dwelling purposes, to which this act1 is applicable, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise, the judge of the court having jurisdiction shall use sound discretion in the issuance of a warrant or writ for removal or writ of possession, and if it shall appear that by the issuance of the warrant or writ the tenant will suffer hardship because of the unavailability of other dwelling accommodations the judge may stay the issuance of the warrant or writ and cause the same to issue at such time as he shall deem proper under the circumstances, but in no case shall such judge stay the issuance of any such warrant or writ for possession for a longer period than 6 months after the date of entry of the judgment of possession; provided, however, that in no case shall the issuance of the warrant or writ be stayed or the stay thereof be longer continued, as the case may be, if the tenant should (a) fail to pay to the landlord all arrears in rent and the amount that would have been payable as rent if the tenancy had continued, together with the accrued costs of the action; or (b) during the stay, fail to continue to pay to the landlord the amount of rent that would be due if the tenancy had continued; or (c) during the stay, become so disorderly as to destroy the peace and quiet of the other tenants living in the same building or in the neighborhood; or (d) during the stay, willfully destroy, damage or injure the premises.

Credits

L.1956, c. 81, p. 168, § 1.

Notes of Decisions (3)

Footnotes

1N.J.S.A. §§ 2A:42-10.1 to 2A:42-10.5.

N. J. S. A. 2A:42-10.1, NJ ST 2A:42-10.1Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 6. Specific Civil Actions

Chapter 39. Forcible Entry and Detainer (Refs & Annos)

N.J.S.A. 2A:39-1

2A:39-1. Unlawful entry prohibited

Effective: January 12, 2006

Currentness

No person shall enter upon or into any real property or estate therein and detain and hold the same, except where entry is given by law, and then only in a peaceable manner. With regard to any real property occupied solely as a residence by the party in possession, such entry shall not be made in any manner without the consent of the party in possession unless the entry and detention is made pursuant to legal process as set out in N.J.S.2A:18-53 et seq., as amended and supplemented; P.L.1974, c. 49 (C.2A:18-61.1 et al.), as amended and supplemented; P.L.1975, c. 311 (C.2A:18-61.6 et al.), as amended and supplemented; P.L.1978, c. 139 (C.2A:18-61.6 et al.), as amended and supplemented; the “Tenant Protection Act of 1992,” P.L.1991, c. 509 (C.2A:18-61.40 et al.); or N.J.S.2A:35-1 et seq. and “The Fair Eviction Notice Act,” P.L.1974, c. 47 (C.2A:42-10.15 et al.). A person violating this section regarding entry of rental property occupied solely as a residence by a party in possession shall be a disorderly person.

Credits

Amended by L.1971, c. 227, § 1, eff. June 21, 1971; L.2005, c. 319, § 1, eff. Jan. 12, 2006.

Notes of Decisions (14)

N. J. S. A. 2A:39-1, NJ ST 2A:39-1Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 6. Specific Civil Actions

Chapter 33. Distress

N.J.S.A. 2A:33-1

2A:33-1. Authorized distraints; liability for wrongful distraint; prohibition on money owed on lease of residence

Currentness

Distraints may be taken when authorized by law; but no unreasonable, excessive or wrongful distraint shall be taken, and for any such taking, the distraining party shall be liable in damages to the party aggrieved.

No distraint shall be permitted for money owed on a lease or other agreement for the occupation of any real property used solely as a residence of the tenant.

Credits

Amended by L.1971, c. 228, § 1.

Notes of Decisions (18)

N. J. S. A. 2A:33-1, NJ ST 2A:33-1Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 46. Property (Refs & Annos)Subtitle 2. Real Property Only (Refs & Annos)

Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)

N.J.S.A. 46:8-26

46:8-26. Application of act

Currentness

The provisions of this act shall apply to all rental premises or units used for dwelling purposes except owner-occupied premises with not more than two rental units where the tenant has failed to provide 30 days written notice to the landlord invoking the provisions of this act.

Credits

L.1967, c. 265, § 8, eff. Jan. 1, 1968. Amended by L.1968, c. 46, § 1, eff. May 22, 1968; L.1971, c. 223, § 7, eff. June 21, 1971; L.1979, c. 28, § 3, eff. Feb. 22, 1979.

Notes of Decisions (2)

N. J. S. A. 46:8-26, NJ ST 46:8-26Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 46. Property (Refs & Annos)Subtitle 2. Real Property Only (Refs & Annos)

Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)

N.J.S.A. 46:8-21.2

46:8-21.2. Limitation on amount of deposit

Effective: January 1, 2004

Currentness

An owner or lessee may not require more than a sum equal to 1 ½ times 1 month’s rental according to the terms of contract, lease, or agreement as a security for the use or rental of real property used for dwelling purposes. Whenever an owner or lessee collects from a tenant an additional amount of security deposit, the amount collected annually as additional security shall not be greater than 10 percent of the current security deposit.

Credits

L.1971, c. 223, § 4, eff. June 21, 1971. Amended by L.2003, c. 188, § 5, eff. Jan. 1, 2004.

Notes of Decisions (9)

N. J. S. A. 46:8-21.2, NJ ST 46:8-21.2Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 46. Property (Refs & Annos)Subtitle 2. Real Property Only (Refs & Annos)

Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)

N.J.S.A. 46:8-21.1

46:8-21.1. Return of deposit; expiration of lease or displacement; resumption of occupancy; repayment of deposit; penalty for failure to return

Effective: June 29, 2010

Currentness

Within 30 days after the termination of the tenant’s lease or licensee’s agreement, the owner or lessee shall return by personal delivery, registered or certified mail the sum so deposited plus the tenant’s portion of the interest or earnings accumulated thereon, less any charges expended in accordance with the terms of a contract, lease, or agreement, to the tenant or licensee, or, in the case of a lease terminated pursuant to P.L.1971, c. 318 (C.46:8-9.1), the executor or administrator of the estate of the tenant or licensee or the surviving spouse of the tenant or licensee so terminating the lease. The interest or earnings and any such deductions shall be itemized and the tenant, licensee, executor, administrator or surviving spouse notified thereof by personal delivery, registered or certified mail. Notwithstanding the provisions of this or any other section of law to the contrary, no deductions shall be made from a security deposit of a tenant who remains in possession of the rental premises.

Within five business days after:

a. the tenant is caused to be displaced by fire, flood, condemnation, or evacuation, and

b. an authorized public official posts the premises with a notice prohibiting occupancy; or

c. any building inspector, in consultation with a relocation officer, where applicable, has certified within 48 hours that displacement is expected to continue longer than seven days and has so notified the owner or lessee in writing, the owner or lessee shall have available and return to the tenant or the tenant’s designated agent upon his demand the sum so deposited plus the tenant’s portion of the interest or earnings accumulated thereon, less any charges expended in accordance with the terms of the contract, lease or agreement and less any rent due and owing at the time of displacement.

Within 15 business days after a lease terminates as described in section 3 of P.L.2008, c. 111 (C.46:8-9.6),1 the owner or lessee shall have available and return to the tenant or the tenant’s designated agent upon his demand any money or advance of rent deposited as security plus the tenant’s portion of the interest or earnings accumulated thereon, including the portion of any money or advance of rent due to a victim of domestic violence terminating a lease pursuant to section 3 of P.L.2008, c. 111 (C.46:8-9.6), less any charges expended in accordance with the terms of the contract, lease or agreement and less any rent due and owing at the time of the lease termination.

Such net sum shall continue to be available to be returned upon demand during normal business hours for a period of 30 days at a location in the same municipality in which the subject leased property is located and shall be accompanied by an itemized statement of the interest or earnings and any deductions. The owner or lessee may, by mutual agreement with the municipal clerk, have the municipal clerk of the municipality in which the subject leased property is located return said net sum in the same manner. Within three business days after receiving notification of the displacement, the owner or lessee shall provide written notice to a displaced tenant by personal delivery or mail to the tenant’s last known address. In the event that a lease terminates as described in section 3 of P.L.2008, c. 111 (C.46:8-9.6), within three business days after the termination, the owner or lessee shall provide written notice to the victim of domestic violence by personal delivery or mail to the tenant’s last known address. Such notice shall include, but not be limited to, the location at which and the hours and

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days during which said net sum shall be available to him. The owner or lessee shall provide a duplicate notice in the same manner to the relocation officer. Where a relocation officer has not been designated, the duplicate notice shall be provided to the municipal clerk. When the last known address of the tenant is that from which he was displaced and the mailbox of that address is not accessible during normal business hours, the owner or lessee shall also post such notice at each exterior public entrance of the property from which the tenant was displaced. Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.), or any other law to the contrary, the municipal clerk, and any designee, agent or employee of the municipal clerk, shall not knowingly disclose or otherwise make available personal information about any victim of domestic violence that the clerk or any designee, agent or employee has obtained pursuant to the procedures described in section 3 of P.L.1971, c. 223 (C.46:8-21.1).

Any such net sum not demanded by and returned to the tenant or the tenant’s designated agent within the period of 30 days shall be redeposited or reinvested by the owner or lessee in an appropriate interest bearing or dividend yielding account in the same investment company, State or federally chartered bank, savings bank or savings and loan association from which it was withdrawn. In the event that said displaced tenant resumes occupancy of the premises, said tenant shall redeliver to the owner or lessee one-third of the security deposit immediately, one-third in 30 days and one-third 60 days from the date of reoccupancy. Upon the failure of said tenant to make such payments of the security deposit, the owner or lessee may institute legal action for possession of the premises in the same manner that is authorized for nonpayment of rent.

The Commissioner of Community Affairs, the Attorney General, or any State entity which made deposits on behalf of a tenant may impose a civil penalty against an owner or lessee who has willfully and intentionally withheld deposits in violation of section 1 of P. L.1967, c. 265 (C.46:8-19), when the deposits were made by or on behalf of a tenant who has received financial assistance through any State or federal program, including welfare or rental assistance. An owner or lessee of a tenant on whose behalf deposits were made by a State entity and who has willfully and intentionally withheld such deposits in violation of this section shall be liable for a civil penalty of not less than $500 or more than $2,000 for each offense. The penalty prescribed in this paragraph shall be collected and enforced by summary proceedings pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c. 274 (C.2A:58-10 et seq.). The State entity which made such deposits on behalf of a tenant shall be entitled to any penalty amounts recovered pursuant to such proceedings.

In any action by a tenant, licensee, executor, administrator or surviving spouse, or other person acting on behalf of a tenant, licensee, executor, administrator or surviving spouse, for the return of moneys due under this section, the court upon finding for the tenant, licensee, executor, administrator or surviving spouse shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court’s discretion, reasonable attorney’s fees.

Credits

L.1971, c. 223, § 3, eff. June 21, 1971. Amended by L.1974, c. 151, § 1, eff. Nov. 11, 1974; L.1979, c. 115, § 1, eff. June 28, 1979; L.1985, c. 42, § 4, eff. Aug. 1, 1985; L.1985, c. 317, § 1, eff. Aug. 28, 1985; L.2003, c. 188, § 4, eff. Jan. 1, 2004; L.2007, c. 9, § 2, eff. Jan. 24, 2007; L.2008, c. 111, § 9, eff. Dec. 4, 2008; L.2010, c. 34, § 11, eff. June 29, 2010.

Notes of Decisions (62)

Footnotes

1L.2008, c. 111, the New Jersey Safe Housing Act.

N. J. S. A. 46:8-21.1, NJ ST 46:8-21.1Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 46. Property (Refs & Annos)Subtitle 2. Real Property Only (Refs & Annos)

Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)

N.J.S.A. 46:8-19

46:8-19. Deposit to secure performance of lease; investment of deposit; interest rights; notice requirements; failure to provide notice

Effective: January 1, 2004

Currentness

Whenever money or other form of security shall be deposited or advanced on a contract, lease or license agreement for the use or rental of real property as security for performance of the contract, lease or agreement or to be applied to payments upon such contract, lease or agreement when due, such money or other form of security, until repaid or so applied including the tenant’s portion of the interest or earnings accumulated thereon as hereinafter provided, shall continue to be the property of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made for the use in accordance with the terms of the contract, lease or agreement and shall not be mingled with the personal property or become an asset of the person receiving the same.

The person receiving money so deposited or advanced shall:

a. (1) Invest that money in shares of an insured money market fund established by an investment company based in this State and registered under the “Investment Company Act of 1940,” 54 Stat. 789 (15 U.S.C.s.80a-1 et seq.) whose shares are registered under the “Securities Act of 1933,” 48 Stat. 74 (15 U.S.C.s.77a. et seq.) and the only investments of which fund are instruments maturing in one year or less, or (2) deposit that money in a State or federally chartered bank, savings bank or savings and loan association in this State insured by an agency of the federal government in an account bearing a variable rate of interest, which shall be established at least quarterly, which is similar to the average rate of interest on active interest-bearing money market transaction accounts paid by the bank or association , or equal to similar accounts of an investment company described in paragraph (1) of this subsection.

This subsection shall not apply to persons receiving money for less than 10 rental units except where required by the Commissioner of Banking and Insurance by rule or regulation. The commissioner shall apply the provisions of this subsection to some or all persons receiving money for less than 10 rental units where the commissioner finds that it is practicable to deposit or invest the money received with an investment company or State or federally chartered bank, savings bank or savings and loan association in accordance with this subsection. Except as expressly provided herein, nothing in this subsection shall affect or modify the rights or obligations of persons receiving money for rental premises or units, tenants, licensees or contractees under any other law.

b. Persons not required to invest or deposit money in accordance with subsection a. of this section shall deposit such money in a State or federally chartered bank, savings bank or savings and loan association in this State insured by an agency of the federal government in an account bearing interest at the rate currently paid by such institutions and associations on time or savings deposits.

c. The person investing the security deposit pursuant to subsection a. or b. of this section shall notify in writing each of the persons making such security deposit or advance, giving the name and address of the investment company, State or federally chartered bank, savings bank or savings and loan association in which the deposit or investment of security money is made, the type of account in which the security deposit is deposited or invested, the current rate of interest for that account, and the amount of such deposit or investment, in accordance with the following:

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(1) within 30 days of the receipt of the security deposit from the tenant;

(2) within 30 days of moving the deposit from one depository institution or fund to another, except in the case of a merger of institutions or funds, then within 30 days of the date the person investing the security deposit receives notice of that merger, or from one account to another account, if the change in the account or institution occurs more than 60 days prior to the annual interest payment;

(3) within 30 days after the effective date of P.L.2003, c. 188 (C.46: 8-21.4 et al.);

(4) at the time of each annual interest payment; and

(5) within 30 days after the transfer or conveyance of ownership or control of the property pursuant to section 2 of P.L.1967, c. 265 (C.46:8-20).

All of the money so deposited or advanced may be deposited or invested by the person receiving the same in one interest-bearing or dividend yielding account as long as he complies with all the other requirements of this act.

The interest or earnings paid thereon by the investment company, State or federally chartered bank, savings bank or savings and loan association, shall belong to the person making the deposit or advance and shall be paid to the tenant in cash, or be credited toward the payment of rent due on the renewal or anniversary of said tenant’s lease or on January 31, if the tenant has been given written notice after the effective date of P.L.2003, c. 188 and before the next anniversary of the tenant’s lease, that subsequent interest payments will be made on January 31 of each year.

If the person receiving a security deposit fails to invest or deposit the security money in the manner required under this section or to provide the notice or pay the interest to the tenant as required under this subsection, the tenant may give written notice to that person that such security money plus an amount representing interest at the rate of seven percent per annum be applied on account of rent payment or payments due or to become due from the tenant, and thereafter the tenant shall be without obligation to make any further security deposit and the person receiving the money so deposited shall not be entitled to make further demand for a security deposit. However, in the case of a failure by the person receiving the security deposit to pay the annual interest or to provide the annual notice at the time of the annual interest payment, if the annual notice is not also serving as a notice of change of account or institution, before the tenant may apply the security deposit plus interest on account of the rent payment or payments due or to become due on the part of the tenant, the tenant shall first give that person a written notice of his failure and shall allow that person 30 days from the mailing date or hand delivery of this notice to comply with the annual interest payment or annual notice, or both.

d. The provisions of this section requiring that the security advanced be deposited or invested in a money market fund, or in an interest bearing account in a State or federally chartered bank, savings bank or savings and loan association shall not apply to any security advanced on a contract, lease or license agreement for the seasonal use or rental of real property. For purposes of this paragraph “seasonal use or rental” means use or rental for a term of not more than 125 consecutive days for residential purposes by a person having a permanent place of residence elsewhere. “Seasonal use or rental” does not mean use or rental of living quarters for seasonal, temporary or migrant farm workers in connection with any work or place where work is being performed. The landlord shall have the burden of proving that the use or rental of the residential property is seasonal.

Credits

L.1967, c. 265, § 1, eff. Jan. 1, 1968. Amended by L.1971, c. 223, § 1, eff. June 21, 1971; L.1973, c. 195, § 1, eff. July 3,

17

1973; L.1979, c. 28, § 1, eff. Feb. 22, 1979; L.1985, c. 42, § 1, eff. Aug. 1, 1985; L.1990, c. 100, § 1, eff. Oct. 18, 1990; L.1997, c. 310, § 1, eff. Jan. 8, 1998; L.2003, c. 188, § 1, eff. Jan. 1, 2004.

Editors’ Notes

ASSEMBLY CONSUMER AFFAIRS COMMITTEE STATEMENT

Assembly, No. 2595--L.1990, c. 100

The Assembly Consumer Affairs Committee favorably reports Assembly Bill No. 2595 with committee amendments.

Assembly Bill No. 2595 amends section 1 of P.L.1967, c. 265 (C. 46:8-19) to exempt landlords of seasonal rentals from the current statutory requirement that they deposit each tenant’s security deposit in an interest bearing account.

Under current law, every landlord, except the landlords of owner-occupied properties having two or less rental units where the tenant has failed to give the landlord a 30 day notice invoking the provisions of this security deposit law, is required to deposit each tenant’s security deposit in an interest bearing account.

This bill, as amended by the committee, exempts the landlords of seasonal rental properties from that requirement. For the purposes of this exemption, the bill defines “seasonal use or rental” as the use or rental of a unit for residential purposes for a term of not more than 60 consecutive days by a person having a permanent place of residence elsewhere. Specifically excluded from that exemption, however, are the rentals of living quarters by seasonal, temporary or migrant farm workers. Landlords renting living quarters to such workers would continue to be required to deposit their security deposits in interest bearing accounts.

The committee amended the bill to change the definition of “seasonal rental or use,” reducing the required term of the rental in order to qualify for the exemption from 110 consecutive days to 60 consecutive days. In discussing the bill, the committee concurred with the sponsor’s primary objective of relieving the landlords of seasonal properties of the administrative headache of attempting to deposit the security deposits of short-term renters in interest bearing accounts. The committee also understood that the service fees charged by institutions holding such short-term deposits, in many instances, exceed the amount of interest generated by the deposit. The committee did believe, however, that in those instances involving leases of 60 or more days, the current requirement that the landlord deposit a renter’s security deposit in an interest bearing account imposed no undue administrative burden on the landlord. The committee further believed that the security deposits of renters entering into seasonal leases of more than 60 days would generate noticeable interest and that those individuals deserved to be paid that interest.

A spokesperson for the New Jersey Tenants’ Organization opposed the bill in concept, arguing that all renters are entitled to the interest generated from their security deposits.

The committee also adopted technical amendments to the bill.

This bill was prefiled for introduction in the 1990 session pending technical review. As reported, the bill includes the changes required by technical review which has been performed.

GOVERNOR’S RECONSIDERATION AND RECOMMENDATION STATEMENT

Assembly, No. 1245--L.1985, c. 42

To the General Assembly:

18

Pursuant to Article V, Section 1, Paragraph 14 of the Constitution, I herewith return Assembly Bill No. 1245 with my recommendations for reconsideration.

* * * * * *

I recommend that Assembly Bill No. 1245 be amended to raise the rental threshold from four rental premises or units to 10 rental units. Landlords owning 10 or more rental units are commercial landlords. This group will not find money market funds or variable interest rate bank accounts difficult to administer and will have sufficient funds to maintain minimum balances in the accounts.

I also recommend that Assembly Bill No. 1245 be amended to require the Commissioner of Banking to adjust the rental unit threshold for some or all persons receiving money for less than 10 rental units where the Commissioner finds that it is practicable to deposit or invest the money received with an investment company or State or federally chartered bank, savings bank or saving and loan association in accordance with this act.

Amending Assembly Bill No. 1245 in this fashion will insure that all landlords will be able to maintain their current level of service to their tenants.

* * * * * *

ASSEMBLY COMMERCE, INDUSTRY AND PROFESSIONS COMMITTEE STATEMENT

Assembly, No. 1126--L.1979, c. 28

This bill provides that when a landlord sells his rental property, he must turn over to the buyer the security deposits and interest thereon which he holds for the tenants and notify the tenants of such. The other two methods of handling security deposits, the return of the security deposits to the tenants at the time of sale and the retention of the security deposits by the original landlord, are removed from the law. Tenants will no longer have to guess what has happened to their security deposits at the sale of a rental property but will now know that the security deposits have been automatically transferred to the new owner.

The committee members amended section 1 of the bill because they felt that a landlord who had violated the provisions of the act and thereby had to refund the tenant’s security deposit should not be entitled to demand another security deposit from that tenant as long as the tenant rents from that landlord, let alone at the renewal of a lease. They felt that their position corresponds with both the intent of the “Rent Security Deposit Act” and the numerous court decisions on the subject.

* * * * * *

Notes of Decisions (20)

N. J. S. A. 46:8-19, NJ ST 46:8-19Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

19

New Jersey Statutes Annotated

Title 46. Property (Refs & Annos)Subtitle 2. Real Property Only (Refs & Annos)

Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)

N.J.S.A. 46:8-33

46:8-33. Action for possession by landlord; compliance with act

Currentness

In any action for possession instituted by a landlord who has failed to comply with the provisions of this act, no judgment for possession shall be entered until there has been compliance. The court shall continue such case for up to 90 days and if there has not been compliance within such period, the action shall be dismissed.

Credits

L.1974, c. 50, § 7, eff. June 25, 1974.

Notes of Decisions (1)

N. J. S. A. 46:8-33, NJ ST 46:8-33Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

20

New Jersey Statutes Annotated

Title 46. Property (Refs & Annos)Subtitle 2. Real Property Only (Refs & Annos)

Chapter 8. Leasehold Estates; Landlord and Tenant (Refs & Annos)

N.J.S.A. 46:8-28

46:8-28. Certificate of registration; filing; contents

Effective: September 1, 2003

Currentness

Every landlord shall, within 30 days following the effective date of this act, or at the time of the creation of the first tenancy in any newly constructed or reconstructed building, file with the clerk of the municipality, or with such other municipal official as is designated by the clerk, in which the residential property is situated, in the case of a one-dwelling unit rental or a two-dwelling unit non-owner occupied premises, or with the Bureau of Housing Inspection in the Department of Community Affairs in the case of a multiple dwelling as defined in section 3 of the “Hotel and Multiple Dwelling Law” (C.55:13A-3), a certificate of registration on forms prescribed by the Commissioner of Community Affairs, which shall contain the following information:

a. The name and address of the record owner or owners of the premises and the record owner or owners of the rental business if not the same persons. In the case of a partnership the names of all general partners shall be provided;

b. If the record owner is a corporation, the name and address of the registered agent and corporate officers of said corporation;

c. If the address of any record owner is not located in the county in which the premises are located, the name and address of a person who resides in the county in which the premises are located and is authorized to accept notices from a tenant and to issue receipts therefor and to accept service of process on behalf of the record owner;

d. The name and address of the managing agent of the premises, if any;

e. The name and address, including the dwelling unit, apartment or room number of the superintendent, janitor, custodian or other individual employed by the record owner or managing agent to provide regular maintenance service, if any;

f. The name, address and telephone number of an individual representative of the record owner or managing agent who may be reached or contacted at any time in the event of an emergency affecting the premises or any unit of dwelling space therein, including such emergencies as the failure of any essential service or system, and who has the authority to make emergency decisions concerning the building and any repair thereto or expenditure in connection therewith and shall, at all times, have access to a current list of building tenants that shall be made available to emergency personnel as required in the event of an emergency;

g. The name and address of every holder of a recorded mortgage on the premises;

21

h. If fuel oil is used to heat the building and the landlord furnishes the heat in the building, the name and address of the fuel oil dealer servicing the building and the grade of fuel oil used.

Credits

L.1974, c. 50, § 2, eff. June 25, 1974. Amended by L.1980, c. 170, § 8, eff. Dec. 18, 1980; L.1981, c. 299, § 2; L.1981, c. 442, § 2; L.1981, c. 511, § 20, eff. Jan. 12, 1982; L.2001, c. 264, § 1, eff. Dec. 11, 2001; L.2003, c. 56, § 2, eff. Sept. 1, 2003.

Notes of Decisions (1)

N. J. S. A. 46:8-28, NJ ST 46:8-28Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

22

New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

C. Residential Tenants

N.J.S.A. 2A:18-61.3

2A:18-61.3. Residential lease; eviction or failure to renew by landlord or by owner’s or landlord’s successor in ownership or possession; necessity for good cause or other grounds

Currentness

a. No landlord may evict or fail to renew any lease of any premises covered by section 2 of this act1 except for good cause as defined in section 2.

b. A person who was a tenant of a landlord in premises covered by section 2 of P.L.1974, c. 49 (C.2A:18-61.1) may not be removed by any order or judgment for possession from the premises by the owner’s or landlord’s successor in ownership or possession except:

(1) For good cause in accordance with the requirements which apply to premises covered pursuant to P.L.1974, c. 49 (C.2A:18-61.1 et al.); or

(2) For proceedings in premises where federal law supersedes applicable State law governing removal of occupants; or

(3) For proceedings where removal of occupants is sought by an authorized State or local agency pursuant to eminent domain or code or zoning enforcement laws and which comply with applicable relocation laws pursuant to the “Relocation Assistance Law of 1967,” P.L.1967, c. 79 (C.52:31B-1 et seq.), the “Relocation Assistance Act,” P.L.1971, c. 362 (C.20:4-1 et seq.) or section 3 of P.L.1993, c. 342 (C.2A:18-61.1g).

Where the owner’s or landlord’s successor in ownership or possession is not bound by the lease entered into with the former tenant and may offer a different lease to the former tenant, nothing in P.L.1986, c. 138 shall limit that right.

Credits

L.1974, c. 49, § 4, eff. June 25, 1974. Amended by L.1986, c. 138, § 7, eff. Oct. 29, 1986; L.1993, c. 342, § 2, eff. Dec. 27, 1993.

Notes of Decisions (4)

Footnotes

1N.J.S.A. § 2A:18-61.1.

23

N. J. S. A. 2A:18-61.3, NJ ST 2A:18-61.3Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

24

New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

C. Residential Tenants

N.J.S.A. 2A:18-61.2

2A:18-61.2. Removal of residential tenants; required notice; contents; service

Effective: July 1, 2013

Currentness

No judgment of possession shall be entered for any premises covered by section 2 of this act,1 except in the nonpayment of rent under subsection a. or f. of section 2, unless the landlord has made written demand and given written notice for delivery of possession of the premises. The following notice shall be required:

a. For an action alleging disorderly conduct under subsection b. of section 2, or injury to the premises under subsection c. of section 2, or any grounds under subsection m., n., o. , p., q., or r. of section 2, three days’ notice prior to the institution of the action for possession;

b. For an action alleging continued violation of rules and regulations under subsection d. of section 2, or substantial breach of covenant under subsection e. of section 2, or habitual failure to pay rent, one month’s notice prior to the institution of the action for possession;

c. For an action alleging any grounds under subsection g. of section 2, three months’ notice prior to the institution of the action;

d. For an action alleging permanent retirement under subsection h. of section 2, 18 months’ notice prior to the institution of the action and, provided that, where there is a lease in effect, no action may be instituted until the lease expires;

e. For an action alleging refusal of acceptance of reasonable lease changes under subsection i. of section 2, one month’s notice prior to institution of action;

f. For an action alleging any grounds under subsection l. of section 2, two months’ notice prior to the institution of the action and, provided that where there is a written lease in effect no action shall be instituted until the lease expires;

g. For an action alleging any grounds under subsection k. of section 2, three years’ notice prior to the institution of action, and provided that where there is a written lease in effect, no action shall be instituted until the lease expires;

h. In public housing under the control of a public housing authority or redevelopment agency, for an action alleging substantial breach of contract under paragraph (2) of subsection e. of section 2, the period of notice required prior to the

25

institution of an action for possession shall be in accordance with federal regulations pertaining to public housing leases.

The notice in each of the foregoing instances shall specify in detail the cause of the termination of the tenancy and shall be served either personally upon the tenant or lessee or such person in possession by giving him a copy thereof, or by leaving a copy thereof at his usual place of abode with some member of his family above the age of 14 years, or by certified mail; if the certified letter is not claimed, notice shall be sent by regular mail.

Credits

L.1974, c. 49, § 3, eff. June 25, 1974. Amended by L.1975, c. 311, § 2, eff. Feb. 19, 1976; L.1981, c. 8, § 2, eff. Jan. 26, 1981; L.1986, c. 138, § 1, eff. Oct. 29, 1986; L.1989, c. 294, § 2, eff. Jan. 12, 1990; L.1997, c. 228, § 2, eff. Dec. 1, 1997; L.2013, c. 51, § 8, eff. July 1, 2013.

Notes of Decisions (38)

Footnotes

1L.1974, c. 49 (N.J.S.A. § 2A:18-61.1).

N. J. S. A. 2A:18-61.2, NJ ST 2A:18-61.2Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

26

New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

C. Residential Tenants

N.J.S.A. 2A:18-61.1

2A:18-61.1. Removal of residential tenants; grounds

Effective: July 1, 2013

Currentness

No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guest house or part thereof rented to a transient guest or seasonal tenant; (2) a dwelling unit which is held in trust on behalf of a member of the immediate family of the person or persons establishing the trust, provided that the member of the immediate family on whose behalf the trust is established permanently occupies the unit; and (3) a dwelling unit which is permanently occupied by a member of the immediate family of the owner of that unit, provided, however, that exception (2) or (3) shall apply only in cases in which the member of the immediate family has a developmental disability, except upon establishment of one of the following grounds as good cause:

a. The person fails to pay rent due and owing under the lease whether the same be oral or written; provided that, for the purposes of this section, any portion of rent unpaid by a tenant to a landlord but utilized by the tenant to continue utility service to the rental premises after receiving notice from an electric, gas, water or sewer public utility that such service was in danger of discontinuance based on nonpayment by the landlord, shall not be deemed to be unpaid rent.

b. The person has continued to be, after written notice to cease, so disorderly as to destroy the peace and quiet of the occupants or other tenants living in said house or neighborhood.

c. The person has willfully or by reason of gross negligence caused or allowed destruction, damage or injury to the premises.

d. The person has continued, after written notice to cease, to substantially violate or breach any of the landlord’s rules and regulations governing said premises, provided such rules and regulations are reasonable and have been accepted in writing by the tenant or made a part of the lease at the beginning of the lease term.

e. (1) The person has continued, after written notice to cease, to substantially violate or breach any of the covenants or agreements contained in the lease for the premises where a right of reentry is reserved to the landlord in the lease for a violation of such covenant or agreement, provided that such covenant or agreement is reasonable and was contained in the lease at the beginning of the lease term.

(2) In public housing under the control of a public housing authority or redevelopment agency, the person has substantially violated or breached any of the covenants or agreements contained in the lease for the premises pertaining to illegal uses of controlled dangerous substances, or other illegal activities, whether or not a right of reentry is reserved to the landlord in the

27

lease for a violation of such covenant or agreement, provided that such covenant or agreement conforms to federal guidelines regarding such lease provisions and was contained in the lease at the beginning of the lease term.

f. The person has failed to pay rent after a valid notice to quit and notice of increase of said rent, provided the increase in rent is not unconscionable and complies with any and all other laws or municipal ordinances governing rent increases.

g. The landlord or owner (1) seeks to permanently board up or demolish the premises because he has been cited by local or State housing inspectors for substantial violations affecting the health and safety of tenants and it is economically unfeasible for the owner to eliminate the violations; (2) seeks to comply with local or State housing inspectors who have cited him for substantial violations affecting the health and safety of tenants and it is unfeasible to so comply without removing the tenant; simultaneously with service of notice of eviction pursuant to this clause, the landlord shall notify the Department of Community Affairs of the intention to institute proceedings and shall provide the department with such other information as it may require pursuant to rules and regulations. The department shall inform all parties and the court of its view with respect to the feasibility of compliance without removal of the tenant and may in its discretion appear and present evidence; (3) seeks to correct an illegal occupancy because he has been cited by local or State housing inspectors or zoning officers and it is unfeasible to correct such illegal occupancy without removing the tenant; or (4) is a governmental agency which seeks to permanently retire the premises from the rental market pursuant to a redevelopment or land clearance plan in a blighted area. In those cases where the tenant is being removed for any reason specified in this subsection, no warrant for possession shall be issued until P.L.1967, c. 79 (C.52:31B-1 et seq.) and P.L.1971, c. 362 (C.20:4-1 et seq.) have been complied with.

h. The owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a mobile home park, provided this subsection shall not apply to circumstances covered under subsection g. of this section.

i. The landlord or owner proposes, at the termination of a lease, reasonable changes of substance in the terms and conditions of the lease, including specifically any change in the term thereof, which the tenant, after written notice, refuses to accept; provided that in cases where a tenant has received a notice of termination pursuant to subsection g. of section 3 of P.L.1974, c. 49 (C.2A:18-61.2), or has a protected tenancy status pursuant to the “Senior Citizens and Disabled Protected Tenancy Act,” P.L.1981, c. 226 (C.2A:18-61.22 et al.), or pursuant to the “Tenant Protection Act of 1992,” P.L.1991, c. 509 (C.2A:18-61.40 et al.), the landlord or owner shall have the burden of proving that any change in the terms and conditions of the lease, rental or regulations both is reasonable and does not substantially reduce the rights and privileges to which the tenant was entitled prior to the conversion.

j. The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.

k. The landlord or owner of the building or mobile home park is converting from the rental market to a condominium, cooperative or fee simple ownership of two or more dwelling units or park sites, except as hereinafter provided in subsection l. of this section. Where the tenant is being removed pursuant to this subsection, no warrant for possession shall be issued until this act has been complied with. No action for possession shall be brought pursuant to this subsection against a senior citizen tenant or disabled tenant with protected tenancy status pursuant to the “Senior Citizens and Disabled Protected Tenancy Act,” P.L.1981, c. 226 (C.2A:18-61.22 et al.), or against a qualified tenant under the “Tenant Protection Act of 1992,” P.L.1991, c. 509 (C.2A:18-61.40 et al.), as long as the agency has not terminated the protected tenancy status or the protected tenancy period has not expired.

l. (1) The owner of a building or mobile home park, which is constructed as or being converted to a condominium, cooperative or fee simple ownership, seeks to evict a tenant or sublessee whose initial tenancy began after the master deed, agreement establishing the cooperative or subdivision plat was recorded, because the owner has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing. However, no action shall be brought against a tenant under paragraph (1) of this subsection unless the tenant was given a statement in accordance with section 6 of P.L.1975, c. 311 (C.2A:18-61.9);

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(2) The owner of three or less condominium or cooperative units seeks to evict a tenant whose initial tenancy began by rental from an owner of three or less units after the master deed or agreement establishing the cooperative was recorded, because the owner seeks to personally occupy the unit, or has contracted to sell the unit to a buyer who seeks to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing;

(3) The owner of a building of three residential units or less seeks to personally occupy a unit, or has contracted to sell the residential unit to a buyer who wishes to personally occupy it and the contract for sale calls for the unit to be vacant at the time of closing.

m. The landlord or owner conditioned the tenancy upon and in consideration for the tenant’s employment by the landlord or owner as superintendent, janitor or in some other capacity and such employment is being terminated.

n. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under the “Comprehensive Drug Reform Act of 1987,” N.J.S.2C:35-1 et al., involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or (2) been admitted to and continued upon probation while completing, a drug rehabilitation program pursuant to N.J.S.2C:35-14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a person harboring or permitting a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under the said act. No action for removal may be brought pursuant to this subsection more than two years after the date of the adjudication or conviction or more than two years after the person’s release from incarceration whichever is the later.

o. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault, or terroristic threats against the landlord, a member of the landlord’s family or an employee of the landlord; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been so convicted or has so pleaded, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently. No action for removal may be brought pursuant to this subsection more than two years after the adjudication or conviction or more than two years after the person’s release from incarceration whichever is the later.

p. The person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for an offense under N.J.S.2C:20-1 et al. involving theft of property located on the leased premises from the landlord, the leased premises or other tenants residing in the leased premises, or N.J.S.2C:12-1 or N.J.S.2C:12-3 involving assault or terroristic threats against the landlord, a member of the landlord’s family or an employee of the landlord, or under the “Comprehensive Drug Reform Act of 1987,” N.J.S.2C:35-1 et al., involving the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia within the meaning of that act within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located, and has not in connection with his sentence for that offense either (1) successfully completed or (2) been admitted to and continued upon probation while completing a drug rehabilitation program pursuant to N.J.S.2C:35-14; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who committed such an offense, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently, except that this subsection shall not apply to a person who harbors or permits a juvenile to occupy the premises if the juvenile has been adjudicated delinquent upon the basis of an act which if committed by an adult would constitute the offense of use or possession under the said “Comprehensive Drug Reform Act of 1987.”

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q. The person has been convicted of or pleaded guilty to, or if a juvenile, has been adjudicated delinquent on the basis of an act which if committed by an adult would constitute an offense under N.J.S.2C:20-1 et al. involving theft of property from the landlord, the leased premises or other tenants residing in the same building or complex; or, being the tenant or lessee of such leased premises, knowingly harbors therein a person who has been so convicted or has so pleaded, or otherwise permits such a person to occupy those premises for residential purposes, whether continuously or intermittently.

r. The person is found in a civil action, by a preponderance of the evidence, to have committed a violation of the human trafficking provisions set forth in section 1 of P.L.2005, c. 77 (C.2C:13-8) within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or the mobile home park, in which those premises are located; or, being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who has been engaged in human trafficking, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently. No action for removal may be brought pursuant to this subsection more than two years after the alleged violation has terminated. A criminal conviction or a guilty plea to a crime of human trafficking under section 1 of P.L.2005, c. 77 (C.2C:13-8) shall be considered prima facie evidence of civil liability under this subsection.

For purposes of this section, (1) “developmental disability” means any disability which is defined as such pursuant to section 3 of P.L.1977, c. 82 (C.30:6D-3); (2) “member of the immediate family” means a person’s spouse, parent, child or sibling, or a spouse, parent, child or sibling of any of them; and (3) “permanently” occupies or occupied means that the occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property taxes are paid on the occupant’s behalf.

Credits

L.1974, c. 49, § 2, eff. June 25, 1974. Amended by L.1975, c. 311, § 1, eff. Feb. 19, 1976; L.1981, c. 8, § 1, eff. Jan. 26, 1981; L.1981, c. 226, § 13, eff. July 27, 1981; L.1989, c. 294, § 1, eff. Jan. 12, 1990; L.1991, c. 91, § 68, eff. April 9, 1991; L.1991, c. 307, § 1, eff. Nov. 7, 1991; L.1991, c. 509, § 19, eff. June 1, 1992; L.1993, c. 342, § 1, eff. Dec. 27, 1993; L.1995, c. 269, § 1, eff. Dec. 8, 1995; L.1996, c. 131, § 1, eff. Dec. 5, 1996; L.1997, c. 228, § 1, eff. Dec. 1, 1997; L.2000, c. 113, § 3, eff. Sept. 8, 2000; L.2013, c. 51, § 7, eff. July 1, 2013.

Editors’ Notes

SENATE COUNTY AND MUNICIPAL GOVERNMENT COMMITTEE STATEMENT

Assembly, No. 3251--L.1991, c. 307

The Senate County and Municipal Government Committee reports favorably Assembly Bill No. 3251 with Senate committee amendments.

Assembly Bill No. 3251, as amended by the committee, expands the definition of who may evict under the State’s “anti-eviction law” (P.L.1974, c. 49; C.2A:18-61.1 et al.) to address a specific situation which has arisen with regard to developmentally disabled persons.

Section 2 of P.L.1974, c. 49 (C.2A:18-61.1) establishes the grounds for eviction and the residents of any dwellings that are exempted from its provisions may be subject to eviction without regard for the good cause provisions listed therein. That section of law currently exempts from its application “owner-occupied premises with not more than two rental units.” To qualify for this exemption, however, the actual “owner” (i.e., holder of title) to the premises must reside there.

Assembly Bill 3251 Sca extends the right of eviction to cover the following accommodations: (1) a dwelling unit which is held in trust on behalf of a member of the immediate family of the person or persons establishing the

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trust, provided that the member of the immediate family on whose behalf the trust is established permanently occupies the unit; and (2) a dwelling unit which is permanently occupied by a member of the immediate family of the owner of that unit.

The right to evict in these situations would only apply in cases in which the member of the immediate family has a “developmental disability.” The term is used consistently with the definition contained in the “Developmentally Disabled Rights Act,” P.L.1977, c. 82 (C.30:6D-1 et seq.)

The bill defines an “immediate family” member to include a person’s spouse, parent, child or sibling, and a spouse, parent, child or sibling of any of those persons. “Permanent” occupation is defined to mean that the occupant maintains no other domicile at which the occupant votes, pays rent or property taxes or at which rent or property taxes are paid on the occupant’s behalf.

Although the “anti-eviction law” was meant to protect tenants from unreasonable eviction, it inadvertently creates considerable hardship for a class of tenants it might otherwise have meant to protect. Developmentally disabled adult relatives who live independently but with tenant companions or roommates in quarters owned by family members are not accorded the right to evict under section 1 of P.L.1974, c. 49 (C.2A:18-61.1) as non-owners. The right to evict is accorded only to owner-occupants; a developmentally disabled relative of an owner would not, therefore, be able to evict an inappropriate co-tenant nor would the owners have that right as non-residents.

Given the extreme shortage of space in community residences for the developmentally disabled and the desire, on the part of family members, for alternative living arrangements for their developmentally disabled relatives, it is the committee’s intent to encourage the development of these alternatives. It is not the committee’s intent, in protecting tenants, to increase the vulnerability of developmentally disabled persons in independent living situations by removing an important means of redress if those living arrangements are unsatisfactory. Nor is it the committee’s intent to undermine the protections the Legislature meant to extend to tenants when it originally enacted the “anti-eviction” law in 1974.

The committee amended the bill to provide that the exemption from the good cause provisions of the “anti-eviction law” applies only to situations in which the developmentally disabled member of the immediate family of the owner permanently occupies the dwelling unit which is the subject of the exemption or occupies the dwelling unit which is being held in a trust established by a member of their immediate family.

The committee also amended the bill to define the terms “developmental disability,” “member of the immediate family,” and “permanently” occupies or occupied.

This bill as amended by the committee is identical to Senate Bill No. 3302 with amendments adopted by the committee on June 10, 1991.

Notes of Decisions (335)

N. J. S. A. 2A:18-61.1, NJ ST 2A:18-61.1Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

B. Summary Actions for Recovery of Premises (Refs & Annos)

N.J.S.A. 2A:18-56

2A:18-56. Proof of notice to quit prerequisite to judgment

Currentness

No judgment for possession in cases specified in paragraph “a.” of section 2A:18-53 of this Title shall be ordered unless:

a. The tenancy, if a tenancy at will or from year to year, has been terminated by the giving of 3 months’ notice to quit, which notice shall be deemed to be sufficient; or

b. The tenancy, if a tenancy from month to month, has been terminated by the giving of 1 month’s notice to quit, which notice shall be deemed to be sufficient; or

c. The tenancy, if for a term other than at will, from year to year, or from month to month, has been terminated by the giving of one term’s notice to quit, which notice shall be deemed to be sufficient; and

d. It shall be shown to the satisfaction of the court by due proof that the notice herein required has been given.

Credits

Amended by L.1975, c. 136, § 1, eff. July 7, 1975.

Notes of Decisions (17)

N. J. S. A. 2A:18-56, NJ ST 2A:18-56Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

32

New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

B. Summary Actions for Recovery of Premises (Refs & Annos)

N.J.S.A. 2A:18-53

2A:18-53. Removal of tenant in certain cases; jurisdiction

Currentness

Except for residential lessees and tenants included in section 2 of this act,1 any lessee or tenant at will or at sufferance, or for a part of a year, or for one or more years, of any houses, buildings, lands or tenements, and the assigns, undertenants or legal representatives of such tenant or lessee, may be removed from such premises by the Superior Court, Law Division, Special Civil Part in an action in the following cases:

a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof. The notice shall be served either personally upon the tenant or such person in possession by giving him a copy thereof or by leaving a copy of the same at his usual place of abode with a member of his family above the age of 14 years.

b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held.

c. Where such person (1) shall be so disorderly as to destroy the peace and quiet of the landlord or the other tenants or occupants living in said house or the neighborhood, or (2) shall willfully destroy, damage or injure the premises, or (3) shall constantly violate the landlord’s rules and regulations governing said premises, provided, such rules have been accepted in writing by the tenant or are made a part of the lease; or (4) shall commit any breach or violation of any of the covenants or agreements in the nature thereof contained in the lease for the premises where a right of re-entry is reserved in the lease for a violation of such covenants or agreements, and shall hold over and continue in possession of the demised premises or any part thereof, after the landlord or his agent for that purpose has caused a written notice of the termination of said tenancy to be served upon said tenant, and a demand that said tenant remove from said premises within three days from the service of such notice. The notice shall specify the cause of the termination of the tenancy, and shall be served either personally upon the tenant or such person in possession by giving him a copy thereof, or by leaving a copy thereof at his usual place of abode with some member of his family above the age of 14 years.

Credits

Amended by L.1966, c. 319, § 1, eff. Jan. 5, 1967; L.1974, c. 49, § 1, eff. June 25, 1974; L.1991, c. 91, § 64, eff. April 9, 1991.

Notes of Decisions (155)

Footnotes

1N.J.S.A. § 2A:18-61.1.

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N. J. S. A. 2A:18-53, NJ ST 2A:18-53Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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63 N.J. 460

Supreme Court of New Jersey.

Lillias BERZITO, Plaintiff-Appellant.v.

Vincent GAMBINO, Defendant-Respondent.

Argued Feb. 21, 1973. | Decided July 26, 1973.

Action by tenant to recover portion of rent paid, wherein landlord counterclaimed for amount of rent which had been remitted to tenant in a prior summary dispossess proceeding. The Union County District Court, 114 N.J.Super. 124, 274 A.2d 865, entered judgment for plaintiff, and defendant appealed. The Superior Court, Appellate Division, 119 N.J.Super. 332, 291 A.2d 577, reversed, and plaintiff appealed. The Supreme Court, Mountain, J., held that landlord’s covenant of habitability and tenant’s covenant to pay rent will be treated as mutually dependent, set forth remedies available to landlord claiming breach of covenant of habitability, and also set forth steps that must be taken by tenant as a prerequisite to seeking relief. Judgment of the Appellate Division reversed, and judgment of trial court, as amended, reinstated.

West Headnotes (7)

[1]Landlord and TenantWarranty of habitabilityLandlord and TenantCovenants and Agreements to Pay Rent

Covenant on part of a tenant to pay rent, and covenant, whether express or implied, on part of a landlord to maintain demised premises in a habitable condition are for all purposes mutually dependent.

8 Cases that cite this headnote

[2]

Landlord and TenantCondition of PremisesLandlord and TenantClaims which may be subject of set-off, counterclaim, or recoupment in general

In an action by a landlord for unpaid rent, a tenant may plead, by way of defense and setoff, a breach by landlord of his continuing obligation to maintain an adequate standard of habitability.

3 Cases that cite this headnote

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[3] Landlord and TenantDefenses

A breach by landlord of his continuing obligation to maintain an adequate standard of habitability may be availed of by way of defense in a summary dispossess proceeding.

3 Cases that cite this headnote

[4]Landlord and TenantActionsLandlord and TenantRecovery of payments

A tenant, claiming that landlord has broken his covenant to maintain premises in a habitable condition, may initiate an action against his landlord to recover either part or all of a deposit paid upon execution and delivery of lease or part or all of the rent thereafter paid during the term; and in such an action, if the alleged breach on part of landlord is proven, the tenant will be charged only with the reasonable rental value of the property in its imperfect condition during his period of occupancy.

16 Cases that cite this headnote

[5]Landlord and TenantActionsLandlord and TenantRecovery of payments

As a prerequisite to maintaining action against landlord to recover either part or all of a deposit paid upon execution and delivery of lease or part or all of rent thereafter paid during term, tenant must give landlord positive and seasonable notice of alleged defect, must request its correction and must allow landlord a reasonable period of time to effect repair or replacement.

7 Cases that cite this headnote

[6] Landlord and TenantWarranty of habitability

Not every defect or inconvenience will be deemed to constitute a breach of covenant of habitability; condition complained of must be such as truly to render the premises uninhabitable in the eyes of a reasonable person.

7 Cases that cite this headnote

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[6] Landlord and TenantWarranty of habitability

Not every defect or inconvenience will be deemed to constitute a breach of covenant of habitability; condition complained of must be such as truly to render the premises uninhabitable in the eyes of a reasonable person.

7 Cases that cite this headnote

[7]Landlord and TenantWarranty of habitabilityLandlord and TenantCovenants and Agreements to Pay Rent

In any residential lease, not only will there be implied on part of landlord a covenant of habitability to extend during term of demise, but also this covenant and tenant’s covenant to pay rent will be treated as mutually dependent.

16 Cases that cite this headnote

Attorneys and Law Firms

*462 **18 Nicholas J. Schuldt, Elizabeth, for plaintiff-appellant (David Einhorn, Passaic, Union County Legal Services Corp., attorney, Nicholas J. Schuldt, of counsel; David Einhorn, on the brief).

Joseph J. Triarsi, Roselle Park, for defendant-respondent (Pisano & Triarsi, Roselle Park, attorneys; Joseph J. Triarsi, of counsel).

Richard E. Blumberg, Newark, Newark-Essex Joint Law Reform Project, on the brief for amicus curiae, N.J. Tenants Organization.

Opinion

The opinion of the Court was delivered by

MOUNTAIN, J.

This case arises as the result of a dispute between a landlord and a tenant. It presents issues not previously passed upon by this Court.

The relief sought by the plaintiff-tenant was substantially granted by the Union County District Court, 114 N.J.Super. 124, 274 A.2d 865 (1971), but that decision was reversed by the Appellate Division, 119 N.J.Super. 332, 291 A.2d 577 (1972). We granted certification 62 N.J. 67, 299 A.2d 67 (1972).

*463 The opinions in the courts below reveal the factual situation, which we will briefly summarize here. In September 1968 the plaintiff rented from the defendant the second-floor, four-room furnished apartment at 608 Montgomery Street in Elizabeth for occupancy for herself and three minor children. There was no written lease; the rental for the apartment was fixed at $35 a week, with all utilities supplied. Plaintiff testified that at the time the terms of the arrangement were agreed upon the apartment was in a deplorable condition but the defendant promised he would make the premises ‘livable’ and agreed to make certain specific repairs. The trial court found that these representations were in fact made, 114 N.J.Super. at 129, 274 A.2d 865, and the Appellate Division accepted this finding, 119 N.J.Super. at 335, 291 A.2d 577, as do we.

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Testimony was submitted to the trial court that, at the time of the letting, screens and storm windows were either broken or missing, a number of windows were boarded up where the panes had been broken, several radiators were not to be found, there were holes in the floors and wall, plaster was falling, several electric fixtures were inoperable, there was a sewage backup in the cellar and the premises were infested with roaches and rodents. Much of the furniture was found unfit for use and was relegated to the basement. Plaintiff herself replaced the furniture as became necessary. During winter months **19 there was sometimes no heat and at all times insufficient heat.

In addition to concluding that these conditions did in fact exist, the trial court further determined that the efforts of the landlord to correct these inadequacies were feeble and dilatory, and made only when prodded by the court and municipal authorities. 114 N.J.Super. 128, 274 A.2d 865.

In June 1970 the landlord brought a summary dispossess action against the tenant alleging non-payment of rent. The court found that there had been a breach of the landlord’s express warranty of habitability and reduced the rent to *464 $75 a month retroactive to February 23, 1970, the date from which the tenant had paid no rent. This reduced sum was apparently forthcoming from the tenant at that time, but nothing was paid thereafter and on November 14, 1970 the tenant quite the premises.

In the present action the plaintiff seeks to recover the difference between the rent actually paid and an amount calculated at the rate of $75 a month for the period from the commencemant of the tenancy until February 23, 1970, pointing out that the landlord’s default had continued throughout the entire term. The landlord counterclaimed for the rent remitted by the court. The trial judge determined that the landlord should fairly have been given one month from the date of the inception of the letting within which to undertake and complete the promised repairs. He rejected the defendant’s contention that plaintiff had waived the failure to repair by continuing in possession and making full payment of the rent, pointing to the scarcity in the Elizabeth area of available housing for low-income families with children. The plaintiff had given testimony to the same effect. He further concluded that since the repairs had never been adequately made, plaintiff was in fact entitled to the relief sought. Calculating the fair rental value at $75 a month, the landlord would have received a total of $1,200 for the period from November 1968 through February 1970. Since he had in fact received $2,380 during this period, it was determined that he should now return $1,180 and judgment for this amount was entered in the plaintiff’s favor. 114 N.J.Super. at 130, 274 A.2d 865. The judgment was subsequently reduced to $973.75 to reflect a credit in defendant’s favor of $206.25 as rent for the period from August 27, the time of judgment, to November 14, 1970. 119 N.J.Super. at 333, 291 A.2d 577.

The Appellate Division found that some of the defects might properly be classified as ‘amenities,’ that the tenant could have quit the premises had she wished but that she made no real effort to find other accommodations. It concluded that the diminution in rent which had been granted *465 the tenant in the dispossess proceedings had achieved substantial justice between the parties and accordingly reversed the trial court judgment in plaintiff’s favor.

We first consider the applicable law in this State. In Reste Realty Corporation v. Cooper, 53 N.J. 444, 251 A.2d 268 (1969) the lessor brought suit against the lessee for unpaid rent. The evidence disclosed that the demised premises—the basement floor of a commercial building—were periodically flooded with rain water due to the improper surfacing of an adjoining driveway. Following many complaints and after it had become apparent that the recurrent floodings rendered the property substantially useless for the lessee’s intended purpose, she quit the premises and refused to make any further rental payments. This Court, reversing the Appellate Division, reinstated the judgment of the trial court in favor of the lessee. The failure of the landlord to remove the cause of the flooding was found to be a violation of the covenant of quiet enjoyment contained in the lease, thus constituting a constructive eviction justifying the action of the tenant in vacating the demised premises. During the course of the Court’s opinion it was pointed out that historically a lease for a term of years carried with it no implied **20 warranty of habitability or of fitness for the agreed purpose of the tenancy, that the doctrine of Caveat emptor applied and that in the absence of an express covenant to repair or proven misrepresentation the tenant took the property ‘as is.’ 53 N.J. at 451, 251 A.2d 268. It was noted nevertheless that these doctrines were being widely and forcefully attacked as inadequate to meet modern conditions, and it was stated, by way of considered Dictum, that

. . . present day demands of fair treatment for tenants with respect to latent defects remediable by the landlord, either within the demised premises or outside the demised premises, require imposition on him of an implied warranty against such defects. (53 N.J. at 454, 251 A.2d at 273)

Reste is probably more important for what the opinion said and for what it forecast than for what it held. The doctrine *466 of constructive eviction, upon which the decision in the tenant’s favor rested, was by no means novel, 1 American Law of Property (Casner ed. 1952) s 3.51, and as has often been pointed out, as a remedy it has serious drawbacks from a tenant’s point of view. If the conduct of a landlord is later found by a court not to have justified the tenant in vacating the premises, he will remain liable for unpaid rent. Furthermore he may be unable to find other quarters that he can afford and that he wishes to rent and in any event he will be saddled with the not inconsiderable expenses of moving.

The decision of this Court in Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970) went much further toward improving a tenant’s position vis-a-vis a recalcitrant landlord. That action originated as a summary dispossess proceeding. We there held, Inter alia, that a residential lease carries with it an implied warranty or covenant of habitability. In explaining this holding

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Justice Haneman said,Actually it is a covenant that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty original construction or deterioration from age or normal usage. And further it is a covenant that these facilities will remain in usable condition during the entire term of the lease. In performance of this covenant the landlord is required to maintain those facilities in a condition which renders the property livable. (56 N.J. at 144, 265 A.2d at 534)

Having determined that a continuing covenant of habitability was to be implied, the Court went on to consider the respective rights and liabilities to which the covenant gave rise as between leessor and lessee. In that case a toilet had cracked and water was leaking onto the bathroom floor. Repeated attempts to inform the landlord were of no avail. The tenant had the toilet repaired at a cost of $85.72 and sent the landlord a receipted bill in that amount together with a check for $9.28. Her monthly rental was $95. We found that this constituted a payment in full of the rent then due, concluding that where a vital facility is in need of repair, this work *467 may be done by the tenant who may then offset the expense against his rental obligation. It was carefully pointed out, however, that the tenant’s recourse to this form of self-help must be preceded by timely and adequate notice to the landlord to afford him an opportunity to make the necessary replacement or repair himself. Should the tenant be unable to give such notice after making a reasonable effort to do so, as had there been the case, he might nonetheless go forward with the work of repair.

In the case now before us the tenant did not vacate the premises claiming constructive eviction, nor did she undertake the needed repairs herself and then seek to offset the expense so incurred against her obligation to pay rent. Thus she did not seek either of the particular remedies afforded in Reste or in Marini. The latter case held, however, as we have just noted, that in any residential lease, be it oral or **21 written, there will be implied a covenant or warranty of habitability for the duration of the term. In this case the warranty happens to have been express, but for present purposes this makes no difference. A lessor becomes liable to a lessee for any breach of this covenant. Such a breach having occurred here, the question we are thus called upon to consider is what remedies are then available to a lessee. Are there remedies other than those granted in Reste and Marini? Were this an ordinary breach of contract, the most obvious remedy would be to award the tenant damages in an amount equal to the difference between the rent actually paid in accordance with the lease agreement and what would have been the fair rental value of the premises in their defective condition. The objection is made that, should we adopt this rule, it would drastically change the law, since traditionally most covenants in a lease—as opposed to those in an ordinary contract—are treated as being independent of one another so that while a tenant may have an action for damages against his landlord for the breach of the latter’s express or implied covenant to repair, this right of the tenant in no *468 way lessens his own obligation to make full and punctual payment of rent to the landlord.

This doctrine of independent covenants in leasehold arrangements is probably the most important single consequence of the traditional insistence of the law that because a lease may be said to convey an interest in property, most incidents of the landlord-tenant relationship are to be derived from principles drawn from the law of real property rather than from those to be found in the law of contracts. It has been persuasively argued that while the doctrine of independent covenants, and the strict application of the rule of Caveat emptor historically so typical of leasing arrangements, may have resulted in fulfilling the reasonable needs and expectations of landlords and tenants in the agrarian society of medieval England, this is no longer true in modern urban and suburban society. Today the tenant needs and expects more than the mere land itself. He generally needs and expects adequate shelter, heat, light, water, sanitation and maintenance. It is obviously unsatisfactory to tell him that he may sue his landlord for any failure to supply these necessities, but that at the same time he must make recurring rental payments as they fall due. Marini allowed the tenant, in effect, to apply rent monies to the making of necessary repairs. This was a clear departure from the traditional rule of independent covenants. But the opinion did go on to say that

(t)he tenant has only the alternative remedies of making the repairs or removing from the premises upon such a constructive eviction. (56 N.J. at 147, 265 A.2d at 535)

The defendant here insists that this constituted a holding that no other remedy is available to a tenant, where the landlord is at fault, other than the two that are mentioned. This restrictive reading of Marini has been accepted elsewhere as well. See Restatement of the Law of Property, Second (Tent. draft No. 1, March 23, 1973) s 5.4, page 213. Admittedly the *469 sentence, read literally and apart from context, seems to support this position. But of course a casual Dictum will not shackle the Court to prevent a later exercise of its creative powers in fashioning new remedies as need and occasion demand.[1] [2] We now hold that the covenant on the part of a tenant to pay rent, and the covenant—whether express or implied—on the part of a landlord to maintain the demised premises in a habitable condition are for all purposes mutually dependent. Accordingly in an action by a landlord for unpaid rent a tenant may plead, by way of defense and set off, a breach by the landlord of his continuing obligation to maintain an adequate standard of habitability. [3] That such a breach may be availed of by way of defense in a summary dispossess proceeding has already been settled. **22 Marini v. Ireland, Supra, 56 N.J. at 140, 265 A.2d 526.

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[4] [5] [6] Furthermore a tenant may initiate an action against his landlord to recover either part or all of a deposit paid upon the execution and delivery of the lease or part or all of the rent thereafter paid during the term, where he alleges that the lessor has broken his covenant to maintain the premises in a habitable condition. In such an action, if the alleged breach on the part of the landlord is proven, the tenant will be charged only with the reasonable rental value of the property in its imperfect condition during his period of occupancy. As a prerequisite to maintaining such a suit, the tenant must give the landlord positive and seasonable notice of the alleged defect, must request its correction and must allow the landlord a reasonable period of time to effect the repair or replacement. Not every defect or inconvenience will be deemed to constitute a breach of the covenant of habitability. The condition complained of must be such as truly to render the premises uninhabitable in the eyes of a reasonable person. In Mease v. Fox, 200 N.W.2d 791 (1973) the Supreme Court of Iowa considered the same question that is now before us, in a case involving substantially *470 identical facts. That opinion set forth the following factors—which we here paraphrase—as meriting consideration in determining whether in there has been a breach of the covenant of habitability on the part of the lessor.

1. Has there been a violation of any applicable housing code or building or sanitary regulations?

2. Is the nature of the deficiency or defect such as to affect a vital facility?

3. What is its potential or actual effect upon safety and sanitation?

4. For what length of time has it persisted?

5. What is the age of the structure?

6. What is the amount of the rent?

7. Can the tenant be said to have waived the defect or be estopped to complain?

8. Was the tenant in any way responsible for the defective condition?This list is intended to be suggestive rather than exhaustive. Each case must be governed by its own facts. The result must be just and fair to the landlord as well as the tenant.[7] The following authorities support the proposition, to which we adhere, that in any residential lease, not only will there be implied on the part of the landlord a covenant of habitability to extend during the term of the demise, but also this covenant and the tenant’s covenant to pay rent will be treated as mutually dependent. Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961); Brown v. Southall Realty Co., 237 A.2d 834 (D.C.App.1968); Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969); Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970), cert. den. 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971); Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972); Hinson v. Delis, 26 Cal.App.3d 62, 102 Cal.Rptr. 661 (1972); Mease v. Fox, Supra, 200 N.W.2d 791 (Iowa 1972); Glyco v. Schultz, 289 N.E.2d 919 (Mun.Ct.Ohio 1972); *471 Boston Housing Authority v. Hemingway, Mass., 293 N.E.2d 831 (1973); Restatement of the Law of Property, Second, (Tent. draft No. 1, March 23, 1973) Supra, ch. 5.1 In adopting the foregoing rule these courts deliberately rejected the rule of independent **23 covenants and the doctrine of Caveat emptor as applying to leases.

Furthermore the rule we espouse is in thorough accord with the prevailing legislative point of view. In 1971 the Legislature enacted a statute designed to meet the problem we are considering. (L.1971, c. 224; now N.J.S.A. 2A:42—85 et seq.)2 Since it did not become effective until June 21, 1971 it is not directly applicable to this case. But as was recently pointed out by Justice Sullivan, speaking for this Court in Shell Oil Co. v. Marinello, 63 N.J. 402, 307 A.2d 598 (1973), a statute often reflects legislative concern over a longstanding abuse, and to that extent may be fairly understood as articulating a public policy pre-existing the date of the statutory enactment. Such is clearly the case here. The introductory section of this statute is entitled, ‘Legislative findings,’ and reads as follows:The Legislature finds:a. Many citizens of the State of New Jersey are required to reside in dwelling units which fail to meet minimum standards of safety and sanitation; b. It is essential to the health, safety and general welfare of the people of the State that owners of substandard dwelling units be *472 encouraged to provide safe and sanitary housing accommodations for the public to whom such accommodations are offered; c. It is necessary, in order to insure the improvements of substandard dwelling units, to authorize the tenants dwelling therein to deposit their rents with a court appointed administrator until such dwelling units satisfy minimum standards of safety and sanitation. (N.J.S.A. 2A:42—85)

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The act provides that either at the instance of a designated public official (presumably the building inspector) or at the instance of an affected tenant, a petition may be filed with a court of competent jurisdiction that shall

(s)et forth material facts showing that there exists in such dwelling or any housing space thereof one or more of the following: a lack of heat or running water or of light or electricity or of adequate sewage disposal facilities, or any other condition or conditions in substantial violation of the standards of fitness for human habitation established under the State or local housing or health codes or regulations or any other condition dangerous to life, health or safety. (N.J.S.A. 2A:42—90(a))

The petition must also show that the landlord has been apprised of the alleged deficiency and has failed to take corrective steps within a reasonable time. The action shall then proceed in a summary manner. If the landlord is able to show that the alleged condition does not exist, that it has been corrected, that it was caused by the tenant or that the landlord has been denied entry to that portion of the premises to which access must be had in order to correct the condition, then the action will be dismissed. Otherwise, if the proofs are adequate, judgment will be entered directing that rents thenceforth be deposited with the clerk of the court to be used to remedy the improper conditions that have been found to exist. The statute sets forth in detail the procedure to be followed to accomplish the desired result. Any attempt to waive the provisions of the eanctment in a lease or other agreement will be void as against public policy. N.J.S.A. 2A:42—96. The statute broadly covers ‘all rental premises or units used for dwelling purposes **24 except owner-occupied *473 premises with not more than two rental units.’ N.J.S.A. 2A:42—86(d). This act, although not available to the plaintiff in this case, will in the future afford a further remedy, in addition to those we have mentioned above, to tenants of substandard dwellings.

As to the defense of waiver we agree with the trial court’s finding to the contrary, which is adequately supported by the proofs. We also find sufficient evidence in the record to sustain the trial court’s findings as to the rental value of the apartment.

For the reasons set forth above the judgment of the Appellate Division is reversed and the judgment of the trial court, as amended, in the amount of $973.75 in favor of the plaintiff is herewith reinstated.

For reversal: Chief Justice WEINTRAUB, Justices JACOBS, PROCTOR, HALL and MOUNTAIN and Judges CONFORD and SULLIVAN.—7.

For affirmance: None.

Parallel Citations

308 A.2d 17

Footnotes

1 A similar approach to this problem was taken in Academy Spires, Inc. v. Brown, 111 N.J.Super. 477, 268 A.2d 556 (Cty.Dist.Ct.1970) and in Samuelson v. Quinones, 119 N.J.Super. 338, 291 A.2d 580 (App.Div.1972), noted in 4 Seton Hall L.Rev. 714 (1973).

2 Similar rent withholding statutes exist in a number of other states. The Massachusetts act is discussed in Boston Housing Authority v. Hemingway, Supra, as are the somewhat similar Housing Regulations of the District of Columbia in Javins v. First National Realty Corporation, Supra. See also Comment: The Pennsylvania Project—A Practical Analysis of the Pennsylvania Rent Withholding Act, 17 Vill.L.Rev. 821 (1972) as well as Statutory Note, Restatement of the Law of Property, Second (Tent. draft No. 1, March 23, 1973) supra at 167—173.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

F. Tenant Protection Act of 1992

N.J.S.A. 2A:18-61.66

2A:18-61.66. Implied covenant in lease regarding payment by landlord of costs incurred by tenant for successful defense or action; discretion of court

Effective: January 17, 2014

Currentness

If a residential lease agreement provides that the landlord is or may be entitled to recover either attorney’s fees or expenses, or both, incurred as a result of the failure of the tenant to perform any covenant or agreement in the lease, or if the lease provides that such costs may be recovered as additional rent, the court shall read an additional parallel implied covenant into the lease. This implied covenant shall require the landlord to pay the tenant either the reasonable attorney’s fees or the reasonable expenses, or both, incurred by that tenant as the result of the tenant’s successful defense of any action or summary proceeding commenced by the landlord against the tenant, arising out of an alleged failure of the tenant to perform any covenant or agreement in the lease, or as the result of any successful action or summary proceeding commenced by the tenant against the landlord, arising out of the failure of the landlord to perform any covenant or agreement in the lease.

The court shall order the landlord to pay such attorney’s fees or expenses, or both, that are actually and reasonably incurred by a tenant who is the successful party in such actions or proceedings to the same extent the landlord is entitled to recover attorney’s fees and expenses, or both, as provided in the lease. The court shall have discretion with respect to awards of attorney’s fees or expenses, or both, for tenants to the same degree as it has with respect to awards of attorney’s fees or expenses, or both, for landlords as provided under the lease either explicitly or implicitly.

An order based on this implied covenant shall require the landlord to pay the tenant such costs either as money damages or a credit against future rent, as determined by the tenant. Any waiver of this section shall be void as against public policy.

Notwithstanding the foregoing, in an action or summary proceeding for non-payment of rent a tenant who pays all rent currently due and owing on or after the filing of the complaint but prior to entry of a final judgment, and whom the court finds presented no meritorious defense to the complaint other than said payment, shall not be deemed to have successfully defended against the action or summary proceeding for the purposes of the award of attorney’s fees or expenses, or both.

As used in this act “expenses” shall include expenses directly related to the litigation including, but not limited to, court costs and expenses for witnesses. “Expenses” shall not include personal expenses for travel, reimbursement for missed work time, or child care.

Credits

L.2013, c. 206, § 1, eff. Jan. 17, 2014.

42

N. J. S. A. 2A:18-61.66, NJ ST 2A:18-61.66Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

43

New Jersey Statutes Annotated

Title 2A. Administration of Civil and Criminal Justice (Refs & Annos)Subtitle 4. Civil Actions

Chapter 18. Civil Actions in County District Courts (Refs & Annos)Article 9. Proceedings Between Landlord and Tenant (Refs & Annos)

F. Tenant Protection Act of 1992

N.J.S.A. 2A:18-61.67

2A:18-61.67. Residential lease agreement allowing for recovery of costs by landlord for action or proceeding arising out of lease; required provision regarding recovery of costs by tenant

Effective: January 17, 2014

Currentness

If a residential lease agreement provides that the landlord is or may be entitled to recover attorney’s fees or expenses, or both from the tenant for any action or summary proceeding arising out of the lease, as described in section 1 of P.L.2013, c. 206 (C.2A:18-61.66), the lease clause shall also contain the following provision in a bold typeface in a font size no less than one point larger than the point size of the rest of the lease clause or 11 points, whichever is larger:

IF THE TENANT IS SUCCESSFUL IN ANY ACTION OR SUMMARY PROCEEDING ARISING OUT OF THIS LEASE, THE TENANT SHALL RECOVER ATTORNEY’S FEES OR EXPENSES, OR BOTH FROM THE LANDLORD TO THE SAME EXTENT THE LANDLORD IS ENTITLED TO RECOVER ATTORNEY’S FEES OR EXPENSES, OR BOTH AS PROVIDED IN THIS LEASE.

Credits

L.2013, c. 206, § 2, eff. Jan. 17, 2014.

N. J. S. A. 2A:18-61.67, NJ ST 2A:18-61.67Current with laws effective through L.2014, c. 62 and J.R. No. 3.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

44

56 N.J. 130

Supreme Court of New Jersey.

Joseph MARINI, Plaintiff-Respondent,v.

Alice IRELAND, Defendant-Appellant.

Argued Feb. 16, 1970. | Decided May 18, 1970.

Landlord’s action to dispossess tenant. The Camden County District Court found for landlord and tenant’s appeal was certified to the Supreme Court. The Supreme Court, Haneman, J., held that equitable as well as legal defenses asserting payment or absolution from payment in whole or in part are available to tenant in dispossess action and must be considered by court, and that if landlord fails to make repairs and replacements of vital facilities necessary to maintain premises in livable condition for period of time adequate to accomplish such repair and replacements after notice, tenant may cause same to be done and deduct cost thereof from future rents. Reversed and remanded.

West Headnotes (23)

[1] CourtsJurisdiction

County District Court is vested with jurisdiction in landlord and tenant dispossess proceeding only where there exists rent default and complaint must delineate specific allegations of fact giving rise to such default. N.J.S.A. 2A:18–53, 59.

4 Cases that cite this headnote

[2] Abatement and RevivalNecessity and mode of making objection

Jurisdictional issue in landlord tenant dispossess proceeding can be raised by motion directed at complaint for failure to accurately allege necessary facts with particularity and on trial for failure to adduce adequate proof to corroborate allegations of complaint. N.J.S.A. 2A:18–53; R. 6:3–1.

1 Cases that cite this headnote

45

[3] Landlord and TenantIssues, proof, and variance

If complaint in landlord tenant dispossess proceeding contains adequate factual allegations of default, issue can be resolved only when proof has been adduced. N.J.S.A. 2A:18–53; R. 6:3–1.

1 Cases that cite this headnote

[4] Landlord and TenantJurisdiction

In landlord tenant dispossess proceeding, failure of landlord to allege or prove tenant’s default is sufficient ground to warrant dismissal for lack of jurisdiction. N.J.S.A. 2A:18–53; R. 6:3–1.

3 Cases that cite this headnote

[5] Landlord and TenantTrial

Judge’s finding that there is default as alleged by landlord seeking to dispossess tenant does not dispose of meritorious issue. N.J.S.A. 2A:18–53; R. 6:3–1.

1 Cases that cite this headnote

[6] Landlord and TenantJurisdiction

Jurisdictional issue of tenant’s default in payment of rent encompasses question of whether amount of rent alleged to be in default is due, unpaid and owing, not only whether it is due and unpaid. N.J.S.A. 2A:18–53.

11 Cases that cite this headnote

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[7] Landlord and TenantJurisdiction

Mere fact of tenant’s failure to pay rent in full as provided in lease is not in and of itself sufficient fact to meet statutory jurisdictional requisite for dispossess action. N.J.S.A. 2A:18–53.

6 Cases that cite this headnote

[8] Landlord and TenantAdmissibility

Tenant’s evidence in substantiation of defense that there is no default or that default is not in amount alleged by landlord is admissible on jurisdictional issue in dispossess proceeding. N.J.S.A. 2A:18–53.

5 Cases that cite this headnote

[9] Landlord and TenantDefenses

Equitable as well as legal defenses asserting payment or absolution from payment in whole or in part are available to tenant in dispossess action and must be considered by court. N.J.S.A. 2A:18–53.

8 Cases that cite this headnote

[10] Landlord and TenantAppeal

47

Denial of motion by tenant directed at complaint for failure to make adequate factual allegations, or of motion at conclusion of trial for failure to supply proof that amount of rent alleged in complaint is in default are each appealable; overruling Peters v. Kelly, 98 N.J.Super. 441, 237 A.2d 635. N.J.S.A. 2A:18–53, 59, 60.

1 Cases that cite this headnote

[11] Landlord and TenantImplied Covenants

Covenant in a lease can arise only by necessary implication from specific language of lease or because it is indispensable to carry into effect purpose of lease.

4 Cases that cite this headnote

[12] ContractsTerms implied as part of contract

In determining what covenants are implied, object which parties had in view and intended to be accomplished is of primary importance.

5 Cases that cite this headnote

[13] Landlord and TenantIntention of parties

Subject matter and circumstances of letting give at least as clear a clue to natural intention of parties as do written words.

5 Cases that cite this headnote

[14] ContractsRewriting, remaking, or revising contract

48

It is not province of court to make new contract or to supply any material stipulations or conditions which contravene agreement of parties.

8 Cases that cite this headnote

[15] Landlord and TenantWarranty of habitability

Landlord should, in residential letting, be held to implied covenant of habitability and livability fitness.

28 Cases that cite this headnote

[16] Landlord and TenantWarranty of habitabilityLandlord and TenantRepairs, Maintenance, and Alterations

Whether it be called covenant to repair or covenant of habitability and livability fitness, landlord covenants that at inception of lease there are no latent defects and facilities vital to use of premises for residential purposes because of faulty original construction or deterioration from age or normal usage and further that facilities will remain in usable condition during entire term of lease.

62 Cases that cite this headnote

[17] Landlord and TenantRepairs, Maintenance, and Alterations

Landlord is required to maintain facilities in condition which renders property livable.

2 Cases that cite this headnote

49

[18] Landlord and TenantRepairs, Maintenance, and Alterations

Where damage to premises has been caused maliciously or by abnormal or unusual use, tenant is liable for repair.

Cases that cite this headnote

[19] Landlord and TenantFailure of landlord to repair

Failure of landlord to maintain dwelling in condition that is fit for occupancy for residential purposes would constitute constructive eviction.

5 Cases that cite this headnote

[20] Landlord and TenantDependent and independent clauses

Covenants in lease are dependent or independent according to intention of parties and good sense of case.

5 Cases that cite this headnote

[21] Landlord and TenantRight of tenant to maintain or repair at landlord’s cost

If landlord fails to make repairs and replacements of vital facilities necessary to maintain premises in livable condition for period of time adequate to accomplish such repair and replacements after notice, tenant may cause same to be done and deduct cost thereof from future rents. N.J.S.A. 2A:18–53.

15 Cases that cite this headnote

50

[22] Landlord and TenantRight of tenant to maintain or repair at landlord’s cost

If, after reasonable attempt, tenant is unable to give landlord notice of necessity for repairs to maintain premises in livable condition, tenant may make necessary repairs or replacements.

3 Cases that cite this headnote

[23] Landlord and TenantCondition of Premises

Tenant’s right to make repairs which are necessary to maintain premises in livable condition and which are not done by landlord does not relieve tenant from payment of rent.

12 Cases that cite this headnote

Attorneys and Law Firms

*134 **528 Gordon V. Lewis for appellant (David H. Dugan, III, Newark, Director, Camden Regional Legal Services, Inc., attorney; Joseph V. Ippolito, and Kenneth Meiser, on the brief).

Bartholomew A. Sheehan, Jr., Cherry Hill, for respondent (Hyland, Davis & Reberkenny, Cherry Hill, attorneys).

Richard J. Pilch, Trenton, amicus curiae for the New Jersey State Office of Legal Services (James D. Coffee, Elizabeth, Director).

Opinion

The opinion of the Court was delivered by

HANEMAN, J.

This matter concerns the appealability of County District Court landlord and tenant dispossess judgments; the scope of a landlord’s duty to make repairs; and the right to offset the cost of such repairs against accruing rent on the failure of the landlord to make same, if found to be required.

On or about April 2, 1969, plaintiff, landlord, and defendant, tenant, entered into a one-year lease for an apartment located in a two-family duplex building at 503—B Rand Street, Camden, New Jersey. The annual rent of $1,140 was agreed to be paid in monthly installments of $95. The lease incorporated a covenant of quiet enjoyment but did not include a specific covenant for repairs.

On or about June 25, 1969, defendant alleges that she discovered that the toilet in the leased apartment was cracked and water

51

was leaking onto the bathroom floor. She further alleges that repeated attempts to inform plaintiff of this condition were unsuccessful. On or about June 27, 1969, defendant hired one Karl T. Bittner, a registered plumber, to repair the toilet. Bittner repaired the toilet at a cost of $85.72, which the tenant paid.

On July 15, 1969, defendant mailed plaintiff a check for $9.28 together with the receipt for $85.72 in payment of *135 the July rent. Plaintiff challenged the offsetting of the cost of the repair and demanded the outstanding $85.72.

When his demands were refused, plaintiff instituted a summary dispossess action for nonpayment of rent in the Camden County District Court pursuant to N.J.S.A. 2A:18—53(b) alleging the nonpayment of the July rent in the amount of $85.72 and August rent of $95. A hearing was had on August 15, 1969. Plaintiff argued that he was entitled to the $85.72 because he had no duty to make repairs and consequently, defendant’s payment of the cost of repair could not be offset against rent.

The judge conceived the issue as entirely a legal one and determined that the facts which defendant alleged did not create a duty upon the landlord to make repairs. Thus, without trying out the issues tendered by defendant, he found a default in payment of rent of $85.72 (July) and $95 (August) plus costs and rendered a judgment for possession. Defendant appealed to the Appellate Division.

On August 29, 1969, a judge of the Appellate Division granted a temporary stay **529 of the judgment for possession and the warrant of eviction. The Appellate Division granted a stay pending appeal on September 23, 1969 and ordered defendant to pay all the rents then due except the contested July rent. The Appellate Division also then denied plaintiff’s cross-motion to dismiss the appeal. Before the Appellate Division heard argument, this Court certified the case on its own motion. R. 2:12—1.

The issues which evolve on this appeal are: Did defendant’s claimed right to offset her cost of repairs against rent raise a ‘jurisdictional’ issue. If the answer to that query is in the affirmative, did the landlord have a duty to repair and may the issue of failure to comply with such duty be raised in a dispossess action. Also involved in the latter question is the right of the tenant to make repairs upon the landlord’s failure to so do and the right to offset the cost thereof against rent.

*136 N.J.S.A. 2A:18—53 provides in part:‘Any lessee or tenant * * * of any houses, buildings, lands or tenements, * * * may be removed from such premises by the county district court of the county within which such premises are situated, in an action in the following cases: ‘b. Where such person shall hold over after a default in the payment of rent, pursuant to the agreement under which the premises are held.’

N.J.S.A. 2A:18—59 reads:‘Proceedings had by virtue of this article shall not be appealable except on the ground of lack of jurisdiction. The landlord, however, shall remain liable in a civil action for unlawful proceedings under this article.’

As noted, N.J.S.A. 2A:18—59 permits review of the County District Court’s judgment only on the question of lack of jurisdiction. Plaintiff rationalizes that as defendant acknowledges that the rent asserted by plaintiff to be due for the month of July was not paid in full as provided in the lease, a defense grounded upon an allegation that the unpaid balance is not owing raises a ‘meritorious’ issue. He states that defendant’s contest of the Amount due directs an attack upon the plaintiff’s right to possession rather than an attack upon the jurisdictional basis of his action. Plaintiff argues that the admitted failure to pay In full is, in the language of the statute a ‘default’ and vests the County District Court with jurisdiction to order a removal of the tenant.

Defendant on the other hand, contends that the County District Court has jurisdiction in dispossess actions only in those factual complexes specified in N.J.S.A. 2A:18—53—here, for a ‘default in the payment of rent.’ the issue of the Amount of rent due, says defendant, raising as it does the issue of the default alleged by the complaint, is directed at the jurisdiction of the County District Court and a determination *137 rejecting her defense of Non-default, in whole or part, is therefore appealable under N.J.S.A. 2A:18—59.[1] The County District Court in the present matter, is vested with jurisdiction as noted, only where there exists a rent default. The complaint must delineate specific allegations of fact giving rise to such a default.

52

While dealing with the following cases cited in connection with the foregoing, it must be remembered that originally an action for possession was commenced before a justice of the peace by filing an affidavit. Later the jurisdiction was transferred to the District Court, but the action continued to be commenced by the filing of an affidavit. In Earl v. Krug Baking Co., 22 N.J.Misc. 424 (Cir.Ct.1944), the court said in that connection at p. 425, 39 A.2d 784, at p. 785:

‘Summary proceedings in the district court for the dispossession of tenants may be described as a statutory substitute **530 for the common law action in ejectment, and although the proceedings are commenced by the filing of the jurisdiction affidavit, that affidavit is nonetheless a complaint in the ordinary acceptation of the term.’

Presently the affidavit has been superseded by a complaint. R. 6:3—1. What is said in the following cases concerning affidavits is equally applicable to presently employed complaints. As early as Fowler v. Roe, 25 N.J.L. 549 (Sup.Ct.1856), the court said, at p. 551:

‘In this summary proceeding before a justice of the peace, to turn one man out of the possession of the premises he occupies, and put another in, the power is delegated by special statutory authority to a court having no jurisdiction to try the title to lands, and can only be exercised where all the prerequisites to its exercise prescribed by the statute appear to exist, and are shown to have been complied with.’

Fowler, Supra, also held at p. 550, that it must appear from the allegations of the affidavit:‘1. That the relation of landlord and tenant exists. ‘2. That default has been made by the tenant in the payment of rent, according to the terms of the agreement or demise under which he holds. *138 ‘3. That there are no goods of the tenant on the premises out of which the rent due can be made by distress. ‘4. That three days’ notice in writing has been served by the person entitled to the rent, on the person owing the same, requiring payment or possession.’

And again in Schuyler v. Trefren, 26 N.J.L. 213 (Sup.Ct.1857), the court said:‘The proceeding is summary, and the jurisdiction is special, limited and statutory; and every essential to its proper exercise must appear to have been complied with.’

In Vineland Shopping Center, Inc. v. DeMarco, 35 N.J. 459 (1961), this Court said at p. 464, 173 A.2d 270, at p. 273 in reference to substantiating proof of the pleaded jurisdictional facts:

‘The established principle is that the trial court had jurisdiction if there was evidence from which it could find a statutory basis for removal. If that test is met, the judgment must be affirmed even though it is otherwise infected with error.’

[2] [3] [4] The jurisdictional issue, I.e., the statutory basis for removal, can be twice raised in a dispossess action. First, by motion directed at the complaint for failure to accurately allege the necessary facts with particularity. Second, on trial for failure to adduce adequate proof to corroborate the allegations of the complaint. If the complaint contains adequate factual allegations of default, the issue can be resolved only when proof has been adduced. Failure to furnish either such allegations in the complaint or proof on the trial is sufficient ground to warrant dismissal for lack of jurisdiction. [5] As noted in Vineland Shopping Center, Inc. v. DeMarco, Supra, at p. 464, 173 A.2d 270, our cases have hewed a line separating the ‘jurisdictional’ issue from the meritorious issue. Confusion arises from this jurisdictional-meritorious dichotomy by reason of the fact that the same proof is required and goes to the same crucial element in each, I.e., proof of the default in rent as alleged in the complaint. Whatever *139 ‘jurisdiction’ means in other settings, here it uniquely connotes the existence of one of the factual situations delineated in N.J.S.A. 2A:18—53. It follows that a finding, by the judge, that there is a default as alleged by the landlord, does not dispose of the meritorious issue alone. It as well disposes of the jurisdictional issue. [6] [7] [8] The jurisdictional issue of ‘default’ encompasses the question of whether **531 the amount of rent alleged to be in

53

default, is due, unpaid and Owing, not only whether it is due and unpaid. The mere fact of the tenant’s failure to pay rent in full as provided in the lease is not in and of itself a sufficient fact to meet the statutory jurisdictional requisite. Thus a tenant’s evidence in substantiation of a defense that there is no default or that the default is not in the amount alleged by the landlord, is admissible on the jurisdictional issue. Consideration must be given not only to a legal defense but as well to an equitable excuse for non-payment, such as confession and avoidance, which would relieve the tenant of the duty of paying and hence make the unpaid rent in whole or part due but not owing and thus not in ‘default.’

That the County District Court ‘must accept any equitable issue offered to defeat an action within its jurisdiction or to avoid a separate defense to such action’ was established by Vineland Shopping Center, Inc. v. DeMarco, Supra, p. 469, 173 A.2d p. 275. See also Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 124, 228 A.2d 674 (1967). This duty is imposed on the County District Court not only in connection with proof of cases ‘within its jurisdiction’ but also on the issue of jurisdiction as well. It follows that an equitable defense to the proof of an alleged rent default in a landlord-tenant dispossess proceeding is permissible and facts in support thereof admissible.There is no logical reason why a tenant who is successful in having a case removed to the Superior Court under N.J.S.A. 2A:18—60 shall have the benefit of equitable defenses to jurisdiction while a tenant who is unsuccessful in *140 seeking to have his case removed from the County District Court to the Superior Court should be limited to legal defenses.1[9] [10] We hold, therefore, that equitable as well as legal defenses asserting payment or absolution from payment in whole or part are available to a tenant in a dispossess action and must be considered by the court. Denial of a motion by defendant directed at the complaint for failure to make adequate factual allegations, or of a motion at the conclusion of the trial for failure to supply proof that the amount of rent alleged in the complaint is in default, both going to the question of jurisdiction, are each appealable.

Insofar as Peters v. Kelly, 98 N.J.Super. 441, 237 A.2d 635 (App.Div.1968), conflicts with the foregoing it is overruled.

It becomes necessary to consider the merits of defendant’s equitable defense that the failure of the landlord to repair the toilet constituted a breach of the covenant of habitability or quiet enjoyment and gave rise to defendant’s *141 entitlement to self-help, permitting her to repair the toilet and offset the cost thereof against her rent. We need not concern ourselves with **532 the covenant of quiet enjoyment as will hereafter become apparent.

We are here concerned with the lease of premises for residential purposes. The lease provides:‘WITNESSETH, that the said party of the first part hath let, and by these presents doth grant, demise and to farm let unto the said party of the second part, all that contains 4 rooms and bath, apartment situated in the city and county of camden (sic.), state (sic.) of New Jersey, known and designated as 503—B Rand Street. ‘nor use or permit any part thereof to be used for any other purpose than dwelling * * *.’

As the lease contains no express covenant to repair, we are obliged to determine whether there arises an implied covenant, however categorized, which would require the landlord to make repairs.

A lease was originally considered a conveyance of an interest in real estate. Thus, the duties and obligations of the parties, implied as well as express, were dealt with according to the law of property and not of the law of contracts. In Michaels v. Brookchester, Inc., 26 N.J. 379 (1958) this Court said at p. 382, 140 A.2d 199, at p. 201:

‘Historically a lease was viewed as a sale of an interest in land. The concept of Caveat emptor, applicable to such sales, seemed logically pertinent to leases of land. There was neither an implied covenant of fitness for the intended use nor responsibility in the landlord to maintain the leased premises. Bauer v. 141—149 Cedar Lane Holding Co., 24 N.J. 139, 145, 130 A.2d 833 (1957); Bolitho v. Mintz, 106 N.J.L. 449, 148 A. 737 (E. & A.1930). This principle, suitable for the agrarian setting in which it was conceived, lagged behind changes in dwelling habits and economic realities. 1 America Law of Property (1952), s 3.78, p. 347. Exceptions to the broad immunity inevitably developed.’

The guidelines employed to construe contracts have been modernly applied to the construction of leases. 3 Thompson *142 on Real Property 377 (1959). See also 6 Williston on Contracts, 3d ed. Jaeger, s 890A, p. 592 (1962):

‘There is a clearly discernible tendency on the part of the courts to cast aside technicalities in the interpretation of leases and to concentrate their attention, as in the case of other contracts, on the

54

intention of the parties, * * *.’ In Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (Sup.Ct.Wis.1961), the court stated at p. 412:

‘Legislation and administrative rules, such as the safeplace statute, building codes and health regulations, all impose certain duties on a property owner with respect to the condition of his premises. Thus, the legislature has made a policy judgment—that it is socially (and politically) desirable to impose these duties on a property owner—which has rendered the old common law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards. The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliche , Caveat emptor. Permitting landlords to rent ‘tumbledown’ houses is at least a contributing cause of such problems as urban blight, juvenile delinquency and high property taxes for conscientious landowners.’

In Reste Realty Corporation v. Cooper, 53 N.J. 444 (1969), this Court said at p. 452, 251 A.2d 268, at p. 272:‘Moreover, an awareness by legislatures of the inequality of bargaining power between **533 landlord and tenant in many cases, and the need for tenant protection, has produced remedial tenement house and multiple dwelling statutes. See E.g. N.J.S.A. 55:13A—1 Et seq. and the regulations thereunder; see generally Fuerstein and Shustack, ‘Landlord and Tenant—The Statutory Duty to Repair,’ 45 Ill.L.Rev. 205 (1950); Annotation, 17 A.L.R.2d 704 (1951). It has come to be recognized that ordinarily the lessee does not have as much knowledge of the condition of the premises as the lessor. Building code requirements and violations are known or made known to the lessor, not the lessee. He is in a better position to know of latent defects, structural and otherwise, in a building which might go unnoticed by a lessee who rarely has sufficient knowledge or expertise to see or to discover them. A prospective lessee, such as a small businessman, cannot be expected to know if the plumbing or wiring systems are adequate or conform to local codes. Nor should he be expected *143 to hire experts to advise him. Ordinarily all this information should be considered readily available to the lessor who in turn can inform the prospective lessee. These factors have produced persuasive arguments for reevaluation of the Caveat emptor doctrine and, for imposition of an implied warranty that the premises are suitable for the leased purposes and conform to local codes and zoning laws.’

See also Lemle v. Breeden, 462 P.2d 470 (Sup.Ct.Hawaii 1969).[11] [12] [13] [14] A covenant in a lease can arise only by necessary implication from specific language of the lease or because it is indispensable to carry into effect the purpose of the lease. In determining, under contract law, what covenants are implied, the object which the parties had in view and intended to be accomplished, is of primary importance. The subject matter and circumstances of the letting give at least as clear a clue to the natural intentions of the parties as do the written words. It is of course not the province of the court to make a new contract or to supply any material stipulations or conditions which contravene the agreements of the parties. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 161 A.2d 717 (1960); Washington Construction Co., Inc. v. Spinella, 8 N.J. 212, 84 A.2d 617 (1951); City of Camden v. South Jersey Port Commission, 4 N.J. 357, 73 A.2d 55 (1950); McBride v. Maryland Casualty Co., 128 N.J.L. 64, 23 A.2d 596 (E. & A. 1942). Terms are to be implied not because‘they are just or reasonable, but rather for the reason that the parties must have intended them and have only failed to express them * * * or because they are necessary to give business efficacy to the contract as written, or to give the contract the effect which the parties, as fair and reasonable men, presumably would have agreed on if, having in mind the possibility of the situation which has arisen, they contracted expressly in reference thereto. See 12 Am.Jur., Contracts, sec. 239; 14 Am.Jur., Covenants, Conditions and Restrictions, sec. 14.’ William Berland Realty Co. v. Hahne & Co., 26 N.J.Super. 477, 487, 98 A.2d 124, 129 (ch. 1953), modified 29 N.J.Super. 316, 102 A.2d 686 (App.Div.1954).

See also Silverstein v. Keane, 19 N.J. 1, 115 A.2d 1 (1955); Cragmere Holding Corp. v. Socony Mobil Oil Co., 65 N.J.Super. 322, 167 A.2d 825 (App.Div.1961). *144 [15] [16] [17] So here, the lease expressly described the leased premises as ‘4 rooms and bath, apartment’ and restricted the use thereof for one purpose,—‘dwelling.’ Patently, ‘the effect which the parties, as fair and reasonable men, presumably would have agreed on,’ was that the premises were habitable and fit for living. The very object of the letting was to furnish

55

the defendant with quarters suitable for living purposes. This is what the landlord **534 at least impliedly (if not expressly) represented he had available and what the tenant was seeking. In a modern setting, the landlord should, in residential letting, be held to an implied covenant against latent defects, which is another manner of saying, habitability and livability fitness. See Hyland v. Parkside Investment Co., Inc., 10 N.J.Misc. 1148, 162 A. 521 (Sup.Ct.1932). It is a mere matter of semantics whether we designate this covenant one ‘to repair’ or ‘of habitability and livability fitness.’ Actually it is a covenant that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty original construction or deterioration from age or normal usage. And further it is a covenant that these facilities will remain in usable condition during the entire term of the lease. In performance of this covenant the landlord is required to maintain those facilities in a condition which renders the property livable. [18] [19] It is eminently fair and just to charge a landlord with the duty of warranting that a building or part thereof rented for residential purposes is fit for that purpose at the inception of the term and will remain so during the entire term. Of course, ancillary to such understanding it must be implied that he has further agreed to repair damage to vital facilities caused by ordinary wear and tear during said term. Where damage has been caused maliciously or by abnormal or unusual use, the tenant is conversely liable for repair. The nature of vital facilities and the extent and type of maintenance and repair required is limited and *145 governed by the type of property rented and the amount of rent reserved. Failure to so maintain the property would constitute a constructive eviction. [20] It becomes necessary to consider the respective rights and duties which accompany such an implied covenant. We must recognize that historically, the landlord’s covenant to alter or repair premises and the tenant’s covenant to pay rent were generally regarded as independent covenants. The landlord’s failure to perform did not entitle the tenant to make the repair and offset the cost thereof against future rent. It only gave rise to a separate cause of action for breach of covenant. Duncan Development Co. v. Duncan Hardware, Inc., 34 N.J.Super. 293 at 298, 112 A.2d 274 (App.Div.1955), cert. denied 19 N.J. 328, 116 A.2d 829 (1955); Stewart v. Childs Co., 86 N.J.L. 648, 92 A. 392 (E. & A.1914). This result also eventuated from the application of the law of real estate rather than of contract. The concept of mutually dependent promises was not originally applied to the ascertainment of whether covenants in leases were dependent or independent. However, presently we recognize that covenants are dependent or independent according to the intention of the parties and the good sense of the case. Higgins v. Whiting, 102 N.J.L. 279, 131 A. 879 (Sup.Ct. 1925); 3 Thompson on Real Property, s 1115 (1959 Replacement).

In Higgins v. Whiting, Supra, the court said at pp. 280 and 281, 131 A. at p. 880 concerning the test of dependency of express covenants:‘In 24 Cyc. 918, it is said that covenants are to be construed as dependent or independent according to the intention and meaning of the parties and the good sense of the case. Technical words should give way to such intention. 7 R.C.L. 1090, s 7. So, the rule is thus stated; where the acts or covenants of the parties are concurrent, and to be done or performed at the same time, the covenants are dependent, and neither party can maintain an action against the other, without averring and proving performance on his part. 13 Corpus Juris 567. ‘In the present case, the covenant to pay rent and the covenant to heat the **535 apartment are mutual and dependent. In the modern *146 apartment house equipped for heating from a central plant, entirely under the control of the landlord or his agent, heat is one of the things for which the tenant pays under the name ‘rent.“

Our courts have on a case by case basis held various lease covenants and covenants to pay rent as dependent and under the guise of a constructive eviction have considered breach of the former as giving the right to the tenant to remove from the premises and terminate his obligation to pay rent. See McCurdy v. Wyckoff, 73 N.J.L. 368, 63 A. 992 (Sup.Ct.1906); Weiler v. Pancoast, 71 N.J.L. 414, 58 A. 1084 (Sup.Ct.1904); Higgins v. Whiting, 102 N.J.L. 279, 131 A. 879 (Sup.Ct.1925); Stevenson Stanoyevich Fund v. Steinacher, 125 N.J.L. 326, 15 A.2d 772 (Sup.Ct.1940).

It is of little comfort to a tenant in these days of housing shortage to accord him the right, upon a constructive eviction, to vacate the premises and end his obligation to pay rent. Rather he should be accorded the alternative remedy of terminating the cause of the constructive eviction where as here the cause is the failure to make reasonable repairs. See Reste Realty Corporation v. Cooper, Supra, footnote 1, 53 N.J. pp. 462, 463, 251 A.2d 268. This latter course of action is accompanied by the right to offset the cost of such repairs as are reasonable in the light of the value of the leasehold against the rent. His pursuit of the latter form of relief should of course be circumscribed by the aforementioned conditions.[21] [22] [23] If, thereofre, a landlord fails to make repairs and replacements of vital facilities necessary to maintain the

56

premises in a livable condition for a period of time adequate to accomplish such repair and replacements, the tenant may cause the same to be done and deduct the cost thereof from future rents. The tenant’s recourse to such self-help must be preceded by timely and adequate notice to the landlord of the faulty condition in order to accord him the opportunity to make the necessary replacement or repair. If the tenant is unable to give such notice after a reasonable attempt, he may nonetheless proceed to repair or replace. This does not mean *147 that the tenant is relieved from the payment of rent so long as the landlord fails to repair. The tenant has only the alternative remedies of making the repairs or removing from the premises upon such a constructive eviction.

We realize that the foregoing may increase the trials and appeals in landlord and tenant dispossess cases and thus increase the burden of the judiciary. By way of warning, however, it should be noted that the foregoing does not constitute an invitation to obstruct the recovery of possession by a landlord legitimately entitled thereto. It is therefore suggested that if the trial of the matter is delayed the defendant may be required to deposit the full amount of unpaid rent in order to protect the landlord if he prevails. Also, an application for a stay of an order of removal on appeal should be critically analyzed and not automatically granted.

In the light of the foregoing we find it unnecessary to pass on defendant’s other grounds of appeal.

Reversed and remanded for trial in accordance with the above.

For reversal and remandment: Chief Justice WEINTRAUB and Justice JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN—7.

For affirmance: None.

Parallel Citations

265 A.2d 526, 40 A.L.R.3d 1356

Footnotes

1 N.J.S.A. 2A:18—60 reads:‘At any time before an action for the removal of a tenant comes on for trial, either the landlord or person in possession may apply to the superior court, which may, if it deems it of Sufficient importance, order the cause transferred from the county district court to the superior court.’ (Emphasis supplied)The statute furnishes no guidelines for the solution of the question of what constitutes a case of ‘sufficient importance.’ It is self-evident that every tenant removal is of importance to both the landlord and tenant. It could be argued that every such case qualifies for removal to the Superior Court. If a dispossess action is not removed to the Superior Court, appeal by a tenant from an adverse judgment is restricted to the issue of jurisdiction. N.J.S.A. 2A:18—59. If the action is removed to the Superior Court, appeal is not so restricted. Appeal is then available on meritorious grounds as well. Vineland Shopping Center, Inc. v. DeMarco, Supra. We see no sound reason for any distinction between the right to appeal from a District Court judgment and a Superior Court judgment for possession. It might well be urged that there should be no difference between the scope of review from a District Court judgment and a Superior Court judgment. We are not, however, obliged to pass upon that problem in the matter Sub judice.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

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Family – Chancery

How to File an FD Application/Cross Application to Modify a Court Order

January 2012

How to File an FD Application/Cross Application

to Modify a Court Order

Superior Court of New Jersey - Chancery Division - Family Part

Who Should Use This Packet?

You can use this packet if your docket number starts with the letters FD, and you have an order

from the court that you want to change. Some types of modifications you can request with this packet

are:

Change(s) to an existing Child/Spousal Support Order

Enforcement of the Current Support Order

Change of existing Custody/Parenting Time Court Order

Request to Relocate the Child(ren)/Opposition to Relocation

Request to have a Bench Warrant/Detainer lifted (Incarcerated Defendants Only)

Emergent Application (Order to Show Cause)

DO NOT use this packet if your case begins with letters other than FD.

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Things to Think About Before You Try to Represent Yourself in Court

Try to Get a Lawyer

The court system can be confusing and it is a

good idea to get a lawyer if you can. If you

cannot afford a lawyer, you may contact the

legal services program in your county to see if

you qualify for free legal services. Their

telephone number can be found in your local

yellow pages under “Legal Aid” or “Legal

Services.”

If you do not qualify for free legal services and

need help in locating an attorney, you can

contact the bar association in your county. The

telephone number can also be found in your

local yellow pages. Most county bar

associations have a Lawyer Referral Service.

The county bar association Lawyer Referral

Service can supply you with the names of

attorneys in your area willing to handle your

particular type of case and sometimes consult

with you for a reduced fee.

There are a variety of organizations of minority

lawyers throughout New Jersey, as well as

organizations of lawyers who handle specialized

types of cases. Ask the Family court staff in

your county for a list of lawyer referral services

that include these organizations.

What You Should Expect If You Represent

Yourself

While you have the right to represent yourself in

court, you should not expect special treatment,

help, or attention from the court. The following

is a list of things court staff can and cannot do

for you.

We can explain and answer questions

about how the court works.

We can tell you what the requirements

are to have your case considered by the

court.

We can give you some information from

your case file.

We can provide you with samples of

court forms that are available.

We can provide you with guidance on

how to fill out forms.

We can usually answer questions about

court deadlines.

We cannot give you legal advice. Only

your lawyer can give you legal advice.

We cannot give you an opinion about

what will happen if you bring your case

to court.

We cannot recommend a lawyer, but we

can provide you with the telephone

number of a local lawyer referral

service.

We cannot talk to the judge for you

about what will happen in your case.

We cannot let you talk to the judge

outside of court.

We cannot change an order issued by a

judge.

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Keep Copies of All Papers

Make and keep copies for yourself, of any

signed orders, written agreements, Case

Information Statements, and other important

papers that relate to your case.

These Papers Are for Filing an Application to

Modify a Court Order in a “FD” case

The word application used in this packet means

a written request in which you ask the court to

change or enforce an order it has already made.

The court will change an order only if important

facts or circumstances have changed from the

time the order was issued. This is different from

an appeal.

Notice to Appear

The court will notice the plaintiff, defendant,

listed interested parties, and any attorney

connected to your case, through the normal

court noticing procedures. You must provide the

court with the most current address of the other

party that you know and the name of the

attorney (if you know it) when you file this

modification with the court. All papers you send

will be shared with the other party with the

notice to appear, unless the court rule prohibits

this information from being shared. The

plaintiff, defendant, interested parties, and

attorneys (if known) will receive a notice to

appear when the case is scheduled for court.

Your appearance is mandatory.

If You Want to File an Appeal, Not an

Application

An appeal is a written request asking a higher

court to look at the decision of the judge and

change that judge's decision. You must make

that written request for an appeal within 45 days

after the judge decided the case and signed a

judgment in the Superior Court.

If you want to file an appeal of a court order, do

not use this packet of materials. Instead you

should contact the Appellate Division in writing

or by phone at:

Appellate Division, Superior Court

Hughes Justice Complex

P.O. Box 006,

Trenton, NJ 08625-0006

Their telephone number is (609) 292-4822. The

Appellate Division staff will provide you with

information on how to file an appeal.

“My case is an emergency”

An emergent hearing in family court is designed

to protect children from substantial and

irreparable harm if someone is not restrained for

doing something right now. You must file for

an emergent hearing at the courthouse. You

can not file for an emergent hearing through

the mail. Only a judge can determine if your

case will qualify as an emergency. If you are

denied an emergency hearing, your case may

continue under the normal case process.

Court Terms Used in FD

This packet contains a list of frequently used

terms the court uses in processing FD cases.

They may help you understand the FD

application process and how the court handles

an FD case.

Where to Mail or Bring Your Papers

You should mail or bring your completed packet

to the court house where the child of spouse

lives. When mailing, make sure you specify the

“Family Division” and “Non-Dissolution

Intake” in your address to insure your papers

arrive at the correct department in the court.

Sample Address

(Name of County) Courthouse

Family Division

Non-Dissolution Intake

1234 Street

PO Box#

City, State, Zip code

All court house addresses can be found on

njcourts.com

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Other Papers That You May Have to Complete Depending on Your Case

Each case has unique circumstances that may require different information. Read the next section

carefully and include any documents that will be needed for your particular case. Failure to complete

certain required documents may result in your application being returned as “deficient” which will delay

you getting your day in court.

Confidential Litigant Information Sheet

This form must be completed by the person filing this application to modify a court order. Failure

to do so will result in your papers being returned to you marked “deficient”. This will cause a

delay in your case being scheduled for court.

You must complete the entire form whenever you request to reopen your case and submit it with your

papers to the court. If something does not apply to you, put “n/a”. Do not leave any blank spaces. This

form is confidential and will not be shared with the other party. Each party is required to complete

his/her own Confidential Litigant Information Sheet and file it with the court.

Federal Child Support Services Application (IV-D Child Support Program)

You should complete this application if you are applying to establish paternity or child support.

Applying for support services under the federal child support program insures your case will be enforced

through the court’s Probation Division. You may complete this application on line and it will be

forwarded to the court through the internet. Follow the instructions on the NJchildsupport.org website.

This application is in addition to the other court papers you must file to establish your court case.

Summary Form for Financial Information

This form must be completed if you are requesting establish or modify child support in an FD

case.

You must complete this form if you are filing to establish child support. You must complete the entire

form. If something does not apply to you put “n/a”. Do not leave any blank spaces. This completed form

must be included in your packet submitted to the court. This form will be shared with the other party

pursuant court rule (R. 5:5-3.). The other party must complete this same form and file it with the

court. The court will share this information with the filing party at the court hearing.

Case Information Statement (CIS)

This form must be completed only if you are married but separated and want to establish or

modify spousal support. Spousal support can only be established or modified as a FD case when

there is no active divorce case.

Pursuant to Court Rule R. 5:5-2 a spousal support modification requires the parties to submit a Case

Information Statement to the court. You must complete the entire form. If something does not apply to

you put “n/a”. Do not leave any blank spaces. This completed form must be included in your packet

submitted to the court. This form will be shared with the other party. The other party must complete

this same form file it with the court and send a copy to you. The court will provide instructions to the

other party about sharing this information with the filing party prior to the court hearing. This document

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is confidential pursuant to court rule R. 1:38-3 and is not available for review by any other people

besides the two parties involved in the case, their attorneys, and the court.

Certification of Paternity

This form must be completed if you are the unmarried biological mother of a child and you are seeking

to establish paternity or child support for the first time and legal paternity of the father that has not been

established by a Certificate of Parentage (COP) or a previous court order. This form must also be

completed by the biological father filing for legal paternity or the legal caretaker of the child who wants

child support, but the legal father has not been identified by the court. Only answer the questions you

have personal knowledge about. Put “n/a” if the questions don’t apply to you. This form will be shared

with the alleged biological father/mother when they receive the notice to appear.

Form for additional information for the Court to consider (included in this kit)

Use this form if you need additional space to explain to the court what you want the court to consider or

your position on a particular issue stated in the complaint. Type or write legibly and be as specific as

possible.

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Court Terms Used in FD Cases

Arrears: Arrears are unpaid or overdue child support, alimony, or spousal support payments.

Application: An application is a written request in which you ask the court to issue an order or to

change an order that has already been issued.

Bench Warrant: A bench warrant is an order from the court giving legal authority to law enforcement

to arrest a person for failure to appear for a court hearing or failure to comply with a court order.

Certification: A certification is a written statement made to the court when you file papers with the

court, swearing that the information contained in the filed papers is true.

Child Support Number (also referred to as “CS Number”): The Child Support Number is the

identifying number assigned to your child, spousal, or alimony support case.

Complaint: A complaint is a formal document filed in court that starts a case. It typically includes the

names of the parties and the issues you are asking the court to decide.

Court Order: A court order is the written decision issued by a court of law. For example, a child

support court order sets forth how often, how much, and what kind of support is to be paid.

Docket Number: The docket number is the identifying number assigned to every case filed in the court.

Exhibits: Exhibits are written documents you provide to the court to support what you want the court to

decide.

FD: The letters the court uses to indentify a Non-dissolution case that involves parents who are not

legally married or other adults filing for court relief on behalf of minor children. FD also includes

married people who separate but need financial support.

File: To file means to give the appropriate forms to the court to begin the court’s consideration of your

request

Income Withholding/Wage Garnishment: Income Withholding/Wage Garnishment is a process where

automatic deductions are made from wages or other income to pay your support obligation. Income

withholding has been mandatory since the enactment of the Family Support Act of 1988.

New Jersey Child Support Guidelines: Both parents are responsible for the financial and emotional

support of their children. New Jersey has developed a standard method for calculating child support

based on the income of both parents and other factors. The full set of NJ Child Support Guidelines is

contained in Rule 5:6A of the New Jersey Court Rules.

NJKiDS (New Jersey Kids Deserve Support): NJKiDS is the New Jersey Child Support automated

computer system that tracks child support accounts.

Obligor/Payor: An obligor/payor is the person ordered by the court to pay support, also known as the

non-custodial parent (NCP).

Obligee/Payee: An obligee/payee is the person, agency, or institution who receives support, also known

as the custodial parent (CP).

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Party: A party is a person, business, or governmental agency involved in a court action.

Petitioner: Petitioner is another name for the person starting the court action by filing the appropriate

papers the court will consider.

Respondent: Respondent is another name for the person who is named as the other party in the court

action filed by the petitioner. This person can answer the filed by the petitioner by filing a cross motion

or written response with the court.

Relief: To ask for relief is to ask the court to grant something such as custody, parenting time, or

support.

Support Obligation: Support Obligation is the amount of support that the court orders the obligor to

pay. The court order includes how much and how often support has to be paid (i.e., per week, per

month, bi-weekly, etc.).

Support Enforcement: The Probation Division is required to enforce court orders that call for the

payment of child support, health care coverage, and/or spousal support/alimony. If support is not being

paid timely, Probation Support Enforcement has many state and federal tools available to enforce child

support orders. These can include, but are not limited to:

Income withholding

Court hearing

Bench warrant

Tax offset – federal and state

Judgment (liens attached to property & assets)

Credit bureau notification

Financial Institution Data Match (FIDM) – seizure of bank accounts

Child Support Lien Network (CSLN) – seizure of proceeds from law suits

Passport denial

License suspension

Lottery interception

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Instructions for Completing the Application /Cross Application

to Modify a Court Order

IMPORTANT NOTICE: Look over the entire form and check only the reliefs you are seeking. You may

seek more than one relief, but only the ones you check will be considered on the day of your hearing.

A. Copy the case title exactly as it appears in the original case you are filing about. You can find the

correct case title at the top of your last court order.

B. Type or print the names of the parties in the correct order on the “Plaintiff” and “Defendant” lines.

C. Type or print the county in which you are filing the application.

D. Type or print the docket# that has been issued in your case. You can find that number on the

previous court order you received.

E. Type or print the CS# that has been issued in your case. You can find that number on the previous

court order you received.

F. Type or print your name on the line that says “I”. This tells the court who is filing the application to

modify the existing court order.

G. Check whether you are the plaintiff or defendant filing this application.

H. Put the plaintiff address on the lines provided. Don’t forget the apartment# or floor if it applies.

I. Put the defendant’s address on the lines provided. Don’t forget the apartment# or floor if it applies.

J. List other interested parties that should be noticed to appear in court if it applies to your case.

1. If you want to change an existing child or spousal support order, fill in the amount of money

the court ordered you to pay or are receiving and the how it is paid (weekly, bi monthly, etc.)

a. Spousal support (first line)

b. Child support (second line)

If you are receiving the money put your name on the line “obligee”.

List all of the children who are listed on the support order requesting to be changed. Do not list

children that are not supported by the order you want changed.

Check the right box for what you are seeking. Increase/decrease in child support or

Increase/decrease in spousal support.

Check the right box if you want to terminate your child support order.

Check the right box that describes your reason child support should be terminated

Check the right box that applies to your reason if you are opposed to the application to

terminate child support.

Check the right box if you want to change the way you receive your money. It will be changed

from direct payment to you to payment through Probation.

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Check the right box if you want the court to end its involvement in the way you receive your

support money. In the future, support payments will be made directly between you and the other

person. There will be no automatic enforcement activities if the person does not pay.

2. Enforcement

Check this box if you are requesting enforcement of a current support order because someone is

not paying as they have been ordered.

3. Change of existing Custody/Parenting Time Court Order

Check this box if you wish to change the custody or parenting time arrangements in the current

order. Write in your own words why you want to change the order in the space provided.

4. Request to Relocate the Children/Opposition to Relocation

Check the right box if you are applying to relocate the children out-of-state. Put in where you

want to move and the reason you want to move.

Check the right box if you are opposed to the children moving out-of-state and explain why you

are opposed in the space provided.

5. Request to have a Bench Warrant/Detainer Lifted

Check this box only if you are incarcerated and you want a detainer or bench warrant lifted so that

you may apply for a work release or half way house program. You must provide the name of the

facility where you are now and your inmate #.

6. The relief I am seeking is not listed above.

If the relief you are seeking is not contained in any of the numbered items in the form, write in your

own words the relief you are seeking for the court. Be as specific as possible.

7. What else does the court need to know?

In this space write whatever you feel the court should know to support your request. Write the date

of the court order you want changed; if you have it, make a copy and attached to the application.

Court Appearance: Read the information carefully. Your appearance is mandatory even if you have an

attorney. You may file a written response to this application if you are the non moving party. It must be

filed with the court and served on the filing party at least 10 days prior to your hearing date. It must not

exceed the page numbers listed.

Check the correct box regarding your knowledge of DYFS involvement with the children.

Check the correct box about your knowledge regarding the children and public assistance.

Check this box only if you are currently incarcerated and you are filing to have your

appearance waived.

Read the certification and sign and date the application. Check the correct box as the plaintiff or

defendant.

Mail or deliver the application to the correct court house.

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Form Promulgated by Supplement to Directive #08-11 (11/18/2011), CN 11487 (Application for Modification of Court Order - Non-Dissolution Docket)

Kit Revised: 01/2012, CN 11487 (How to File an FD Application/Cross Application to Modify a Court Order) page 10 of 15

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION - FAMILY PART

COUNTY:

Plaintiff DOCKET NO.: FD -

vs. CS NO:

CIVIL ACTION

Application for Modification

of Court Order

Defendant

I, of full age, hereby certify the following in support of

this Application/Cross Application to modify the court order of . date (if known)

I am the Plaintiff Defendant in the above-captioned matter.

Plaintiff resides at: Address:

City/Town

County State Zip Code

Defendant resides at: Address:

City/Town

County State Zip Code

Other interested parties’ name(s) and address(es):

1. Establish or Change to an Existing Child/Spousal Support Order (Note: Continue only if you have an

established FD Order.)

The current Support Court Order contains the following provisions:

$ per for support of: (Weekly, bi-monthly, etc.)

Obligee DOB

The current Support Court Order contains the following provisions:

$ per for support of: (Weekly, bi-monthly, etc.)

Child DOB

Child DOB

Child DOB

Child DOB

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Form Promulgated by Supplement to Directive #08-11 (11/18/2011), CN 11487 (Application for Modification of Court Order - Non-Dissolution Docket)

Kit Revised: 01/2012, CN 11487 (How to File an FD Application/Cross Application to Modify a Court Order) page 11 of 15

I am seeking an increase or decrease in child support payments.

Pursuant to R. 5:5-3, you are required to complete a Financial Statement for Summary Support Actions to

serve on the other party, and supply the court with either your most recent Federal income tax return, and

your three most recent pay stubs at the hearing.

I am seeking an increase or decrease in spousal support payments.

Pursuant to R. 5:5-2, you must complete, supply the court and other party, with a Case Information

Statement ten (10) days before the hearing.

I am requesting the Court terminate/not terminate child support for:

Name DOB

My child turned 18 years of age on .

To the best of my knowledge, my child is not physically or mentally disabled.

My child is disabled. Describe disability:

My child is not attending high school or any other special education programs.

My child is attending high school or special program. Provide the name of school and most recent

date(s) attended:

My child is not married.

If married, date of marriage: .

My child is not attending college or any other post-secondary education programs.

My child is attending college or a post-secondary education program. Provide the name of the school

and most recent date(s) attended:

My child is not in the military.

If in the military, date enrolled and branch .

I am requesting that child/spousal support be made payable through the Probation Division.

I am requesting that child/spousal support be paid directly to me without court involvement.

2. Enforcement of the Current Support Order

I am requesting enforcement of the current support court order of . Attach a copy of date (if known)

the order you want enforced.

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Form Promulgated by Supplement to Directive #08-11 (11/18/2011), CN 11487 (Application for Modification of Court Order - Non-Dissolution Docket)

Kit Revised: 01/2012, CN 11487 (How to File an FD Application/Cross Application to Modify a Court Order) page 12 of 15

3. Establish or Change of Existing Custody/Parenting Time Court Order

I am requesting to change the custody/parenting time terms of the current court order. Explain the changes

you are requesting.

4. Request To Relocate The Child(ren)/Opposition To Relocation

I am applying to relocate the child(ren) listed above. I believe this move is in the best interest of the

child(ren). I want to relocate the child(ren) by . date

New location:

Reason for relocation:

Attached is the additional information form.

I am opposed to the relocation of the children listed above. I believe this move is not in the best interest of

the child(ren). Explain:

Attached is the additional information form.

5. Request to have a Bench Warrant/Detainer lifted (Incarcerated Defendants Only)

I am currently incarcerated making application to have a child support bench warrant/detainer lifted so that I

may participate in a rehabilitation program. I understand that I must report to the court 30 days after my

release.

Facility Inmate #

6. The relief I am seeking is not listed above.

I am seeking the following from the court:

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Form Promulgated by Supplement to Directive #08-11 (11/18/2011), CN 11487 (Application for Modification of Court Order - Non-Dissolution Docket)

Kit Revised: 01/2012, CN 11487 (How to File an FD Application/Cross Application to Modify a Court Order) page 13 of 15

7. What else does the court need to know pertaining to this Application or Cross Application to

modify the court order of ? date (if known)

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Form Promulgated by Supplement to Directive #08-11 (11/18/2011), CN 11487 (Application for Modification of Court Order - Non-Dissolution Docket)

Kit Revised: 01/2012, CN 11487 (How to File an FD Application/Cross Application to Modify a Court Order) page 14 of 15

Court Appearance Information

PLEASE TAKE NOTICE a hearing will be held, in the Superior Court of New Jersey, Family Part,

COUNTY, based upon the attached Application and Certification, to modify an

order previously issued by the court.

Your appearance is mandatory. You may bring an attorney, although an attorney is not required. If you require

assistance in selecting an attorney, you may contact your County Bar Association. If you cannot afford an

attorney, you may contact Legal Services of New Jersey at www.lsnj.org. You may file a written response by

certification opposing this application/cross application. Any written response you send to the Court must be sent

to the other party. Your written response must be filed with the court ten calendar days after being served this

application/cross application. If you fail to appear, an Order granting the relief requested by the filing party may

be granted although your written response, if filed, will be considered. A certification in support of an application

shall not exceed fifteen (15) pages. A certification in opposition to a certification or in support of a cross-

application or both shall not exceed twenty-five (25) pages. A reply certification to opposing pleadings shall not

exceed ten (10) pages.

To my knowledge, DYFS is is not actively involved with the child(ren).

To my knowledge, the family is is not receiving public assistance.

I am presently incarcerated and would like to appear; however, I understand that unless I have

paid the costs in advance to the county or state for my transportation, my right to appear will be

deemed waived, and this matter will be decided on the papers that I filed.

I/We certify that all the statements made above are true. I am aware that if any of the statements made

by me/us are willfully false, I/we am subject to punishment

Date Signature

Plaintiff Defendant

Plaintiff / Cross Applicant Defendant / Cross Applicant

Date Signature

Co-Plaintiff Co-Defendant

Co-Plaintiff / Co-Cross Applicant Co-Defendant / Co-Cross Applicant

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Form Published 09/2011, CN: 11532 (Family Additional Information Sheet) Kit Revised: 01/2012, CN 11487 (How to File an FD Application/Cross Application to Modify a Court Order) page 15 of 15

Additional Information Sheet

Full Name: Date:

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing

statements made by me are willfully false, I am subject to punishment

Date Signature Plaintiff/Counterclaimant

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to Establish an FD Case)

Family – Chancery How to File an Application/Cross Application to Establish an FD Case September 2011

How to File an FD (Non-Dissolution) Initial Complaint/Counter Claim

Superior Court of New Jersey - Chancery Division - Family Part

Who Should Use This Packet? This packet should be used by parents who are not married or other adults seeking a court order related to a minor child(ren). You can also use this packet if you are separated from your spouse but need spousal support. Use this packet only if you are filing for the first time for custody, parenting time, paternity, child support, medical support, spousal support or visitation with a minor (grandparent/adult sibling).

Some types of court decisions you can request with this packet are:

Establish a Legal Custody Order for a Minor

Establish a Child/Spousal Support Order

Establish Legal Paternity for a Child

Establish a Parenting Time Court Order (Biological Parents)

Establish Grandparent/Adult Sibling Visitation Order

DO NOT use this packet if :

You have filed for divorce or have a Judgment of Divorce (JOD)

You have an active domestic violence restraining order

You already have a court case starting with the letters “FD”

You require an emergency hearing (you must go to the court house)

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Things to Think About Before You Try to Represent Yourself in Court

Try to Get a Lawyer The court system can be confusing and it is a good idea to get a lawyer if you can. If you cannot afford a lawyer, you may contact the legal services program in your county to see if you qualify for free legal services. Their telephone number can be found in your local yellow pages under “Legal Aid” or “Legal Services.”

If you do not qualify for free legal services and need help in locating an attorney, you can contact the bar association in your county. The telephone number can also be found in your local yellow pages. Most county bar associations have a Lawyer Referral Service. The county bar association Lawyer Referral Service can supply you with the names of attorneys in your area willing to handle your particular type of case and sometimes consult with you for a reduced fee.

There are a variety of organizations of minority lawyers throughout New Jersey, as well as organizations of lawyers who handle specialized types of cases. Ask the Family court staff in your county for a list of lawyer referral services that include these organizations.

What You Should Expect If You Represent Yourself While you have the right to represent yourself in court, you should not expect special treatment, help, or attention from the court. The following is a list of things court staff can and cannot do for you.

We can explain and answer questions about how the court works.

We can tell you what the requirements are to have your case considered by the court.

We can give you some information from your case file.

We can provide you with samples of court forms that are available.

We can provide you with guidance on how to fill out forms.

We can usually answer questions about court deadlines.

We cannot give you legal advice. Only your lawyer can give you legal advice.

We cannot give you an opinion about what will happen if you bring your case to court.

We cannot recommend a lawyer, but we can provide you with the telephone number of a local lawyer referral service.

We cannot talk to the judge for you about what will happen in your case.

We cannot let you talk to the judge outside of court.

We cannot change an order issued by a judge.

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to establish an FD case)

Keep Copies of All Papers Make and keep copies for yourself, written agreements, and other important papers that relate to your case.

These Papers Are for Filing a “Verified Complaint of Counterclaim” The word Verified Complaint or Counterclaim used in this packet means a written request in which you ask the court to establish a court order on your behalf concerning a minor child or spouse. The court will establish an order based on testimony of the parties and written documentation submitted. This is different from an appeal.

Notice to Appear The court will notice the plaintiff, defendant, all listed interested parties, and any attorney connected to your case, through the normal court noticing procedures. You must provide the court with the most current address of the other party that you know and the name of the attorney (if you know it) when you file this complaint with the court. Failure to do so may result in your case being dismissed by the court or delayed because the other party could not be noticed to appear. All papers you send will be shared with the other party with the notice to appear, unless the court rule prohibits this information from being shared. The plaintiff, defendant, interested parties, and attorneys (if known) will receive a notice to appear when the case is scheduled for court. Your appearance is mandatory.

“I don’t know the address of the other person” Every person named in a court action must be given the opportunity to respond. They must be provided notice so that they can exercise their right to answer the complaint.

If you are the plaintiff (person filing the complaint) and you don’t know where the defendant (person you are filing against) lives, the court requires that you try to find them so they can be served with the complaint and have the opportunity to respond. This is called a “diligent search”. This process must be

completed before your case can proceed in court. Instructions and forms needed to complete a diligent search are provided on the Judiciary website. This is required if you are filing for custody, parenting time/visitation with a minor child and you don’t know the whereabouts of the other legal parent/guardian.

IMPORTANT NOTICE: If you are filing to establish paternity or child support a diligent inquiry may be not required. You can go to your local County Welfare Office (CWA) and request locate services. Federal locate services are used only for the purpose of establishing child support.

“My case is an emergency” An emergent hearing in family court is designed to protect children from substantial and irreparable harm if someone is not restrained for doing something right now. You must file for an emergent hearing at the courthouse. You may not file for an emergent hearing through the mail. Only a judge can determine if your case will qualify as an emergency. If you are denied an emergency hearing, your case may continue under the normal case process.

If You Want to File an Appeal of a Court Order That Was Already Issued An appeal is a written request asking a higher court to look at the decision of the judge and change that judge's decision. You must make that written request for an appeal within 45 days after the judge decided the case and signed a judgment in the Superior Court.

If you want to file an appeal of a court order, do not use this packet of materials. Instead, you should contact the Appellate Division in writing or by phone at:

Appellate Division, Superior Court Hughes Justice Complex P.O. Box 006, Trenton, NJ 08625-0006

Their telephone number is (609) 292-4822. The Appellate Division staff will provide you with information on how to file an appeal.

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to establish an FD case)

Court Terms Used in FD This packet contains a list of frequently used terms the court uses in processing FD cases. They may help you understand the FD application process and how the court handles an FD case.

Where to Mail or Bring Your Papers You should mail or bring your completed packet to the court house where the child of spouse lives. When mailing, make sure you specify the “Family Division” and “Non-Dissolution Intake” in your address to insure your papers arrive at the correct department in the court.

Sample Address

(Name of County) Courthouse

Family Division

Non-Dissolution Intake

1234 Street

PO Box#

City, State, Zip code

All court house addresses can be found on njcourts.com

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to establish an FD case)

Other Papers That You May Have to Complete Depending on Your Case Each case has unique circumstances that may require different information. Read the next section carefully and include any documents that will be needed for your particular case. Failure to complete certain required documents may result in your application being returned as “deficient” which will delay you getting your day in court.

Confidential Litigant Information Sheet This form must be completed by the person filing this initial application. Failure to do so will result in your papers being returned to you marked “deficient”. This will cause a delay in your case being scheduled for court.

You must complete the entire form and submit it with your papers to the court. If something does not apply to you, put “n/a”. Do not leave any blank spaces. This form is confidential and will not be shared with the other party. Each party is required to complete his/her own Confidential Litigant Information Sheet and file it with the court.

Diligent Search Packet In order for the court to proceed with your case, the respondent (other party you named) must be noticed and have an opportunity to answer your complaint. If you don’t have a valid address where the party can be served, the court requires that you try to find them. This is called a “diligent search.” This packet provides the court with your efforts to find the other party. The packet must be completed in its entirety and submitted to the court. If you are unable to send a letter as directed, you must tell the court why by putting your reason on the letter and including it in the completed packet you submit to the court. Once you have submitted your packet to the court, your case will be established and scheduled for a hearing. The judge will decide if your search was sufficient at the hearing. This process does not apply to paternity and child support cases. Go to your local CWA office and request locate services if you don’t know the whereabouts of the other person responsible to pay child support.

Note: Your case cannot proceed without attempted notice to the other party.

Federal Child Support Services Application (IV-D Child Support Program) You should complete this application if you are applying to establish paternity or child support. Applying for support services under the federal child support program insures your case will be enforced through the court’s Probation Division. Go to the NJchildsupport.org website, fill out the application, print, sign and mail with your court papers. The Federal Child Support Program costs $6.00. Include a money order or check for that amount along with the application with the papers you are filing with the court. This application is in addition to the other court papers you must file to establish your child support order.

Summary Form for Financial Information This form must be completed if you are requesting a child support in an FD case.

You must complete this form if you are filing to establish child support. You must complete the entire form. If something does not apply to you put “n/a”. Do not leave any blank spaces. This completed form must be included in your packet submitted to the court. This form will be shared with the other party pursuant court rule (R. 5:5-3.). The other party must complete this same form and file it with the court. The court will share this information with the filing party at the court hearing.

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to establish an FD case)

Case Information Statement (CIS) This form must be completed only if you are married but separated and want to establish spousal support. Spousal support can only be established under FD when there is no active divorce case.

Pursuant to Court Rule R. 5:5-2 a spousal support determination requires the parties to submit a Case Information Statement to the court. You must complete the entire form. If something does not apply to you put “n/a”. Do not leave any blank spaces. This completed form must be included in your packet submitted to the court. This form will be shared with the other party. The other party must complete this same form file it with the court and send a copy to you. The court will provide instructions to the other party about sharing this information with the filing party prior to the court hearing. This document is confidential pursuant to court rule R. 1:38-3 and is not available for review by any other people besides the two parties involved in the case, their attorneys, and the court.

Certification of Paternity This form must be completed if you are the unmarried biological mother of a child seeking paternity or child support and legal paternity of the father that has not been established by a Certificate of Parentage (COP) or a previous court order. This form must also be completed by the biological father filing for legal paternity or the legal caretaker of the child who wants child support, but the legal father has not been identified by the court. Only answer the questions about which you have personal knowledge. Put “n/a” if the questions don’t apply to you. This form will be shared with the alleged biological father/mother when they receive the notice to appear.

Emergency Hearing Form (must be filed in person at the courthouse)

Form for additional information for the Court to consider (included in this kit) Use this form if you need additional space to explain to the court what you want the court to consider or your position on a particular issue stated in the complaint. Type or write legibly and be as specific as possible.

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to establish an FD case)

Court Terms Used in FD Cases Arrears: Arrears are unpaid or overdue child support, alimony, or spousal support payments.

Application: An application is a written request in which you ask the court to issue an order or to change an order that has already been issued.

Bench Warrant: A bench warrant is an order from the court giving legal authority to law enforcement to arrest a person for failure to appear for a court hearing or failure to comply with a court order.

Certification: A certification is a written statement made to the court when you file papers with the court, swearing that the information contained in the filed papers is true.

Child Support Number (also referred to as “CS Number”): The Child Support Number is the identifying number assigned to your child, spousal, or alimony support case.

Complaint: A complaint is a formal document filed in court that starts a case. It typically includes the names of the parties and the issues you are asking the court to decide.

Court Order: A court order is the written decision issued by a court of law. For example, a child support court order sets forth how often, how much, and what kind of support is to be paid.

Docket Number: The docket number is the identifying number assigned to every case filed in the court.

Exhibits: Exhibits are written documents you provide to the court to support what you want the court to decide.

FD: The letters the court uses to indentify a Non-Dissolution case that involves parents who are not legally married or other adults filing for court relief on behalf of minor children. FD also includes married people who separate but need financial support.

File: To file means to give the appropriate forms to the court to begin the court’s consideration of your request

Income Withholding/Wage Garnishment: Income Withholding/Wage Garnishment is a process where automatic deductions are made from wages or other income to pay your support obligation. Income withholding has been mandatory since the enactment of the Family Support Act of 1988.

New Jersey Child Support Guidelines: Both parents are responsible for the financial and emotional support of their children. New Jersey has developed a standard method for calculating child support based on the income of both parents and other factors. The full set of NJ Child Support Guidelines is contained in Rule 5:6A of the New Jersey Court Rules.

NJKiDS (New Jersey Kids Deserve Support): NJKiDS is the New Jersey Child Support automated computer system that tracks child support accounts.

Obligor/Payor: An obligor/payor is the person ordered by the court to pay support, also known as the non-custodial parent (NCP).

Obligee/Payee: An obligee/payee is the person, agency, or institution who receives support, also known as the custodial parent (CP).

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Party: A party is a person, business, or governmental agency involved in a court action.

Petitioner: Petitioner is another name for the person starting the court action by filing the appropriate papers the court will consider.

Respondent: Respondent is another name for the person who is named as the other party in the court action filed by the petitioner. This person can answer the filed by the petitioner by filing a cross motion or written response with the court.

Relief: To ask for relief is to ask the court to grant something such as custody, parenting time, or support.

Support Obligation: Support Obligation is the amount of support that the court orders the obligor to pay. The court order includes how much and how often support has to be paid (i.e., per week, per month, bi-weekly, etc.).

Support Enforcement: The Probation Division is required to enforce court orders that call for the payment of child support, health care coverage, and/or spousal support/alimony. If support is not being paid timely, Probation Support Enforcement has many state and federal tools available to enforce child support orders. These can include, but are not limited to:

Income withholding

Court hearing

Bench warrant

Tax offset – federal and state

Judgment (liens attached to property & assets)

Credit bureau notification

Financial Institution Data Match (FIDM) – seizure of bank accounts

Child Support Lien Network (CSLN) – seizure of proceeds from law suits

Passport denial

License suspension

Lottery interception

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to establish an FD case)

Instructions for Completing Verified Complaint or Cross Complaint IMPORTANT NOTICE: Look over the entire form and check only the reliefs you are seeking. You may seek more than one relief, but only the ones you check will be considered on the day of your hearing. A. Type or print your name (the filer) on the “Plaintiff” line.

B. Type or print the name of the defendant (the other party in your case) on the “Defendant” line.

C. Type or print the county in which you are filing the application.

D. Leave the “Docket No.” line blank. The court will establish this number for you.

E. Leave the “CS No.” blank. The court will establish this number for you.

F. Type or print your name on the line that says “I”. This tells the court who is filing the application to establish the case.

1. Check whether you are the Plaintiff or Defendant in the case.

2. Put your address (plaintiff) in this space and don’t forget to add your apartment # or floor if that applies to you.

Put the defendant’s address in this space and don’t forget to add the apartment # or floor if it applies to this address.

3. List any other interested parties that should be noticed to appear in court regarding the children.

4. List the children that are part of your case and list the Family court cases they you have been involved in the past.

Check Yes or No if you have had previous Family Court activity related to any of the parties listed in this complaint. Check only one box. Use the lines provided.

5. Check Yes or No if to your knowledge a child protection agency (i.e., DYFS or similar agency in another state) has been involved with the child(ren) or listed parties.

6. Check Yes or No if to your knowledge the children are recipients of public assistance.

7. Check all the reliefs you want the court to consider in your case. You may check more than one but only the ones you check will be considered during your court hearing.

Check the correct box if you are applying to establish paternity, maternity, joint legal custody, sole legal custody or physical custody for the child(ren) listed in the complaint.

Check the correct box if you are applying to establish a support order.

Check the correct box if the defendant is the lawful wife or husband to the person filing the complaint.

Check the correct box if the defendant is the biological mother/father of the children named in the complaint.

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Write the reason you are seeking custody and/or child support in this space.

Establish or Modify Visitation Rights Check this box if you are requesting to establish or change parenting time, grandparent visitation time, or sibling visitation time.

Medical Coverage Check this box if you are requesting medical coverage.

Check the correct box if medical coverage is for yourself or the children named in the complaint.

The relief I am seeking is not listed above. If the relief you are seeking is not contained in any of the numbered items in the form, write in your own words the relief you are seeking for the court in the space provided. Be as specific as possible. Attach another page, if needed.

Required Attachments

Certificate of Parentage This is only required if you are filing to establish paternity for one or more of the children listed in the complaint. Include a copy of the “Certificate of Parentage”, if available, with the papers you file with the court. Check the box only if the form is attached. Make sure you keep a copy for your own records.

Certification to Establish Paternity Certification of Paternity is required if you checked the relief to establish paternity and you have named the alleged father in the complaint. If a COP was not signed and paternity has not been established through the court, this form must be completed by the person requesting paternity. The form is available and must be attached to the complaint when it is filed.

Court Appearance Information Your appearance is required at the hearing. You will be sent a notice with the hearing date. If you are the person receiving a complaint, you can submit a written response to the court and serve the other party with what you wrote. This must be completed within 10 days of the hearing date listed in your notice to appear. You must still appear at the hearing in person even if you have a lawyer.

Read the certification and sign your name and the date you are signing the complaint.

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to Establish an FD Case) Promulgated by Directive #08-11 (09/02/2011), CN 11492 (Verified Complaint or Counterclaim – Non-Dissolution Docket)

SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION - FAMILY PART COUNTY:

Plaintiff DOCKET NO.: FD -

vs. CS NO:

CIVIL ACTION

Verified Complaint or

Counterclaim

Defendant

I, by way of certified complaint/counterclaim certify the following:

1. I am the Plaintiff Defendant in the above-captioned matter.

2. Plaintiff resides at: Address:

City/Town

County State Zip Code

Defendant resides at: Address:

City/Town

County State Zip Code

3. Other interested parties’ name(s) and address(es):

4. The child(ren) are: Name Date of Birth M/F Residing at

Residing with (relationship)

I have been previously been involved in the following family court actions with regard to any of the parties or children listed above. (If yes, give the title of case and docket number.)

Yes No Title of Case ( ________ vs. ________ ) Docket Number

a.

b.

c.

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Published 07/2011, CN 11492 (How to File an Initial Complaint/Counterclaim to Establish an FD Case) Promulgated by Directive #08-11 (09/02/2011), CN 11492 (Verified Complaint or Counterclaim – Non-Dissolution Docket)

5. A Child Protection Agency (i.e. the Division of Youth and Family Services) (or a similar agency in another State) has been involved with the child(ren) or listed parties.

Yes No

6. This is an active public assistance case governed by 41 U.S.C.A. 602 (A) (26), N.J.S.A. 44: 10-1.1, et seq. Yes No

7. I seek the following for the child(ren) named on page 1:

Establish Paternity Establish Maternity

Custody Joint Legal Custody Sole Legal Custody Physical Custody

Support Order: I am seeking the establishment of a court order against the person who is the spouse/civil union or domestic partner and/or parent of the persons listed on page 1 and has a legal duty to support same pursuant to N.J.S.A. 9:17-38 et seq. Chapter 92. The law requires that child support provisions of court orders shall be enforced by immediate income withholding upon the obligor’s current or future income due from an employer or future employer, unemployment compensation or income from any source unless the obligor and oblige agree, in writing to an alternative arrangement or either party demonstrates and the court finds good cause for establishing an alternative arrangement (N.J.S.A. 2A: 17-56.9). For the reason(s) checked below, the defendant is under a legal duty to support and maintain the person(s) mentioned on page 1 of this complaint:

Plaintiff/Defendant is my lawful wife/husband/domestic partner/civil union partner

Plaintiff/Defendant is the biological mother/father of the child(ren) named on page 1

Reason for seeking custody and/or support:

Establish or Modify Visitation Rights:

Parenting Time Grandparent Time Sibling Time

Reasons for requesting or changing visitation:

Medical Coverage Requested:

Health Benefits for myself

Health Benefits for the child(ren) named in this complaint.

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Promulgated by Directive #08-11 (09/02/2011), CN 11492 (Verified Complaint or Counterclaim – Non-Dissolution Docket)

Other Relief Requested. Explain the relief being sought.

Required Attachments: A Certificate of Parentage is attached (if available)

Certification to Establish Paternity attached (when seeking establishment of paternity)

Attach additional pages stating what you want the court and other party to know (if necessary).

Date Signature plaintiff/counterclaimant Date Signature Co-plaintiff/Co-defendant

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New Jersey Judiciary Family Practice Division

Additional Information Sheet

Full Name: Date:

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment

Date Signature Plaintiff/Counterclaimant

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Family – Chancery How to File an Application/Cross Application to Establish an FD Case September 2011

How to File an FD (Non-Dissolution) Initial Complaint/Counter Claim

Superior Court of New Jersey - Chancery Division - Family Part

Who Should Use This Packet? This packet should be used by parents who are not married or other adults seeking a court order related to a minor child(ren). You can also use this packet if you are separated from your spouse but need spousal support. Use this packet only if you are filing for the first time for custody, parenting time, paternity, child support, medical support, spousal support or visitation with a minor (grandparent/adult sibling).

Some types of court decisions you can request with this packet are:

Establish a Legal Custody Order for a Minor

Establish a Child/Spousal Support Order

Establish Legal Paternity for a Child

Establish a Parenting Time Court Order (Biological Parents)

Establish Grandparent/Adult Sibling Visitation Order

DO NOT use this packet if :

You have filed for divorce or have a Judgment of Divorce (JOD)

You have an active domestic violence restraining order

You already have a court case starting with the letters “FD”

You require an emergency hearing (you must go to the court house)

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Things to Think About Before You Try to Represent Yourself in Court

Try to Get a Lawyer The court system can be confusing and it is a good idea to get a lawyer if you can. If you cannot afford a lawyer, you may contact the legal services program in your county to see if you qualify for free legal services. Their telephone number can be found in your local yellow pages under “Legal Aid” or “Legal Services.”

If you do not qualify for free legal services and need help in locating an attorney, you can contact the bar association in your county. The telephone number can also be found in your local yellow pages. Most county bar associations have a Lawyer Referral Service. The county bar association Lawyer Referral Service can supply you with the names of attorneys in your area willing to handle your particular type of case and sometimes consult with you for a reduced fee.

There are a variety of organizations of minority lawyers throughout New Jersey, as well as organizations of lawyers who handle specialized types of cases. Ask the Family court staff in your county for a list of lawyer referral services that include these organizations.

What You Should Expect If You Represent Yourself While you have the right to represent yourself in court, you should not expect special treatment, help, or attention from the court. The following is a list of things court staff can and cannot do for you.

We can explain and answer questions about how the court works.

We can tell you what the requirements are to have your case considered by the court.

We can give you some information from your case file.

We can provide you with samples of court forms that are available.

We can provide you with guidance on how to fill out forms.

We can usually answer questions about court deadlines.

We cannot give you legal advice. Only your lawyer can give you legal advice.

We cannot give you an opinion about what will happen if you bring your case to court.

We cannot recommend a lawyer, but we can provide you with the telephone number of a local lawyer referral service.

We cannot talk to the judge for you about what will happen in your case.

We cannot let you talk to the judge outside of court.

We cannot change an order issued by a judge.

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Keep Copies of All Papers Make and keep copies for yourself, written agreements, and other important papers that relate to your case.

These Papers Are for Filing a “Verified Complaint of Counterclaim” The word Verified Complaint or Counterclaim used in this packet means a written request in which you ask the court to establish a court order on your behalf concerning a minor child or spouse. The court will establish an order based on testimony of the parties and written documentation submitted. This is different from an appeal.

Notice to Appear The court will notice the plaintiff, defendant, all listed interested parties, and any attorney connected to your case, through the normal court noticing procedures. You must provide the court with the most current address of the other party that you know and the name of the attorney (if you know it) when you file this complaint with the court. Failure to do so may result in your case being dismissed by the court or delayed because the other party could not be noticed to appear. All papers you send will be shared with the other party with the notice to appear, unless the court rule prohibits this information from being shared. The plaintiff, defendant, interested parties, and attorneys (if known) will receive a notice to appear when the case is scheduled for court. Your appearance is mandatory.

“I don’t know the address of the other person” Every person named in a court action must be given the opportunity to respond. They must be provided notice so that they can exercise their right to answer the complaint.

If you are the plaintiff (person filing the complaint) and you don’t know where the defendant (person you are filing against) lives, the court requires that you try to find them so they can be served with the complaint and have the opportunity to respond. This is called a “diligent search”. This process must be

completed before your case can proceed in court. Instructions and forms needed to complete a diligent search are provided on the Judiciary website. This is required if you are filing for custody, parenting time/visitation with a minor child and you don’t know the whereabouts of the other legal parent/guardian.

IMPORTANT NOTICE: If you are filing to establish paternity or child support a diligent inquiry may be not required. You can go to your local County Welfare Office (CWA) and request locate services. Federal locate services are used only for the purpose of establishing child support.

“My case is an emergency” An emergent hearing in family court is designed to protect children from substantial and irreparable harm if someone is not restrained for doing something right now. You must file for an emergent hearing at the courthouse. You may not file for an emergent hearing through the mail. Only a judge can determine if your case will qualify as an emergency. If you are denied an emergency hearing, your case may continue under the normal case process.

If You Want to File an Appeal of a Court Order That Was Already Issued An appeal is a written request asking a higher court to look at the decision of the judge and change that judge's decision. You must make that written request for an appeal within 45 days after the judge decided the case and signed a judgment in the Superior Court.

If you want to file an appeal of a court order, do not use this packet of materials. Instead, you should contact the Appellate Division in writing or by phone at:

Appellate Division, Superior Court Hughes Justice Complex P.O. Box 006, Trenton, NJ 08625-0006

Their telephone number is (609) 292-4822. The Appellate Division staff will provide you with information on how to file an appeal.

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Court Terms Used in FD This packet contains a list of frequently used terms the court uses in processing FD cases. They may help you understand the FD application process and how the court handles an FD case.

Where to Mail or Bring Your Papers You should mail or bring your completed packet to the court house where the child of spouse lives. When mailing, make sure you specify the “Family Division” and “Non-Dissolution Intake” in your address to insure your papers arrive at the correct department in the court.

Sample Address

(Name of County) Courthouse

Family Division

Non-Dissolution Intake

1234 Street

PO Box#

City, State, Zip code

All court house addresses can be found on njcourts.com

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Other Papers That You May Have to Complete Depending on Your Case Each case has unique circumstances that may require different information. Read the next section carefully and include any documents that will be needed for your particular case. Failure to complete certain required documents may result in your application being returned as “deficient” which will delay you getting your day in court.

Confidential Litigant Information Sheet This form must be completed by the person filing this initial application. Failure to do so will result in your papers being returned to you marked “deficient”. This will cause a delay in your case being scheduled for court.

You must complete the entire form and submit it with your papers to the court. If something does not apply to you, put “n/a”. Do not leave any blank spaces. This form is confidential and will not be shared with the other party. Each party is required to complete his/her own Confidential Litigant Information Sheet and file it with the court.

Diligent Search Packet In order for the court to proceed with your case, the respondent (other party you named) must be noticed and have an opportunity to answer your complaint. If you don’t have a valid address where the party can be served, the court requires that you try to find them. This is called a “diligent search.” This packet provides the court with your efforts to find the other party. The packet must be completed in its entirety and submitted to the court. If you are unable to send a letter as directed, you must tell the court why by putting your reason on the letter and including it in the completed packet you submit to the court. Once you have submitted your packet to the court, your case will be established and scheduled for a hearing. The judge will decide if your search was sufficient at the hearing. This process does not apply to paternity and child support cases. Go to your local CWA office and request locate services if you don’t know the whereabouts of the other person responsible to pay child support.

Note: Your case cannot proceed without attempted notice to the other party.

Federal Child Support Services Application (IV-D Child Support Program) You should complete this application if you are applying to establish paternity or child support. Applying for support services under the federal child support program insures your case will be enforced through the court’s Probation Division. Go to the NJchildsupport.org website, fill out the application, print, sign and mail with your court papers. The Federal Child Support Program costs $6.00. Include a money order or check for that amount along with the application with the papers you are filing with the court. This application is in addition to the other court papers you must file to establish your child support order.

Summary Form for Financial Information This form must be completed if you are requesting a child support in an FD case.

You must complete this form if you are filing to establish child support. You must complete the entire form. If something does not apply to you put “n/a”. Do not leave any blank spaces. This completed form must be included in your packet submitted to the court. This form will be shared with the other party pursuant court rule (R. 5:5-3.). The other party must complete this same form and file it with the court. The court will share this information with the filing party at the court hearing.

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Case Information Statement (CIS) This form must be completed only if you are married but separated and want to establish spousal support. Spousal support can only be established under FD when there is no active divorce case.

Pursuant to Court Rule R. 5:5-2 a spousal support determination requires the parties to submit a Case Information Statement to the court. You must complete the entire form. If something does not apply to you put “n/a”. Do not leave any blank spaces. This completed form must be included in your packet submitted to the court. This form will be shared with the other party. The other party must complete this same form file it with the court and send a copy to you. The court will provide instructions to the other party about sharing this information with the filing party prior to the court hearing. This document is confidential pursuant to court rule R. 1:38-3 and is not available for review by any other people besides the two parties involved in the case, their attorneys, and the court.

Certification of Paternity This form must be completed if you are the unmarried biological mother of a child seeking paternity or child support and legal paternity of the father that has not been established by a Certificate of Parentage (COP) or a previous court order. This form must also be completed by the biological father filing for legal paternity or the legal caretaker of the child who wants child support, but the legal father has not been identified by the court. Only answer the questions about which you have personal knowledge. Put “n/a” if the questions don’t apply to you. This form will be shared with the alleged biological father/mother when they receive the notice to appear.

Emergency Hearing Form (must be filed in person at the courthouse)

Form for additional information for the Court to consider (included in this kit) Use this form if you need additional space to explain to the court what you want the court to consider or your position on a particular issue stated in the complaint. Type or write legibly and be as specific as possible.

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Court Terms Used in FD Cases Arrears: Arrears are unpaid or overdue child support, alimony, or spousal support payments.

Application: An application is a written request in which you ask the court to issue an order or to change an order that has already been issued.

Bench Warrant: A bench warrant is an order from the court giving legal authority to law enforcement to arrest a person for failure to appear for a court hearing or failure to comply with a court order.

Certification: A certification is a written statement made to the court when you file papers with the court, swearing that the information contained in the filed papers is true.

Child Support Number (also referred to as “CS Number”): The Child Support Number is the identifying number assigned to your child, spousal, or alimony support case.

Complaint: A complaint is a formal document filed in court that starts a case. It typically includes the names of the parties and the issues you are asking the court to decide.

Court Order: A court order is the written decision issued by a court of law. For example, a child support court order sets forth how often, how much, and what kind of support is to be paid.

Docket Number: The docket number is the identifying number assigned to every case filed in the court.

Exhibits: Exhibits are written documents you provide to the court to support what you want the court to decide.

FD: The letters the court uses to indentify a Non-Dissolution case that involves parents who are not legally married or other adults filing for court relief on behalf of minor children. FD also includes married people who separate but need financial support.

File: To file means to give the appropriate forms to the court to begin the court’s consideration of your request

Income Withholding/Wage Garnishment: Income Withholding/Wage Garnishment is a process where automatic deductions are made from wages or other income to pay your support obligation. Income withholding has been mandatory since the enactment of the Family Support Act of 1988.

New Jersey Child Support Guidelines: Both parents are responsible for the financial and emotional support of their children. New Jersey has developed a standard method for calculating child support based on the income of both parents and other factors. The full set of NJ Child Support Guidelines is contained in Rule 5:6A of the New Jersey Court Rules.

NJKiDS (New Jersey Kids Deserve Support): NJKiDS is the New Jersey Child Support automated computer system that tracks child support accounts.

Obligor/Payor: An obligor/payor is the person ordered by the court to pay support, also known as the non-custodial parent (NCP).

Obligee/Payee: An obligee/payee is the person, agency, or institution who receives support, also known as the custodial parent (CP).

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Party: A party is a person, business, or governmental agency involved in a court action.

Petitioner: Petitioner is another name for the person starting the court action by filing the appropriate papers the court will consider.

Respondent: Respondent is another name for the person who is named as the other party in the court action filed by the petitioner. This person can answer the filed by the petitioner by filing a cross motion or written response with the court.

Relief: To ask for relief is to ask the court to grant something such as custody, parenting time, or support.

Support Obligation: Support Obligation is the amount of support that the court orders the obligor to pay. The court order includes how much and how often support has to be paid (i.e., per week, per month, bi-weekly, etc.).

Support Enforcement: The Probation Division is required to enforce court orders that call for the payment of child support, health care coverage, and/or spousal support/alimony. If support is not being paid timely, Probation Support Enforcement has many state and federal tools available to enforce child support orders. These can include, but are not limited to:

Income withholding

Court hearing

Bench warrant

Tax offset – federal and state

Judgment (liens attached to property & assets)

Credit bureau notification

Financial Institution Data Match (FIDM) – seizure of bank accounts

Child Support Lien Network (CSLN) – seizure of proceeds from law suits

Passport denial

License suspension

Lottery interception

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Instructions for Completing Verified Complaint or Cross Complaint IMPORTANT NOTICE: Look over the entire form and check only the reliefs you are seeking. You may seek more than one relief, but only the ones you check will be considered on the day of your hearing. A. Type or print your name (the filer) on the “Plaintiff” line.

B. Type or print the name of the defendant (the other party in your case) on the “Defendant” line.

C. Type or print the county in which you are filing the application.

D. Leave the “Docket No.” line blank. The court will establish this number for you.

E. Leave the “CS No.” blank. The court will establish this number for you.

F. Type or print your name on the line that says “I”. This tells the court who is filing the application to establish the case.

1. Check whether you are the Plaintiff or Defendant in the case.

2. Put your address (plaintiff) in this space and don’t forget to add your apartment # or floor if that applies to you.

Put the defendant’s address in this space and don’t forget to add the apartment # or floor if it applies to this address.

3. List any other interested parties that should be noticed to appear in court regarding the children.

4. List the children that are part of your case and list the Family court cases they you have been involved in the past.

Check Yes or No if you have had previous Family Court activity related to any of the parties listed in this complaint. Check only one box. Use the lines provided.

5. Check Yes or No if to your knowledge a child protection agency (i.e., DYFS or similar agency in another state) has been involved with the child(ren) or listed parties.

6. Check Yes or No if to your knowledge the children are recipients of public assistance.

7. Check all the reliefs you want the court to consider in your case. You may check more than one but only the ones you check will be considered during your court hearing.

Check the correct box if you are applying to establish paternity, maternity, joint legal custody, sole legal custody or physical custody for the child(ren) listed in the complaint.

Check the correct box if you are applying to establish a support order.

Check the correct box if the defendant is the lawful wife or husband to the person filing the complaint.

Check the correct box if the defendant is the biological mother/father of the children named in the complaint.

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Write the reason you are seeking custody and/or child support in this space.

Establish or Modify Visitation Rights Check this box if you are requesting to establish or change parenting time, grandparent visitation time, or sibling visitation time.

Medical Coverage Check this box if you are requesting medical coverage.

Check the correct box if medical coverage is for yourself or the children named in the complaint.

The relief I am seeking is not listed above. If the relief you are seeking is not contained in any of the numbered items in the form, write in your own words the relief you are seeking for the court in the space provided. Be as specific as possible. Attach another page, if needed.

Required Attachments

Certificate of Parentage This is only required if you are filing to establish paternity for one or more of the children listed in the complaint. Include a copy of the “Certificate of Parentage”, if available, with the papers you file with the court. Check the box only if the form is attached. Make sure you keep a copy for your own records.

Certification to Establish Paternity Certification of Paternity is required if you checked the relief to establish paternity and you have named the alleged father in the complaint. If a COP was not signed and paternity has not been established through the court, this form must be completed by the person requesting paternity. The form is available and must be attached to the complaint when it is filed.

Court Appearance Information Your appearance is required at the hearing. You will be sent a notice with the hearing date. If you are the person receiving a complaint, you can submit a written response to the court and serve the other party with what you wrote. This must be completed within 10 days of the hearing date listed in your notice to appear. You must still appear at the hearing in person even if you have a lawyer.

Read the certification and sign your name and the date you are signing the complaint.

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SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION - FAMILY PART COUNTY:

Plaintiff DOCKET NO.: FD -

vs. CS NO:

CIVIL ACTION

Verified Complaint or

Counterclaim

Defendant

I, by way of certified complaint/counterclaim certify the following:

1. I am the Plaintiff Defendant in the above-captioned matter.

2. Plaintiff resides at: Address:

City/Town

County State Zip Code

Defendant resides at: Address:

City/Town

County State Zip Code

3. Other interested parties’ name(s) and address(es):

4. The child(ren) are: Name Date of Birth M/F Residing at

Residing with (relationship)

I have been previously been involved in the following family court actions with regard to any of the parties or children listed above. (If yes, give the title of case and docket number.)

Yes No Title of Case ( ________ vs. ________ ) Docket Number

a.

b.

c.

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5. A Child Protection Agency (i.e. the Division of Youth and Family Services) (or a similar agency in another State) has been involved with the child(ren) or listed parties.

Yes No

6. This is an active public assistance case governed by 41 U.S.C.A. 602 (A) (26), N.J.S.A. 44: 10-1.1, et seq. Yes No

7. I seek the following for the child(ren) named on page 1:

Establish Paternity Establish Maternity

Custody Joint Legal Custody Sole Legal Custody Physical Custody

Support Order: I am seeking the establishment of a court order against the person who is the spouse/civil union or domestic partner and/or parent of the persons listed on page 1 and has a legal duty to support same pursuant to N.J.S.A. 9:17-38 et seq. Chapter 92. The law requires that child support provisions of court orders shall be enforced by immediate income withholding upon the obligor’s current or future income due from an employer or future employer, unemployment compensation or income from any source unless the obligor and oblige agree, in writing to an alternative arrangement or either party demonstrates and the court finds good cause for establishing an alternative arrangement (N.J.S.A. 2A: 17-56.9). For the reason(s) checked below, the defendant is under a legal duty to support and maintain the person(s) mentioned on page 1 of this complaint:

Plaintiff/Defendant is my lawful wife/husband/domestic partner/civil union partner

Plaintiff/Defendant is the biological mother/father of the child(ren) named on page 1

Reason for seeking custody and/or support:

Establish or Modify Visitation Rights:

Parenting Time Grandparent Time Sibling Time

Reasons for requesting or changing visitation:

Medical Coverage Requested:

Health Benefits for myself

Health Benefits for the child(ren) named in this complaint.

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Other Relief Requested. Explain the relief being sought.

Required Attachments: A Certificate of Parentage is attached (if available)

Certification to Establish Paternity attached (when seeking establishment of paternity)

Attach additional pages stating what you want the court and other party to know (if necessary).

Date Signature plaintiff/counterclaimant Date Signature Co-plaintiff/Co-defendant

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New Jersey Judiciary Family Practice Division

Additional Information Sheet

Full Name: Date:

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment

Date Signature Plaintiff/Counterclaimant

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Representing the GLBT Client in Family Matters (originally published 2010, revised February, 2014)

By: Debra E. Guston, Esq.

I. Introduction GLBT people are among the historically under-represented constituencies in New

Jersey. Resulting from decades of prejudice and legal disabilities, the GLBT community

has emerged over the past 25-30 years as a community in need of significant legal

services. The mainstream legal community is now seeking to expand their practices to

include the provision of services to GLBT clients. The family lawyer in particular will

find both great rewards in working with GLBT clients, but also some perils in

undertaking such work, particularly if done without a proper knowledge base.

This article will address a wide range of legal services needs of the GLBT client

in a family law context and will suggest a “holistic” approach to such matters is needed to

fully meet the needs of these clients and to protect the practitioner. This article is

intended to provide issue-spotting advice and is by no means a comprehensive

compendium of the research and resources available.

II. Relationship Formation

As with heterosexual clients, the family lawyer may be approached by a GLBT

couple or individual to discuss issues concerning the formation of a legal relationship.

The GLBT client is perhaps more apt to explore these questions now with the confusing

landscape of modern American law and no “cultural history” of dealing with state-

sanctioned relationships. Some attorneys with large GLBT client bases have moved their

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family practices into “formation” practices and have abandoned the traditional view of

the family lawyer as one dealing with dissolution only. Some of the questions posed:

+ Should we enter into a state-sanctioned relationship? If so, where?

+ Should we marry now or when and where?

+ Should we have an agreement prior to entry into the relationship?

+ What are our obligations to each other in a state-sanctioned relationship?

+ If we are planning on children – how do we plan?

The GLBT client must consider a variety of issues usually taken for granted by

heterosexual clients. For same-sex couples, many states provide marriage, including

New Jersey.1 Some provide marriage-like relationships.2 Still others provide only some

rights usually associated with marriage.3 Others, while having no sanctioned same-sex

relationships have either Attorneys General opinions or Executive Orders directing the

recognition under principles of comity to out of state same-sex marriages (Maryland and

most recently, New Mexico). However, a majority of the States have no recognition and

some have a decidedly hostile environment with laws and constitutional amendments

prohibiting not only recognition of same-sex relationships, but also attempting to

interfere with contractual efforts to attain and maintain marriage-like rights and benefits.4

1 California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Massachusetts, New Hampshire, New Jersey, Maine, Maryland, New York, Rhode Island, Vermont and Washington State. 2 California (retained its Registered Domestic Partnerships after Perry was decided), Colorado (Civil Union), Illinois (retaining Civil Union after marriage law takes effect next year), Nevada (domestic partnership) and Oregon (domestic partnership). 3 Hawaii (Reciprocal Beneficiaries – now replaced with civil union), and Wisconsin (Domestic Partners) provide some “partnership” rights. New Mexico has Attorneys General Opinions that recognize marriages from other states. 4 Constitutional bans: AL, AK, AZ, AR, FL, NC. Statutory bans: IN, KY, MN, NC, PA, WY. Constitutional and statutory bans: GA, ID, KS, LA, MI, MS, ND, MO, MT, NE, NV (but has a DP law), OH, OK, OR (but has a DP law), SC, TN, TX, UT and WI (but has some benefits). No

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The first question may be where to enter into a state-sanctioned relationship? For

the opposite-sex couple the question may be answered by – “which place has the most

attractive setting for my wedding?” For the same-sex couple – the answer is grounded in

legal recognition.5 Where will the relationship be recognized if we travel to, move to or

work in other states? Will my relationship be recognized as an opposite-sex couples’

marriage is? Will I be able to divorce if things don’t work out? There is constantly

changing law in this area and a careful review of the nation’s laws is necessary to

properly advise a couple.

The additional issue of recognition is federal recognition has been greatly

clarified with the United States Supreme Court’s decision in U.S. vs. Windsor, which

determined that Section 3 of the Defense of Marriage Act (DOMA),6 is unconstitutional

on equal protection grounds. Before Windsor, there had been many small erosions of

DOMA’s powers. For example, the State Department (as of late 2009) accepted an

administrative name change resulting from a same-sex marriage, civil union or domestic

partnership for purposes of re-issuing a passport with the new name. The Social Security

Administration, at least in New Jersey, also recognized names changes as a result of civil

union for purposes of changing the Social Security records.7 These basic recognitions

now may relieve some clients from having to proceed to a name change proceeding,

law, no recognition: NM. Virginia’s law also bans enforcement of contracts purporting to establish marriage-like rights between parties. 5 New Mexico has an Attorney General opinion requiring state recognition of foreign same-sex marriages under principles of comity. New Jersey has an Attorney General Formal Opinion, 3-2007, which analyzes what New Jersey’s view of foreign same-sex relationships should be and ignores principles of comity to “convert” a foreign same-sex marriage to a civil union for recognition purposes and remains applicable to recognition of other state’s relationships. 6 1 U.S.C. §7 overrode a State’s definition of marriage and declined federal recognition of same-sex marriages for all federal purposes. 7 Social Security Administration Policy Site: POMS PR 02705.033 New Jersey

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which is time consuming and costly. Another significant development, now support by

the Windsor decision, has been the Federal Bankruptcy Courts’ decisions to allow joint

bankruptcy petitions by same-sex married couples. No decision has been made as to

whether the bankruptcy courts will accept joint petitions from civil union or domestic

partners.

With the Windsor decision, tremendous impediments have been removed for

same-sex couples who are married legally in some jurisdiction. The following are

examples of the extension of federal benefits to same-sex married couples based solely

on the fact that they are married – so-called State of Celebration recognition. These

impediments remain for CU and DP couples:

+ No imputed income and taxation for the value of health insurance or other

benefits for partner provided by employer

+ Right to file joint federal tax returns

+ Right to file joint bankruptcy petitions (civil union & domestic partners)

+ Requirement for equal treatment under ERISA plans and elective

provision of benefits under other ERISA plans if the plans covers

“spouses”

+ Unlimited spousal gifting and total exemption from federal estate tax

+ Right to assert a spousal privilege in federal courts

However, even with Windsor, Social Security regulations currently apply a “State

of Domicile” rule and there would be no qualification for social security survivor benefits

for married same sex-couples living outside a marriage state, unless that state recognizes

their relationship for intestate inheritance (such as NJ where DP’s and CU’s are eligible

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to inherit via intestacy from their partners – the Social Security laws would recognize

them for a survivor benefit). Social Security Spousal Retirement benefits are limited to

married same-sex couples living in marriage recognition states and depend on the number

of years the parties are married at the time of a claim.

As a result of the newly changed federal recognition there remains great

confusion about federal rights and benefits, so practitioners will want to review these

issues with GLBT clients with an eye toward educating them on newly obtained rights

and benefits. Part of the “holistic” approach recommended is to involve accountants and

estate planning counsel in family formation from the beginning to address tax, benefit

and other issues early on to avoid as many problems as may come in later on.

When couples determine to enter into a state-sanctioned relationship, the may also

desire to enter into a “pre-relationship” agreement – the title of which will follow the

choice of relationship (pre-nuptial, pre-civil union, pre-domestic partner). Under New

Jersey’s Civil Union Law, N.J.S. 37:2-31 was amended to include “pre-civil union

agreements,” to be governed under the same law as “pre-marital agreements.” The law

and practice norms aside, additional care needs to be taken with these agreements. For

example, the agreements must reflect whether any future changes in status, i.e. if New

Jersey automatically converts civil unions to marriage or the parties, subsequent to a NJ

civil union, decide to marry, are these changes of circumstances that will have an impact

on the enforceability of the agreement. The agreements must also address how the clients

intend to enforce the agreement if they move out of New Jersey – choice of law and

venue provisions must be strong and well considered. In short, each provision of such

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agreements must contemplate the impact of the patchwork of laws and legal impediments

nationally to the enforceability of any such agreements.

What remains then of the discussion of formation is the nuts and bolts of how to

marry or enter into civil union. Resources are provided at the end of this article to be of

assistance.

III. Children and Family Formation

Many same-sex couples contemplating adding children to their lives have many

issues to consider and may consult with lawyers to assist. The issues that may arise run

from parenting agreements, surrogate agreements, donor agreements, and adoptions.

A. Parenting Agreements

After decades of courts being unfriendly to gay and lesbian parents, many couples

took matters into their own hands and entered into parenting agreements that formed the

basis for shared parenting and financial obligations both during their relationship and

upon a termination. Same-sex couples continue to use parenting agreements to deal with

potential disputes that might arise in states decidedly unfriendly to GLBT parents.

Obviously, if those agreements were not abided by in some manner, they were open to

scrutiny by the same inhospitable court or legal system they intended to avoid. In an

effort to side-step court intervention, many of these older agreements provide for

mandatory mediation or arbitration of disputes, which remain good practice in any

environment. Practitioners drafting parenting agreements must caution clients on the

potential for problems enforcing agreements depending on venue and choice of law, as

well as in the event of changes in circumstances that impact the best interests of the child.

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B. Assisted Reproduction Technologies (ART’s)

Family creation for same-sex couples has been and remains at the cutting edge of

law, ethics and science. These areas include surrogacy and assisted reproduction

(artificial or alternative insemination, in vitro fertilization and embryo donation).

1. Surrogacy contracts, either with an agency or individual surrogate, remain

unenforceable under New Jersey law,8 although significant efforts are being made to

introduce legislation to codify gestational surrogacy agreements and process for the filing

of birth certificates and parentage orders for intended parents. Therefore, gay men and

some lesbian couples wishing to have children via surrogacy are best advised to seek

counsel in states that will enforce gestational surrogacy agreements, permit compensation

to gestational carriers and also have no laws against placing two parents of the same

gender on a birth certificate or allowing a second parent adoption to the non-biological

parent. Further, especially for gay men who may wish to raise a child that is his

biologically, the engagement of gestational carriers through agencies in foreign countries

has become more prevalent. In these cases children conceived through in vitro

fertilization using the client’s sperm and donated ova and delivered by a carrier in another

nation, the child will gain U.S. citizenship through the bio-dad and will then have a

second-parent adoption here in N.J. for the second dad to recognized. It cannot be

8 In re Baby M, 109 N.J. 396 (1988). Also see A.G.R. v. D.R.H & S.H. (also known as Robinson v. Hollingsworth) is a ruling by the Superior Court of New Jersey, Hudson County Vicinage extending Baby M to treat gestational surrogacy (where surrogate has no biological relationship to the child born) the same as a surrogate giving birth to a child she is related to. The ruling was handed down by Judge Francis Schultz on December 23, 2009.

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stressed enough that surrogate contracts, both domestic and foreign, need to be handled

by experienced practitioners for the safety of all involved, including the attorney.

2. Donor agreements are used primarily by lesbian couples to conceive using

semen from a known donor or anonymously through the assistance of a sperm bank.

They can also be used for the donation of ova from one woman to her partner so that one

of the couple is the gestational mother and one is the genetic mother. Under present New

Jersey law, there are many issues concerning donors and donor agreements, including the

necessary waiver by the donor of any parentage rights to children conceived of the eggs

donated, thus requiring a second-parent adoption after the birth to re-establish parental

rights, or the use of “pre- or post-birth” orders to convey parentage status.

a. Known Donor (Semen). If the donation is direct to the recipient and the

recipient performs the insemination herself, the donor’s parental rights are not

extinguished and he may seek custody and parenting time for the child conceived, as may

the mother seek support for the child. While an agreement may give the parties some

comfort in clarifying their intentions, they cannot be enforced after the birth of the child

if enforcement would not be in the best interests of the child. The recipient and her

intended co-parent partner may move to terminate the father’s rights through an adoption

proceeding, which will either require his consent, or may end up being a contested

matter. Attorneys are advised to carefully craft retainer agreements or other written

advise to clients on the potential problems with using a known donor, including advise as

to testing of the donated material for health purposes.

b. Unknown Donor (semen): An unknown donor, whose donation is obtained

through a sperm bank or medical practice, will have his rights voluntarily and statutorily

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terminated under the laws of the state in which the donation takes place, by contract with

the medical practice and by New Jersey law under N.J.S. 9:17-44. Note that in a second

parent adoption proof of the anonymous donation, insemination by licensed physician

and lack of any contract between donor and recipient will be required to show no father

need be noticed. There has been some debate about whether N.J.S. 9:17-44 should be

read in a “gender-neutral” manner so as to legally qualify a woman’s same-sex civil

union partner to stand in the shoes of a “husband.” Please see the discussion below on

current adoption issues.

c. Ova Donor: when a woman donates ova to be fertilized and then have the

embryos implanted into her partner to carry, the donor will be required by any medical

facility to waive an interest in the ova. As a result of these waivers, she will not be a

legal parent to any child conceived and will have to adopt the child or obtain a parentage

judgment. Also, under current case law, it is doubtful that a pre-birth consent from the

gestational mother will be effective if the parties have a falling out before the adoption

can be accomplished.9 Further, as discussed below, parentage orders or judgments may

be used to establish the parentage of the child as resting with both genetic and gestational

mother, but this device may be fraught with recognition issues outside of New Jersey.

In general, ART’s work has become a very detailed and complicated area of the

law, so much so that the American Academy of Adoption Attorneys has established an

affiliate dedicated to this work, the American Academy of Assisted Reproduction

Technology Attorneys.

C. Adoptions

9 A.H.W. v. G.H.B., 339 N.J.Super. 495 (Ch.Div. 2000).

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Same-sex couples and singles have been building their families through adoption

for years. In New Jersey, the courts have been a receptive place for GLBT clients

adopting for years and the practice has never been forbidden here as in some states.10

Historically, though, New Jersey’s GLBT adoptive parents have had some hurdles to

overcome.

In Holden and Gallucio v. DYFS, a matter that was settled by Consent Judgment

in 1997, DYFS had refused to a joint adoption by a gay male couple who had been jointly

approved by DYFS as foster parents. Since that case, DYFS has adhered to a non-

discrimination policy and freely placed children with gay and lesbian couples and

consented to adoptions to them jointly.

Prior to 1993, gay and lesbian couples who adopted or who had children and

wished their partner to adopt in what has become known as a “second parent” adoption,

had to go through an arduous and sometimes humiliating process of having first, a full

home study and then to have the legal parent’s right terminated in favor of them then

being “reissued” to both parties. This was because the courts were failing to utilize

stepparent adoption law where the legal parent’s rights are not disturbed by the addition

of a second parent, but applying the statute strictly which required that someone’s rights

had to be terminated before an adoption to another could occur. Then came two cases

that resulted in setting the stepparent analogy into New Jersey law.11 In the years since,

the issues have been the equal treatment of gay and lesbian in the procedures directed by

10 There are a significant number of states that have outright bans on adoptions to gay and lesbian couples and singles. Some restrict adoptions only to couples and others have bans on second parent adoptions. For an up to date summary, see Human Rights Campaign website http://www.hrc.org/issues/parenting/parenting_laws.asp (checked 12.10.13). 11 In the Matter of the Adoption of a Child by J.M.G., 267 N.J.Super. 622 (Ch.Div. 1993) and In the Matter of the Adoption of a Child by H.N.R., 285 N.J.Super. 1(App.Div. 1995).

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the Court and the various Surrogate’s Courts that process the pleadings. With the

development of domestic partnerships and civil unions and now marriages, the New

Jersey Courts have generally moved to a more equal approach, but there remain some

differences and practitioners have several issues on which they continue to educate the

courts. Among these are:

+ imposition of additional (albeit small) cost on the filing of Reports of Adoption

for birth certificates where the adoptive parent is already on the birth certificate;

+ questions on what out-of-state relationships equate to New Jersey civil unions

so as to make available the same relief as afforded adoption litigants with civil unions;

and

+ issues concerning the validity and portability parentage orders versus judgments

for adoption.

1. Birth Certificates, Pre-Birth Orders and Adoption. In implementing the

dictates of Lewis v. Harris12 children born to a lesbian mother in a civil union are

afforded the right to have both the birth mother and the mother’s civil union partner listed

on the birth certificate and impliedly therefore, recognition that both women are the legal

parents of the child under New Jersey law. This has become the State’s law and policy as

a result of a gender-neutral reading of N.J.S.A. 9:17:44 (a), which provides that a married

woman who is inseminated by a donor’s semen where the donor is not her husband and

the insemination is performed by a licensed physician and with the consent of her

husband, is entitled to have her husband treated as a matter of law as the father of the

12 188 N.J. 415 (2006)

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child conceived. This has resulted in many attorneys and clients believing that the birth

certificate, issued under New Jersey law and the public policy that enables the gender-

neutral interpretation of the statute is sufficient to protect their rights and those of the

child outside of New Jersey. The simplistic view is that a birth record determines who

the parents are. However, there has been a consistent effort by some states to act against

the interests of same-sex couples who parent children together that would, if considered

by all, make it clear that the New Jersey birth record alone is not sufficient.

It is horn book law that while Article IV, Section 1 of the United States

Constitution requires full faith and credit recognition of another state’s “public Acts,

Records, and judicial Proceedings,” what has happened across this country in the division

of red and blue states and Americans’ decidedly divergent views on gay and lesbian

parents has led to substantial concerns that New Jersey’s “public Acts, Records and

judicial Proceedings” will not be recognized across the country as a result of

longstanding case law permitting deviations from the Full Faith and Credit Clause for

“public policy” exceptions.13

Further the Defense of Marriage Act (28 U.S.C. §1738C) permits the states to

reject recognition of any other state’s same-sex marriages or other similar relationships.

Without fully briefing these issues, there has been successful litigation overturning an

Oklahoma law that would have rejected recognition of any adoption judgment naming

two persons of the same gender as parents of a child;14 a similar issue is presently rising

13 Pacific Employers Insurance v. Industrial Accident, 306 U.S. 493 (1939). See also, Baker v. General Motors, 522 U.S. 222 (1998). 14 Finstuen, et al. v. Edmudson, et al., United States District Court for the Western District of Oklahoma CIV-04-1152-C

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through the Florida courts with good results for the same-sex parents15 and a host of

States still refuse to amend post-adoption birth records to reflect the parentage of two

persons of the same gender. A trial court decision where the state (Louisiana) was

ordered by the Federal District Court to issue new birth certificates for a child born in

Louisiana and adopted by a gay male couple in New York and upheld by the three judge

panel at the Court of Appeals for the Fifth Circuit was recently reversed by that Court

sitting en banc, leaving the child with an incomplete birth certificate. The U.S. Supreme

Court denied cert, ruling that the State must recognize the judgment as proof of parentage

of the child, but need not “act” on the judgment if such requested “action” was contrary

to the State’s public policy.16 With no case law presently available to determine whether

the public policy exception to full faith and credit recognition of birth records and the

attack in the Fifth Circuit against issuing amended birth records, adoptions should be the

favored source of solidifying a co-parent’s rights.

Pre-birth orders have been sought periodically by lesbian couples. These actions

seek an order or judgment declaring that the child to be born is the legal child of both the

birth mother and her partner. This is especially compelling when the partner is also the

genetic mother. However, as with the birth certificates where this is being granted (and

some have been denied by New Jersey trial courts and have not been appealed) we have

no clear way to ascertain recognition out of state. The pre-birth order is grounded in New

Jersey’s public policy of treating same-sex couples as the state treats opposite-sex

couples, hence the gender-neutral reading of statutes enacted to cover opposite-sex 15 Embry v. Ryan, 2009 WL 1311599 in which birth mother sought Florida Order to set aside or ignore adoption judgment from Washington State 16 Adar v. Smith, 591 F. Supp. 2d 857 (E.D. La. 2008); Adar v Smith, No. 90-30036, 2010 U.S. App. LEXIS 3208 (5th Cir. Feb. 18, 2010), petition for reh'g en banc filed (Mar. 4, 2010), heard en banc April 12, 2011, reversed. Cert denied by U.S. Supreme Court July 2011.

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couples only. As with the birth record, while the process may make the clients feel

better, an adoption should still be encouraged.

The “poster-child” for the need for adoption is the matter of Miller-Jenkins vs.

Miller-Jenkins17. There, a lesbian couple residing in Vermont and in Vermont civil union

had a child. Vermont recognized the child as that of both parties and no adoption was

pursued. The natural mother of the child fled to Virginia upon the termination of the

relationship and obtained an Order from a Virginia trial court that declared her the sole

parent. The non-biological mother in Vermont brought suit under Vermont law and

under the federal parental kidnapping laws. Years later, both states highest courts agreed

that the Vermont mother was entitled to parenting time and parental recognition under the

jurisdiction of the Vermont courts. The natural mother is now out of the country

(believed to be in Nicargua), having fled with the assistance of her church and the

Vermont Court has granted the non-biological mother primary custody. A church

representative has been indicted and was arrested by the FBI for interfering with the

court’s various orders to return the child to Vermont and the non-biological mother’s

custody. The jurisdictional battles, the involvement of federal law and the interference of

social and religious views of the majorities of differing states could have been simplified

with a judgment for adoption and not the reliance on one state’s public policy and

statutory law.

The New Jersey Courts have weighed in on some of these issues in In the Matter

of the Parentage of the Child of Kimberly Robinson, 383 N.J.Super. 165, 890 A.2d 1036

(Ch.Div F.P. 2005). In that matter, well before many of the national issues began to

17 912 A.2d 951 (Vt. 2006), cert. denied, 127 S.Ct.2130 (2007) and the related Virginia proceedings, Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330 (Va.Ct.App. 2006).

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surface that have led to the decision to “complete” the lesbian couple “parentage puzzle”

with an adoption, Robinson’s presented a lesbian couple in a domestic partnership

seeking recognition now afforded to similar couples under the Artificial Insemination

statutes, as discussed above and created the gender-neutral reading now accepted by the

State. In Robinson, the Court applied the strong public policy of deciding matters “in the

best interest of the child.” This is undoubtedly the standard the Court should apply in this

matter. It is interesting to note that in Robinson, there is no mention of a home study,

background checks or any other investigation other than the information provided by the

parties that the Court considered when rendering a decision based on the best interests of

that child.

2. Out of State Relationship Recognition

For the purposes of adoption, a proposed adoptive parent who does not have a

civil union or marriage in New Jersey may be recognized for adoption rights of a

partner’s child and for waiver of home study requirements in some counties and under

some circumstances if they have a relationship sanctioned from another state or country

that is equivalent to New Jersey’s civil union or a marriage (such as a U.K. Civil

Partnership). The Court should be asked to take judicial notice of Attorney General

Formal Opinion 3-2007 which outlines the Attorney General’s view on reciprocal

recognition. However, the practitioners should be mindful that this Opinion is just that

and arguments may be made that the Opinion errs if necessary to move a matter forward

in a fair manner.

3. Foreign adoptions and adoptions to only one in a couple – to marry, civil union

or not.

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When gay men and lesbians seek to adopt outside of the U.S. they often are asked

to certify whether they are gay or not. Additionally, a joint adoption by a gay or lesbian

couple in a domestic adoption may not be recommended by an agency, as they may have

an open matching process and may feel they will have a harder time matching a birth

mother to a gay or lesbian couple as opposed to a single parent. Setting aside any issues

that may arise from having to make such a certification or presenting half truths – this is

an issue for the adoption agency to deal with and lawyers to stay away from – many

potential adoptive parents want to know whether they should marry or not when they

expect to adopt children in the future. As many applications simply ask if an applicant is

“married” or “single,” one could say that a civil union, not being recognized by a foreign

government or asked about on an application cannot and should interfere with a truthful

application. However, marriage may well provide that impediment. It is therefore, while

foreign adoptions are becoming rarer and rarer due to the requirements and

implementation problems with a Hague Convention treaty signed by many countries, it

would be wise to advise clients that a marriage, as opposed to a civil union, might cause a

problem in the future with an adoption application. Further, while more and more

agencies are easily presenting gay and lesbian couples for adoption, as the pool of

domestic adoptions becomes smaller, and hence more “competitive,” again, marriage

may not be a reasonable step in the pre-adoptive period of a couples lives together.

4. Second Parent Adoptions by Out of State Resident. If a child is born in New

Jersey to out of state residents, the New Jersey court will have jurisdiction over the child

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for adoption purposes if the adoption complaint is filed within 90 days of the child’s

birth.18

IV. ESTATE TAXATION, ESTATE PLANNING

As there are complications for gay and lesbian clients in estate taxation and estate

planning issues, such as no unlimited marital deduction under federal estate tax law for

parties in civil unions or RDP’s; intestate inheritance but no relief from bonding

requirements under New Jersey’s Probate Code for CU and DP survivors; issues of

gifting during pre-marital relationship periods when there is no unlimited marital gifting

recognition and many others, recommendations to involve an experienced estate planning

attorney when you have any contact with gay and lesbian clients is essential. Further, the

planning that most clients will want to do surrounding eventual retirement residences

requires knowledge of the national relationship-recognition and tax landscape.

V. IMMIGRATION ISSUES

Care should be taken with GLBT clients who are undocumented or who have

temporary visa status.19 Many times clients may seek advice as to whether to enter into a

civil union or marry. This can be a complicated question, as entering into a state-

sanctioned relationship may trigger issues as to the continued validity of their

immigration status – if you marry or enter into civil union, it may send the message that

you wish to stay in the U.S. when your Visa was granted upon the understanding that you 18 N.J.S.A. 3-42 19 In light of the recent DOMA litigation before the U.S. Supreme Court decision in Windsor, the Justice Department and the Department of Homeland Security were carefully looking at bi-national same-sex couples who had a valid U.S. marriage. Removal proceedings had been slowed or stalled for some, who would be entitled to permanent resident status as a result of the marriage if they were in an opposite sex marriage. Those couples have all now proceeded to normalization of their status based on the marriages.

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will be here for a limited period of time. Now, however, post-Windsor, marriage is a

means to obtaining legalization of status for same-sex couples as it has always been for

opposite-sex couples. No matter what the situation, counsel is needed to evaluate the

issues.

HIV is no longer a bar to entry into the United States20 This may provide some

means of “reuniting” families under certain circumstances.

A family lawyer may also be asked a myriad of questions about adopting children

of relatives from overseas. Again, the regulations are complex and generally, the U.S.

will not permit a child to enter the U.S. for adoption if he is not actually or effectively

orphaned.21 For U.S. citizens living abroad, if a child is under 16 and has lived with

them for more than two years in the foreign country, an adoption with U.S. citizenship

rights can be granted.22With the new Hague regulations, this becomes even harder, in that

there are additional needs to prove that the child cannot be permanently placed in his

home country.23

Pending legislation may make family formation somewhat easier and clients may

ask about bringing a partner into the U.S. legally. The Uniting American Families Act

(UAFA) contains provisions that may include unmarried partners of gay and lesbian

Americans for eased entry into the United States. Keep an eye out for developments with

this legislation. Bring in immigration counsel if any of these issues come up, they are

complex and one wrong move can lead to removal of your client.

20 HIV no longer makes alien inadmissible under Section 212(a)(1)(A)(i) effective January 4, 2010. 21 INA, Section 101(b)(1)(F) 22 INA Section 101(b)(1)(E) 23 See U.S. Dept. of State website for more information. http://travel.state.gov/family/adoption/notices/notices_473.html (last checked on April 9, 2010).

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VI. DISSOLUTION, TERMINATION and DIVORCE

A. Terminology

For decades, the end of a gay or lesbian relationship, when handled by the courts

in New Jersey were usually General Equity cases framed as partition suits and perhaps

with some constructive trust arguments thrown in. As the courts became more familiar

with gay and lesbian litigants, the General Equity judges would frequently transfer these

cases to the Family Part under R. 5:1-2(a), said matters being “family-like.” With the

enactment of the Domestic Partnership Act24 the Family Court was charged with

“termination” of domestic partnerships and with the Civil Union Law25 the “dissolution”

of civil unions was added to the Family Court’s jurisdiction. Finally, with so many gay

and lesbian couples marrying and with New Jersey’s newly minted marriage equality, the

New Jersey Courts have begun to see complaints filed seeking “divorces.26” Note the

difference in terminology – it has created a significant amount of confusion, but make

sure you use the proper terms. Using the proper terms and looking to end the actual type

24 N.J.S.A. 26:8A-1, et seq. 25 N.J.S.A. 37:1-27, et seq.

26 Hammond v. Hammond, Docket No. FM-11-905-08 (N.J.Super. 2009). In that case, a New Jersey resident had been married in Canada to her same sex spouse. They then moved to New Jersey. The plaintiff intended to enter into another marriage in Canada after her divorce. Id. T5:20-T7-4, T8-23-TT9-15. However, although the defendant had no objection to a “divorce,” the Attorney General entered the case and opposed the divorce on the grounds that this Canadian “marriage” was only a New Jersey “civil union,” and therefore the parties were only entitled to a “dissolution of a civil union” and not to a “divorce.” T8-4-9, T9-23-T10-9, T10-25-T12-2. The concern of the Canadian plaintiff was obvious. Would the Canadian government recognize a “dissolution of a civil union” as comparable to a “divorce,” and thereby permit her to enter into another marriage at some future time? ACLU-NJ entered the case on the side of the plaintiffs. In an oral opinion issued in February, 2009, the trial court ruled that a divorce was appropriate under principles of comity. T12-4-T26-19. Though she obtained the relief she sought, the plaintiff was put to significant time and effort to prove to that court that she should be “divorced” based on constitutional and equitable grounds.

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of relationship your client has (not what the State would call it)27 is important so that the

client will have the ability to re-enter another state-sanctioned relationship in the future.

For example, in the Hammond case, the plaintiff might not have been able to return to

Canada to marry if she was not divorced from her first marriage. A judgment

“dissolving” a civil union would have likely meant nothing to the Canadians.

B. Venue and Jurisdiction

There has been an effort to ask the Court to accept jurisdiction of civil union

dissolutions and domestic partnership terminations from clients who reside out of state

and therefore do not meet the requirements under our rules of 12 months residence in

New Jersey. They may have lived in New Jersey for years and entered into their DP or

CU here; they may have entered into the relationships to gain pension survivorship rights

because one of the couple may have worked here for the State or some other public body;

or they may have jumped at the chance to enter into a state-sanctioned relationship for

romantic reasons. What they all have in common is that they may not have anywhere to

turn to when seeking to end their legal relationship. If they Court will take jurisdiction

on equitable grounds, the proper venue would be the county in which the DP was

registered or the CU solemnized.

Pertinent AOC Directives on these issues are: #9-04 (Domestic Partnerships) and

Letter of AOC to Assignment Judges dated January 27, 2007 (Civil Unions and

Irreconcilable Differences).

27 Attorney General Formal Opinion 3-2007.

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Note that 2011 Rule changes incorporated DP and CU terminology into the

Family Court Rules and provide in Rule 5:7-1 that venue is properly laid for DP couples

where neither resides in New Jersey in the county in which the DP registration occurred.

For a New Jersey resident in a DP or CU, the rules that apply to divorces on

jurisdiction and venue apply as well.

C. PROCEDURAL ISSUES

Here are some “bullet-points” on procedural issues that will arise:

1. All complaints are filed under the FM docket number (unless the parties do not

have a DP, CU or marriage, then use an FD docket as with all “unmarried” couples). Use

all additional filing requirements (insurance certification, alternative dispute resolution

certification and if applicable, confidential litigant’s information statement). Follow up

with the filing offices, as some counties still remain unsure on the filing and handling of

these complaints;

2. CIS – Make sure your CIS program is updated, as the form has become gender

neutral under the new rule changes, this eliminates the use of the terms “H” and “W” and

the need explain to your client that one will have to be the “husband” and one the “wife”

for the purposes of the form;

3. When asked by out of state resident about dissolution issues – refer to

experienced counsel with national landscape knowledge – there are some options and

consultations with national advocacy organizations can be key to assisting these couples.

C. RETAINER

Since so many issues concerning CU and DP have so little case law to assist in

determining the course a matter may take, it is wise to explain to clients how unique their

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matter either is or may turn out to be. Explain inherent problems in proceeding without

the body of law we have in opposite-sex couple divorces. Explain that you may have

more research costs than in other matters and may need to call upon outside experts, such

as accountants, immigration counsel, estate planning counsel or other attorneys for

consults if the need arises. Explain that if the matter is tried and a result is reached

wherein the court takes a specific position trying to establish what the law should be (see

below on alimony issues), an appeal may be the likely outcome. Basically, cover all your

bases and explain what you know and what you don’t know. GLBT clients are used to

their matters being rather cutting edge and should be receptive to a frank discussion about

the novelty of their matter. Also, these issues will remain for years until we have reached

a generation of same-sex couples who know nothing but marriage as an institution.

D. EQUITABLE DISTRIBUTION AND ALIMONY

To merely state that existing law concerning equitable distribution and alimony

should be applied to equally to same-sex relationships as to opposite –sex relationships

would both true and false. While the concepts remain and case law and statutes should

still be the guide, some many distinctions and impediments exist that make the equal

application of the current law difficult if not impossible. There are also distinctions

between the now four “states of being” in which same-sex couples may find themselves

in New Jersey, each imposes its own set of problems. Working with these matters may

provide more creative and pioneering lawyering opportunities in the family law than the

average family practice will ever see.

1. Unregistered Relationships.

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With the enactment of the DPA in 2004 and the CUA in 2007, equitable claims

for support are becoming a thing of the past for unregistered same-sex couples, unless a

palimony claim can be substantiated or a claim that a constructive trust was created in

respect to certain assets. This is due to a growing view that if the couple wanted to

acquire statutory rights and obligations, certain avenues have now been open to them for

almost a decade that did not exist before. However, there are no reported cases of

palimony being extended to a same-sex partner in New Jersey and the Statute of Frauds

provision,28 while gender neutral, may create a significant hurdle to bringing a palimony

claim. As for the constructive trust concept, which now seems to have fallen on disfavor

with the chancery courts as merely being a means to claiming chancery jurisdiction when

none may really exist, conventional case law will be of great assistance in formulating

these claims. When seeking support or equitable distribution for a client in an

unregistered relationship, careful examination of the history of the relationship is

necessary. Tip: ask if they ever had a “commitment ceremony,” exchanged rings or

vows, went to another state to enter into a legally sanctioned relationship, registered in a

municipality or with an employer as “domestic partners” or some other term29 and how

they presented themselves to family and friends. In short, did they do anything to

substantiate that they would have married if marriage or other status had been available?

Those facts might be the key to proofs of rights in the absence of a legally recognized

relationship. Affidavits signed by the parties seeking employment benefits might well

28 N.J.S.A. 25:1-5(h) 29 Many couples seeking to cover one partner under another’s employer provided health insurance have been asked to provide affidavits of their dependency and economic inter-dependency. Great evidence of intent to be responsible for a big part of another’s basic needs.

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satisfy in part the Statute of Frauds “writing” requirements, leaving you to deal only with

the separate counsel issue as a matter of equity or constitutionality.

2. Domestic Partners

By “domestic partners,” this article means those couples who have registered in

the State of New Jersey between July, 2004 and February, 2007, or senior couples (over

62 and either same-sex or opposite-sex) registered at any time after July, 2004.30

There is no cause of action for termination based on irreconcilable differences in

the DPA, therefore, while some courts may have accepted complaints or counterclaims

ground in irreconcilable differences, they are subject to attack for failure to state a

claim.31

The DPA provides that upon formation, each party must, by affidavit, certify,

among some factual statements, that they “…are otherwise jointly responsible for each

other’s common welfare as evidenced by joint financial arrangements or joint ownership

of real or personal property…”32 The Act further states that “upon termination of a

domestic partnership, the domestic partners, from that time forward [emphasis added],

shall incur none of the obligations to each other as domestic partners that are created by

this or any other act.”33 The provisions open the door to pendent lite claims, but also

indicates that alimony or post-termination support of any kind is not contemplated by the

Act. The Act further indicates that separately acquired debt remains separate.34

30 The Civil Union Act caused an amendment to the Domestic Partnership Act that terminated all new DP registrations available to same-sex couples, but kept in place the registration for couples of either “assortment” where both parties are over the age of 62. 31 N.J.S.A. 26:8A:10(a) (2) et seq., see also Miken v. Hind, 2009 WL 1686728 (N.J.Super.A.D.) (copy attached) 32 N.J.S.A. 26:8A:4 33 N.J.S.A. 26:8A-6(b) 34 N.J.S.A. 26:8A-6(g)

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The DP Act also acknowledges that domestic partnerships, reciprocal beneficiary

relationships or civil unions “entered into outside of this State” are recognized under the

Act.35 This opens the door for terminations in New Jersey, but also for a possibly unfair

application of the Act. There are a significant number of municipalities that have

domestic partnership registries (such as New York City, San Francisco, Cleveland

Heights, Toledo, Ithaca, Tucson, to name few) Many of these cities or other subdivisions,

such as counties, enacted these registries to provide for emergency health care rights and

for municipal benefits. They are all of very limited scope. Therefore, if a client entered

into a NYC DP registration in 1989 and then moves to New Jersey, doing nothing else to

change the status of his relationship – can his partner seek termination, pendent lite

support and property rights under the New Jersey Act? This is an interesting question on

which there is no known law.

The Act addresses equitable distribution in a somewhat quixotic manner. The Act

states “…the court shall in no event be required to effect an equitable distribution of

property, whether real or personal, which was legally and beneficially acquired by both

domestic partners or either domestic partner during the domestic partnership.”36 Only

one case thus far as addressed this issue and tangentially at that. Miken v. Hind37 would

seem to indicate the Appellate Division’s willingness to equitably divide property in its

affirmance of the trial court’s decision to uphold a settlement agreement to make

equitable distribution. The argument that equitable distribution is not available in DP

terminations is based on the statutory language, so unless the courts should ever

35 N.J.S.A. 26:8A:6(c) 36 N.J.S.A. 26:10(a)(3) 37 supra.

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determine that provision to be unconstitutional as a taking without due process or in

violation of Lewis standards, or the legislature should amend, be prepared for the

argument.

The Act requires that upon termination, any party who has provided a third party

(usually an insurance company or employer) with a copy of the Certificate of Domestic

Partnership in order to obtain benefits, shall serve a notice of termination of that DP upon

the third party or face potential damage claims for continuing to receive benefits to which

they may no longer be eligible.38 Therefore, inquiry must be made into whether any

benefits have been acquired by your client as a result of the DP.

Finally, remember that the Act does permit parties to enter into agreements to

alter the responsibilities that they would have toward each other under the Act (other than

the requirements for entry into a DP), so check with your client to see if any agreements

may have been made.

3. Civil Union Partners

Under the Act, civil union couples “shall have all of the same benefits, protections

and responsibilities under law, whether they derive from statute, administrative, or court

rule, public policy, common law or any other source of civil law, as are generated to

spouses in a marriage.”39 Further, among these rights it is stated that “the dissolution of

civil unions shall follow the same procedures and be subject to the same substantive

rights and obligations that are involved in the dissolution of marriage.”40 Practically,

however, the mechanics and analysis of civil union dissolutions are highly impacted by

38 N.J.S.A. 26:8A-5 39 N.J.S.A. 37:1-31(4)(a) 40 N.J.S.A. 37:1-31(4)(b)

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several issues. These require more creative problem solving and the involvement of

accounting professionals more often than not.

A. No Federal Recognition for Civil Union Partners

QDRO’s are not possible to make transfers of qualified retirement accounts a non-

taxable event. This does not mean that equitable distribution of qualified plans cannot be

or should not be distributed (which anecdotally has been heard to have been stated by an

Early Settlement Panel in a northern county), only that the taxation that will be imposed

on the transferor will need to be taken into account when distributing, unless the funds

can be drawn from some non-qualified source or offset against another asset. The

transferor should not be charged with the taxation associated with the transfer, so the

distribution should be adjusted to take into account the tax that will be incurred as a result

of a withdrawal, as the transferee will receive cash, not a rollover into his or her I.R.A. or

other qualified account.

There is also no right of the lesser earning spouse to a “stepped up” social security

retirement benefit based on the earnings of the higher earning partner. Therefore

permanent alimony or longer-term alimony may be impacted by the lower or non-existent

social security retirement benefits.

Alimony is not deductible to the payor on a federal basis and therefore not taxable

to the recipient. Therefore, as with retirement accounts, the tax consequences of alimony

obligations must be calculated and adjusted.

Finally, although New Jersey does not have a gift tax, there is a federal gift tax

that has implications on estate planning and current taxation. If a transfer between

partners, either before or after dissolution, is over $13,000 (the current gift tax

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exemption), it may be considered a gift under federal law triggering either the payment of

a gift tax or the reporting of the transfer that will result in a reduction of the transferor’s

lifetime exemption for gifting. As no one would want to pay the gift tax, the reporting

and reduction of the lifetime exemption will result in the reduction of the amount of

property the transferor can transfer at death without a federal estate tax. This is

especially draconian for gay and lesbian tax payers, as there is no unlimited marital

deduction recognized, so that in a subsequent relationship, the estate of the transferor

may not be able to pass assets to a partner they are with when they die without significant

taxation. There are United States Supreme Court and tax court cases that have held that

if a transfer, gratuitous on its face, is made in fulfilling a state mandated obligation or in

payment of a judgment, then it is not a gift.41 Therefore, if these issues are of concern it is

imperative that tax counsel or an accountant be brought in to review the transfers

contemplated and that the Final Judgment be carefully crafted to detail the transfers

mandated and to indicate that they are made pursuant to New Jersey obligations. Further,

a client may wish to take his chances and try to fly under the radar on these issues – an

ethical issue requiring careful documentation of the advice rendered and of the client’s

decision not to document, report or have a judgment reflecting the transfers. Also, with

the federal estate tax in some flux at present and subject to change in the future, it does

make it hard to anticipate the final impact. Finally, there are no cases or IRS opinions that

indicate whether the government will look at the Harris case and its progeny and

determine that DOMA trumps those principles, therefore rendering even mandatory

transfers under state law gifts when made from one partner to the other.

41 Harris v. Commissioner, 340 U.S. 106 (1950)

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B. Coveture Period.

As gay men and lesbians were legally prohibited from entering into any marriage-

like relationship before Vermont’s civil union law was enacted in 2001, there will most

likely be issues in most cases about when the coverture period commences for the

purposes of determining equitable distribution and alimony issues. Palimony concepts

and case law dealing with pre-marital cohabitation of opposite-sex couples42 What

comes into play, here, though, are the cultural differences that have become apparent in

the gay and lesbian community in contrast with their heterosexual counterparts. On one

hand, gay and lesbian couples may have lived their lives as if they were married,

mirroring their heterosexual counterparts, with joint accounts, jointly owned home, etc.

Some will expect the court of equity to acknowledge the way they lived without the

benefit of legal protections. These clients will argue that pre-civil union/marriage periods

must be treated as if they were marital periods out of respect for the way they lived and

the fact that they were prohibited from doing anything to “make it legal.”

On the other hand, while opposite-sex couples may have some concepts of

responsibility arising from pre-marital cohabitation (even if they argue vigorously against

it at divorce), some gay and lesbian couples of long standing may reject their

understanding of the prospects for liability for alimony or property division because for

the majority of their lives together the state, indeed the whole country, told them they had

no legal standing and therefore, it was believed, no legal obligations or remedies. Further

many couples of long standing rejected the notion of marriage as a status they sought to

obtain, instead opting to life in an opposite manner from their “traditional” parents and

42 See, notably, McGee v. McGee, 277 N.J.Super. 1 (App.Div.1994); Rolle v. Rolle, 219 N.J.Super. 528 (Ch.Div.1987), Lynn v. Lynn, 91 N.J. 510 (1982)

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siblings with separate finances, etc. Also, with civil union being “hailed” by political

organizations as a victory and a milestone, many couples entered into civil union as an

act of political statement without considering the legal ramifications (or will claim to

have in defense to an alimony claim!). One should not discount these arguments against

equitable distribution and alimony too lightly, as these are truly cultural issues that will

have to be managed in many relationships in order to either settle a case or at least

communicate with a client and attempt to shift their concepts of their relationship. Here,

the practitioner is left to “argue” with the client about their ethical obligations as well as

to educate them about the equitable nature of both the family court and the statutory

framework in order to overcome these potential impediments to settlement.

D. Property Settlement Agreements

Given the mobility of our society, PSA’s should contain venue and choice of laws

provisions (New Jersey, absolutely) that will protect the client’s rights no matter where

they reside. If these provisions are not provided, a party could move to, let’s say,

Virginia, and seek to invalidate obligations imposed by the agreement under that state’s

laws and public policy.

Agreements should also be clear and remain somewhat flexible on taxation issues,

as the law may change and create unintended hardships or benefits to either party.

Affirmatively state that taxation changes constitute a change of circumstances.

Make sure the PSA reflects the parties’ understanding that tax advice has either

been rendered by you, by accountant (name him or her) or the parties have obtained their

own independent advice. Also, as for other issues on which you believe there may be

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changes that impact the agreement, state that the parties have been advised that changes

in the law both statewide and nationally may have an impact that is not now predictable.

E. Consider Marriage

Consider marriage as the last step for a couple seeking to dissolve a civil union –

this would allow for federal tax recognition, benefiting both parties.

4. MARRIAGE EQUALITY

With Governor Christie's decision to abandon the State's appeal in Garden State Equality

vs. Dow43, Judge Mary Jacobson's summary judgment decision holding that a denial of marriage

rights to same-sex couples was a denial of equal protection under the New Jersey State

Constitution, same-sex couples now have the right to marry in New Jersey. New Jersey now

joins 16 other United States jurisdictions to permit same-sex couples to marry (just after NJ

joined the ranks, Illinois and Hawaii adopted their marriage equality laws). Now, approximately

45% of the population of the United States resides in marriage equality jurisdictions. The

journey that began with the filing of the complaint in Lewis vs. Harris in 2004 has finally arrived

at its intended destination. While there is much to celebrate and many questions are now

answered about federal treatment of New Jersey's same-sex married couples, many questions

remain.

With marriage equality in New Jersey comes full recognition by the federal government

for the significant federal benefits provided to married couples. Among these newly accessible

rights are social security retirement and survivor benefits, joint tax filing status, derivative

immigration rights, unlimited marital giving (during marriage and at death), ERISA protections

and spousal benefits for federal employees and military personnel. With New Jersey's marriage

equality status, New Jersey residents no long must determine whether a federal benefit or

program vests depending on the state of celebration of the marriage or the state of domicile - all 43 Garden State Equality, et als. vs. Dow, MER-L-1729-11, Superior Court of New Jersey, Law Division (Mercer County)

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are available to a New Jersey domiciled couple who were legally married here or in any other

jurisdiction permitting same-sex couples to marry.

The open issues that remain, however, particularly in the minds of NJ’s same-sex

couples. To answer the first and most important question – civil union will not be automatically

converted to marriages. Nothing in the Court’s decision, nor in legislation now being drafted will

automatically deem NJ civil unions to be marriages. Therefore, all couples wishing to gain

marriage recognition by the State and the federal government must enter into a marriage.

The second question is whether couples who entered into marriages in other states now

have a federally and New Jersey recognized marriage – the answer is YES – just like any

opposite sex couple domiciled in NJ who had a “destination wedding,” these marriages are now

fully recognized by NJ and the federal government as long as they were validly entered into

wherever they were solemnized.

Another issue easily answered at this time is whether those couples in civil unions may

remain in that status. This, also, is a “yes.” The legislators and advocacy organizations and

lawyers working on new legislation have no intention on affecting any currently valid civil

unions. However, it is becoming clear that in spite of advocacy positions taken by may

organizations and individuals, the drafters of new legislation have no stomach for maintaining

NJ’s civil union as a status in the future. This is particularly troubling, as while an inferior status

to marriage in so many ways, civil union does afford same-sex couples with some tax advantages

- like the adoption tax credit when paying for “second parent” adoptions and lower rates for high

earners who file a “single” federally, although receiving favorable “death” tax treatment in NJ.

Since the push for marriage equality was not only about equality, but about choices – many

believe that like Illinois and Hawaii, civil unions should be maintained and opened up to

opposite-sex couples as well. For now, civil unions are still available – so if couples wish to take

advantage of the adoption tax credit, or wish to adopt a child from overseas or through an agency

outside of NJ where marriage would be an impediment, they may still have the more localized

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benefits of civil union until the Legislature acts and the Governor signs any future legislation. The

decision of whether to marry or enter into civil union is a very fact-sensitive one that must be

carefully considered at this time.

Open issues that may be addressed by the courts or the Legislature in due course will be:

• Will the date of a civil union be merged with or incorporated into a new marriage for

divorce issue purposes? Will this be codified by statute or left to the courts to decide

on a case-by-case basis?

• Will the federal government ever recognize civil unions and will it apply retroactivity

to count the civil union date as the date of the marriage for social security, tax and

other issues?

• Will the NJ Legislature waive the fees for civil union couples to obtain marriage

licenses and will it also waive the obligation to re-solemnize the marriage when a

couple moves from civil union to marriage? The costs of moving from one status to

the other is burdensome, especially since the State has been deemed to have violated

their rights of equal protection, civil union partners should not be burdened with

paying to gain access to rights they should have access to earlier.

• Will pre-nuptial agreements between civil union partners entered into before

marrying be valid agreements as pre-nups or must they meet mid-marital agreement

standards?

• Will the patchwork of laws preventing national marriage equality fall? At present

there is litigation challenging marriage bans pending in: Arkansas, Colorado, Idaho,

Kentucky, Louisiana, Nebraska, New Mexico, North Carolina, Oklahoma, Oregon,

Pennsylvania, Tennessee, Texas, Utah, Virginia, and West Virginia. Litigation in

Ohio to determine if the state must recognize out-of-state marriages in respect to

rights of surviving same-sex spouses is proceeding as well.

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• Will transgender marriage rights follow in the march toward marriage equality –

many states currently refuse to honor marriages validly entered into before one of the

spouses transitioned – in this state’s case law the transition moves an opposite-sex

couple’s marriage to a same-sex marriage and therefore it is “magically” dissolved or

invalid even if the parties wish to remain married.

These and potentially dozens of other questions await answers as the country moves

toward full marriage rights for its LGBT citizenry.

VII. CHILDREN – CUSTODY AND PARENTING TIME

A. Biological/Adoptive Parents

New Jersey’s approach to sexual orientation and parenting has been developing

since 1974 when the court ruled that although homosexuality could not preclude a gay

father from having visitation with his children, the court could restrict the visitation in

light of the father’s involvement in the “gay rights movement.”44 Two years later, the

court handed down a ruling that found the court had the power to restrict overnight

visitation with the children and a heterosexual paramour.45 That case had ripple effects

through GLBT custody cases for the years after and was revisited years later with some

clarification that the stability and length of the relationship with the “girlfriend” allowed

the overnight parenting time.46 The “positive” approach to a gay parent’s right to parent

44 In re J.S. & C., 129 N.J.Super 486 (Ch.Div.1974) 45 DeVita v. DeVita, 145 N.J.Super. 120 (App.Div.1976) 46 Kelly v. Kelly, 217 N.J.Super. 147 (Ch.Div.1986)

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in J.S.&C. was clearly undermined in the cases permitting significant restrictions on

parenting time, place and circumstance.

The tide began to change a bit when court ruled that a mother’s newly revealed

homosexuality did not constitute a significant change of circumstance warranting a

change of custody.47 But restrictions, at least pendent elite, remained the norm for many

years to come until the courts began to review restriction issues based on the facts and not

through the prejudicial veil that all “homosexual’s behavior” at home or in social settings

was per se detrimental to their children.

There have been no significant New Jersey custody cases dealing with GLBT

parents reported since M.P. v. S.P., but the national landscape is significantly different.

Many states persist in determining that the status of being a gay man or lesbian is per se a

disqualification as a custodial or overnight parent. While strides have been made in these

states over the recent few years, the New Jersey practitioner should take note that a parent

may seek to flee New Jersey for a state where they may be able to get sole custody and

restrict access to the child by the gay or lesbian parent. Careful attention to choice of

laws provisions is essential. Additionally, advising the gay or lesbian parent about

federal and state law concerning jurisdiction and parental kidnapping48 would serve the

client well in seeking timely legal assistance if the other parent flees.

B. Psychological Parents

47 M.P. v. S.P., 169 N.J.Super. 425 (App.Div.1979) 48 18 USC §1204(a) (2008) making it a federal crime to take a child outside the U.S. or detain a child outside of the U.S. with intent to obstruct parental rights. N.J.S.A. 2C: 13-1 (kidnapping); N.J.S.A. 2C:13-2 (Criminal Restraint) and N.J.S.A. 2C:13-4 (Interference with Custody). Uniform Child Custody Jurisdiction Act (UCCJA) N.J.S.A. 2A:34-65. Full Faith and Credit given to State custody orders (28 U.S.C.S. §1738A)

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New Jersey’s recognition of “psychological parents” developed out of disputes

between former lesbian partners where one had given birth to a child and her partner had

never adopted the child, but parented that child for a period of time.49 These cases rest on

a four-prong test of whether the person claiming parentage 1) asserted parental authority

over the child with the consent of the legal parent, 2) resided with the child for a period

of time, 3) performed significant functions indicative of the obligations of parenthood

(may or may not include financial support) and 4) the child has bonded with the person

claiming parentage so that the removal of that person from the child’s life would not be in

the child’s best interests. Civil union may spell a death-knell for some of these cases,

however. In cases that arise after civil unions and where the child is born into the

relationship of a civil union couple and the parties do not elect to have the non-biological

parent placed on the birth certificate or to proceed to an adoption, serious doubts as to the

legal parent’s intentions to consent to co-parenting should arise. Only time will tell

whether there would be enough history to validate the claim of consent as well as a track

record of support, so with an infant, these become very hard cases to prove and even

more so now that civil union and birth certificate access are readily available for lesbian

couples.

VIII. Transgender Issues

Working with clients in varying states of addressing gender identity issues can be

both rewarding and, frankly, kind of scary for lawyers due to the complex issues raised.

The family lawyer may be asked to represent transgendered clients in divorces, custody

49 V.C. v. M.J.B., 163 N.J. 200 (2000), cert denied M. J. B. v. V. C., 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed.2d 243 (2000). See also, A.F. v. D.L.P., 339 N.J.Super 312 (App.Div.2001) where claim was rejected as the claimant never lived with child and did not parent with consent of legal parent.

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disputes, name changes, changes to birth records to reflect correct gender and other

matters in which the movement from one recognized gender to the other is necessary for

life to move forward for the client.

Perhaps the first key to opening up a good working relationship with a

transgendered client is the same as with any – establishing how to address them. Some

will present with their current legal name and you and your staff will learn to address

them in their legal name and gender, such as “John” and “he.” You may however meet a

client in the process of transition when John is know known by those close to him as

“Jane.” You should feel free to ask how the client wishes to be addressed and educate

your staff to follow your lead. Nothing can be more frustrating for both the client and a

staff if these simple “etiquettes” are not established from the beginning. By asking, you

set the tone for openness and acceptance.

The next issue often addressed in divorce and custody matters, is very similar to

those in all divorce and custody matters – “what does your spouse know?” The same

question is common when working with a gay or lesbian client, a client who has met

someone with whom they are having an affair, or any other situation where remaining in

a marriage when the client is in a state of transition or when some life changing event is

in progress that may have an impact or a perceived impact on children. Safe to say with a

lot of situations, your client may say their spouse knows they are transgendered and has

known for a long time, but now the spouse is suddenly shocked and emotionally

distraught. Sorting out the truth in a therapeutic manner –by using a collaborative

process with a mental health professional integrally involved, or parenting coordination

using a mental health professional, etc. can be of enormous value.

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Clearly the impact on children with a transitioning parent can be a high-tension,

high-conflict circumstance. In reality, if there are older children, they probably already

sense changes and have seen a lot more than the “straight” spouse will admit. With

younger children, finding a common language and approach is essential. A client once

reported “my four year old son told me that other kids’ fathers did not wear pink or

lipstick.” The client replied to the child, “well your father does.” The child responded

with “ok,” and went back to playing. Recommending, even requiring, that the client

engage a therapist for the children and for themselves will be essential in assisting

everyone through the transition. Some transgendered clients may be resistant because

they may view the suggestion for mental health professional involvement as implying

that there is something wrong with them or their desire to actively parent their children.

A gentle reminder that their own journey included therapy might make the

recommendation seem less about the client and more about the process and the children.

A few interesting cases in New Jersey impacting family or related issues exist.

The earliest is M.T. v. J.T50 In that case the plaintiff was a Male to Female transsexual

(M-F or M to F). While still male, plaintiff met the defendant. Plaintiff then underwent

surgery and hormone therapy in her transition to female. The parties then married. At

the divorce, the defendant husband was required to pay alimony. He appealed, seeking to

invalidate the marriage claiming the plaintiff was really a man and their marriage was

invalid. The Appellate Division disagreed and affirmed the alimony and the validity of

the marriage.

50 140 N.J.Super.77 (App.Div.1976)

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In In the Matter of Eck51 the court ordered that the changing of a transsexual’s

name from male to female name was permissible even thought the applicant had not yet

completed surgical re-assignment. This is vital for clients who are required to live in

their true gender for a period of time before most surgeons will perform gender re-

assignment surgery.

Overcoming prejudice that potentially exists in the court, with an adversary and

with an adverse party generally means you, as counsel for the transgendered client, must

be rock solid in your support for your client. Take the time to get to know them, ask

questions, even if you think it might be offensive. If you cannot accept them and

understand their process, you will not be able to advocate for them.

51 245 N.J.Super. 220 (App.Div.1991)

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RESOURCES

Membership Organizations

GLBT Rights Section, New Jersey State Bar Association www.njsba.com Active meetings and list serve. The National LGBT Bar Association www.lgbtbar.org Annual national conference. Vetted Family Law Institute membership group ans annual conference. Lesbian & Gay Law Association of Greater NY www.le-gal.org Monthly Law Notes, edited by Prof. emeritus Arthur Leonard Periodic CLE courses Referral service Gay and Lesbian Lawyers of Philadelphia www.galloplaw.org Active meetings, list serve and referral service

Public Interest Law Firms/Advocacy Groups

ACLU-NJ www.aclu-nj.org Lambda Legal Defense and Education Fund www.lambdalegal.org Gay & Lesbian Advocates and Defenders www.glad.org National Center for Lesbian Rights www.nclrights.org Human Rights Campaign www.hrc.org Garden State Equality www.gardenstateequality.org

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DATE | FOR IMMEDIATE RELEASE Media contact: Sue Yacka (732) 309-2964; syacka@avp.org

CDC RELEASES INTIMATE PARTNER AND SEXUAL VIOLENCE DATA FOR LESBIAN, GAY AND BISEXUAL PEOPLE DEMONSTRATING SIMILAR OR HIGHER RATES OF PREVALENCE TO

HETEROSEXUAL PEOPLE STATEMENT FROM THE NATIONAL COALITION OF ANTI-VIOLENCE PROGRAMS

Today, the Centers for Disease Control and Prevention (CDC) released The National Intimate Partner and Sexual Violence Survey (NISVS) 2010 data on intimate partner and sexual violence among lesbian, gay and bisexual people in a report entitled 2010 Findings on Victimization by Sexual Orientation. This data follows the NISVS 2010 Summary Report released in December 2011, which found that sexual violence, stalking, and intimate partner violence are widespread and a major public health problem in the United States. NISVS, developed by CDC's Injury Center, was initiated in 2010 to collect accurate and reliable incidence and prevalence estimates for intimate partner violence, sexual violence, dating violence, and stalking victimization. Today’s report on Sexual Orientation is the first nationally representative prevalence estimates of sexual violence, stalking, and intimate partner violence among those who identify as lesbian, gay, or bisexual in the United States. The report shows that lesbian, gay and bisexual people experience intimate partner and sexual violence at the same or higher rates as heterosexual people. This report, which cites data from the National Coalition of Anti-Violence Programs (NCAVP), highlights the lifetime prevalence of intimate partner violence, sexual violence, and stalking victimization for U.S. women and men by self-reported sexual orientation. As a result of this data, the CDC’s recommendations include a focus on the need for more research, prevention and response to lesbian, gay and bisexual survivors of violence. “This report is historic in that for the first time the federal government is measuring the prevalence of intimate partner and sexual violence experienced by lesbian, gay and bisexual communities and found that the prevalence was similar to, and in some cases higher than, heterosexual communities,” said Sharon Stapel, Executive Director of the New York City Anti-Violence Project. “The report is a good step forward but is limited in scope as it omits data on transgender and gender non-conforming people. In its recommendations for more services, research and prevention for lesbian, gay and bisexual people, the CDC focused on the need to explicitly include transgender and gender non-conforming people in future studies.” Highlights from the report include:

• Lesbian, gay and bisexual people experience intimate partner and sexual violence at the same

or higher rates as heterosexual people.

• Bisexual women experienced violence at overall higher rates. This suggests that research specifically addressing bisexual people, biphobia and how violence and biphobia intersect is necessary.

• Bisexual women and gay men reported intimate partner violence perpetrators as primarily male while lesbians and bisexual men reported intimate partner violence perpetrators as primarily female.

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• Transgender and gender non-conforming people were not represented in the Report because the sample size was too small and based on self-reporting. This suggests there needs for explicit inclusion of gender identity and expression in future Reports.

Despite experiencing violence at the same or higher rates as heterosexual communities, lesbian, gay and bisexual survivors often face unique barriers to receiving services. For example, LGBT victims are denied critical services that can address the violence. A 2011 study found that 61.6% percent of LGBT victims were turned away when they sought help from a domestic violence shelter, 54% did not call the police, and while fewer than 3% of survivors sought orders of protection, 78% of those who did received them.1 As well, many service providers lack cultural competency to address the unique issues of LGBT victims. For example, a 2010 study found that 94% of victim services providers and law enforcement agencies lack services specific to the needs of LGBT victims. Specialized services are particularly important for this population because reporting rates and prosecution rates are very low.2 “Our country’s response to this violence must explicitly include LGBT people to allow these survivors to get the services and support they need. This includes national legislation, funding priorities, research and studies and policy advocacy,” said Terra Slavin, DV Lead Staff Attorney, Legal Services at the L.A. Gay & Lesbian Center. “This study also shows the critical need for the implementation of non-discrimination provisions that explicitly include sexual orientation and gender identity at each level of government, including federal agencies. This special report underscores that programs need to be ready to serve all communities and individuals by providing responsive and specialized services and supports to LGBT survivors of violence and to include LGBT communities in all prevention programming.” According to the CDC’s report, “These findings underscore the broad range of violence experienced by LGB individuals in the United States and reiterate the important need for immediate, but thoughtful, actions to prevent and respond to the violence occurring within LGB populations. A more comprehensive plan for violence prevention that includes LGB individuals is needed to address issues that include effective prevention efforts focused on intimate partner violence, sexual violence, and stalking. In addition, the inclusion of LGB persons in national violence research will assist in furthering a more comprehensive understanding of intimate partner violence, sexual violence, and stalking.” As with any initial data set, this data will be able to be improved. We still need to learn how to best ask questions about sexual orientation and gender identity, to distinguish between different types of identities (e.g., men who have sex with men and gay men), and to address the rate of underreporting by LGBT people, among other barriers, to make more clear the data limitations and ways to correct them. It is imperative, in the next year’s data, that transgender and gender non-conforming people are included so that responses to this violence are appropriately tailored to the specific experiences of all LGBT people and specific services and support are created to address obstacles created by transphobia. NCAVP will continue to work with the CDC and our allies and partners to assure that future data measures the experiences of all LGBT people in the United States.

1 National Coalition of Anti-Violence Programs (NCAVP), Intimate Partner Violence in Lesbian, Gay, Bisexual, Transgender, Queer, and HIV-Affected (LGBTQH) Communities in the United States in 2011. Released October 10, 2012. Retrieved from: http://www.avp.org/documents/2012ReleaseIPVREPORTFinal.pdf. 2National Center for Victims of Crime and NCAVP: Why It Matters: Rethinking Victim Assistance for Lesbian, Gay, Bisexual, Transgender, and Queer Victims of Hate Violence & Intimate Partner Violence (2010),retrieved from: http://www.avp.org/documents/WhyItMatters.pdf. 142

The National Intimate Partner and Sexual Violence Survey

2010 Findings on Victimization by Sexual Orientation

National Center for Injury Prevention and Control Division of Violence Prevention

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The National Intimate Partner and Sexual Violence Survey: 2010 Findings on Victimization by Sexual Orientation is a publication of the National Center for Injury

Prevention and Control of the Centers for Disease Control and Prevention

Centers for Disease Control and Prevention Thomas R. Frieden, MD, MPH, Director

National Center for Injury Prevention and Control Linda C. Degutis, DrPH, MSN, Director

Division of Violence Prevention Howard R. Spivak, MD, Director

Suggested Citation: Walters, M.L., Chen J., & Breiding, M.J. (2013). The National Intimate Partner and

Sexual Violence Survey (NISVS): 2010 Findings on Victimization by Sexual Orientation. Atlanta, GA: National Center for Injury Prevention and Control,

Centers for Disease Control and Prevention.

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The National Intimate Partner and Sexual Violence Survey (NISVS):

2010 Findings on Victimization by Sexual Orientation

Mikel L. Walters, Jieru Chen, and Matthew J. Breiding

National Center for Injury Prevention and Control Centers for Disease Control and Prevention

Atlanta, Georgia

January 2013

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Table OF CONTeNTS

list of Tables and Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Key findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

background and Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 What is the National Intimate Partner and Sexual Violence Survey? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 What does this report include? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Methods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sexual Violence Victimization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Lifetime prevalence of sexual violence victimization by any perpetrator by sexual orientation . . . . . .10 Number of perpetrators in lifetime reports of sexual violence by sexual orientation . . . . . . . . . . . . . . . .12 Sex of perpetrator in lifetime reports of sexual violence by sexual orientation . . . . . . . . . . . . . . . . . . . . . .13 Age at time of first completed rape victimization by sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Stalking Victimization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Lifetime prevalence of stalking victimization by any perpetrator by sexual orientation . . . . . . . . . . . . .15

Violence by an Intimate Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Lifetime prevalence of rape, physical violence, and/or stalking victimization by an intimate partner by sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Lifetime prevalence of control of reproductive or sexual health by an intimate partner

Number of perpetrators in lifetime reports of violence by an intimate partner

Sex of perpetrator in lifetime reports of rape, physical violence, and/or stalking victimization

Lifetime prevalence of sexual violence by an intimate partner by sexual orientation . . . . . . . . . . . . . . . .20 Lifetime prevalence of physical violence victimization by an intimate partner by sexual orientation . . . . .21 Lifetime prevalence of psychological aggression by an intimate partner by sexual orientation . . . . . .23

by sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

by sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

by an intimate partner by sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Impact of Intimate Partner Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Lifetime prevalence of rape, physical violence, and/or stalking victimization with intimate partner violence-related impact by sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Implications for Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Ensure access to protection, services, and resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Implement strong data systems for monitoring and evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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TableS aND FIGUReS Table 1 Lifetime Prevalence of Sexual Violence by Any Perpetrator by Sexual Orientation —

U.S. Women, NISVS 2010

Table 2 Lifetime Prevalence of Sexual Violence by Any Perpetrator by Sexual Orientation — U.S. Men, NISVS 2010

Table 3 Lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner by Sexual Orientation — U.S. Women, NISVS 2010

Table 4 Lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner by Sexual Orientation — U.S. Men, NISVS 2010

Table 5 Lifetime Prevalence of Sexual Violence by an Intimate Partner by Sexual Orientation — U.S. Women, NISVS 2010

Table 6 Lifetime Prevalence of Physical Violence by an Intimate Partner by Sexual Orientation — U.S. Women, NISVS 2010

Table 7 Lifetime Prevalence of Physical Violence by an Intimate Partner by Sexual Orientation — U.S. Men, NISVS 2010

Table 8 Lifetime Prevalence of Psychological Aggression by an Intimate Partner by Sexual Orientation — U.S. Women, NISVS 2010

Table 9 Lifetime Prevalence of Psychological Aggression by an Intimate Partner by Sexual Orientation — U.S. Men, NISVS 2010

Table 10 Lifetime Reports of Psychological Aggression among Female Victims by Type of Behavior Experienced by Sexual Orientation — U.S. Women, NISVS 2010

Table 11 Lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner with IPV-Related Impact by Sexual Orientation — U.S. Women, NISVS 2010

Figure 1 Lifetime Number of Perpetrators of Sexual Violence Other than Rape among Female Victims of Sexual Violence by Sexual Orientation — NISVS 2010

Figure 2 Age at Time of First Completed Rape Victimization among Female Victims by Sexual Orientation — NISVS 2010

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acknowledgments

We would like to acknowledge the following individuals who contributed in

many ways to the development and support of this report: Kathleen Basile,

Michele Lynberg Black, Faye Floyd, Alida Knuth, Melissa Merrick, Erica Mizelle,

Nimesh Patel, Sharon Smith, Mark Stevens, Paula Orlosky Williams, and

RTI International.

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eXeCUTIVe SUMMaRY

Little is known about the national prevalence of sexual violence, stalking, and intimate partner violence among gay, lesbian, and bisexual women and men in the United States. Information at a national level focusing on these types of interpersonal violence based on the sexual orientation of U.S. adults has not been previously available. The National Intimate Partner and Sexual Violence Survey (NISVS) is an ongoing, nationally representative survey that collects information about experiences of sexual violence and stalking by any perpetrator and intimate partner violence among English and/or Spanish-speaking women and men aged 18 years or older in the United States. This report presents information based on respondents’ self-reported sexual orientation and their lifetime victimization experiences of sexual violence, stalking, and violence by an intimate partner. The findings in this report are for 2010, the first year of NISVS data collection, and are based on complete interviews. Complete interviews were obtained from 16,507 adults (9,086 women and 7,421 men). Prevalence estimates for some types of violence for particular groups were too small to produce reliable estimates and, therefore, are not reported.

Key Findings Overall • Bisexual women had significantly

higher lifetime prevalence of rape and sexual violence other than rape by any perpetrator when compared to both lesbian and heterosexual women. • Bisexual women had significantly

higher lifetime prevalence of rape, physical violence, and/or stalking by an intimate partner when compared to both lesbian and heterosexual women. • Lesbian women and gay men

reported levels of intimate partner violence and sexual violence equal to or higher than those of heterosexuals.

Sexual Violence by any Perpetrator • The lifetime prevalence of rape

by any perpetrator was: For women: - Lesbian – 13.1% - Bisexual – 46.1% - Heterosexual – 17.4% For men: - Gay – numbers too small

to estimate - Bisexual – numbers too small

to estimate - Heterosexual – 0.7% • The lifetime prevalence of

sexual violence other than rape (including being made to penetrate, sexual coercion, unwanted sexual contact, and non-contact unwanted sexual experiences) by any perpetrator was:

For women: - Lesbian – 46.4% - Bisexual – 74.9% - Heterosexual – 43.3% For men: - Gay – 40.2% - Bisexual – 47.4% - Heterosexual – 20.8%

Sex of Perpetrator among Rape Victims • Most bisexual and heterosexual

women (98.3% and 99.1%, respectively) who experienced rape in their lifetime reported having only male perpetrators. Estimates for sex of perpetrator of rape for other groups (lesbian women, gay and bisexual men) were based upon numbers too small to calculate a reliable estimate and, therefore, are not reportable.

Sex of Perpetrator among Victims of Sexual Violence Other than Rape • The majority of lesbian, bisexual,

and heterosexual women (85.2%, 87.5%, and 94.7%, respectively) who experienced sexual violence other than rape in their lifetime reported having only male perpetrators. • 78.6% of gay men and 65.8% of

bisexual men who experienced sexual violence other than rape in their lifetime reported having only male perpetrators. • 28.6% of heterosexual men who

experienced sexual violence other than rape in their lifetime reported having only male perpetrators,

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while 54.8% reported only female perpetrators, and 16.6% reported both male and female perpetrators.

Stalking Victimization by any Perpetrator • 1 in 3 bisexual women (36.6%)

and 1 in 6 heterosexual women (15.5%) have experienced stalking victimization at some point during their lifetime. • Estimates of stalking for other

groups (lesbian women, gay and bisexual men) were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported. • Estimates of sex of perpetrator of

stalking for lesbian and bisexual women and gay and bisexual men were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported.

Violence by an Intimate Partner • The lifetime prevalence of rape,

physical violence, and/or stalking by an intimate partner was: For women: - Lesbian – 43.8% - Bisexual – 61.1% - Heterosexual – 35.0% For men: - Gay – 26.0% - Bisexual – 37.3% - Heterosexual – 29.0%

• The lifetime prevalence of severe physical violence by an intimate partner (e.g., hit with fist or something hard, slammed against something, or beaten) was: For women: - Lesbian – 29.4% - Bisexual – 49.3% - Heterosexual – 23.6%

For men: - Gay – 16.4% - Bisexual – numbers too small

to report - Heterosexual – 13.9%

Sex of Perpetrator of Intimate Partner Violence • Most bisexual and heterosexual

women (89.5% and 98.7%, respectively) reported having only male perpetrators of intimate partner violence. Two-thirds of lesbian women (67.4%) reported having only female perpetrators of intimate partner violence. • The majority of bisexual men

(78.5%) and most heterosexual men (99.5%) reported having only female perpetrators of intimate partner violence. Most gay men (90.7%) reported having only male perpetrators of intimate partner violence.

Impact of Intimate Partner Violence • More than half of bisexual

women (57.4%), a third of lesbian women (33.5%), and more than a fourth of heterosexual women (28.2%) who experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime reported at least one negative impact (e.g., missed at least one day of school or work, were fearful, were concerned for their safety, experienced at least one post-traumatic stress disorder symptom). • Estimates of negative impact of

intimate partner violence for gay and bisexual men were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported.

This report highlights the lifetime prevalence of intimate partner violence, sexual violence, and stalking victimization for U.S. women and men by self-reported sexual orientation. Individuals who self-identified as lesbian, gay, and bisexual reported rates of violence that were equal to or higher than those reported by self-identified heterosexuals. The goal of public health is to prevent violence from occurring in the first place. A comprehensive violence prevention plan that includes LGB individuals will assist in furthering a comprehensive understanding of intimate partner violence, sexual violence, and stalking.

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background and Methods

Little is known about the national prevalence of intimate partner violence (IPV), sexual violence, and stalking among lesbian, gay, and bisexual women and men in the United States. Smaller-scale studies have examined these types of violence among individuals who identify as lesbian, gay, or bisexual, but the use of non-representative samples has produced inconsistent findings in terms of victimization rates among each group (Balsam, 2001; Burke et al., 2002; National Coalition of Anti-Violence Programs, 2002).

Information at a national level on experiences of intimate partner violence, sexual violence, and stalking victimization among U.S. adults by sexual orientation has not been available previously. However, data from seven states and six cities participating in Centers for Disease Control and Prevention's Youth Risk Behavior Surveillance System from 2001-2009 was used to assess violence-related health risk behaviors among youth, and indicated a higher prevalence of dating violence and unwanted forced sexual intercourse among lesbian, gay, and bisexual youth than heterosexual youth (Kann et al., 2011).

National-level data on the prevalence of intimate partner violence, sexual violence, and stalking by sexual orientation are important for understanding and addressing disparities in these forms of violence. Furthermore, a better understanding of differences in the characteristics of these forms of violence, such as age at first victimization and number of perpetrators as well as the impacts on victims, can inform targeted prevention strategies and raise awareness about service needs.

What Is NISVS? The National Intimate Partner and Sexual Violence Survey (NISVS) is an ongoing, nationally representative survey that assesses experiences of intimate partner violence, sexual violence, and stalking victimization among adult women and men in the United States. It measures lifetime victimization for these types of violence as well as victimization in the 12 months prior to taking the survey. The survey is focused exclusively on violence and collects information about:

• Sexual violence by any perpetrator including information related to rape, being made to penetrate someone else, sexual coercion, unwanted sexual contact, and non-contact unwanted sexual experiences • Stalking, including the use of

newer technologies such as text messages, emails, monitoring devices (e.g., cameras and or global positioning system devices), by perpetrators known and unknown to the victim • Physical violence by an

intimate partner • Psychological aggression by

an intimate partner including information on expressive forms of aggression and coercive control • Control of reproductive or sexual

health by an intimate partner In addition to collecting lifetime and 12-month prevalence data on intimate partner violence, sexual violence, and stalking, the survey collects information on the age at the time of the first victimization, demographic characteristics of respondents, demographic characteristics of perpetrators (e.g., age, sex), and detailed information about the patterns and impact of the violence by specific perpetrators.

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What Does This Report Include? This report summarizes findings on the lifetime prevalence of sexual violence and stalking victimization by any perpetrator as well as intimate partner violence victimization stratified by sex and self-reported sexual orientation. In addition, this report highlights some characteristics of these victimization experiences including the number and sex of perpetrators and reported impact of violence by an intimate partner. Respondents who reported that the perpetrator was a current or former intimate partner at the time the perpetrator first committed any violence against them are considered victims of intimate partner violence. Respondents were not asked whether their victimization experience was associated with their sexual orientation or sex of the perpetrator. Although 12-month prevalence of these types of violence was collected in NISVS, the sample size was too small to permit reporting reliable estimates by self-reported sexual orientation. As a result, data are summarized based on lifetime prevalence of violence victimization by self-reported sexual orientation. The report first presents data on victimization by any perpetrator— specifically rape, other sexual violence, and stalking — and then presents data on victimization by an intimate partner, including rape, other sexual violence, stalking, physical violence, and psychological aggression by an intimate partner.

Methods The National Intimate Partner and Sexual Violence Survey is a national random digit-dial telephone survey of non-institutionalized English- and/ or Spanish-speaking U.S. population aged 18 or older. NISVS uses a dual-frame sampling strategy that includes both landlines and cell phones. The survey was conducted in 50 states and the District of Columbia and was administered from January 22, 2010 through December 31, 2010. In 2010, a total of 18,049 interviews were conducted (9,970 women and 8,079 men) in the U.S. general population. This includes 16,507 completed and 1,542 partially completed interviews. A total of 9,086 females and 7,421 males completed the survey. Approximately 45.2% of interviews were conducted by landline telephone and 54.8% of interviews were conducted using a respondent’s cell phone. The sexual orientation of the sample included 96.5% females identified as heterosexual, 2.2% bisexual, and 1.3% lesbian. For males, 96.8% identified as heterosexual, 1.2% bisexual, and 2.0% gay.

The overall weighted response rate for the 2010 NISVS ranged from 27.5% to 33.6%. This range reflects differences in how the proportion of the unknowns that are eligible is estimated. The weighted cooperation rate was 81.3%. A primary difference between response and cooperation rates is that telephone numbers where contact has not been made are still part of the denominator in calculating a response rate.

How NISVS Measured Sexual Orientation1

Sexual orientation was measured using the following question:

Do you consider yourself to be heterosexual or straight, gay or lesbian, or bisexual?

The cooperation rate reflects the proportion who agreed to participate in the interview among those who were contacted and determined to be eligible. The cooperation rate obtained for the 2010 NISVS data collection suggests that, once contact was made and eligibility determined, the majority of respondents chose to participate in the interview.

The NISVS questionnaire includes behaviorally specific questions that assess sexual violence, stalking, and intimate partner violence over the lifetime and during the 12 months prior to the interview. Intimate partner violence-related questions assess psychological aggression, including expressive aggression (5 items) and coercive control (12 items); control of reproductive or sexual health (2 items); physical violence (11 items); sexual violence (21 items); and stalking (7 items).

1During the first and second quarters of data collection, respondents were only asked about sexual orientation if they reported engaging in any same-sex sexual activity. This skip pattern was changed in the third and fourth quarters so that, regardless of sexual activity, all respondents were asked about sexual orientation. Analysis of data collected after the change in the skip pattern revealed minimal impact with respect to the misclassification of respondents in the first and second quarters. Among men who reported only having sex with women (n=3,440), 11 self-identified as bisexual, and 1 self-identified as gay. Among women who reported only having sex with men (n=4106), 14 self-identified as bisexual and none self-identified as lesbian. Additional information about response and cooperation rates and other methodological details of NISVS can be found in the technical note in Appendix B in The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report (Black et al., 2011).

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Lifetime prevalence estimates were calculated for the different forms of violence presented in this report. To be included in the prevalence estimate for sexual violence, physical violence, or psychological aggression, the respondent must have experienced at least one behavior within the relevant violence domain during the time frame of reference (i.e., lifetime). Respondents could have experienced each type of violence more than once, so prevalence estimates should be interpreted as the percentage of the population who experienced each type of violence at least once. To be included in the prevalence of stalking, a respondent must have experienced more than one of the seven stalking tactics that were measured in the survey, or experienced a single tactic multiple times by the same perpetrator, and must have been very fearful or believed that they or someone close to them would be harmed or killed as a result of the perpetrator’s behavior.

Within categories of violence (e.g., rape, other sexual violence, any severe physical violence, any reported IPV-related impact), respondents who reported more than one subcategory of violence are included only once in the summary estimate but are included in each relevant subcategory. For example, victims of completed forced penetration and alcohol or drug facilitated penetration are included in each of these subtypes of rape but counted only once in the estimate of rape prevalence.

The denominators in prevalence calculations include persons who answered a question or responded

with “don’t know” or “refused.” Missing data (cases where all questions for constructing an outcome of interest were not fully administered) were excluded from analyses. All analyses were conducted using SUDAAN™ statistical software for analyzing data collected through complex sample design.

The estimated number of victims affected by a particular form of violence is based on U.S. population estimates from the census projections by state, sex, age, and race/ethnicity (http://www.census. gov/popest/data/index.html).

Statistical inference for prevalence and population estimates were made based on weighted analyses, where complex sample design features, such as stratified sampling, weighting for unequal sample selection probabilities and non-response adjustments, were taken into account. The estimates presented in this report are based on complete interviews. An interview is defined as “complete” if the respondent completed the screening, demographic, general health questions, and all questions on all five sets of violence victimization, as applicable.

Analyses were conducted by sex. As prevalence and population estimates were based on a sample population, there is a degree of uncertainty associated with these estimates. The smaller the sample upon which an estimate is based, the less precise the estimate becomes and the more difficult it is to distinguish the findings from what could have occurred by chance. The relative standard error (RSE) is a measure of an

estimate’s reliability. The RSE was calculated for all estimates in this report. If the RSE was greater than 30%, the estimate was deemed unreliable and was not reported. Consideration also was given to the case count. If the estimate was based on a numerator < 20, the estimate is also not reported. Tables where specific estimates are missing due to high RSEs or small case counts are presented in full with missing unreliable estimates noted by an asterisk so that the reader can clearly see what was assessed and where data gaps remain. Statistical significance testing was conducted comparing the prevalence of two sexual orientation groups only when both prevalence estimates met the reliability criteria. A two-tailed t-test (alpha = .05) was conducted to assess the difference in prevalence between two groups. A statistically significant difference in prevalence was established between two estimates when p < .05. Statistically significant differences in prevalence between two groups are noted in the tables by the initial letters of the two groups.

Additional information about the sampling strategy, weighting procedures, and other method­ological details of NISVS can be found in The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report (Black et al., 2011).

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8 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

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9 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Sexual Violence Victimization

How NISVS Measured Sexual Violence Five types of sexual violence were measured in NISVS. These include acts of rape (forced penetration), and types of sexual violence other than rape.

• Rape is defined as any completed or attempted unwanted vaginal (for women), oral, or anal penetration through the use of physical force (such as being pinned or held down, or by the use of violence) or threats to physically harm, and includes times when the victim was drunk, high, drugged, or passed out and unable to consent. Rape is separated into three types, completed forced penetration, attempted forced penetration, and completed alcohol or drug facilitated penetration.

- Among women, rape includes vaginal, oral, or anal penetration by a male using his penis. It also includes vaginal or anal penetration by a male or female using their fingers or an object.

- Among men, rape includes oral or anal penetration by a male using his penis. It also includes anal penetration by a male or female using their fingers or an object.

• Being made to penetrate someone else includes times when the victim was made to, or there was an attempt to make them, sexually penetrate someone without the victim’s consent because the victim was physically forced (such as being pinned or held down, or by the use of violence) or threatened with physical harm, or when the victim was drunk, high, drugged, or passed out and unable to consent.

- Among women, this behavior reflects a female being made to orally penetrate another female’s vagina or anus.

- Among men, being made to penetrate someone else could have occurred in multiple ways: being made to vaginally penetrate a female using one’s own penis; orally penetrating a female’s vagina or anus; anally penetrating a male or female; or being made to receive oral sex from a male or female. It also includes female perpetrators attempting to force male victims to penetrate them, though it did not happen.

• Sexual coercion is defined as unwanted sexual penetration that occurs after a person is pressured in a nonphysical way. In NISVS, sexual coercion refers to unwanted vaginal, oral, or anal sex after being pressured in ways that included being worn down by someone who repeatedly asked for sex or showed they were unhappy; feeling pressured by being lied to, being told promises that were untrue, having someone threaten to end a relationship or spread rumors; and sexual pressure due to someone using their influence or authority.

• Unwanted sexual contact is defined as unwanted sexual experiences involving touch but not sexual penetration, such as being kissed in a sexual way, or having sexual body parts fondled or grabbed.

• Non-contact unwanted sexual experiences are those unwanted experiences that do not involve any touching or penetration, including someone exposing their sexual body parts, flashing, or masturbating in front of the victim, someone making a victim show his or her body parts, someone making a victim look at or participate in sexual photos or movies, or someone harassing the victim in a public place in a way that made the victim feel unsafe.

Black et al. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. National Center for Injury Prevention and Control, Centers for Disease Control and Prevention.

This section summarizes lifetime attempted forced penetration, experiences. This section also experiences of sexual violence alcohol or drug facilitated includes particular characteristics victimization of women and penetration), being made to of victimization such as the men in the United States by penetrate someone else, sexual number and sex of perpetrators self-reported sexual orientation, coercion, unwanted sexual contact, as well as the age at first completed including rape (forced penetration, and non-contact unwanted sexual rape victimization.

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 10

women, 1.5 million bisexual women, lifetime Prevalence and 19 million heterosexual women. of Sexual Violence Approximately 36.5% of bisexual

Victimization by any women and 11.4% of heterosexual women reported experiencing Perpetrator by Sexual completed forced penetration.

Orientation The differences observed between bisexual and heterosexual women Prevalence among Women in terms of rape, completed forced Approximately 1 in 8 lesbian penetration, and completed alcohol women (13.1%), nearly half of and drug facilitated rape were bisexual women (46.1%), and 1 in 6 statistically significant. Too few heterosexual women (17.4%) in the lesbian women reported completed United States have been raped in forced penetration to produce a their lifetime (Table 1). This translates reliable estimate. to an estimated 214,000 lesbian

Nearly half of

bisexual women,

1 in 8 lesbian

women, and 1 in 6

heterosexual women

have experienced

rape at some point

in their lifetime.

Table 1 lifetime Prevalence of Sexual Violence by any Perpetrator by Sexual Orientation — U .S . Women, NISVS 2010

Lesbian Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

RapeHB, BL 13.1 214,000 46.1 1,528,000 17.4 19,049,000

Completed forced penetrationHB * * 36.5 1,209,000 11.4 12,490,000

Attempted forced penetration * * * * 5.1 5,590,000

Completed alcohol/drug facilitated penetrationHB

* * 24.4 810,000 7.6 8,263,000

Other Sexual ViolenceHB, BL 46.4 756,000 74.9 2,482,000 43.3 47,325,000

Sexual coercion2, HB * * 29.6 981,000 12.4 13,523,000

Unwanted sexual contact3,HB, BL 32.3 526,000 58.0 1,922,000 25.9 28,352,000

Non-contact unwanted sexual experiences4,HB, BL

37.8 616,000 62.9 2,085,000 32.4 35,422,000

1 Rounded to the nearest thousand. 2 Pressured in a non-physical way (includes, for example, threatening to end the relationship, using influence or authority). 3 Includes unwanted kissing in a sexual way, fondling or grabbing sexual body parts. 4 Includes, for example, exposing sexual body parts, being made to look at or participate in sexual photos or movies, harassed in

a public place in a way that felt unsafe. * Estimate is not reported; relative standard error > 30% or cell size ≤ 20. HB Statistically significant differences (p ≤ .05) of the prevalence between heterosexual and bisexual groups. BL Statistically significant differences (p ≤ .05) of the prevalence between bisexual and lesbian groups.

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11 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Nearly half of lesbian and heterosexual women (46.4% and 43.3%, respectively) and three-quarters of bisexual women (74.9%) reported experiencing sexual violence other than rape in their lifetime. Approximately, one-third of lesbian women (32.3%), more than half of bisexual women (58.0%), and one-quarter of heterosexual women (25.9%) experienced unwanted sexual contact, while 37.8% of lesbian, 62.9% of bisexual, and 32.4% of heterosexual women reported non-contact unwanted sexual experiences. The differences in reported lifetime prevalence of

sexual violence other than rape, unwanted sexual contact, and non-contact unwanted sexual experiences between bisexual women and heterosexual women and between bisexual women and lesbian women were statistically significant. Differences between heterosexual women and lesbian women were not statistically significant.

Prevalence among Men Approximately 4 out of 10 gay men (40.2%), half of bisexual men (47.4%), and 1 in 5 heterosexual men (20.8%) in the United States

have experienced sexual violence other than rape at some point in their lives (Table 2). This translates into nearly 1.1 million gay men, 903,000 bisexual men, and 21.6 million heterosexual men. The differences in reported lifetime prevalence of sexual violence other than rape between gay men and heterosexual men and between bisexual men and heterosexual men were statistically significant. Estimates of rape for gay and bisexual men were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported.

Table 2 lifetime Prevalence of Sexual Violence by any Perpetrator by Sexual Orientation — U .S . Men, NISVS 2010

Gay Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Rape * * * * 0.7 770,000

Completed forced penetration * * * * 0.4 463,000

Attempted forced penetration * * * * 0.2 218,000

Completed alcohol/drug facilitated penetration

* * * * * *

Other Sexual ViolenceHB, HG 40.2 1,096,000 47.4 903,000 20.8 21,664,000

Made to penetrate * * * * 4.3 4,478,000

Sexual coercion2 * * * * 5.5 5,787,000

Unwanted sexual contact3,HG 32.3 879,000 21.1 403,000 10.8 11,289,000

Non-contact unwanted sexual experiences4,HB, HG

37.8 829,000 28.9 550,000 11.7 12,153,000

1 Rounded to the nearest thousand. 2 Pressured in a non-physical way (includes, for example, threatening to end the relationship, using influence or authority). 3 Includes unwanted kissing in a sexual way, fondling or grabbing sexual body parts. 4 Includes, for example, exposing sexual body parts, being made to look at or participate in sexual photos or movies, harassed in a public

place in a way that felt unsafe. * Estimate is not reported; relative standard error > 30% or cell size ≤ 20. HB Statistically significant differences (p ≤ .05) of the prevalence between heterosexual and bisexual groups. HG Statistically significant differences (p ≤ .05) of the prevalence between heterosexual and gay groups.

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 12

Approximately 1 in 3 gay men (32.3%), 1 in 5 bisexual men (21.1%), and 1 in 10 heterosexual men (10.8%) reported experiencing unwanted sexual contact during their lifetime. The differences in reported lifetime prevalence of unwanted sexual contact between gay men and heterosexual men were statistically significant. However, the differences between bisexual men and heterosexual men and bisexual men and gay men were not statistically significant.

In addition, 30.5% of gay men, 28.9% of bisexual men, and 11.7% of heterosexual men reported non-contact unwanted sexual experiences. Differences in reported lifetime prevalence of non-contact unwanted sexual experiences between gay men and heterosexual men and between bisexual men and heterosexual men were statistically significant.

Number of Perpetrators in lifetime Reports of Sexual Violence Victimization by Sexual Orientation Number of Perpetrators among Female Victims Among victims of rape, most bisexual and heterosexual women reported having only one perpetrator in their lifetime (62.3% and 72.3%, respec­tively) (data not shown). Among victims of sexual violence other than rape, approximately one-third of bisexual women (32.3%) and one-half of heterosexual women (47.0%) reported having one perpetrator (Figure 1). Approximately one-third of lesbian women (38.6%), bisexual women (36.4%), and heterosexual

Figure 1

Lifetime Number of Perpetrators of Sexual Violence Other than Rape among Female Victims of Sexual Violence by Sexual Orientation — NISVS 2010

Lesbian

Bisexual

Heterosexual

47.0%

38.6%36.4%32.3%HB 31.3% 30.0%

23.1%

* *

Number of Perpetrators

*Estimate is not reported; relative standard error > 30% or cell size ≤ 20. HBStatistically significant differences (p ≤ .05) of the prevalence between heterosexual and     bisexual groups. 

women (30.0%) reported three or more perpetrators of sexual violence other than rape. The differences between bisexual women and heterosexual women in having one perpetrator of sexual violence other than rape were statistically signifi­cant. All other differences were not statistically significant.

Number of Perpetrators among Male Victims Approximately 4 out of 10 gay men (42.3%) and 1 in 2 heterosexual men (49.7%) who reported experiencing sexual violence other than rape reported having one perpetrator (data not shown). One-third of gay men (33.0%) and more than one-quarter of heterosexual men (27.0%) reported having three or more perpetrators in their lifetime. The difference

between the number of perpetrators for gay men and heterosexual men were not statistically significant. For each subgroup of men, the numbers were too small to produce a reliable estimate for the number of perpetrators for rape. In addition,

Nearly half of

bisexual men, 4 out

of 10 gay men, and

1 in 5 heterosexual

men in the U.S. have

experienced sexual

violence other than

rape in their lifetime.

160

 

 

   

13 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

for similar reasons, estimates of the number of perpetrators of sexual violence other than rape for bisexual men are not reported.

Sex of Perpetrator in lifetime Reports of Sexual Violence Victimization by Sexual Orientation Sex of Perpetrators among Female Victims Most bisexual and heterosexual women in the United States who experienced rape reported having only male perpetrators — specifically, this includes 98.3% of bisexual women, and 99.1% of heterosexual women who reported being a victim of rape in their lifetime. Similarly,

85.2% of lesbian women, 87.5% of bisexual women, and 94.7% of heterosexual women who reported experiencing sexual violence other than rape in their lifetime also reported having only male perpetrators (data not shown). Estimates for the sex of perpetrator of rape for lesbian women were based on numbers too small to calculate a reliable estimate and, therefore, are not reported. Statistical tests comparing the sex of the perpetrator across sexual orientation for female victims of sexual violence was not conducted due to small sample sizes.

Sex of Perpetrators among Male Victims More than three-quarters of gay men (78.6%) and about two-thirds of bisexual men (65.8%) who experienced sexual violence other

Figure 2

Age at Time of First Completed Rape Victimization among Female Victims by Sexual Orientation — NISVS 20101,2

Bisexual

48.2%HB Heterosexual

38.3% 33.1%

28.3%

12.0%11.8% 5.0%

2.0%* * * *

10 & Under 11-17 18-24 25-34 35-44 45+

Age at First Completed Rape Victimization

1  The reported age is the youngest age reported across all perpetrators. 2  All percentages are weighted to U.S. population. * Estimate is not reported; relative standard error > 30% or cell size ≤ 20. HBStatistically significant differences (p ≤ .05) of the prevalence between heterosexual 

and bisexual groups. 

than rape identified male perpetrators (data not shown). However, of heterosexual men who reported sexual violence other than rape, 28.6% reported only male perpetrators, more than one-half (54.8%) reported only female perpetrators, and 16.6% reported having both male and female perpetrators. Estimates for the sex of perpetrators of rape for gay and bisexual men were based upon numbers too small to calculate a reliable estimate and therefore are not reported. Statistical tests comparing the sex of the perpetrator across sexual orientation for male victims of sexual violence was not conducted due to small sample sizes.

age at Time of First Completed Rape Victimization by Sexual Orientation age at Time of First Completed Rape Victimization among Women More than three-quarters of both bisexual and heterosexual women who were victims of completed rape (91.0% and 78.5%, respectively) were raped before 25 years of age. Nearly half of bisexual women (48.2%) and more than one-quarter of hetero­sexual women (28.3%) experienced their first completed rape between the ages of 11 and 17 years (Figure 2). The differences between bisexual women and heterosexual women in the 11-17 age range were statistically significant. Estimates for age at time of first completed rape for lesbian women and for gay and bisexual men were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported.

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14 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 15

Stalking Victimization

How NISVS Measured Stalking Stalking victimization involves a pattern of harassing or threatening tactics used by a perpetrator that is both unwanted and causes fear or safety concerns in the victim. For the purposes of this report, a person was considered a stalking victim if they experienced multiple stalking tactics or a single stalking tactic multiple times by the same perpetrator and felt very fearful, or believed that they or someone close to them would be harmed or killed as a result of the perpetrator’s behavior.

Stalking tactics measured:

• Unwanted phone calls, voice or text messages, hang-ups

• Unwanted emails, instant messages, messages through social media

• Unwanted cards, letters, flowers, or presents

• Watching or following from a distance, spying with a listening device, camera, or global positioning system (GPS)

• Approaching or showing up in places, such as the victim’s home, workplace, or school, when it was unwanted

• Leaving strange or potentially threatening items for the victim to find

• Sneaking into victims’ home or car and doing things to scare the victim or let the victim know the perpetrator had been there

Black et al. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. National Center for Injury Prevention and Control, Centers for Disease Control and Prevention.

lifetime Prevalence of Stalking Victimization by any Perpetrator by Sexual Orientation Approximately 1 in 3 bisexual women (36.6%) and 1 in 6 heterosexual women (15.5%) in the United States has experienced some type of stalking behavior in their lifetime in which they felt very fearful or believed that they or someone close to them would

be harmed or killed (data not shown). This translates into 1.2 million bisexual women and 16.8 million heterosexual women. The differences in lifetime prevalence of stalking between bisexual and heterosexual women were statistically significant. Estimates of stalking for lesbian women and gay and bisexual men were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported.

Approximately

1 in 3 bisexual

women and 1 in 6

heterosexual women

experienced stalking

in their lifetime.

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16 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

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17 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Violence by an Intimate Partner

How NISVS Measured Intimate Partner Violence Five types of intimate partner violence were measured in NISVS. These include sexual violence, stalking, physical violence, psychological aggression, and control of reproductive/sexual health.

• Sexual violence includes rape, being made to penetrate someone else, sexual coercion, unwanted sexual contact, and non-contact unwanted sexual experiences.

• Stalking victimization involves a pattern of harassing or threatening tactics used by a perpetrator that is both unwanted and causes fear or safety concerns in the victim.

• Physical violence includes a range of behaviors from slapping, pushing, or shoving to severe acts such as being beaten, burned, or choked.

• Psychological aggression includes expressive aggression (such as name calling, insulting, or humiliating an intimate partner), and coercive control, which includes behaviors that are intended to monitor and control or threaten an intimate partner.

• Control of reproductive or sexual health focuses on interference with birth control. This includes the refusal by an intimate partner to use a condom. For a woman, it also includes times when a partner tried to get her pregnant when she did not want to become pregnant. For a man, it also includes times when a partner tried to get pregnant when the man did not want her to become pregnant.

Black et al. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. National Center for Injury Prevention and Control, Centers for Disease Control and Prevention.

Intimate partner violence (IPV) experiences of intimate partner more detailed data on sexual includes physical violence, sexual violence among women and violence, stalking, physical violence, threats of physical men in the United States by violence, psychological aggression or sexual violence, stalking, self-reported sexual orientation. (expressive aggression and and psychological aggression Included in this section are coercive control), and control of (including coercive tactics) by estimates for a composite measure reproductive or sexual health a current or former intimate of intimate partner violence that by an intimate partner. This section partner. Intimate partner violence combines only rape, physical also includes information on the may occur among cohabitating violence, and/or stalking by an characteristics of victimization or non-cohabitating romantic intimate partner as a conservative experiences including the number or sexual partners and among measure of the overall prevalence and sex of perpetrators as well as opposite or same sex couples. of intimate partner violence. In age at the time of first intimate This section summarizes lifetime addition, this section includes partner violence victimization.

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18 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner by Sexual Orientation Prevalence among Women Four in 10 lesbian women (43.8%), 6 in 10 bisexual women (61.1%), and 1 in 3 heterosexual women (35.0%) reported experiencing rape, physical violence, and/or stalking within the context of an intimate partner relationship at least once

Table 3

during their lifetime (Table 3). This translates to an estimated 714,000 lesbian women, 2 million bisexual women, and 38.3 million heterosexual women in the United States. Bisexual women experienced significantly higher prevalence of these types of violence compared to lesbian and heterosexual women. There were no statistically significant differences between the prevalence of rape, physical violence, and/or stalking when comparing lesbian women and heterosexual women. IPV-related impact is explored in more detail later in this document.

Bisexual women

experienced

significantly higher

lifetime prevalence of

rape, physical violence,

and/or stalking by

an intimate partner

when compared

to lesbian and

heterosexual women.

lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner by Sexual Orientation — U .S . Women, NISVS 2010

Lesbian Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

RapeHB * * 22.1 731,000 9.1 9,984,000

Physical violenceHB, BL 40.4 659,000 56.9 1,886,000 32.3 35,291,000

StalkingHB * * 31.1 1,030,000 10.2 11,126,000

Rape, physical violence, 43.8 714,000 61.1 2,024,000 35.0 38,290,000 and/or stalkingHB, BL

With IPV-related impact2,3,4,HB, BL 33.5 547,000 57.4 1,901,000 28.2 30,828,000 1 Rounded to the nearest thousand. 2 Includes experiencing any of the following: being fearful, concerned for safety, any PTSD symptoms, need for health care, injury, contacting a

crisis hotline, need for housing services, need for victim’s advocate services, need for legal services, missed at least one day of work or school. For those who reported being raped, it also includes having contracted a sexually transmitted disease or having become pregnant.

3 IPV-related impact questions were assessed in relation to specific perpetrators, without regard to the time period in which they occurred, and asked in relation to any form of intimate partner violence experienced (sexual violence, physical violence, stalking, expressive aggression, coercive control, and reproductive control) in that relationship; 12-month prevalence of IPV-related impact was not assessed.

4 By definition, all stalking incidents result in impact because the definition of stalking includes the impacts of fear and concern for safety. * Estimate is not reported; relative standard error > 30% or cell size ≤ 20. HBStatistically significant differences (p ≤ .05) of the prevalence between heterosexual and bisexual groups. BL Statistically significant differences (p ≤ .05) of the prevalence between bisexual and lesbian groups.

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19 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Prevalence among Men Approximately 1 in 4 gay men (26.0%), 4 in 10 bisexual men (37.3%), and more than 1 in 4 heterosexual men (29.0%) reported experiencing rape, physical violence, and/or stalking by an intimate partner during their lifetime

Table 4

(Table 4). This equates to 708,000 gay men, 711,000 bisexual men, and over 30 million heterosexual men in the United States. The differences between these groups of men were not statistically significant. The numbers of men who reported rape by an intimate

partner among gay, bisexual, and heterosexual men in the United States are too small to report. In addition, the number of men who reported stalking by an intimate partner among gay and bisexual men were too small to report.

lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner by Sexual Orientation — U .S . Men, NISVS 2010

Gay Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Rape * * * * * *

Physical violence 25.2 685,000 37.3 711,000 28.7 29,926,000

Stalking * * * * 2.1 2,222,000

Rape, physical violence, 26.0 708,000 37.3 711,000 29.0 30,250,000 and/or stalking

With IPV-related impact2,3,4 10.9 297,000 * * 10.2 10,583,000 1 Rounded to the nearest thousand. 2 Includes experiencing any of the following: being fearful, concerned for safety, any PTSD symptoms, need for health care, injury, contacting a crisis hotline, need for housing services, need for victim’s advocate services, need for legal services, missed at least one day of work or school. For those who reported being raped, it also includes having contracted a sexually transmitted disease.

3 IPV-related impact questions were assessed in relation to specific perpetrators, without regard to the time period in which they occurred, and asked in relation to any form of intimate partner violence experienced (sexual violence, physical violence, stalking, expressive aggression, coercive control, and reproductive control) in that relationship; 12-month prevalence of IPV-related impact was not assessed.

4 By definition, all stalking incidents result in impact because the definition of stalking includes the impacts of fear and concern for safety. * Estimate is not reported; relative standard error > 30% or cell size ≤ 20.

167

20 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

lifetime Prevalence of Sexual Violence Victimization by an Intimate Partner by Sexual Orientation Prevalence among Women Approximately 1 out of every 5 bisexual women (22.1%) and nearly 1 out of every 10 heterosexual women (9.1%) in the United States have been raped by an intimate partner in their lifetime (Table 5). This translates to an estimated 731,000 bisexual women and 10 million heterosexual women. Approximately 17.0% of bisexual

women and 6.3% of heterosexual women reported experiencing completed forced penetration by an intimate partner. The differences observed between bisexual and heterosexual women in terms of rape, including completed forced penetration by an intimate partner, were statistically significant.

Approximately 40% of bisexual women and 15% of heterosexual women reported experiencing sexual violence other than rape by an intimate partner in their lifetime. Approximately 1 in 4 bisexual women (23.6%) and 1 in 10 heterosexual women (9.5%)

Bisexual women

experienced

significantly higher

lifetime prevalence

of rape and other

sexual violence by

an intimate partner

when compared to

heterosexual women.

Table 5 lifetime Prevalence of Sexual Violence by an Intimate Partner by Sexual Orientation — U .S . Women, NISVS 2010

Lesbian Bisexual Heterosexual

Weighted % Estimated Number of

Victims1

Weighted % Estimated Number of

Victims1

Weighted % Estimated Number of

Victims1

RapeHB * * 22.1 731,000 9.1 9,984,000

Completed forced penetrationHB * * 17.0 562,000 6.3 6,929,000

Attempted forced penetration * * * * 2.5 2,821,000

Completed alcohol/drug facilitated penetration

* * * * 3.4 3,711,000

Other Sexual ViolenceHB * * 40.0 1,320,000 15.3 16,761,000

Made to penetrate * * * * * *

Sexual coercion2, HB * * 23.6 781,000 9.5 10,368,000

Unwanted sexual contact3, HB * * 19.2 638,000 6.0 6,554,000

Non-contact unwanted4, HB * * 24.7 817,000 7.4 8,103,000 1 Rounded to the nearest thousand. 2 Pressured in a non-physical way (includes, for example, threatening to end the relationship, using influence or authority). 3 Includes unwanted kissing in a sexual way, fondling or grabbing sexual body parts. 4 Includes, for example, exposing sexual body parts, being made to look at or participate in sexual photos or movies, harassed in a public place in a way that felt unsafe.

* Estimate is not reported; relative standard error > 30% or cell size ≤ 20. HBStatistically significant differences (p ≤ .05) of the prevalence between heterosexual and bisexual groups.

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21 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

experienced sexual coercion by an intimate partner, while 24.7% of bisexual women and 7.4% of heterosexual women reported non-contact unwanted sexual experiences by an intimate partner. The differences in reported lifetime prevalence of sexual violence victimization, including rape and sexual violence other than rape, between bisexual women and heterosexual women were statistically significant. Estimates of rape and sexual violence other than rape by an intimate partner for lesbian women were based on numbers too small to calculate a reliable estimate and, therefore, are not reported. Similarly, estimates

of rape and sexual violence other than rape by an intimate partner for gay and bisexual men were based on numbers too small to calculate a reliable estimate and, therefore, are not reported.

lifetime Prevalence of Physical Violence Victimization by an Intimate Partner by Sexual Orientation Prevalence among Women More than one-third of lesbian women (36.3%), over half of

bisexual women (55.1%), and more than one-quarter of heterosexual women (29.8%) in the United States have been slapped, pushed, or shoved by an intimate partner at some point in their lifetime (Table 6). This translates into 591,000 lesbian women, 1.8 million bisexual women, and 32.5 million heterosexual women who have been slapped, pushed, or shoved by an intimate partner at some point during their lifetime. Bisexual women experienced significantly higher prevalence of these types of violence compared to lesbian women and heterosexual women.

Table 6 lifetime Prevalence of Physical Violence by an Intimate Partner by Sexual Orientation — U .S . Women, NISVS 2010

Lesbian Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Slapped, pushed, or shovedHB, BL 36.3 591,000 55.1 1,825,000 29.8 32,527,000

SlappedHB, BL 23.2 378,000 41.2 1,365,000 19.7 21,581,000

Pushed, or shovedHB, BL 32.5 529,000 46.6 1,545,000 27.1 29,651,000

Any severe physical violenceHB, BL 29.4 480,000 49.3 1,632,000 23.6 25,770,000

Hurt by pulling hairHB * * 26.5 877,000 9.8 10,765,000

Hit with something hardHB * * 30.4 1,007,000 13.6 14,888,000

KickedHB * * 19.0 630,000 6.6 7,252,000

Slammed against somethingHB, BL 17.7 288,000 41.9 1,388,000 16.6 18,103,000

Tried to hurt by choking or suffocatingHB

* * 26.2 869,000 9.3 10,219,000

Beaten * * 17.5 580,000 11.0 12,057,000

Burned on purpose * * * * 1.0 1,076,000

Used a knife or gunHB * * 15.0 495,000 4.4 4,773,000 1 Rounded to the nearest thousand. * Estimate is not reported; relative standard error > 30% or cell size ≤ 20. HBStatistically significant differences (p ≤ .05) of the prevalence between heterosexual and bisexual groups. BL Statistically significant differences (p ≤ .05) of the prevalence between bisexual and lesbian groups.

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 22

Nearly 1 in 3 lesbian

women, 1 in 2

bisexual women, and

1 in 4 heterosexual

women has

experienced at least

one form of severe

physical violence by

an intimate partner

in her lifetime.

Nearly 1 in 3 lesbian women (29.4%), 1 in 2 bisexual women (49.3%), and 1 in 4 heterosexual women (23.6%) has experienced at least one form of severe physical violence by an intimate partner in her lifetime. That translates into 480,000 lesbian women, 1.6 million bisexual women, and 25.7

million heterosexual women who have experienced at least one form of severe physical violence in an intimate relationship at some point in their lifetime. Bisexual women experienced significantly higher prevalence of these types of severe violence compared to lesbian and heterosexual women. The difference between lesbian and heterosexual women was not statistically significant.

Looking at several individual forms of severe physical violence, an estimated 17.7% of lesbian women, 41.9% of bisexual women, and 16.6% of heterosexual women reported they had been slammed against something hard by an intimate partner at least once in their lives. An estimated 26.2% of bisexual women and 9.3% of heterosexual women reported an intimate partner tried to hurt them by choking or suffocating them during their lifetime. The differ­ences between bisexual women and heterosexual women for the

types of violence noted above were statistically significant.

Prevalence among Men Approximately one-quarter of all men, regardless of sexual orientation reported being slapped, pushed, or shoved by an intimate partner at some point during their lifetime (24.0% gay men, 27.0% bisexual men, and 26.3% heterosexual men) (Table 7). That translates into 655,000 gay men, 515,000 bisexual men, and 27.4 million heterosexual men. In addition, 16.4% of gay men and 13.9% of heterosexual men reported having experienced severe physical violence by an intimate partner at least once in their lives. Estimates of severe physical violence for bisexual men and estimates of individual severe physical behaviors for gay and bisexual men were based on numbers too small to calculate a reliable estimate and therefore are not reported. The differences between these groups of men were not statistically significant.

Table 7 lifetime Prevalence of Physical Violence by an Intimate Partner by Sexual Orientation — U .S . Men, NISVS 2010

Gay Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Slapped, pushed, or shoved 24.0 655,000 27.0 515,000 26.3 27,409,000

Slapped 16.8 458,000 14.4 275,000 18.8 19,633,000

Pushed, or shoved 18.3 499,000 21.6 413,000 19.8 20,673,000

Any severe physical violence2 16.4 447,000 * * 13.9 14,468,000 * Estimate is not reported; relative standard error > 30% or cell size ≤ 20. 1 Rounded to the nearest thousand. 2 Any severe physical violence consists of respondents who reported experiencing one or more of the following behaviors: hurt by pulling hair, hit with something hard, kicked, slammed against something hard, tried to hurt by choking or suffocating, beaten, burned on purpose, or had a partner use a knife or gun on them.

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23 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

lifetime Prevalence of Psychological aggression Victimization by an Intimate Partner by Sexual Orientation Prevalence among Women More than 6 in 10 lesbian women (63.0%), 7 in 10 bisexual women (76.2%), and nearly one-half of heterosexual women (47.5%) experienced psychological aggression by an intimate partner at some point in their lives (Table 8). The differences in prevalence between heterosexual and both bisexual women and lesbian women were statistically significant. No statistically significant differences were found between bisexual and lesbian women.

Comparing across groups, the prevalence of each type of psychological aggression was higher for bisexual women. The differences between bisexual and heterosexual women for expressive aggression were statistically significant with 63.0% of lesbian women, 67.0% of bisexual women, and 39.4% of heterosexual women reporting they have experienced expressive aggression by an intimate partner during their lifetime. In addition, 48.4% of lesbian women, 68.8% of bisexual women, and 40.5% of heterosexual women reported experiencing coercive control by an intimate partner in their lifetime. The differences in prevalence for coercive control between bisexual and heterosexual women and bisexual and lesbian women were also statistically significant.

However, the differences in the prevalence between heterosexual and lesbian women were not statistically significant.

6 in 10 lesbian

women, 7 in 10

bisexual women,

and one-half of

heterosexual

women reported

having experienced

psychological

aggression at some

point in their lifetime.

Table 8 lifetime Prevalence of Psychological aggression by an Intimate Partner by Sexual Orientation — U .S . Women, NISVS 2010

Lesbian Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Any psychological aggressionHB, HL 63.0 1,027,000 76.2 2,524,000 47.5 51,896,000

Any expressive aggressionHB 50.6 825,000 67.0 2,219,000 39.4 43,114,000

Any coercive controlHB, BL 48.4 789,000 68.8 2,279,000 40.5 44,238,000 1 Rounded to the nearest thousand. HBStatistically significant differences (p ≤ .05) of the prevalence between heterosexual and bisexual groups. HLStatistically significant differences (p ≤ .05) of the prevalence between heterosexual and lesbian groups. BLStatistically significant differences (p ≤ .05) of the prevalence between bisexual and lesbian groups.

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24 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Prevalence among Men Approximately 60% of gay men, 53% of bisexual men, and 49% of heterosexual men reported experiencing psychological aggression in the context of an intimate relationship at some point in their lives (Table 9). Nearly half

of gay men (44.5%), one-quarter of bisexual men (24.4%), and one-third of heterosexual men (32.4%) experienced expressive aggression by an intimate partner during their lifetime. The differences in the prevalence of any expressive aggression across groups was

statistically significant when comparing gay and heterosexual men and gay and bisexual men but not when comparing bisexual and heterosexual men. The prevalence of coercive control by an intimate partner was similar across the three groups of men.

Table 9 lifetime Prevalence of Psychological aggression by an Intimate Partner by Sexual Orientation — U .S . Men, NISVS 2010

Gay Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Any psychological aggression 59.6 1,622,000 53.0 1,011,000 49.3 51,458,000

Any expressive aggressionHG,BG 44.5 1,213,000 24.4 466,000 32.4 33,750,000

Any coercive control 45.2 1,231,000 48.2 919,000 43.0 44,890,000 1 Rounded to the nearest thousand. HG Statistically significant differences (p ≤ .05) of the prevalence between heterosexual and gay groups. BG Statistically significant differences (p ≤ .05) of the prevalence between bisexual and gay groups.

Psychologically aggressive behaviors experienced by Female Victims Among female victims of psycho­logical aggression, the experience of individual psychologically aggressive behaviors was common regardless of sexual orientation. Examples include: being called names like ugly, fat, crazy, or stupid (lesbian women 59.6%, bisexual women 75.7%, and heterosexual women 63.8%); witnessing an intimate partner act angry in a way that seemed dangerous (lesbian women 63.5%, bisexual women 69.7%, and heterosexual women

57.7%); being insulted, humiliated, or made fun of (lesbian women 55.9%, bisexual women 64.2%, and heterosexual women 58.1%); and being kept track of by demanding to know her whereabouts (lesbian women 60.7%, bisexual women 66.3%, and heterosexual women 61.4%) (Table 10).

In comparing bisexual and heterosexual women, bisexual women experienced a significantly higher prevalence of expressive aggression and coercive control behaviors by an intimate partner. See Table 10 for the list of these

behaviors. No statistical differences were found between lesbian and heterosexual women with regard to individual psychologically aggressive behaviors.

Psychologically aggressive behaviors experienced by Male Victims Among male victims of psychological aggression, 61.6% of gay men, 34.4% of bisexual men, and 42.3% of heterosexual men were told they were a loser, a failure, or not good enough by an intimate partner (data not shown). Other commonly reported forms

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25 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

of psychological aggression against to know where they were and threatened to hurt herself/himself or gay and heterosexual men included what they were doing (49.3% and commit suicide because she/he was having a partner act very angry in a 63.5%, respectively), being insulted, upset (23% and 25%, respectively). way that seemed dangerous (48% humiliated, and made fun of (39% There were no significant differences and 39%, respectively), being called and 39.5%, respectively), having noted for males by sexual names like ugly, fat, crazy, or stupid a partner who made threats to orientation with regard to individual (65% and 51.1%, respectively), physically harm (28.6% and 19.9%, psychologically aggressive behaviors being kept track of by demanding respectively), or having a partner who (data not shown).

Victims of Psychological Aggression

Lesbian Bisexual Heterosexual

Weighted % Weighted % Weighted %

Expressive Aggression

Acted very angry in a way that seemed dangerousHB 63.5 69.7 57.7

Told they were a loser, a failure, or not good enough 42.5 56.4 48.8

Called names like ugly, fat, crazy, or stupidHB 59.6 75.7 63.8

Insulted, humiliated, made fun of 55.9 64.2 58.1

Told no one else would want them * 44.2 39.2

Coercive Control

Tried to keep from seeing or talking to family or friendsHB 55.9 59.2 42.5

Made decisions that should have been yours to makeHB, BL 30.3 58.4 40.4

Kept track of by demanding to know where you were and what you were doing 60.7 66.3 61.4

Made threats to physically harm 45.9 52.5 45.5

Threatened to hurt herself/himself or commit suicide because she/he was upsetHB 45.1 52.6 36.4

Threatened to hurt a pet or take a pet away * * 10.6

Threatened to hurt someone you love * * 14.4

Hurt someone you love * * 13.5

Threatened to take your children away from you * 15.7 21.8

Kept you from leaving the house when you wanted to goHB 47.0 49.1 34.8

Kept you from having your own money to use * 20.3 22.6

Destroyed something that was important to you * 48.2 39.2

Said things like ”If I can’t have you then no one can”HB * 42.1 26.6 HBStatistically significant differences (p ≤ .05) of the prevalence between heterosexual and bisexual groups. BLStatistically significant differences (p ≤ .05) of the prevalence between bisexual and lesbian groups.

Table 10 lifetime Reports of Psychological aggression among Female Victims by Type of behavior experienced by Sexual Orientation — U .S . Women, NISVS 2010

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 26

lifetime Prevalence of Control of Reproductive or Sexual Health by an Intimate Partner by Sexual Orientation Approximately 1 in 7 bisexual women (14.9%) and 1 in 20 heterosexual women (4.5%) reported ever having had a partner who tried to get them pregnant when they did not want to. These differences between bisexual and heterosexual women were statistically significant. In addition, approximately 1 in 10 bisexual women (9.4%) and 1 in 15 heterosexual women (6.8%) reported ever having a partner who refused to use a condom (data not shown). Estimates of lifetime prevalence of control of reproductive or sexual health by an intimate partner for lesbian women and for gay and bisexual men were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported.

1 in 7 bisexual

women and 1 in 20

heterosexual women

reported having

had a partner who

tried to get them

pregnant when they

did not want to.

Number of Perpetrators in lifetime Reports of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner by Sexual Orientation Number of Perpetrators among Female Victims An estimated 78.9% of lesbian women, 60.2% of bisexual women, and 71.6% of heterosexual women who were victims of intimate partner violence reported having only one perpetrator (data not shown). The difference in the number of lifetime perpetrators of intimate partner violence between female bisexual victims and female heterosexual victims were significantly different. The difference in the number of lifetime perpetrators of intimate partner violence between female bisexual victims and lesbian victims was also significantly different. Heterosexual female victims reported a significantly higher percentage of having only one perpetrator compared to female bisexual victims. Lesbian victims also reported significantly higher percentage of having only one perpetrator compared to bisexual female victims. There were no statistical differences between female heterosexual victims and lesbian victims.

Number of Perpetrators among Male Victims A similar pattern was seen among the male victims. Almost 90% of gay men (89.1%), more than half of bisexual men (53.6%), and almost three-quarters of heterosexual men (73.3%) who were victims of intimate partner violence reported having only one perpetrator (data not shown). The difference in the number of lifetime perpetrators of intimate partner violence between gay male victims and heterosexual male victims was significantly different. Also, the difference in the number of lifetime perpetrators of intimate partner violence between bisexual male victims and gay male victims was significantly different. Gay male victims reported a significantly higher percentage of having only one perpetrator compared to heterosexual male and bisexual male victims. There were no statistical differences between bisexual male victims and heterosexual male victims.

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27 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Sex of Perpetrator in lifetime Reports of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner by Sexual Orientation Sex of Perpetrator of Violence among Female Victims Among women who experienced rape, physical violence, and/or stalking in the context of an intimate relationship, the majority of bisexual and heterosexual women (89.5% and 98.7%, respectively) reported only male perpetrators (data not shown). More than two-thirds of lesbian women (67.4%) identified only female perpetrators. Statistical testing to compare sex of perpetrator across all sexual orientations was not conducted.

Sex of Perpetrator of Violence among Male Victims Among men who experienced rape, physical violence, and/or stalking by an intimate partner, approximately 90.7% of gay men reported only male perpetrators, 78.5% of bisexual men identified only females as their perpetrators, and 99.5% of heterosexual men reported only female perpetrators (data not shown). Statistical testing to compare sex of perpetrator across all sexual orientations was not conducted.

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28 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

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29 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Impact of Intimate Partner Violence

How NISVS Measured the Impact of Intimate Partner Violence For each perpetrator of intimate partner violence, respondents were asked about whether they had experienced:

• Being fearful

• Being concerned for safety

• Symptoms of post-traumatic stress disorder (PTSD)

- Having nightmares

- Trying hard not to think about it or avoiding being reminded of it

- Feeling constantly on guard, watchful, or easily startled

- Feeling numb or detached from others, activities, or surroundings

• Being injured

• Needing health care as a result of the intimate partner violence experienced

• Needing housing services

• Needing victim’s advocate services

• Needing legal services

• Contacting a crisis hotline

• Missing days of work or school because of the intimate partner violence experienced

• For those reporting rape by an intimate partner — contracting a sexually transmitted infection or becoming pregnant (for women)

The questions were assessed in relation to specific perpetrators, without regard to the time period in which they occurred. Because violent acts often do not occur in isolation and are frequently experienced in the context of other violence committed by the same perpetrator, questions regarding the impact of the violence were asked in relation to all forms of violence (sexual violence, physical violence, stalking, expressive aggression, coercive control, and reproductive control) committed by the perpetrator in that relationship. Such information provides a better understanding of how individual and cumulative experiences of violence interact to result in harm to victims and provides a more nuanced understanding of the overall impact of violence.

Black et al. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. National Center for Injury Prevention and Control, Centers for Disease Control and Prevention.

Impact was measured using a impact was assessed in relation (sexual violence, physical violence, set of indicators that represent to specific perpetrators, without stalking, expressive aggression, a range of direct impacts that regard to the time period in which coercive control, and control of may be experienced by victims of impact occurred, and asked in reproductive or sexual health) in intimate partner violence. Intimate relation to the forms of intimate that relationship (Black et al., 2011). partner violence (IPV)-related partner violence experienced

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 30

lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization with Intimate Partner Violence-Related Impact by Sexual Orientation Prevalence among Women The lifetime prevalence for bisexual women who experienced rape, physical violence, and/or stalking by an intimate partner and reported at least one measured impact related to experiencing these or other forms of violent behaviors in that relationship was significantly higher compared to lesbian and heterosexual women (Table 11). Approximately one-third of lesbian women (33.5%), over half of bisexual women (57.4%), and one-third of heterosexual women (28.2%) who experienced rape, physical violence, and/or stalking by an intimate partner reported at least one measured impact related to experiencing these or other forms of violent behaviors in that relationship.

Nearly 1 in 3 bisexual

women and 1 in 7

heterosexual women

were injured as a

result of rape,

physical violence,

and/or stalking by

an intimate partner.

Nearly 30% of lesbian women (29.1%), over half of bisexual women (52.9%), and one-quarter of heterosexual women (25.2%) reported being fearful as a result of the violence experienced. In addition, approximately one-fifth of lesbian women and heterosexual women (19.5% and 21.9%, respectively) and one-half of bisexual women (47.5%) reported they were concerned for their safety and/or reported at least one post-traumatic stress disorder (PTSD) symptom (19.5%, 46.2%, and 22.1%, respectively). Of the IPV-related impacts reported in Table 11, the differences between bisexual women and heterosexual women and between bisexual women and lesbian women were statistically significant with the exception of missing at least one day of work or school and needing legal services. However, the differences reported between lesbian women and heterosexual women were not statistically significant. Similarly, estimates of lifetime prevalence of rape, physical violence, and/or stalking by an intimate partner with specific types of IPV-related impact for gay and bisexual men were based upon numbers too small to calculate a reliable estimate and, therefore, are not reported.

More than one-third

of lesbian women,

more than half of

bisexual women, and

almost one-third of

heterosexual women

in the United States

who experienced rape,

physical violence,

and/or stalking by

an intimate partner

reported at least one

measured impact

related to these or

other forms of violence

in that relationship.

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31 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Table 11 lifetime Prevalence of Rape, Physical Violence, and/or Stalking Victimization by an Intimate Partner with IPV-Related Impact by Sexual Orientation — U .S . Women, NISVS 2010

Lesbian Bisexual Heterosexual

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Weighted % Estimated Number

of Victims1

Any reported IPV-related impact2,3,4, HB, BL 33.5 547,000 57.4 1,901,000 28.2 30,828,000

FearfulHB, BL 29.1 474,000 52.9 1,752,000 25.2 27,537,000

Concerned for safetyHB, BL 19.5 317,000 47.5 1,572,000 21.9 23,969,000

Any PTSD symptoms5, HB, BL 19.5 317,000 46.2 1,530,000 22.1 24,196,000

InjuryHB * * 27.5 909,000 14.6 15,967,000

Needed medical careHB * * 15.7 519,000 8.0 8,761,000

Needed housing services * * * * 2.5 2,760,000

Needed victim’s advocate services * * * * 2.6 2,834,000

Needed legal services * * 10.7 354,000 7.8 8,546,000

Contacted crisis hotline * * * * 1.7 1,833,000

Missed at least one day of work/school * * 17.1 567,000 10.2 11,176,000

Contracted sexually transmitted disease6 * * * * 1.5 1,647,000

Became pregnant * * * * 1.7 1,877,000 1 Rounded to the nearest thousand. 2 Includes experiencing any of the following: being fearful, concerned for safety, any PTSD symptoms, need for health care, injury, contacting

a crisis hotline, need for housing services, need for victim’s advocate services, need for legal services, missed at least one day of work or school. For those who reported being raped, it also includes having contracted a sexually transmitted disease or having become pregnant.

3 IPV-related impact questions were assessed in relation to specific perpetrators, without regard to the time period in which they occurred, and asked in relation to any form of intimate partner violence experienced (sexual violence, physical violence, stalking, expressive aggression, coercive control, and control of reproductive or sexual health) in that relationship; 12-month prevalence of IPV-related impact was not assessed.

4 By definition, all stalking incidents result in impact because the definition of stalking includes the impacts of fear and concern for safety. 5 Includes: nightmares; tried not to think about or avoided being reminded of; felt constantly on guard, watchful, or easily startled; felt numb or detached. 6 Asked only of those who reported rape by an intimate partner. HBStatistically significant differences (p≤. 05) of the prevalence between heterosexual and bisexual groups. BL Statistically significant differences (p≤ .05) of the prevalence between bisexual and lesbian groups.

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32 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

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33 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Discussion

Consistent with previous national studies (Tjaden & Thoennes, 2000), the findings from this report indicate that women are heavily impacted by sexual violence, stalking, and intimate partner violence. However, differences in victimization based on self-reported sexual orientation have not been previously reported from a national survey. The findings of this report indicate that bisexual woman had significantly higher prevalence of virtually all types of sexual violence and intimate partner violence measured in the National Intimate Partner and Sexual Violence Survey (NISVS) when compared to both heterosexual and lesbian women. For example, 46.1% of bisexual women experienced rape in their lifetime compared to 13.1% of lesbian women and 17.4% of heterosexual women. That translates into 1.5 million bisexual women, 214,000 lesbian women, and 19 million heterosexual women who have been raped during their lifetime. In terms of intimate partner violence, 61.1% of bisexual women who reported experiencing rape, physical violence, and/or stalking by an intimate partner during their lifetime compared to 43.8% of lesbian women and 35% of heterosexual women. That translates into 2 million bisexual women, 714,000 lesbian women, and 38 million heterosexual women who have experienced at least one of these forms of violence by an intimate partner in their lifetime.

Fewer significant differences were found when comparing lesbian women and heterosexual women in terms of the prevalence of most types of violence measured. Most differences found between lifetime victimization of intimate partner violence, sexual violence, and stalking by males, based on their self-reported sexual orientation, were not statistically significant with the exception of sexual violence other than rape and one form of psychological aggression, specifically expressive aggression. In terms of sexual violence other than rape, both gay men and bisexual men reported significantly higher prevalence compared to heterosexual men. Similarly, gay men reported significantly higher prevalence of expressive aggression compared to bisexual and heterosexual men. The estimates for some forms of sexual violence, intimate partner violence, and stalking for both women and men were not calculated due to low statistical reliability, limiting the number of conclusions that can be drawn related to victimization by sexual orientation. Among women who experienced rape, bisexual women were significantly more likely to have first been raped between the ages of 11 and 17 years, as compared to heterosexual women. Future studies might examine whether the age at which bisexual women experience other forms of violence (stalking, intimate partner violence) are similarly experienced in adolescence.

For most types of violence examined in this report, the majority of both male and female victims, regardless of sexual orientation, reported having one perpetrator in their lifetime. Across all forms of violence, the majority of bisexual women and heterosexual female victims reported having only male perpetrators. The majority of heterosexual male victims of sexual violence other than rape identified their perpetrator as exclusively female. Almost all gay male victims of rape, physical violence, and/ or stalking by an intimate partner reported their perpetrator as being of the same sex. The majority of lesbian victims of rape, physical violence, and/or stalking by an intimate partner reported their perpetrator as female.

To our knowledge, the National Intimate Partner and Sexual Violence Survey (NISVS) provides the first nationally representative prevalence estimates of sexual violence, stalking, and intimate partner violence among those who identify as lesbian, gay, or bisexual. These nationally representative findings are consistent with findings from the Centers for Disease Control and Prevention’s Youth Risk Behavior Surveillance System (YRBSS), which found a higher prevalence of dating violence and unwanted forced sexual intercourse among lesbian, gay, and bisexual youth compared to heterosexual youth (Kann et al., 2011). The YRBSS, focuses on a variety of different risk

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 34

behaviors of adolescents in grades 9-12 and, unlike NISVS, does not focus exclusively or as intensively on intimate partner violence, sexual violence, and stalking.

Additional research would help improve the understanding of the relatively high levels of victimization experienced by bisexual women as compared to heterosexual women. Similarly, bisexual men evidenced a higher prevalence of sexual violence, other than rape, in comparison to heterosexual men. Due to small cell sizes, many of the estimates for men were not reported and statistical comparisons were not examined. In the future, the ability of NISVS to combine data across years will allow for an examination of whether bisexual men evidence similarly elevated levels of victimization across multiple forms of violence, as found among bisexual women.

limitations The findings of this report are subject to a number of limitations, which are explained in detail in the National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report (Black et al., 2011). There are additional limitations related specifically to this report. Respondents with a victimization history who did not report their sexual orientation were not included in subgroup analyses. These missing data impact the ability to compare estimates across reports. Therefore, comparisons between the findings in this special report and the main summary report cannot be made. Small numbers for particular subgroups limited our ability to report and to detect differences between groups

based upon sexual orientation. For example, individual forms of severe physical violence by an intimate partner experienced among bisexual men and gay men in their lifetimes were not reported due to small numbers. Furthermore, insufficient statistical power due to small cell size restricted the application of statistical tests for differences between these groups. It is possible that other variables, such as age, race, and income, might partially explain the differences found between bisexual and heterosexual respondents. For example, many of the forms of violence examined in this report are more prevalent during adolescence and young adulthood (Basile, 2005; Basile & Black, 2010; Breiding et al., 2008) and it is possible that there are cohort effects. Also, the possible hesitancy of participants to disclose their sexual orientation based on perceived risk or fear of discrimination may have resulted in the misclassification of sexual orientation for some respondents. Finally, research suggests that there is a degree of fluidity related to self-identified sexual orientation across the life span (Diamond, 2008; Ott et al., 2011). Consequently, the basis of the key independent variable in this report, current sexual orientation, may not represent the sexual orientation of respondents when the violence actually occurred.

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 35

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36 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

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37 The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation

Implications for Prevention

This report highlights the lifetime prevalence of intimate partner violence, sexual violence, and stalking victimization for U.S. women and men by self-reported sexual orientation including those who identify as lesbian, gay, bisexual, and heterosexual. While The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report (Black et al., 2011) focused on the population as a whole and found that the experiences of sexual violence, stalking, and intimate partner violence place a substantial burden on women and men in the United States, this report offers a more focused examination of these forms of violence by self-reported sexual orientation. The pattern of results suggests that individuals who self-identify as lesbian, gay, and bisexual (LGB) experience an equal or greater likelihood of experiencing sexual violence, stalking, and intimate partner violence as compared to self-identified heterosexuals.

The findings in this report suggest a number of specific prevention implications that may be considered. First, the high levels of violence experienced by bisexual women and the high levels of sexual violence other than rape experienced by bisexual men suggest a particular need for services and support systems focused on bisexual women and men. In addition, lesbian women and gay men evidenced levels of violence victimization that were equal to or higher than those of heterosexual persons indicating the

need to ensure that prevention and intervention resources be available for these groups at commensurate levels to those available for heterosexual populations.

Another finding that may have implications for prevention is that bisexual women and lesbian women are less likely than heterosexual women to have only one perpetrator of sexual violence other than rape. This suggests that additional efforts might be needed to prevent revictimization among bisexual and lesbian women.

Other results in this report suggest opportunities for the targeting of prevention efforts. Although this report was not able to produce a reliable estimate of lifetime rape victimization for lesbian women and bisexual and gay men, it was clear that among women who experienced rape, bisexual women were more likely to experience their first rape between the ages of 11 and 17 years, as compared to heterosexual women. Many people may not identify their sexual orientation during their adolescence, making it difficult to target specific subgroups of adolescents for prevention, further strengthening the need for broad-based prevention efforts that include individuals as well as communities. However, more research could be undertaken to better understand the adolescent experience of bisexual women and other LGB individuals, with the goal of identifying potential risk

or protective factors for rape as an adolescent.

Another avenue for targeting prevention efforts is related to the sex of perpetrators. Like heterosexual women, bisexual women and lesbian women predominantly reported male perpetrators of rape and sexual violence other than rape. Further, bisexual women and men reported predominantly opposite-sex perpetrators of intimate partner violence (among those who experienced rape, physical violence, or stalking by an intimate partner). Future research focused on better understanding the dynamics surrounding experiences of intimate partner violence in opposite-sex relationships as compared to same-sex relationships for bisexual men and women is warranted.

ensure access to Protection, Services, and Resources Currently, communities are lacking in resources for LGB victims of intimate partner violence, sexual violence, and stalking. While there are approximately 2,000 domestic-violence shelters (National Network to End Domestic Violence, 2011) in the United States, only a small fraction have programs designed specifically for lesbian survivors of intimate partner violence (Helfrich & Simpson, 2005). The number of services available to gay and bisexual men is even more limited (Davies, 2002). A critical need exists

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The National Intimate Partner and Sexual Violence Survey | 2010 Findings on Victimization by Sexual Orientation 38

for services and resources for LGB victims of intimate partner violence, sexual violence, and stalking. In order to address the burden of domestic violence among this population, laws that protect victims of domestic violence could explicitly include members of the LGB community. Currently, LGB individuals are covered in most state domestic violence laws (including civil and criminal protections such as protective orders) through the use of gender-neutral language. However, because of the gender-neutral language, the final decision on whether LGB persons are protected or not under the law may be at the discretion of an individual judge. In addition, a few remaining states require that an intimate relationship exists between two people of the opposite sex in order for an order of protection to be issued. In many cases, in these states, the victims of same-sex intimate partner violence are prohibited from seeking legal protection under the law (American Bar Association, 2008).

Given the findings of this report and the current state of the practice field, additional efforts could be made to enhance training for domestic violence and sexual assault service providers. Such training may improve access to services for individuals who either experience intimate partner violence, sexual violence, or stalking in the context of a same-sex relationship. In light of these findings, state and local criminal justice systems may want to consider how the services they provide serve intimate partner violence and sexual violence victims regardless of sexual orientation.

Nonbiased training and expanded education for service providers that focus on LGB issues as they relate to intimate partner violence, sexual violence, and stalking are also needed (Duke & Davidson, 2009; Girshick, 2002; Simpson & Helfrich, 2005). Such education will increase knowledge, which could help facil­itate reporting and work to provide survivors with the support they need. Creating a legal and resource environment that is safe and where confidentiality is maintained is an important step in the process.

Implement Strong Data Systems for Monitoring and evaluation The NISVS provides the first national-level data on the prevalence of intimate partner violence, sexual violence, and stalking among the LGB population. In order to more fully understand the extent to which intimate partner violence, sexual violence, and stalking is prevalent among and impacts LGB survivors, more research as well as ongoing data collection is needed. The use of consistent measures of sexual orientation and gender identity will help to consistently report these types of violence occurring within LGB communities and to LGB individuals. The Department of Health and Human Services is developing standardized measures of sexual orientation and gender identity to be included in all national surveys in an attempt to collect more reliable data (Department of Health and Human Services, 2011) and NISVS will incorporate these measures once they are completed.

Conclusion The combined efforts of public health, criminal justice, service providers, and other stakeholders can improve our knowledge about intimate partner violence, sexual violence, and stalking in LGB communities and improve the availability of prevention programs and services for those affected by violence.

These findings underscore the broad range of violence experienced by LGB individuals in the United States and reiterate the important need for immediate, but thoughtful, actions to prevent and respond to the violence occurring within LGB populations. A more comprehensive plan for violence prevention that includes LGB individuals is needed to address issues that include effective prevention efforts focused on intimate partner violence, sexual violence, and stalking. In addition, the inclusion of LGB persons in national violence research will assist in furthering a more comprehensive understanding of intimate partner violence, sexual violence, and stalking.

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Centers for Disease Control and Prevention National Center for Injury Prevention and Control Division of Violence Prevention

4770 Buford Highway NE, MS-F64 Atlanta, Georgia 30341-3742 www.cdc.gov/violenceprevention

National Center for Injury Prevention and Control Division of Violence Prevention