(Thank You for Your Interest in Our book, and in learning more about this area of the law. If you signed up through our download form, you will receive a PDF version of the book as well, but we always send this link/the below book because sometimes the PDF is too large for certain email providers)
If you would like to contact our firm for a free physical paperback version of the book, or to schedule an initial consultation, please use the below contact information:
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Moorestown, NJ 08057
Happily EVEN After: The Guide to Divorce in New Jersey (2nd Edition)
FOREWARD TO THE FIRST EDITION
Hello. If you’re reading this, then perhaps you or someone you know has family-law related issues. Perhaps you have questions regarding a divorce matter, a custody dispute, a post-judgment issue, or the drafting of a premarital agreement. If so, then please read on to learn about family and divorce law in New Jersey.
I originally created this brief overview in 2012 and have now updated it in 2019, and again in 2022 to reflect important changes in the law over the last half-decade. Through years of family law practice I’ve learned that the better informed my clients are, the easier it is to assist them through their important legal issues. I want to work with clients who are engaged in the process, because those are the type of clients I can really help. Courts, attorneys, the law itself–these things can be intimidating at first. I hope the information in this Second Edition helps to make the process less intimidating.
If you’re meeting with an attorney or considering legal representation, then there is likely a serious legal issue in your life. You may be confused as to your rights and responsibilities. It’s important that you take steps to understand your rights and the legal process. Part of my job as an attorney is to educate my clients so that the laws and court processes are not as daunting. This general overview is a starting point in that education.
I believe that the better informed my clients are, the more efficient services I can provide to them and the capital spent in the process can best be utilized towards implementing strategies and techniques with the highest return on investment.
If you retain or have retained my firm, you will be able to reference this book throughout your case. Any time you can find your answer in the book rather than by calling my office, you’re saving yourself money. By better understanding your rights, you can ask more sophisticated questions of me during our interactions. Of course, if you have any questions, our firm is always available to you. I encourage my clients to contact me through their desired form of communication whenever they wish and do my best to quickly respond.
This book is meant as a supplement to the legal representation for actual clients or as a general guide to everyone else, but in no way replaces the fact-specific components that make up each individual’s case. Accordingly, the general information provided herein does not constitute specific legal advice.
For non-clients confronting a New Jersey divorce, this book will provide you with a general summary of New Jersey divorce and family law. I have attempted to write this not in “legalese” but in a manner easily understood by anyone contemplating a divorce. Although this book cannot constitute legal advice (as divorces are fact-sensitive), it should provide a good overview of the process. I welcome any feedback or criticism so that I may improve future editions of this work.
Feel free to read this at your leisure and don’t hesitate to contact our office if you have any questions. Whether you decide to retain my firm or not, I wish you the best of luck with your legal matter.
Very truly yours,
Carl A. Taylor III, Esq.
FOREWARD TO THE SECOND EDITION
When I completed Happily EVEN After: The Guide to Divorce in New Jersey in 2019, I figured it would be a decade or so before I needed to complete a second edition. Sure, the law is always changing, but as a court of equity family law often moves at its own ponderous pace. And then: Covid.
I write this in the fourth quarter of 2021, with an anticipated release date for the Second Edition of sometime in 2022. So much has changed since the pandemic: globally and locally, but also personally and professionally. I have moved our family and my practice to Burlington County, and have headquartered my firm in Moorestown, New Jersey. Although I will continue to work on behalf of clients in Hunterdon and Somerset County, and throughout Central and Southern New Jersey, it’s different practicing somewhere new. The pandemic has bumped all of us back a peg or two.
It’s also changed the way we practice law. New Jersey’s divorce courts have changed to allow electronic filing. Clients are more willing to meet via Zoom. Motions are now being filed about whether children should be vaccinated, or whether that trip to Disney is such a great idea this year. For that reason, I have updated this Second Edition with an entire section on Covid related law.
But of course, many things remain the same. Divorce is still difficult, and some people are still willing to risk losing everything in order to “win.” Children continue to suffer as their parents engage in an often zero-sum duel. The reason I wrote the First Edition of this book, why I am writing this Second Edition, and why I practice law is to say there’s a better way. Not giving in, but also not cutting one’s nose to spite their face. Controlling emotions, and viewing divorce as the business decision it really is.
Come along with me in this Second Edition, and find your Happily EVEN After.
Very truly yours,
Carl A. Taylor III, Esq.
October 28, 2021
Please note that this book does not create a legal obligation for you or our firm. This book does not create an attorney-client relationship. This book is for informational purposes only and provides general advice. It cannot and does not supplant actual legal advice. Every case is different and this book is general in nature. Also, the laws and processes are always changing. You cannot rely on this book and should you rely on anything in this book, you do so at your own risk. We expressly waive any liability with regards to this book.
This book provides general information of interest to our clients and prospective clients. It does not constitute legal advice. You should consult with legal counsel to determine how the Law may apply to your specific situation. Please also note that each county may have its own court procedures. This book only discusses New Jersey laws and procedures.
About Carl Taylor, Esq.
Formerly of Hunterdon County, and now a Burlington County resident, Carl has successfully represented hundreds of New Jersey divorce clients in his decade plus in practice.
Carl is the author of Happily Even After: First Edition, and now the Second Edition that you hold in your hand (or on your screen).
Carl has earned a reputation as a dedicated, honest, and tenacious attorney both in the courtroom and out. Carl has also earned the reputation as a ‘thought-leader’ in the field of New Jersey divorce law and in practice management. Carl’s practice focuses not only on results, but on client satisfaction and service.
Carl has been quoted in the New Jersey Law Journal on the subject of changes to palimony law and has been published multiple times in both national family law magazines as well as the New Jersey Law Journal on the subject of divorce and family law.
Carl was the first lawyer in the United States to write a national article on the subject of Bitcoin in Divorce, the cover article “Divorce in the Age of Bitcoin” ran in the spring ’18 edition of Family Lawyer Magazine. Carl has also written hundreds of articles over the past decade that are displayed on this website. Carl has been asked to provide comment on divorce and family law stories by NJ.Com. Carl’s book is the most extensive and detailed book for New Jersey consumers on the subject of divorce.
Carl clerked for Judge Anthony F. Picheca, Jr., J.S.C., of the Somerset County Superior Court, Family Division in the 2009-2010 term and has actively engaged in the representation of clients in all family law and divorce matters since that time seeking to efficiently and fairly represent clients through the difficult transition period of divorce so that they can go on to live “Happily EVEN After.”
Carl has volunteered as a Somerset County Early Settlement Panel member and donated time to domestic violence education and causes. Before limiting his practice to divorce law, Carl worked as the appointed municipal prosecutor in more than a dozen municipalities (including Bridgewater, Flemington, Bedminster, and Bernardsville) and had an extensive background in civil litigation and appeals, something he now utilizes for an added edge in high-conflict divorce matters.
Carl was formerly a named partner with Cooper, Cottell, and Taylor, LLC where he also served as Deputy County Counsel for Somerset County before opening his own firm, headquartered first in Hunterdon County in 2017 and now in Burlington County, New Jersey. Carl particularly enjoys trying cases to completion when necessary, although he seeks efficient solutions when possible and warranted by the other side. Known as a tough but fair litigator, Carl is frequently asked by other lawyers to take their cases to trial when they fail to settle. Carl has also prevailed in each of the five appellate cases he has handled.
Carl resides in Burlington County New Jersey with his wife, two daughters, and an overzealous rough collie. In Carl’s rare downtime he enjoys reading fiction and biographies. Carl also enjoys hiking and backpacking, having section hiked hundreds of miles of the Appalachian Trail and every mile of the “A.T.” in New Jersey.
Aside from publishing articles and books on the subject of divorce and family law, Carl has also published numerous fiction short stories. One of Carl’s stories was nominated for a Pushcart Prize in 2020, and another for “Best of the Net” in 2021. Carl mostly writes science fiction, and recently made his first professional short story sale to the Magazine of Fantasy & Science Fiction, a national publication.
The firm is engaged in the community and in giving back and has provided annual scholarships to local high schools for graduating seniors interested in becoming lawyers as well as donating thousands of dollars to children’s rights groups. Carl asks his clients with children to always remember to act in their best interests.
Carl is currently at work on a second edition of Happily EVEN After as well as another book on the subject of New Jersey divorce law for business owners. He is (mostly) happy to again reside in the Philadelphia media market so he can watch his beloved Phillies.
If you’re reading this book it is likely you or someone important to you is considering or already experiencing a New Jersey divorce, separation, custody dispute, or other important family law issue.
You may feel stuck in a loveless marriage, exhausted of trying to work things out. You may be in a violent or unsafe situation with a volatile partner. Your spouse may have had an affair, or perhaps you have. It is my belief that the single biggest issue to confront in a divorce is not any legal statute or law, not any complex discovery issue or asset to divide, but rather is emotion.
We bring to a divorce a great deal of emotion. Most people getting divorced or contemplating divorce feel a great mixture of emotions. Some clients have described it to me as facing all of the stages of grief simultaneously mixed with remnants of love. What could be a more volatile mixture than that?
In a divorce it is often the partner that is taken by surprise that finds it most difficult to move forward. Sometimes you can offer a very fair settlement of the case but one party will not agree. Some people are very stubborn and will not agree out of misguided principle. And others believe that the divorce is a battleground for a game where they can attempt to inflict harm upon the other party. Often times the person attempting to inflict such pain brings just as much harm to his or her self. Too often the party’s innocent young children are caught in the crossfire. People going through a divorce sometimes do not understand the nature of their actions because they are too emotionally involved. That is normal. However…
Your Divorce is not a “Game” and shouldn’t be treated as such. This is serious business. Although courtroom procedure and minutia will have to be dealt with, Divorces and family law matters are often a highly personal process that will likely have a great impact upon your future and that of your children. Just as your future changed the day you got married so it will change again the day you or your partner file for divorce and again once the divorce is finalized. You may believe your divorce is an interesting “wizard’s duel” of sorts, but what about the collateral damage to yourself and everyone else around you?
Divorce is a time when many people lose their sense of self. Many people lose their jobs during the divorce because it impacts their concentration and takes up a great deal of time. The alternative of a loveless or abusive marriage is, of course, generally not any better. Understand going in to the divorce that it is a brick-by-brick matter that may take up to a year or more to complete. If you attempt to be measured in your responses and work with an attorney that will do the same, then perhaps you can save yourself a lot of money and a great deal of headaches. Of course, if you’re being pushed around and the other side is not acting in good faith then you’ll have to be more aggressive to neutralize them.
Although a lot goes into the divorce process itself, our firm assists people like you every day in crafting divorces that will reference your unique future goals. What is your ideal parenting arrangement? What assets will you be entitled to? How can you make sure your Prenuptial Agreement will be Enforced? What type of Alimony and Child Support Should be Paid? These are all decisions that will have a long-term impact on your life and the lives of your children. When you’re reading this book please take notes as appropriate, feel free to highlight sections in the book, we won’t be offended. Come back and reference sections of this book that apply to you and skip over sections that do not. But more than anything else, when you’re reading this book and throughout your divorce write down your ultimate goals and do your best to not lose sight of them. Our firm is broken down into three sections: The Nuts and Bolts of New Jersey Divorce Procedure, A Review of Relevant New Jersey Divorce Law, and Tips for a Successful Divorce.
Our firm’s tagline is “Happily Even After” as a Reminder to Our Clients and Our Firm that Divorce should never be viewed in a vacuum but rather in a global and holistic manner, always keeping a long view toward the future and working towards a breathing document that can address future issues as they arise to avoid costly future litigation. In our office we have a framed picture of two people in a family law courtroom in the 1990’s (with lawyers and judges present) dividing what must be about a thousand Beanie Babies. They say a picture tells a thousand words, the point of that picture should be self-evident. Do the right thing for yourself and your children, hire the right lawyer, keep informed, don’t lose sight of your goals, and get to your Happily EVEN After as soon as you can.
Divorce can be hell, but it doesn’t have to be. We’ll steer you onto the right path, help you formulate plans and goals, and lead you to your Happily EVEN After.
INTRODUCTION – SEVEN SIMPLE STEPS TO TAKE BEFORE FILING A DIVORCE AND TEN THINGS THAT MAY SURPRISE YOU ABOUT A NEW JERSEY DIVORCE
Seven Simple Steps to Take Before Filing a Divorce
If you’re reading this Book then perhaps you or someone you know is contemplating a New Jersey divorce. You may have important questions that need to be answered, such as:
- Should I leave or stay in the marital residence?
- How is custody addressed in the interim?
- How are assets divided?
- What can I do to make sure my spouse does not dissipate marital funds?
- How does the Court system work?
- How do I find a qualified New Jersey Divorce Lawyer?
Through my years of family law practice I’ve learned that the better informed my clients are, the easier it is to assist them through their important and unique legal issues. Courts, attorneys, the law itself–these things can be intimidating at first. I hope this book helps make the process less so.
It’s important that you take steps to understand your rights and the legal process. Divorce likely will impact your finances, your lifestyle, and most importantly your children. Moving through the process informed and with the right attorney can have a huge impact on the outcome and on your life.
Sometimes in particularly tough cases, particularly when my clients start to deviate from my advice, I think of the scene in the great movie Jerry Maguire where sports agent Jerry Maguire begs his football star client Rod Tidwell to follow his advice. “Help me, help you,” the character Jerry Maguire pleads over and over. I can relate…
In one sense, an attorney-client relationship is not dissimilar from a doctor-patient relationship: the client (or patient) must take an active role in obtaining the desired results. A doctor can advise a patient with high blood pressure to watch their sodium intake, but it is the patient’s responsibility to eat more celery and less fast food (I know, I know, I’m working on it!).
Likewise, an attorney can warn a divorce client to stop posting to Facebook pictures of the client “partying” while engaged in a contested custody dispute, but if that advice is not heeded, then those pictures may later materialize as evidence used against the client.
One of the primary goals of my practice is to advise my clients how they can help increase their own odds of success. Here are just a few of my tips for how you can help achieve great results in your divorce or family law case.
- Keep a Journal/Log. In family law matters, there exists an almost unlimited number
of issues that can arise. Keeping a log may not only prove to be evidentiary at a later court hearing but will also assist in your keeping track of the process.
- Don’t Lose Your Temper. As the old courthouse wisdom goes: “Lose your temper,
lose your case.” Text messages, phone conversations, and emails are often used in court to demonstrate domestic violence, lack of fitness of a parent, and many other issues. What may seem like blowing off steam in the heat of the moment may later be taken out of context or used to demonstrate a pattern. Anger may also hurt your odds of quickly settling a case and will impact your ability to focus on and achieve your goals.
- Consider Meeting with a Mental Health Expert. It is often helpful for those going
through a divorce to meet with a mental health professional. The saying that a divorce is worse than a death in the family is, according to most of my clients, very accurate. Having access to a professional in your corner can help alleviate some of the stress or even simply provide coaching to unlock post-divorce goals.
- Be Very Careful When Using Social Media. When you go on Facebook or ‘Tweet’
something; be careful. Again, many things can be taken out of context and it’s easier for others to access your social media information than you might expect. You should also note that what has already been posted may be required to remain online as once a suit is filed non-spoliation of evidence is often required. You should access your online profiles and modify them appropriately prior to the divorce filing.
- Take Notes and Store Documents in One Safe Location. When you speak with your attorney or something important occurs in your case, take notes. You should ideally maintain a notebook/ binder of all important documentation and information relating to your case. For this reason we often give our clients a binder or folder to organize all of their information. Keep this binder in a safe/private place.
- Get Your Finances in Order. Make a list of all bank accounts, maintain copies of most recent statements, write down important online banking logins and passwords, and otherwise fully understand the marital assets and debts prior to filing for divorce. This will assist you should your spouse attempt to dissipate marital funds. Likewise, do not commingle non-marital funds (such as gifts, inheritances, or personal injuries monies), particularly if you are considering divorce, as such action may convert such “exempt” funds into “joint marital” funds.
- Don’t Be Afraid to Ask Your Attorney Questions. You hired an attorney in part to have someone available to answer those questions. At Taylor Divorce Law, LLC, you are encouraged to have an open-dialogue with counsel so that you’re both on the same page and can obtain the best results relating to YOUR specific priorities. There are many more ways a client can assist in reducing the costs of litigation, strengthening their case, and helping to achieve greater results in their case. When dealing with the Court system—things can sometimes feel a little outside the client’s control —but focusing on what can be controlled or impacted should help both attorney and client achieve a successful outcome to the case. And of course it goes without saying that my bonus tips is to learn as much as you can about the divorce and from the right sources. Google is great but laws are state specific and laws are always changing. I know that you’re the type of person that wants to be informed if you’ve purchased and are reading this book. That type of commitment will pay dividends for you and for your children throughout the divorce process.
Ten Things that May Surprise You About a New Jersey Divorce
Every divorce case is both fact-sensitive and people sensitive. I often joke that although I’ve “been divorced” (on behalf of my clients) over one hundred times, even I will find something unique about each case.
There are certain “surprises” however, that are much more common. Learning the below list will help take some of the guess-work out of your divorce.
- “Fault” Isn’t That Important. You may be shocked to learn that “marital fault” is often unimportant in terms of dividing marital assets or even with regard to issues of parenting time. For instance, if one party committed adultery, it’s generally not going to make much of a difference in the divorce negotiations or to a family court judge, provided that the affair doesn’t in some way negatively impact the children (example: spouse is now dating someone with criminal background or history or drug abuse, alcohol abuse, or child abuse).
- The Laws are (Essentially) Gender Neutral. If the breadwinner of the family is the woman, then she will (provided the laws are properly followed) likely be paying alimony. As for parenting time, the biggest factors will be past history of care for the children, not whether you are a mother or a father. In today’s modern courtrooms, gender neutrality is becoming more the norm—not just in theory but in practice.
- There’s Probably Not a Conspiracy. I’ve had a lot of clients tell me that their ex is “well connected so they are probably getting special treatment from the court,” or that they think a “certain judge favors [men] or [women] or [etc.],” but in reality, such issues are rare or completely non-existent based upon my own experiences. It doesn’t mean people are always treated fairly or that the proper decisions are always rendered—-but it does mean that the reasons behind such issues are almost certainly not nefarious.
- The Judge Likely Won’t Speak with Your Children. If there is a custody issue and your child is under 13 years old, few if any judges will be willing to hear the child’s custody preferences, even off the record. This issue is up to the discretion of the judge– and once a child is 14-18 years of age more judges will allow such a meeting—but most judges prefer to keep children out of the courtroom.
- You Can Sue or Be Sued for a Marital Tort. Under the Tevis v. Tevis case New Jersey Courts recognize “marital torts.” Accordingly, you can sue for “personal injuries, physical or emotional” as part of a complaint for divorce. The process is similar to suing for other forms of personal injury.
- Children May Not Be Emancipated at Age 18 (or even 21). The basic emancipation standard in New Jersey is whether a “child” has moved beyond the “sphere and influence” of his or her parents. Unlike in Pennsylvania, parents might be required to pay for college (or even graduate school) for their children, along with basic child support and other expenses. This is a fact-sensitive inquiry. Although there is a presumption of independence at eighteen (or graduating from high school), you will find it is rarely enforced unless a child is truly on their own and not attending additional schooling.
- Lawyers Cannot “Represent” Both Parties. Sometimes a prospective client will call me up and ask if I will draft a settlement agreement for a divorce. They want me to codify what both parties’ wish for their divorce or to have both parties come in to meet with me. This presents a conflict of interest and I won’t do it. That’s why I will only represent one party and recommend that each party have their own, independent legal advice.
- Grandparents Often will have no Right to “Grandparent Visitation” Without a Court Order (and even that will be difficult to obtain). A parent’s right to parent their children will supersede any right a grandparent thinks they have to visitation.
- Divorces Can Take 1+ Years. Particularly in complicated or contested divorces, one or more years is the rule, not the exception. This is another reason why it’s important for you to negotiate and to do so in good faith. If both parties agree to the divorce terms you can be divorced in a matter of weeks rather than years.
- Prenuptial Agreements are Becoming More Common. Today, I see a lot of clients inquiring about prenuptial agreements, which are no longer in the purview of movie stars, tycoons, or celebrities. Prenuptial agreements will continue to become more the purview of the everyday couple contemplating marriage. The bonus tips is that even with a prenuptial agreement in place such documents will often be challenged as part of the divorce process.
SECTION I: THE HEART OF THE MATTER – ADDRESSING THE EMOTIONAL SIDE OF A DIVORCE
It may seem a bit odd to open a book on divorce law on the subject of emotion rather than law. You may be wondering if your guide is some hippy lecturing about feelings. And of course I am not an expert on psychology, my only advanced degree is my law degree. But in some ways I believe nobody knows more about the emotion of a marriage than divorce lawyers—not in a clinical or expert sense, but in a “common”-sense.
When I was a small child my parents would read me a “Little Golden Book” called “Mr. Bell’s Fixit Shop.” As best as I can remember, the book involved a proprietor of a hardware type store who would often repeat he could “fix anything but a broken heart” Later a child is heartbroken when her favorite stuffed animal is damaged. But good old Mr. Bell fixes it for her and learns in that moment that sometime good old craftsmanship can even mend a broken heart.
So, although I may seem as likely a candidate as Mr. Bell on the subject of the heart (and have just as much formal training), even a cynical divorce attorney like me starts to see certain patterns. I am much more aggressive now in suggesting that my clients seek individual therapy during a divorce. A divorce—and particularly a contested one—is a marathon, not a sprint. You need to be focused on your goals, you need to keep negative emotions like fear and anger at bay, you will need to eat right and essentially train like you’re about to run an emotional decathlon.
When I studied for the bar exam I essentially became a hermit. I took the time to exercise every day and to eat purportedly “brain-healthy” foods like blueberries and salmon. Anyone that knows me will attest that self-control, health eating habits, and regular exercise are not my default settings. But I knew going in that I needed all my energy to make sure I passed the bar on the first try.
Any time spent worrying about my student loans or about a negative outcome was time not spent focusing on my single-minded goal: passing that damned bar exam on the first try. Luckily the hard work paid off. Other people, some of them smarter than I failed the bar exam on the first try. In certain instances, I’m sure the reason was the stress got to them, the magnitude of the situation got to them.
Why are some quarterbacks with less natural talent better in big games? What is it in a quarterback like Nick Foles that allowed him to step up and defeat Tom Brady and his Patriots to win a Super Bowl? I am sure that it is a great concentration on his goals, solid control of his emotions, and not letting negative emotions such as fear get to him. When he threw an interception in the Super Bowl he shrugged it off and came back firing until the game was over and he had achieved what appeared to be the impossible.
In your divorce there will be down moments. You will need a strong support network. If you’re reading this book then you’re already in a good head-space: you realize that knowledge of the situation helps make stressful situations less scary. T
The more you know about the risks, about your rights, and about your responsibilities during the divorce the more you can maximize the outcome you desire. If meditation is your thing then make sure you stick with it, if you’re a runner keep running, if you believe a therapist could help then book an appointment, and if you think you’re alone remember that almost everyone going through a divorce has had similar experiences and similar thoughts. There’s a reason people say a divorce is worse than a death in the family. It’s not easy but if you can control your negative emotions and stay positive, then the results should be there. In many ways the only thing you can control is yourself in situations like this and your reaction to what is occurring. It’s going to be over someday and you will get to your Happily EVEN after.
Before we dive deeper into the emotion of a divorce, let’s review some of the frequently asked questions I hear as a divorce lawyer.
FREQUENTLY ASKED QUESTIONS (FAQ’s):
Although every case is fact-sensitive, this section of the book is created to address certain issues that often come up at divorce consults.
- How long will it take to be divorced?
- Perhaps surprisingly, this is the number one question I am asked—even above how much the divorce will likely cost.
The average divorce is approximately one year. The actual range, however, may be as little as one or two months to upwards of three or even four years in highly-contested matter. There are a number of factors that affect how long it takes to finalize a divorce, including whether the parties pursue mediation or litigation, the complexity of the case, the reasonableness of the parties and counsel in negotiating, and the desire in the parties to bring the matter to a close.
- What are the legal fees involved in getting divorced?
- I, like most new jersey divorce attorneys, bill by the hour. For the reasons mentioned above, it is therefore impossible to provide clients with a cost as it will range on how long it takes to get divorce and more specifically by the number of hours of legal work performed. The cost can therefore range from low four digits to low six-figures, although the range for most divorces is more likely between $5,000 and $25,000. I endeavor to work efficiently for my clients to provide encompassing advice while avoiding an overly burdensome cost. Generally I will seek at least a $5,000.00 retainer for a contested divorce. For motions or uncontested divorces the retainer amount will generally be less.
- What are My Responsibilities while the Divorce is Pending?
- Essentially both parties are required, while the divorce is pending (known as the pendente lite phase of litigation) to maintain the “marital status quo.” This means maintaining insurance, not encumbering or dissipating marital assets or incurring inappropriate marital debt, paying certain regular expenses, and the like. Parenting time and access to children should also maintain the status quo of the marriage.
- What if an Act of Domestic Violence Occurs?
You should immediately contact your local police department or the court and file a temporary restraining order. You should then contact your lawyer.
- Will I be Entitled to Custody and Parenting Time?
- In most instances, courts favor joint legal custody. There is even a movement towards joint physical custody. Joint legal custody involves the ability to make important decisions in a child’s life and physical custody addresses who will more often be providing daily care to the child. These cases are particularly fact-sensitive, but courts almost always favor parenting time for both parents unless same would be detrimental to the best interests of the parties’ child.
- How is Child Support Calculated?
- New Jersey utilizes “Child Support Guidelines,” a type of algorithm that provides a weekly child support obligation based on various factors including the incomes (imputed or real) of the parties, the amount of overnights each parent exercises with the children, the number of children, and the children’s age.
- How Do I Know if I am Entitled to Alimony or if I have an Alimony Obligation?
- Unlike with child support, New Jersey has yet (although this could change given certain pending legislation) to enact alimony guidelines. Accordingly, Court’s address a number of factors such as the length of the marriage, the income potential of each party, the parties’ ages, and the like in determining whether alimony is appropriate and if so, whether the alimony should be permanent, term, rehabilitative, or reimbursement. As stated above, alimony may also be provided “pendente lite.”
- Why should I Choose Taylor Divorce Law, LLC for my Divorce?
- Because we will work with you to assess your goals and help provide closure so you can move forward with your life. Hopefully this book will help answer the question of whether we will be a good fit or not for your important New Jersey family law matters.
A Note on: New Jersey Divorce: Initial Consultations
A divorce initial consultation is very important. Generally, it is the first time an attorney and a prospective client meet one another. It is important for both parties to be prepared for the meeting and determine if a successful working relationship is possible. Some clients find the initial consultation stressful, so I wanted to address the nature of an initial consultation, at least how our firm handles them.
- What to Bring to the Divorce Initial Consultation?
There are certain intake procedures and forms that our firm utilizes prior to meeting with a client. The more information we receive prior to the initial consultation, then the better prepared we can be to provide preliminary advice on how to proceed.
Although I am not formally retained until a retainer agreement is signed by both parties, I do like to provide clients with general information as well as more specific pieces of information such as likely alimony and child support ranges. I often email the intake forms to prospective clients, but the forms are also available for download on our firm’s website (under main website navigation). This process is likely similar to that in other divorce law firms.
It is helpful if a prospective client can provide a copy of the filled-out intake form, along with tax returns, prior court orders, and any other relevant documentation prior to the initial consultation. If that is not possible, it is helpful to arrive to the meeting 10-15 minutes early so I can review the information prior to the meeting.
Q: What Types of Questions Will You Ask Me During the Divorce Initial Consultation?
Similar to most doctor’s offices, I like to begin with asking basic information such as a prospective client’s contact information, date of birth, date of marriage, etc. Then, I generally will ask the prospective client why they are meeting with me. It is important to air out the marital issues so that we can later focus on more technical information gathering. Has the prospective client attempted marriage counseling? Is their marriage salvageable? Has their spouse already retained an attorney or filed formal divorce proceedings? These are all important questions that will be asked.
From there, I will generally ask a series of questions in hopes of learning the parties’ financial situation. New Jersey is a “no-fault” divorce state, so financial considerations are, along with child custody, the heart of New Jersey divorce law. Some of the areas I will address with a client include:
- Both parties’ income/employment.
- The status of their children.
- Possible custody issues.
- Real property such as the marital home.
- Bank accounts.
- Investment accounts.
- Retirement accounts or pensions.
- College costs.
- Premarital, gifted, personal injury, or inherited property.
- Life insurance.
- Health insurance.
- Automobiles, vehicles, boats.
- Stock options.
- Profit sharing plans.
Once these important topics (and other such topics) are discussed, I will then be able to provide the potential client with some prospective on where their case may be heading. I will discuss alternate dispute resolution options with the client. If litigation is the likely outcome, I will provide some insight into how the case will likely turn out. I will also point prospective clients to my NJ Divorce Overview (available for free on this website), which also explains the process.
Initial consultations end with a question/answer session and information on the next steps if a prospective client wishes to become a client. Likely costs, attorneys’ fees, and the retainer amount will also be discussed at this time.
By focusing on the goals of the client and meshing those goals with the facts of the case and the relevant law, a tailored strategy can be crafted from early in a case to reach the desired outcome or goals.
What if I’m Not Ready to Get Divorced Yet?
When people first visit our office as prospective divorce clients they are not always ready to file for divorce.
Some people are ready to file immediately. Some have already filed without an attorney and now want to hire a lawyer. Sometimes I get people who were dissatisfied with their lawyer. Many people are in therapy and hoping it will work out but exploring the process in case it doesn’t. Some may not outright admit it but perhaps they are looking to “divorce plan” and see what they may do now to improve their situation should they need to file in the future. Others are ready to file or to consider mediation or other more amicable forms of divorce. Some want “legal separation” and I explain there is no such thing in New Jersey (divorce from Bed and Board is the closest thing we have to it). Some prospective clients have finished with mediation and have a non-binding memorandum of understanding that they wish to have finalized. Some have a divorce agreement proposed by their spouse that they wish for me to review. Some have gotten divorced, remarried the same person, and how wish to divorce again.
Saving the Marriage…or Not….
Okay, Carl, you’re probably thinking, but what’s the point of the somewhat long-winded list above? Simply this: to let anyone reading this and contemplating a divorce to know that it’s ok if you’re not ready to file for divorce. It’s ok if your main goal is to “save” your marriage. It’s ok to feel conflicted and it would be unnatural not to. Learning about a subject doesn’t mean you’re going to proceed with it. I’ve had books about creating a suburban homestead but if you came to my house today you’ll still only find a patch of discolored carrots and a lazy Collie that hasn’t herded anything besides children.
Few people enter into a marriage without a lot of thought and likewise few exit a marriage without considering the ramifications of that decision. There are bills to be paid, children to be raised, and assets to divide. Beyond that there are emotions–sometimes intense emotions to resolve. There may be feelings of loss, of betrayal, and of guilt. Talking to a divorce attorney does not mean you are going to move forward with a divorce. Reading this book certainly does not mean you need to file for divorce. I see certain clients where I believe it may be in their best interests to get divorced, but it’s not my decision and I aim to never judge anyone for whether they stay in or out of a marriage. It’s not a decision that anyone from the outside can understand, not even divorce lawyers.
So if you’re contemplating a divorce but uncertain how to proceed. That is ok. If you’ve met with an attorney months earlier and now wish to proceed, there is no need to feel embarrassed about returning to that same attorney if you are now ready. As divorce lawyers, we are used to the “funnel.” of new clients. We meet with people and some retain us on the spot, some we never hear from again, and others we hear from months or even years later saying they were not ready when we first met but now they are. That is normal and that is ok. If you’re not ready to move forward yet that is perfectly normal. And if you’re on the fence, perhaps this book can be a tool that will assist you in determining your goals.
Should I Discuss My Desire to File for Divorce with My Spouse?
A divorce filing or informal separation does not mean life suddenly ceases to progress. There are still bills to be paid, friends to see, children to raise, and yes, soon-to-be exes to deal with. As a Divorce Attorney I have found that in some instances the former couple communicates more during a divorce than during their marriage.
Now to be sure sometimes the communications are not healthy or productive. But other times they are. I have often had clients tell me their spouse’s opinions about me as an attorney (usually negative). I have had cases where the parties have compared billing statements. I will also admit that there have been times in my career where my client has been able to work out a deal far greater than what any court would provide or that I could likely obtain. I will go on record that some of my client’s best outcomes were negotiated by them with little or no formal assistance from me.
A line I often use with my clients is this: “I know the law, but you know your spouse.” And so much of family and divorce law is determined by emotion rather than reason.
For that reason, absent risk of physical violence or harm (or the existence of a restraining order), I generally believe it is beneficial if the parties discuss the divorce case amongst themselves. I would caution any client to not put anything in writing (even if it is unlikely to be binding when represented by counsel) and to not make any guarantees, but generally dialogue between parties as part of a settlement negotiation is confidential under the Court Rules. I would also caution to not give away trial strategy and to cease communicating if the matter becomes tense. However, in certain cases where there is not much animosity, clearing the air and attempting to discuss amicable resolutions absent the presence of formal mediators or attorneys may be beneficial.
Indeed, it may prove beneficial for the simple reason that neither party is paying hundreds of dollars per hour for experts when engaging in such communications. It may also be beneficial in that some emotions simply need to run their course. I have had mediations and settlement conferences with clients that seemed a waste of time until the case suddenly settled a few days later. In such cases the terms of the deal were secondary to the emotions that had to drain. Although bloodletting has been found to have no medical efficacy, a bit of emotional bloodletting is sometimes what is required to get a divorce finalized.
The seven stages of grieving discussed by psychologists seems like a true phenomenon from my experience. Although most clients ask me from the start “how long will it take to get divorced” the true answer is generally when the money runs out, after a judge issues an opinion following a divorce trial, shortly after all negative emotions are properly drained, or whenever reason sets in—whichever first occurs.
Sometimes the line “do you want to pay for my kid’s college or your own” can be an effective way to nicely advise clients they may be pushing too hard.
One thing I’ve noticed more and more, even amongst attorneys is the attitude or stated expression that divorce is a game to win. In my opinion such an attitude doesn’t serve anyone well. In my opinion it is best to think of divorce as creating a rulebook or a contract. Getting married is entering into a contract but absent a prenup, it’s one with vague terms. A good divorce lawyer should be able to guide you to the contract of divorce by creating fair terms, simply stated.
It’s perhaps more exciting to play a board game than to write the rules of a board game, but that agreement is what lets the rest of a divorced person’s life move forward in a clear manner. Just like in a board game, if you have an issue you can examine the rules to determine if the other side is treating you fairly or not. This cuts down on costs as post-divorce litigation is no less costly than the divorce itself.
To that end, in certain circumstances I believe it is helpful for the parties to have informal discussions about the case. The ability to communicate is the root of many divorces and will also lead to post-divorce issues if not confronted. Moreover, divorce is a highly personal endeavor. No matter how much you communicate with your lawyer, your desires will always be somewhat subconscious. Such discussions with your ex will allow you both to bring issues into the open and begin the process of determining what you both want out of the divorce.
So, to the question: “Should I discuss my divorce with my spouse,” the simple answer is that in many instances it can be effective provided that certain parameters are in place. That way, when the attorneys and/or mediators are in the room the parties can hopefully limit the issues and save litigation costs.
To What Extent Should Emotion Fuel a Divorce?
The old lawyer joke is criminal lawyers generally deal with bad people acting their best and divorce lawyers generally deal with good people acting their worst. Emotion is an inescapable part of a divorce. Ultimately, nobody gets married hoping to be divorced and there are many feelings and emotions involved in a divorce, which by its very nature is an ending, and perhaps even an admission of failure.
In my years of practice I have seen lawyers who have (in my opinion) stoked the fires of anger and resentment to make a case more litigious. It’s rare but I’ve seen it. I’ve also had clients whose emotions likely ruined their chances at a positive outcome. I’ve tried to limit such situations but we can only help those who wish (or can) help themselves.
I’ve had other clients tell me they were sometimes unhappy with my lack of emotion during the divorce but later thanked me for moving the case forward and that in hindsight they saw the value in a more stoic and rational thought-process. In my opinion, most judges tend not to like blowhards. The goal in most litigation (yes, perhaps even family law) should be to appear the most sane and logical person in the room. Sometimes this is lost. Many family law attorneys suggest that their clients undergo therapy throughout the process. This can be a benefit for the client, the lawyer, and the outcome of the case. As you know, this is something I personally advocate for many confronting a divorce.
Family law itself is fairly simple if severed from the emotions. Our state is generally going to recommend a near 50%-50% split of marital assets. Alimony and child support standards are fairly well known amongst family law attorneys. Custody and parenting time are often best worked out between the parties themselves. What can make family law cases difficult is the need to get 4 people on the same page (both parties and their lawyers). If one or more of those people do not wish to settle the case, wish to drag it out, or wish to make the process overly emotional then the case can stall.
The system is not set up for a fast divorce unless the parties can agree on a resolution. Otherwise, cases languish and the waves and crests of emotion push the case back and forth across time, costing many thousands of dollars more than perhaps necessary.
Ultimately, a divorce is litigation like any other. It should be viewed with an analysis of the risks involved. A cost-benefit analysis should be considered, including the cost of attorney’s fees before any motion is filed, any letter is sent, any cause of action is pursued. In civil litigation this is the process followed, in divorce law and family court in general there can be more of a free-for-all. But to what benefit? Some call family courts the “Wild West,” for this reason, but to what end?
Not to repeat myself too many times, but this is perhaps the one thing I most hope you take away from this book: Anyone considering a New Jersey divorce, considering two wrongs make a right litigation tactics, or otherwise making mountains out of molehills should consider the ultimate costs of their actions.
Lawyers are in many ways merely conduits to our clients’ desires. Ultimately, however, it is our clients that make the decisions. Good communication is the key and many marriages end due to the parties losing the ability to effectively communicate. As a lawyer in this arena I consider part of my job to be helping my clients communicate with one another (through counsel) more effectively to smoothly move a case forward to its resolution. With the increasing use of collaborative law and mediation there have been some steps made. But in the heat of battle sometimes it’s hard for all parties (I myself not being fully immune from this) to take a step back and survey the carnage, emotional and otherwise. And to perhaps ask–at least once in a while, was this worth it?
Emotions have a place in a divorce, I have yet to represent a robot (although in the future, who knows?), but controlled emotions are the type that will work towards relevant goals and not get bogged down tine the morass of gamesmanship.
But Don’t Be a Pushover
To balance some of my advice on this website about being reasonable, it should be noted that I’m not advocating that you not set properly boundaries, that you be a pushover, or that you take a bad deal. Too often people come into a divorce either too angry or conversely too tired/guilty/whatever to properly fight for what is fair. Being level-headed and somewhere between those extremes is the sweet spot for an optimal divorce settlement.
Misguided feelings of guilt can be some of the most troublesome emotions in a divorce. Just because you had an affair doesn’t mean you shouldn’t be allowed to retire someday. That is not the way the law views it—indeed in most instances New Jersey law takes no position regarding the moral high ground in a divorce.
Divorce can be a marathon. Too often people get worn down by the process and end up agreeing to terms they later regret. That’s why focus and taking care of yourself is so important during a divorce. You need to be able to put that oxygen mask over your own face first before you can go out and help others such as your children.
If your spouse has long-term serious drug problems, then fight against him having unsupervised parenting time.
If you have reason to believe your spouse hid a large sum of money in cryptocurrency then let’s hire an expert or take whatever aggressive steps are necessary in discovery to get to the bottom of it.
There is a difference between being reasonable and being a pushover and it’s a fine-line, to be sure. Your divorce lawyer can help you understand when you’re being reasonable and when you’re giving in too much. Sometimes those getting divorced have a hard time setting appropriate boundaries—that is an important part of communication—and often the leading root cause of divorce is a lack of communication or inappropriate communication.
Your children will need you to be strong for them. They are not a party to a divorce but nobody will likely be impacted more. The way you treat the divorce and how you can thereafter will be determinative in the kind of present and future available to your children.
You will get tired during the process—so will the other side. To some extent it is necessary to get worn down to the point when settlement can be reached. But if you start going through the motions or stop caring, then you should consider taking some time, a long weekend, whatever it takes to make sure you’re not making decisions that you’ll live to regret for a long time. Decisions like waiving your right to alimony, accepting less child support than your children are entitled to, giving up custody or parenting time you’re entitled to or waiving your spouse’s requirement to contribute toward your children’s college costs.
So be reasonable, but don’t be a pushover.
A Word on Reconciliation
One lesson I’ve learned the hard way is to never bash the ex-boyfriend or ex-girlfriend of a friend or family member. I’ve seen too many examples of “on-again, off-again” relationships to give an opinion as to anybody’s “ex.” The next thing you know, the have reconciled and you’re the pariah. One can imagine, even if lacking firsthand knowledge of the phenomenon, how strong the pull to preserve a marriage is and how conflicting the feelings must be of one facing a decision to terminate a marriage bond.
Perhaps for this reason, in my family law practice I am always careful to vet prospective divorce clients as to the issue of reconciliation. During every initial consultation I inquire to obtain a general sense of the marriage and to learn the reasons behind the breakdown of the relationship. also ask if the prospective client has entertained the possibility of reconciliation. In many instances I recommend marriage or couple’s therapy to see if the marriage can be salvaged. The divorce process can be difficult and expensive, and it should generally not be commenced unless the client is close to 100% certain that there is no reasonable prospect of reconciliation.
Moreover, at the uncontested divorce hearing, the parties will often be asked by counsel or the judge if there is such a prospect of reconciliation. Although the state’s interest in preserving marriage is not wielded as aggressively as in the past, there remains such strictures aimed at preserving those marriages capable of saving.
Many times emotions provide the essential framework of a divorce proceeding. People are uncertain about how they really feel. Conflicting thoughts and emotions exist. My job has taught me it is possible to both love someone and desire to divorce them at the same time. Just as some people remain in loveless marriages, others may desire for a multitude of different reasons to leave marriages still containing love. And many times, people are not sure if they wish to try and work things out, separate, or seek a divorce. Until this issue is resolved, it may not make sense to proceed with any legal divorce proceedings. (Of course, every case would be different and based upon the specific facts).
Throughout my professional life, there have been at least a couple of reconciliations I’ve witnessed after the filing for divorce. I am glad to see a couple attempt to reconcile their marriage, but always feel bad they did not realize the marriage was worth salvaging prior to paying money for attorney’s fees and court costs.
If you are reading this book and still weighting whether or not to proceed with a divorce or another family law action, it may make sense to meet with a divorce attorney for an initial consultation. It will also likely make sense to do a lot of soul searching to see if the marriage is worth or capable of saving prior to retaining a divorce attorney or filing for divorce.
Endings Are Important in NJ Divorce Law
We often judge movies by their endings or the efforts of our favorite team by the results in each game’s final score.
Likewise, in a divorce, attorneys and their clients often focus on the final outcome of a case. Who received custody of the children? How much or how little alimony will be paid? Which parents is entitled to parenting time during Christmas this year? What is lost in this somewhat myopic view is the importance of another ending—-the end of a relationship. So much of a New Jersey divorce outcome is decided by the timing of a divorce.
Although the alimony statute and other statutes speak to a more global view, generally only the last year to five years will really be considered in most if not all instances. If you are filing for divorce when your spouse’s income is at an all-time low, then alimony may be affected—in some instances greatly so. Overtime and bonuses may be considered in New Jersey divorce actions. Sometimes, an individual’s recent success can end up harming the outcome of their case.
Likewise, a relationship’s current “status quo” is important with regards to issues of custody and parenting time.
Now, the point of this section of the book is certainly not to infer that people should try and “game the system,” neglect maintaining the status quo, or start turning down all overtime work if they feel separation or divorce is imminent—because such “divorce planning” can not only be detrimental to a case, but in some instances, (particularly involving the hiding of assets) may even be illegal. Rather, I wish to illuminate how the timing of a relationship’s ending can be just as important a factor as the ending achieved by divorce and a marital settlement agreement. This is because the facts associated with a relationship’s ending (particularly when a formal divorce pleading is filed), may affect, more than any other single factor, the ultimate disposition of a case.
My basic question is this: is this a fair result? If the recent status quo for a hypothetical couple was for one party to work 80 hours a week and the other to work part-time (even though they were healthy and free to work full-time), is it fair that alimony will often be based upon their recent earnings and W-2’s? What if the party working part-time simply has no desire to work, or knows they can later rely upon a huge inheritance? What if the party working part-time has a higher level of education and a greater ability to earn income than the party working 80 hours a week? To use another example, what if one party’s salary is on an upwards trajectory—-how can that be factored in to create a fair starting point for alimony and child support?
Conversely, is it too nebulous a proposition for courts to focus more on all of the alimony factors? Or is it understood that focusing on merely the last year (or two? or three?) may be somewhat flawed, but that there is no better way to cleanly resolve such issues?
My conclusion is this: I’m not sure if a better method exists, but I do know I have seen more than a few litigants suffer—perhaps unfairly—due to a focus on the recent history rather than the overall circumstances of the case. It’s something to keep in mind for anyone considering a New Jersey divorce.
What Factors May Complicate a New Jersey Divorce?
At their initial consultation with my firm, many prospective clients will tell me that their divorce should be simple. Experience has taught me that such an assessment is almost always wrong. But the fact remains that one of the biggest concerns’ clients have when confronting a divorce, is just how time-consuming and expensive the divorce process will be.
I have been redesigning my firm’s billing practices lately and attempting to create a more uniform retainer amount. In doing so, I’ve thought about some of the factors that may complicate a New Jersey divorce. Here is a list of such factors (it should be noted the list is not extensive and that just because a factor is listed does not mean it will be a complicating factor in every or even most cases):
-One or both parties being unreasonable;
-One of the parties deciding not to retain an attorney;
-One of the parties retaining an attorney that takes unreasonable positions;
-When there are children in the marriage, particularly if custody is contested;
-High-asset cases; particularly when there are a variety of retirement accounts, stock options, or other more sophisticated financial instruments;
-When one or both of the parties owns a business or a professional practice that needs to be evaluated;
-When the status of the case changed shortly before the divorce;
-If a forensic accountant, employability expert, or other such experts is required;
-When there are domestic violence issues or allegations;
-When there are jurisdictional or venue issues;
-When there are tax issues, bankruptcy issues, or high-debt loads for one or both parties;
-When one or both parties recently got a large promotion or lost their job;
What Can Be Done to Simplify a New Jersey Divorce?
To some extent, that is the basic topic of this book. As you are already starting to see, I believe it is imperative that parties to a divorce empower themselves to understand the law, accept their responsibilities under the law, and work with counselors or other such professionals (if necessary) to ensure a clear mind throughout the decision-making process.
Each party has a great deal of control in the outcome of the case, working in the best interests of their children, and preserving family wealth even post-divorce. As an attorney, those are the types of clients I most want to work with. One of my goals is to help clients get to that place, so that we can work as an effective team. Although we cannot completely control the other side or their actions, that is perhaps all the more reason to control our own responses.
Yes, I’ll say it again: emotions, more than anything else, complicate a divorce. Although a Marital Settlement Agreement will be more complicated if there is a business or a high-asset divorce, any type of divorce can be assisted through the parties’ attempting to cooperate in the process and, where necessary, compromise.
Does Your Spouse Have to Retain an Attorney?
I recently attended the annual New Jersey Family Law Symposium. It’s a really great event where New Jersey family law practitioners meet to catch up on the latest developments in the law and to network with one another. One of the topics I discussed with a couple of fellow practitioners I am friends with is how it can sometimes be more difficult when the adversary is “Pro Se” rather than represented by counsel.
One question that often gets asked during initial consultations is whether a parties’ spouse is required to retain an attorney. The answer is that there is no requirement that either party be represented. There will be cases where one party has an attorney but the other does not. There will also be many cases where both parties will be represented or neither party will have counsel. If unrepresented, it is important that your spouse expressly waives their right to an attorney and that this waiver be referenced in any Marital Settlement Agreement. No attorney can represent both parties ethically in a New Jersey divorce.
Some of the challenges one faces when the adversary declines legal representation is that they may have less incentive to finalize an Agreement because they are not paying for counsel fees. Also, the adversary may be unreasonable because they do not understand the law. That individual might feel at such a negotiation disadvantage that they will attempt to stall any agreement.
Finally, self-representation may increase the risk of negative emotion impacting the divorce. Many attorneys will not represent themselves in a divorce because they feel they would be too emotional—too involved in the case to be able to take a dispassionate view of the proper legal recourse. This too case be an issue when a party is Pro Se.
When there are limited funds, it can be difficult to afford counsel and it is increasingly difficult for individuals to obtain Pro Bono counsel for family law matters such as divorces. This too leads to an increase in Pro Se litigants. Unlike in many criminal cases, almost without exception there is no legal right to an attorney in family law matters.
Every case will have its difficulties and there is no reason to stress if your spouse refuses to hire an attorney. While it may cost you more money than what the Pro Se litigant will pay, you will likely (hopefully) have the benefit of your attorney’s experience on your side.
Helping Children Through a Divorce: An Interview with Glenn Murphy, MA, LPC
When we get divorced we have to confront not only our emotions, but that of our children as well. To that end, I have reached out to Glenn Murphy, MA, LPC, a well-respected New Jersey counselor to interview him regarding how divorcing/separating parents can help children through a divorce. Glenn graciously accepted the offer to help, and the following is the transcript of the interview. Please note that the following is general advice, and that as with legal issues, emotional or other issues are best handled by an appropriate expert. For information on how to address your specific issues, you should reach out to the appropriate specialist/expert. Again, I would like to extend my sincerest gratitude to Mr. Murphy, and I know everyone will find his answers to be thoughtful, informative, and interesting.
- What can a parent do to insulate their children from a divorce or separation?
Given the extensive short and long-term impact of divorce (on everyone), couples would ideally commit to work hard on healing their marriage and would see divorce or separation as a last resort. Weekend marriage rebuilding intensives like those offered at “Retrouvaille” and “MarriageMinistry.org” can help couples begin the restoration process, even after an affair. Marital therapy with a professional counselor or psychologist would also be a highly recommended aspect of the healing and recovery plan that hopefully would help protect children from the pain and scars of divorce.
- How does divorce affect children at different ages? For instance,
how does a divorce affect children at ages 5, 10, 15 and then during adulthood?
their college years?
Very young children generally lack the ability to process what is happening or why it is happening. They might blame themselves for the divorce or believe it is their responsibility to try and get their parents back together. Often they will become clingy or show other signs of distress, such as regressing behaviorally.
By age 10 children are more able to understand what is happening yet will likely experience intense grief and sadness over not living with both parents. They will likely express strong feelings of disapproval and anger at what is happening to them and may take sides deciding who is the “good parent” and who is the “bad parent.” Boys will tend to go “inside” themselves and “shut down,” while girls will tend to go “outside” themselves verbally expressing their emotions. Children this age may also become more manipulative, seeking to use the parent’s guilt to their advantage, to get whatever they want. Among adolescents you might anticipate boys expressing themselves more aggressively and acting more defiantly toward parental authority.
They may also seek escapes such as video games and pot, as a way to distract and numb themselves from the pain of their lives. Girls may become more anxious and begin acting out sexually, seeking comfort or escape in relationships with guys. Parents might also anticipate their teenagers blaming them for “ruining my life.” College age children of divorce tend to be more skeptical of marriage, love and commitment. They may have difficulty making decisions or make rash decisions and may view marriage as a trap they want to avoid. They may be more interested in “no strings attached” hook-ups as a means of protecting themselves emotionally. Depending on who they see as the good or bad parent, they may take on the role of “protecting mom” or “siding with dad against mom.” Over time they will likely begin letting go of these roles and adapt to the new reality of their “two families,” especially if mom and dad have resolved their hostilities peacefully. Conversely, they may a distance themselves from one or both parents, especially if the pain from their family of origin remains unresolved in ongoing “parent wars.”
- How can a parent prepare a child for a pending divorce?
Ideally, parents would talk together with their child about their intention to divorce in advance so that the child would have some time to begin to process it, to ask questions, and to know what will be happening. That conversation would include information about where he or she will be living, and any other changes that will be impacting his or her life. If both parents will be actively involved in parenting, that should be mentioned, to provide appropriate reassurance and stabilization. Additionally, the child should be assured of the parents ongoing commitment to, and love for, the child. Children need to know that they will not get lost, forgotten or neglected in the midst of the marriage crisis. This point cannot be stressed enough, as the child is likely to wonder, “If your love for each other ended, how do I know it won’t also end for me, when we are no longer living together every day or when one or both of you remarry.”
- What types of things should a parent tell a child after a decision
has been made to separate or divorce? Should both parents be present to
break such news?
Ideally, parents would avoid pointing fingers and blaming their partner. The wise parents would choose instead to use more neutral language, even if they do internally blame their spouse for the impending divorce. Children are too easily put in the middle, a place they do not belong. “We” should be the operative word, NOT “Your father…” or “Your mother…” The children should be told that, “WE have reached the point where we will no longer remain married and living together.” If possible, both parents should be present for this conversation, and they should prepare ahead of time with each other for that conversation. (Other key elements of that conversation are outlined in Question # 3.)
- What are some warning signs that marital or divorce issues are
negatively affecting a child?
It should be anticipated that all divorces will negatively affect the child in some fashion. So rather than hoping to avoid any negative impact, it might be better for parents to be observant of indications that the negative affect is falling outside the normal range. For example, being angry and expressing one’s anger over the divorce is normal but expressing that anger by punching holes in bedroom walls is outside that range. Likewise, having a child exhibit increased anxiety might be expected, but not being able to sleep at night or participating in self-harming behaviors designed to relieve that anxiety such as “cutting” is a cry for help. Parents should also be on the alert for signals such as dramatic weight gain or weight loss, schools’ grades declining, loss of interests in previously enjoyed activities, withdrawing from close friends, etc. – any signs that suggest “my child is not coping or adapting, but rather he/she is in a state of declining health, functionality or well-being.”
- At what point should, in your opinion, a parent consider counseling
for their child to help the child deal with the parent’s divorce or
As stated in the previous answer, when a parent observes that the child’s coping skills and internal resources are not sufficient to meet the challenges brought on by divorce, that is the time to seek out counseling. If you’ve given them some time to grief the loss and sought to personally help them adapt to their “new normal,” but they only continue to destabilize and decompensate, seek professional help.
- When issues of domestic violence are involved, how does that change
your approach to children’s therapy?
Domestic violence can change the approach to therapy in that it may necessitate the therapist’s helping the children to detach from the abusive parent until that parent gets help and becomes a safer, non-violent person. This is obviously a very different approach than that of the therapist helping the child to maintain a strong bond with both parents throughout the divorce process, as would be more typical in a case where DV is not present.
- Assuming no court orders or laws are in place addressing this issue,
how much information should a younger child be told about his or her
There is no simple or easy way to explain divorce to a young child but it is normally best to provide truthful, but not specific details. For example, details such as “your daddy has been paying woman to have sex with him,” is way too much information for a young child. Young children do not have the capacity to understand the complexities that are typically involved in divorce, nor are they able to process some of the more painful and explicit details about parental mistakes, but they can understand concepts like “happy” and “unhappy” and the desire to “stop all the fighting.”
- What should both parents be doing to work together to minimize their divorce or separation negatively impacting their children? In your opinion, what is the best parenting arrangement to stimulate a child’s
Parents should discuss and agree to follow ground rules for the sake of the children’s well-being. Examples of possible ground rules are:
- a) We will not talk badly about our ex to the children or in front of the children; 2) We will not use our children to send messages to our ex nor interrogate them after visiting with our ex;
- b) We will not undermine the house rules or daily decisions of our ex;
- c) We will discuss and mutually work out between ourselves the larger decisions that will obligate or involve both parents;
- d) We will seek opportunities to point out to the children the good qualities of our ex and to model respect for him/her;
The best parenting arrangement would include parents who are equally committed to making parenting a priority, who shared custody, and who live in the same (or nearby) town, so as to minimize disruption and chaos in the child’s routine and schedule. Children from divorced families do best when parenting schedules and times are regular, predictable and occur without drama and conflict at the point of dropping off and picking up the children.
- What are some good resources for parents to utilize in helping their children during a divorce?
children through the parent’s divorce and separation?
Groups for children of divorce can be helpful for children navigating the divorce process. Children often benefit from having a safe place where they can talk with a safe adult facilitator and with other children going through the same experience. They need to be able to freely express their feelings and grieve their losses without fear that they are hurting mom or dad by what they say. Check with your local school guidance counselors, mental health center, or church/religious organization to see if they run such a group. There are also many helpful books written for every age group from pre-school through adolescence to help children cope with the aftermath and pain of divorce.
Glenn Murphy has been a NJ Licensed Professional Counselor (LPC) for the
past twelve years. He maintains a full-time psychotherapy and counseling practice in Basking Ridge, NJ, where he works with adolescence and adults, individuals and couples. For more information about his services, please visit his website: GlennMurphyCounseling.com.
SECTION II: THE NUTS AND BOLTS OF NEW JERSEY DIVORCE PROCEDURE
When you’re going through a divorce in New Jersey you’ll often-times feel confused about what the next steps are. You’ll receive court notices for a mandatory parenting class and wonder if that is normal or if the court is already making some kind of judgment about your parenting. You’ll receive other court notices with odd acronyms like “ESP” and “ISC” and wonder what it all means. By familiarizing yourself with the below basic procedure, you’ll have a roadmap for the flow of a New Jersey Divorce.
The Basic Outline of a New Jersey Divorce
A contested New Jersey divorce can take months (or even years) to settle. A divorce may also take years to be finalized should the case proceed to trial. Appropriate aggressive techniques to expedite settlement favorable settlement negotiations will often be employed on your behalf to limit cost and maximize results. This section is going to briefly list the basic steps of a Contested New Jersey Divorce.
One major theme to be aware of is that a divorce can essentially end at any time once both parties agree to the divorce terms in a document generally called the “Marital Settlement Agreement.” The timing of finalizing a divorce is generally the day you both sign off on the Agreement plus about a month for the court to schedule your court date to finalize your divorce. Some divorce matters settle amicably before either party files, other cases resolve with the help of mediators, others enter arbitration, and others still proceed through the standard court process all the way to trial.
Regardless of the track taken, the case will resolve only once you both agree in writing to the Agreement or if you cannot agree, the Court hears a trial and makes its own determinations about the divorce terms.
As you read the below, please remember, this list is by no means exhaustive. Please note that there are several Alternative Dispute Resolution processes available in New Jersey Divorce matters. These include mediation or collaborative law. Such methods may provide a framework for the least expensive and most efficient method of working towards a divorce but in certain cases aggressive representation will be required to protect the client’s interests.
The list below assumes that mediation or other alternative dispute resolution is not something you wish to pursue. (or perhaps cannot pursue because of domestic violence or other issues that may render mediation impractical or impossible).
Again, mediation and other alternative dispute resolutions should always be considered at the outset of a case attempted but may not always be feasible or provide the best opportunity for achieving best results in your case.
Basic Contested Divorce Steps – An Outline
Step 1: Determining whether a Divorce is the right decision for you. Have you tried to reconcile? Have you tried marriage counseling? Our office can provide you with the names of local marriage counselors or other therapists.
Step 2: Choosing an Attorney. (Or alternatively, choosing to represent yourself).
Step 3: Pleadings and Case Information Statement. (Complaint for divorce/Answer/Counterclaim/etc.).
Step 4: Case Management Conferences (CMC’S) (agreeing to discovery dates, possibly going before the Judge).
Step 5: Beginning Negotiations (It’s never too early to start negotiating. Negotiations should continue throughout the process until the case is resolved or a trial is completed.
Step 6: Discovery.
Step 7: Continuing Negotiations/Drafting MSA Proposal.
Step 8: Early Settlement Panel (“ESP”).
Step 9: Court Ordered Economic Mediation.
Step 10: All-Day “Intensive” Settlement Conference (“ISC”).
Step 11: (Hopefully) Finalizing a Divorce Settlement–Marital Settlement Agreement. If not, then: The Trial and the Judge’s Opinion. (Note: Trials are rare in New Jersey Divorces, with approximately 1-2% of all cases going to trial. Again, please note a case can be settled at basically anytime. The steps above represent the progression assuming you have not settled).
After reading the 11 steps outlined above, you may be thinking to yourself: I don’t know what half of it means! What is an Early Settlement Panel? Well, don’t worry: I’m going to explain each step below.
But first, let’s review the process of what constitutes the different acceptable “grounds for divorce” in New Jersey.
Grounds for Divorce in New Jersey
There are various “grounds” for divorce in New Jersey, which long ago moved away from more fault-based counts as a requirement. As you’ll see below, most people today file under irreconcilable differences unless there is a distinct tactical advantage to also utilizing one of the fault-based counts for divorce available in New Jersey.
Grounds for Divorce in New Jersey #1: Irreconcilable Differences
By far the most popular grounds for divorce in New Jersey–despite the fact that it was only recently recognized by the state–irreconcilable differences is essentially an expedited form of “No Fault” Divorce. The major statutory requirement is that “irreconcilable differences” have occurred, causing the breakdown of the marriage, that there is no prospect of reconciliation, and that these irreconcilable differences have been ongoing for at least six months.
Only one party need seek a divorce as in New Jersey there is no requirement of agreement to a divorce. In other words, your spouse cannot deny your filing a divorce complaint in New Jersey. Of course, they can tie up the divorce process by forcing a trial.
Grounds for Divorce in New Jersey #2: No Fault Divorce
Although irreconcilable differences complaints are essentially used as a form of no-fault divorce, New Jersey does offer a purer form of “No Fault Divorce”. The statute for No Fault Divorce in New Jersey requires eighteen or more consecutive months of a husband and wife living separate and apart, “in different habitations”, and with no reasonable prospect for reconciliation. As the requirements of a no-fault divorce are difficult to obtain; today this form of divorce is rarely utilized in New Jersey divorce courts and same has been supplanted in most or all instances by the irreconcilable differences cause of action.
Grounds for Divorce in New Jersey #3: Extreme Mental or Physical Cruelty
The rest of the grounds for divorce are more “fault-based.” A claim of extreme mental or physical cruelty requires proof of “any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the Plaintiff to continue to cohabit with the Defendant.”
Grounds for Divorce in New Jersey #4: Adultery
Clients often ask about using adultery as a grounds for divorce. The problem is then establishing the adultery through circumstantial or other evidence. Moreover, the suspected “partner” in the alleged infidelity must then be named in the Complaint–and served as a co-respondent to the divorce. Using adultery as a grounds for divorce in New Jersey is often so time-consuming and financially draining as to not be worth the effort. Furthermore, the benefits of an adultery claim are, in most cases, minimal or wholly non-existent. The Court rules do not “punish” an adulterer in terms of alimony or equitable distribution. At best, it may show a lack of fitness as a parent under certain fact patterns. This is a “no-fault state,” meaning that the person who is more to blame for the breakdown of the marriage will not (generally) be punished in any way during the divorce process.
Grounds for Divorce in New Jersey #5: Other Grounds for Divorce
Other New Jersey grounds for divorce are available, although in practice they are exceedingly rare. Some examples of these “other” New Jersey grounds for divorce include:
- Deviant Sexual Behavior
- Habitual Drunkenness or Drug Habituation
- And more.
Of course, one need not be constrained to just one divorce count when filing a Complaint for Divorce in New Jersey. In certain instances several counts for divorce will be included in a divorce complaint.
Now that you’re familiar with the different types of divorce counts or “grounds for divorce” in New Jersey, let’s familiarize ourselves with the uncontested divorce process.
The Uncontested Divorce
Most people do not wish to be involved in long, expensive, and drawn-out litigation if there is an amicable path forward. To that end, an uncontested divorce may make more sense for the clients than protracted divorce litigation.
Of course, negotiating a settlement will not always be easy, but the goal of both parties should generally be to be open to favorable settlement terms. At the same time, cases settle favorably based upon leverage and thus even when the goal is to quickly settle a case it may be appropriate to consider aggressive discovery techniques, motion practice, and other actions to create additional leverage for such a favorable settlement.
New Jersey Uncontested Divorce Hearings
A New Jersey uncontested divorce hearing will be scheduled when the parties reach a Settlement and advise the Court of their settlement and a readiness to finalize their divorce. The actual uncontested divorce hearing is, perhaps somewhat ironically, actually one of the least complex parts of the entire divorce process.
The Plaintiff and his or her attorney (if the Plaintiff has counsel), will attend the uncontested hearing. The Defendant/counsel will often choose to attend as well, although this is not required provided the Defendant did not file a counterclaim.
The parties will then be asked certain questions by their counsel, to establish a “cause of action” and that the settlement agreement is valid and willingly entered into. The “cause of action” is the divorce grounds, such as irreconcilable differences or extreme cruelty. New Jersey is a “no fault” divorce state meaning a divorce will proceed as long as one of married partners wishes to pursue same.
The Judge may then follow up with a few additional questions, although the Judge will not make a determination as to whether the Agreement itself is fair and equitable.
One particularly effective method for working towards an uncontested divorce is attending mediation. Both parties will likely retain their own counsel to assist them and will then choose a mutually acceptable mediator (generally splitting the cost for same). The parties (generally with assistance from their attorneys) will then attempt to reach an understanding (A Memorandum of Understanding or “MOU” may be drafted at this time). Thereafter, one of their attorneys will draft a form of settlement agreement. Mediation generally offers an expedited and less expensive method of finalizing a divorce. Mediation is generally disfavored in cases with a history of domestic violence or when one party will not be able to hold their own during the mediation process either with or without the presence of counsel.
Uncontested Divorce Hearing in New Jersey: After the Hearing
After the divorce hearing, the parties will be given gold-sealed copies of their Judgment of Divorce. It is important to keep this copy and the Marital Settlement Agreement (“MSA,” sometimes also referred to as a Property Settlement Agreement or “PSA”) in a safe place, should future issues arise. It is also important to remember that there will often be certain unresolved issues or other post-divorce loose-ends/business to take care of. Your attorney should offer guidance regarding these issues. One thing to consider is immediately changing your will, so that your ex-spouse will be removed as a beneficiary.
Uncontested Divorce Hearing in New Jersey: Conclusion
The uncontested divorce hearing is a day of closure. It will likely be a bitter-sweet day for both parties. It’s both the end of something and also a new beginning. Your attorney should notify you of what to expect the day of the hearing, review the uncontested divorce questions with you in advance (so you are prepared for the day of the hearing), and later advise you of how to tie up post-divorce loose ends and determine whether you wish for continued representation relating to such issues as dividing marital assets or implementing other clauses contained within the Agreement.
If litigation is inevitable, however, then you will begin the steps toward a contested divorce, which I’ve outlined below. But first, let’s review some of the major divorce issues.
The 11 Step Divorce Litigation Process
Step 1: Is Divorce Really the Answer?
Some prospective clients walk into my office and are 100% certain their marriage is over. These prospective clients are ready to start the process of divorce.
Others prospective clients are uncertain whether they are ready for divorce or not. What they really desire is to be provided with an overview of their rights and obligations should they choose to divorce.
Finally, there are those prospective clients who do not desire a divorce but their partner does. Emotionally divorce may be the toughest for people in this position. It’s important to acknowledge just how wrapped up in emotion family law and divorce can be for both parties to a divorce. You might need to seek counseling. You may wish to try marriage counseling. As I indicated above, please reach out to me and I’ll provide you with referral to local marriage counselors and/or therapists.
The Baseline Question: Is Divorce Really the Answer?
Some rocky marriages truly are salvageable. As I am neither a psychologist nor a marriage therapist, it’s not for me to say whether a prospective client’s marriage is worth attempting to save or not. That is a most personal decision. But I often do recommend that parties (absent extenuating circumstances such as abuse) attempt marriage counseling prior to initiating a divorce. If nothing else, this process may assist the parties understand each other and the reasons why divorce may be necessary.
Before you commence a divorce proceeding, you should take some time to be sure that the chance of saving the marriage is slim or zero. Once you have settled that question, you can then begin with the divorce process full-steam ahead, and with a clear conscious as to your decisions and objectives.
In summation, before one starts the New Jersey divorce process, he or should ask: is divorce really the answer? If so, then they should move on to the Second Step: choosing an attorney.
Step 2: Choosing an Attorney
Once you have determined that a divorce is inevitable, the next step is finding an attorney. Although some people represent themselves “pro se”, many individuals in New Jersey retain a divorce attorney to help them through the divorce process and to help protect their rights.
When choosing an attorney, there are some basic considerations such as: is the attorney licensed to practice in New Jersey? Does the attorney’s practice emphasize family law? And is the attorney local? Price is another important consideration that may limit the options available to potential clients. There is somewhat of a wide range of hourly rates and retainer amounts.
Some of the ways that clients find attorneys are through referrals, through the local bar associations, and through the internet.
Once these basic considerations have been met, the next step is to determine the right attorney. Personality plays a key role in divorce cases, and a good rapport between client and attorney may be crucial to maximizing results and limiting exposure. The attorney-client relationship will likely last months or even years from the first initial consultation until the ultimate divorce, so personality will be more important than one might think. I sometimes joke that I have been through dozens of divorces (on behalf of my clients). Despite the law largely remaining the same, each one has been defined not just by specific facts but by the personality of the party’s and the attorneys involved in the case.
Finally, competence and experience are always important when choosing any professional. Most people today prefer attorneys that work predominantly in the area of divorce work, or that limit their practice to only a few key areas of law.
Effective representation includes teaching and advising you about the law and divorce procedure, coordinating with you to design and implement effective litigation strategy, and outlining appropriate objective that maximize your leverage and limit exposure. A good attorney should be honest about what objectives are likely achievable and discuss both “best case” and “worst case” scenarios. After an initial consultation both attorney and client should understand their expectations for the case, their respective responsibilities and rights, and whether or not they are interested in working together.
Now, let’s move on to pleadings and the Case Information Statement
Step 3: Pleadings and the Case Information Statement
Although this has not always been the case, today, New Jersey Divorce pleadings are fairly straightforward. The point of divorce pleadings isn’t to prove your whole case, but rather to lay out all of the relevant causes of action. Absent claims of marital tort, extreme cruelty or the like, pleadings will be general in nature compared to most other types of litigation. New Jersey divorce pleadings are not required to be “technical.” All that is required is that basic facts be set forth demonstrating the underlying claims. Pleadings must also indicate the type(s) of relief requested. Under the relevant court rules, alternative forms of relief may be requested within the pleadings.
Perhaps the most important concept to remember regarding pleadings is this–New Jersey Court Rules understand that you’re at the very beginning of the litigation process. Therefore, the rules are generally lenient provided that a factual basis for the relief requested is provided. But it’s also important to remember to plead every cause of action from the underlying claim. If not, you could later be barred by “res judicata.” Remember that all pleadings–and particularly Complaints—are important and should be taken seriously.
Res Judicata and the Entire Controversy Doctrine
“Res Judicata” is one issue to consider when filing a pleading. Res Judicata is essentially the legal systems way of stating the following concept: “You must now bring every cause of action that stems from the underlying claim with your present pleadings, or you may be barred from retrying or seeking relief for the same issues at a later court appearance.”
In a way, this concept is similar (although only in theory) to the more common term criminal law term of “double jeopardy.” Accordingly if you wish to bring a marital tort along with your divorce, for instance, it’s important to bring that claim along with your original divorce pleadings.
Three Major Types of Pleadings in a New Jersey Divorce
- The Complaint (And Summons)
- The Answer/Counter-Claim
- The Answer to the Answer/Counterclaim
There are filing fees required by the Court in connection with the filing of a Complaint or an Answer to a Complaint. There are also specific time requirements. For instance, some manner of Answer or Appearance is required within 35 days of the date the Defendant receives the summons/complaint. Otherwise, the Court may commence the Default Judgment process against the Defendant.
The pleadings also set forth the cause of action. Some of the more popular divorce “causes of action” include irreconcilable differences, adultery, and extreme cruelty, amongst others, with irreconcilable differences being utilized a vast majority of the time as New Jersey is a “no-fault” state.
New Jersey Divorce Pleadings formally initiate the divorce litigation process. It is important that all of the valid court rules are followed, so that the case begins properly.
Case Information Statement (CIS)
Case Information Statements are often referred to as the “Most Important” financial document in a New Jersey Family Law. This document is where each party will list assets, liabilities, personal information, and living expenses. If the case ever comes back in post-judgment matters, it will be (along with the Agreement) the most important document for purposes of proving changed circumstances.
By Court Rule, a “Case Information Statement” must be filed within twenty (20) days after the filing of an answer/counterclaim. After you retain our firm, we will provide you with specific Case Information Instructions and walk you through the Case Information process.
The purpose of the Case Information Statement is to notify the opposing counsel of your finances and other documentation, so that both parties are aware of where they stand. Both parties are required to fill out and file an accurate Case Information Statement as part of every contested New Jersey Divorce.
Now, let’s move on to Step 4 of the contested divorce process: Case Management Conferences.
Step 4: Case Management Conferences (CMC’s)
Shortly after the pleadings have been finalized, the case will likely be assigned its first Case Management Conference. The major purpose of the Case Management Conference is to create deadlines for discovery and other court processes. In most counties, if the parties can agree upon a Case Management Order, they will not be required to attend the first Case Management Conference. Around this same time if you have children you may receive a court notice for a “mandatory parenting class.” Don’t take this personally as it truly is mandatory for all contested matters of those involving children. Your spouse will also have to attend a separate class.
The Mandatory Parenting Class has absolutely no bearing on your case provided that you do not miss the parenting class. If you need to reschedule the class you can call the court or have your attorney send a letter requesting an adjournment. It is no reflection on you or your parenting skills but is simply a program created by court rule designed to provide resources to you and to encourage both parties to do their best to resolve their matters amicably and in their children’s best interests.
Now let’s move on to Step 5: Starting the Negotiation Process.
Step 5: Beginning Negotiations
My personal philosophy is that it is often beneficial to bring light to the contested issues that must be resolved. Even in the most complex or most highly contested divorces there are often many issues where the parties agree. The basic issues that need to be resolved in the average New Jersey Divorce Include (but are not limited to):
- Equitable Distribution (the distribution of marital property including retirement accounts, debts, businesses, and the marital home or other “real” property);
- Child Support;
- College Costs/Private School Costs for Children;
- Insurance Issues;
- Counsel Fees;
- Parenting Time.
Of course, it’s often important to go through a formal discovery process. Let’s next turn to step 6 to learn a little more about discovery in a divorce action.
Step 6: Discovery
Discovery is the process of seeking and providing information. It may require providing years of bank statements, income tax returns, credit card statements, retirement account information, and much more. Discovery is time-consuming and expensive, and sometimes can be limited. It’s also a subject that is so involved that it is largely beyond the scope of this book. That said, discovery is quite important—particularly if you suspect the other party is hiding assets or engaging in other suspicious behavior.
In some cases discovery may be minimal and in others it may require retaining expensive experts such as business evaluators, forensic accountants, and employability or custody experts.
Some of the basic discovery methods include interrogatories, admissions, requests for production of documents, authorizations, subpoenas, and in some instances, the taking of depositions, which can be a very effective process for gaining leverage and eliciting admissions from the opposing party.
Let’s now move on to step seven: continuing negotiations and the drafting of a Marital Settlement Proposal.
Step 7: Continuing Negotiations and the Marital Settlement Agreement
Sometimes, the divorce process can become so bogged down in minutia and emotional baggage, that the final destination becomes obscured.
The final destination is (almost always) a formal divorce. But divorce attorneys understand that it’s much more than that. A divorce–if properly resolved–should also provide a sense of closure. There will always be a few loose ends, but an effective divorce agreement must attempt to crystallize the parties’ intent and provide a roadmap for how to handle future issues. This is the role of New Jersey Marital Settlement Agreements (a/k/a Divorce Agreements/Property Settlement Agreements).
For better or worse, most parties to a divorce will continue to maintain some sort of relationship with their former spouse. They will likely be bound together by shared children, friends, or other issues. A divorce is the ultimate goal, but what are the “rules” post-divorce? There will always be applicable law, but the Marital Settlement Agreement will in many ways become the law of the divorce. I often compare the divorce agreement to the rules found in a board-game in that they provide an overarching structure that each party can rely upon. For instance, what if following the divorce you and your ex-spouse debate which of you will spend Thanksgiving with the children?
The Marital Settlement Agreement will generally incorporate language addressing this issue. It will say something to the effect of: “Husband shall have parenting time with the children each Thanksgiving from 8:00 a.m., until 3:00 p.m.., and the Wife shall have parenting time with the children each Thanksgiving after 3:00 p.m., or “Wife shall have Thanksgiving parenting time in odd years and the Husband in even years.”
A Marital Settlement Agreement that does not provide such guidance may lead to the need for further court intervention. I’ve had a few clients argue that this level of detail is not necessary, because the parties will “work it out between themselves.” That might be the case for some parties, but it doesn’t leave a fallback position should relationships sour. Such terms may be relaxed between the parties like the rules to a board game may be relaxed but should matters turn contested the framework will be important for providing a path forward towards resolution absent additional court intervention.
The Marital Settlement Agreement encapsulates the disposition of issues in the divorce. It should address the items described above, including but not limited to matters of child support and equitable distribution of assets and alimony or the waiver of alimony (and much more). Although review of alimony and equitable distribution law is somewhat beyond the scope of this packet, such issues can also be extremely complex. Employability issues, salary, whether someone is a W-2 wage earner or a business owner (or both), whether assets are marital or exempt as gifted, inherited or premarital, and many other complex issues involving potential tax ramifications, pension distribution/QDRO’s, stock options and the like may all be considered within a Marital Settlement Agreement. It is important that all relevant issues be agreed, within reason, prior to entry of the divorce and executed in a formal written agreement. In sum no Agreement can include a contingency for every issue, but it’s important to cover every conceivable important issue as part of the divorce resolution.
New Jersey Marital Settlement Agreements are probably the most important document overall in the divorce process. They, along with the Case Information Statement, will be used as evidence should the need for future court appearances be required (example – to modify child support).
It’s important that the Marital Settlement Agreement is detail oriented and that your attorney has crafted the terms to incorporate the full Agreement, and to also insure that the Agreement is fair. It’s not unusual for Agreements to be modified/negotiated ten or more times prior to the parties executing the Agreement prior to the entry of an uncontested divorce. In my opinion, it’s better to have these arguments worked out now rather than get divorced only to return to Court to address something the Agreement does not cover.
Now it’s time to move on to Step 8 of the contested divorce process: The Early Settlement Panel.
Step Eight: Early Settlement Panels (ESP’S)
If you pursue New Jersey Divorce litigation long enough, you will eventually be required to attend an Early Settlement Panel. This can be a confusing development for parties to a divorce who will each likely have many questions such as: what is an early settlement panel? Or: who makes up this panel, and what is its function?
Luckily, a New Jersey Early Settlement Panel is not as complicated as it may first appear to be.
New Jersey Early Settlement Panels: What Are They?
Essentially, a New Jersey Early Settlement Panel is a court-ordered form of non-binding arbitration. It is a required hearing under Court Rule 5:5-5. On the day of the early settlement panel, both parties and their attorneys will be scheduled to attend Court and have an audience with the Early Settlement panelists.
There, the panel members will usually meet first with the attorneys, and later with the parties. It should be noted, however, that procedures vary greatly amongst counties regarding Early Settlement Panel Hearings. Prior to the Early Settlement Panel day, for instance, most but not all counties/panelists will require some form of legal memorandum and/or legal documentation from each of the parties.
An Early Settlement Panel often takes the following format: the panelists ask the attorneys to review the major outstanding issues. The basic goal of every panel is to endorse or effectuate settlement. This is one of many ways the court system helps control its docket and attempt to reduce the amount of pending divorces within the County.
Parties’ counsel will generally appear before the panel without clients and will each lay out their arguments. Thereafter, the parties will generally be brought in, and the panelists will give their opinions as to how they the panelists believe the Judge would decide the outstanding issues. The underlying goal is that parties who have been advancing unsupportable positions will, upon learning that their positions are not likely to prevail, be more willing to drop those positions and enter into a fair settlement.
Since the decision is non-binding, the panelists cannot force the parties to be bound by their decision or to otherwise settle.
New Jersey Early Settlement Panels: Who Are the Panelists?
The panelists are generally two (2) experienced in-county family law attorneys. They are volunteering their time.
Early Settlement Panels are important. Although Early Settlement Panels do not create a binding disposition of a case, they do shape the tenor of future negotiations. And the ESP hearing just might lead to a settlement.
Now, let’s move on to step nine: Court Ordered Economic Mediation.
Step 9: Court-Ordered Economic Mediation
If you didn’t settle the case at the Early Settlement Panel or shortly thereafter, then in most counties, you will be assigned to mandatory economic mediation. The Court will provide a list of mediators (generally attorneys with mediation experience). Both parties and their attorneys will then be required to meet with the mediators to attempt to try and resolve the financial issues between the parties.
Under the New Jersey Court Rules, the mediator’s first two (2) hours are volunteered and thus not billed. After that, if the parties wish to continue mediation, the mediator will bill at his or her regular rate.
Economic mediation is another attempt by the Court system to dispose of your case without using a great deal of judicial resources. The next step in the process, the Intensive Settlement Conference is also the product of that necessity.
Step 10: Intensive Settlement Conference
So, here we are, at the precipice of trial. This is the last attempt to settle before intensive trial preparations begin. This is the family law participant’s last stand before trial.
The intensive settlement is basically a “lock-in.” The parties and their attorneys are required to come to Court and stay there all day. They may generally leave when they settle the case or the Court closes at 4:30PM. If an Agreement is not reached, then the assumption is trial, although an Agreement can be worked out at any time, including during a trial.
By the time you’re at an intensive settlement conference, you should be very close to settling the case. If not, then it’s on to the eleventh and final step of the process: The Trial.
Step 11: The Trial
Again, the New Jersey Divorce Trial is too large a topic to address in this book. But I do want to relay a few basic pieces of information.
For one, the trial likely won’t be continuous. What that means is that you might be called in March 3 for half a day, then have your trial continue on March 18th for a full day, and then pick up again sometime in May. Finally, once a trial has concluded it may take months for the judge to write his or her opinion. In short, it’s generally a slow and costly process. That’s why the vast majority of New Jersey Divorces settle prior to trial.
Philosophically, it’s important to prepare as though every case will go to trial even though statistically the vast majority of cases settle prior thereto. This allows you to gain leverage and negotiate from a position of strength. By preparing for trial, you will ironically often be better able to settle the case.
The Trial: Conclusion
Every case is fact-sensitive, so you should review all of the available grounds for divorce with your attorney to ensure you select the proper grounds for YOUR case.
I hope you found this packet helpful and that you now possess a greater understanding of the New Jersey Divorce Process. If you have already retained my services then I look forward to working with you or continuing to work with you. If you are considering my services and would like to schedule an initial consultation, please contact me at 908-685-0900.
SECTION III: AN OVERVIEW OF RELEVANT NEW JERSEY DIVORCE LAQ
Child Support Law in New Jersey
Child support in New Jersey is an obligation that runs from parent to child rather than from parent to parent. When viewed through this prism, Child Support Law in New Jersey becomes more easily understood.
Determining Child Support in New Jersey
In most instances, the child support amount will be determined by the New Jersey Child Support Guidelines. These guidelines take the form of a complicated equation. Some of the factors taken into consideration by the New Jersey Child Support Guidelines include:
- Both parties’ income from all sources, (both earned and unearned, including alimony)
- The amount of overnight parenting time exercised by each parent.
- The children’s ages.
- The number of children.
- Health Care and Child Care costs.
- Support Paid for children from another relationship.
As the New Jersey Child Support Guidelines are an algorithm, most disputes involve the methodology or actual data input. For instance, a party may argue that their ex-spouse earns a substantial but unreported sum of money from tips, which would affect that spouses’ income and expected taxes–and therefore the amount of child support due.
Child Support Law in New Jersey: Please Keep in Mind…
In the past, I have had some clients misunderstand the nature of each party’s child support obligation.
For instance, many parents of alternate residence believe that they are paying for all of the children’s support. In most instances, however, this simply is not so.
A parent of primary residence may not have a probation account, but they are still paying for all of the children’s expenses not covered by the child support payments. In fact, except in very rare instances, neither party has a 100% obligation to support their children. It is a shared obligation.
Likewise, many parents of primary residence expect the child support to cover all of the children’s expenses. Again, the goal is shared expenses for the children.
Deviation from the Child Support Guidelines
There are some instances where child support guidelines will not be used, or the final support obligation will deviate from the child support amount. Two such instances are:
- Child Support Guidelines are generally not used when an adult child resides away from home during college.
- Child Support Guidelines are generally not used when the netincome of the parties’ (from all sources) exceeds $187,200. In this instance, a deviation from the New Jersey Child Support Guidelines may be necessary.
Modification of Child Support in New Jersey
When a child support account is established through Family Support Services/Probation, there will often be periodic increases in support (cost of living adjustments, i.e. COLA). Likewise, the parties may agree to revisit child support at certain set intervals such as every three (3) years. Child support may also be modified, however, at any time–should there be a change in circumstances. Some common examples of what may be considered a change in circumstances include:
- Modification of custody or parenting time.
- Changes in the incomes of the parties (positive or negative).
- Job loss, serious illness, and/or disability.
- Emancipation of one or more children.
Termination of Child Support in New Jersey
Until recently New Jersey did not assume the emancipation of a child or the termination of child support upon a child’s eighteenth birthday. In fact, appellate cases even stated that a child could even be “unemancipated.” However, legislation codified and enacted in February 2017 now creates a presumption of emancipation and termination of child support once a child reaches nineteen (19) years of age. It is then incumbent upon the parent receiving support (obligee/parent of primary residence) to petition the Court to demonstrate that emancipation is not appropriate due for reasons that would include disability, the continued pursuit of high school or post-secondary education or for other good cause. At that point in time good cause for staying emancipation would be considered a shift in the burden back to the obligor (parent paying support). This new statute also states that emancipation must occur no later than when a child reaches 23 years of age.
The basic legal threshold for emancipation in New Jersey is commonly referred to as when a child has moved beyond the “sphere and influence” of his or her parents. It is rare for a Court to find that a student attending college full-time, directly after high school, has moved beyond the “sphere and influence” of his or her parents and that is not likely to change even with the burden-shifting provisions enacted under recent legislative measures.
New Jersey is a state that tends to favor the parent of primary residence and the children. Emancipation cannot be assumed just because a child reached the age of 18. Even if a child resides away at school, some (likely modified) obligation will remain on the part of the parent of alternate residence. Unlike bordering state Pennsylvania, divorced parents in New Jersey are generally required to each contribute to children’s post-secondary education costs (sometimes including up to professional/graduate degrees).
Custody Law in New Jersey
Custody disputes can be both expensive and emotionally draining. In 1992, the Appellate Division Court even hinted at the judiciary feeling somewhat uncomfortable with deciding custody disputes.
Specifically, in Tahan v. Duquette, 259 N.J. Super 328, 336 (App. Div. 1992), the Court wrote the following regularly cited opinion: We urge the parties to understand that courts in any jurisdiction are poor places to resolve such fundamental relational problems as child custody. Rules of law and procedural strictures are no substitute for personal choices in so intensely personal an issue. Parents who have divorced are frequently unable to communicate constructively on issues of importance; so they look to the legal system to resolve their problems. But no stranger in a judicial robe, however able and well-motivated he or she may be, is equipped to make a decision as valid as the parents working together might make.
But, be that as it may, there are few if any elements of a divorce that are more important than protecting the best interests of the party’s children. Likewise, there are few issues that will become as contentious as a custody dispute.
New Jersey Child Custody: Best Interests of the Children Standard
The analysis of most child custody disputes in New Jersey starts and ends with a simple but hard to define standard: “The Best Interests of the Child.”
The best interests of the parties’ children standard may involve some of the following arguments:
- Where will the child receive the best education?
- Where will the child be safest?
- Which party can provide the “better” living conditions?
- Which party is more nurturing?
- Where will the child have the best chance to excel?
- New Jersey child custody decisions should be made with the “best interests of the parties’ children” in mind. But let’s backtrack for just a second. By now you may be wondering how custody itself is defined in New Jersey.
Types of Custody
Under New Jersey Law, there are two basic types of child custody:
1) Legal Custody; and
2) Physical Custody.
New Jersey law favors joint “legal custody”, whereas joint “physical custody” is generally a more contested issue. In recent years joint physical custody has grown and some judges now start with the baseline of 50%-50% shared joint and legal custody and entertain arguments regarding why same should not be utilized.
Legal custody includes the right to make important decisions regarding the child, such as important decisions involving health, religion and education.
As its name implies, physical custody assigns which parent will physically reside with the child the majority of the time. Physical custody addresses the day-to-day care of the children.
Often times even a non-custodial party will be granted a significant amount of parenting time. The amount of overnight parenting time also plays a role in determining child support awards.
Gender and Custody
New Jersey has largely become gender blind when determining custody (except perhaps when a child is very young). That said, for a variety of reasons, women are still more often granted physical custody of the children. It should be noted, however, that the number of fathers being granted primary physical custody of their children appears to be increasing. As noted above joint-custody is increasingly being expected and awarded absent good cause to rule otherwise.
Modification of New Jersey Child Custody Decisions
New Jersey Child Custody Decisions are Always Subject to Review and Modification, in the best interests of the child (if a change in circumstances is first demonstrated).
Often times, custody decisions are consented to by the parties as part of the divorce or as a separate Custody Agreement in conjunction with their divorce proceedings. Until a child is an adult, however, custody issues may persist and/or be revisited upon either party’s request.
Litigation of Child Custody Issues in New Jersey
If the parties cannot resolve their custody issues, then the matter will likely have to be litigated. As part of the child support litigation, there will likely be outside experts called in to assist the Court in determining which living arrangements are in the best interest of the parties’ children. Issues of parental fitness will play a larger role than the preference of the child, particularly if the child is younger.
As the block quote above about the “stranger in the black robe” demonstrates, the Court will likely push parties’ toward mediation. New Jersey Child Custody cases are highly fact sensitive. As such, the effective and aggressive use of all appropriate discovery techniques will be considered in contested or potentially contested custody disputes.
Responsibility for College Costs
In the 1982 New Jersey Supreme Court Case of Newburgh v. Arrigo, New Jersey first required divorced parties to potentially be responsible for paying for college/post-secondary educations for their children.
At the time, the requirement was somewhat colloquially known as “The Rutgers Rule;” that the responsibility would not exceed the cost of the state college Rutgers. More recently the “Rutgers Rule” was overturned, and courts essentially view obligations for college payments on a case-by-case basis.
Newburgh v. Arrigo Factors
The Newburgh v. Arrigo case provided certain factors for courts to consider when requiring one or both parents to contribute to their child’s college costs:
(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
(2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
(3) the amount of the contribution sought by the child for the cost of higher education;
(4) the ability of the parent to pay that cost;
(5) the relationship of the requested contribution to the kind of school or course of study sought by the child;
(6) the financial resources of both parents;
(7) the commitment to and aptitude of the child for the requested education;
(8) the financial resources of the child, including assets owned individually or held in custodianship or trust;
(9) the ability of the child to earn income during the school year or on vacation;
(10) the availability of financial aid in the form of college grants and loans;
(11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
(12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
As you can see, there is thus no bright-line rule requiring or not requiring contribution, but rather a number of factors (all which must be weighed by the courts) in determining what may be fair. This situation creates the somewhat interesting scenario wherein divorce couples in New Jersey may be required to contribute towards their children’s college costs, but intact (i.e. non-divorced) couples are not so required.
Although many have argued this may not be fair (it treats one class of citizens different from another and may trigger constitutional issues), the Newburgh v. Arrigo factors have been around and implemented now for over 35 years. If anything, recent cases have shown a greater willingness to require payment. Courts may now require payment of or contribution towards even law school, medical school, or professional school costs. This is particularly likely in highly educated and/or high-earning families.
Contributing Towards a Child’s Gap Year
Another interesting issue that I have addressed on occasion in my own practice is the use of “gap years.” It is becoming increasingly common for children to take a year off to travel, engage in pre-secondary education after high school, volunteer, or otherwise engage in a “gap year.” This year has generally been found not to trigger emancipation of the child because it is limited in scope and time and the child still has the intent thereafter to pursue additional education. I have seen courts require payment towards gap year education; something that surprised me at the time but that is becoming increasingly common in New Jersey divorces.
Emancipation and Child Costs
Other difficult factors for you to consider may be how you can prove a child is emancipated, is not pursuing their education full-time or in good faith (for instance, I have also had many cases where my client argues their child is failing most classes, is taking 6 years to finish a 4-year degree, etc.), those cases can become difficult to prove (particularly if the non-custodial parent is somewhat strained from their child), and make for interesting emancipation arguments before the court. If a child is emancipated then you would not be required to contributed toward their college costs.
“Parental Strain” and College Costs
Finally, the issue of parent/child “strain” is considered in the Newburgh v. Arrigo factors and is an important concept. It is difficult to imagine paying for a child’s education when that child won’t even speak to you, but if courts determine you are more to blame for such strain than your adult child then you may be forced to do so anyway.
Parenting Time Law in New Jersey
Parenting time–formerly referred to as visitation–addresses the specifics of a custody order or agreement.
The parties’ lawyers will do their best to broker a deal or fight for the parenting time sought by their clients. Likewise, judges will make a call if they have to. But in my opinion, the parties themselves are best equipped to work out a reasonable parenting time arrangement on a day-to-day and hour-to-hour basis. After all, it will be the parties who, along with their children, will be implementing the parenting time arrangement into the fabric of their daily lives.
Accordingly, the parties should recognize and work together to protect the best interests of their children. Ideally, they will push aside their own differences and work towards a fair resolution of the parenting time issue. As stated above, New Jersey Parenting Time Law itself is grounded in the belief that: no “stranger in a black robe” will be better equipped to resolve intimate family matters than the parties themselves.
New Jersey Parenting Time Law: Basic Concepts
Custody will determine which party is the parent of primary residence (physical custody) and which party is the parent of alternate residence. Absent good cause otherwise, New Jersey law generally favors liberal parenting time with the parent of alternate residence, so that the children will maintain a post-divorce relationship with both parents.
Exceptions to this general rule do exist, such as when parenting time would not be in the best interests of the children. One such instance is when the parent of primary residence has a history of abuse or domestic violence. Even then, however, the Courts generally favor restrictions on parenting time (such as requiring that parenting time be supervised) to denying either party parenting time altogether.
One of the seminal New Jersey parenting time cases is McCown v. McCown, 277 N.J.Super. 213, 218 (App. Div. 1994). The McCown Court stated that children have a right to a loving relationship with both parents. The parent of primary residence generally has a responsibility to foster and develop the relationship between the parent of primary residence and their children. The parent of primary residence may therefore be sanctioned if he or she attempts to alienate the children from their other parent. Such sanctions can include up to the loss of primary custody.
Parenting time rights are generally only guaranteed to the actual parents or guardians. Outside parties generally have no legal right to parenting time, even when those outside parties are non-guardian grandparents. Parenting time is not contingent upon the payment of child support.
Parenting Time Agreements
In New Jersey, parenting time arrangements may be determined by the Agreement of the parties or by the Court. Either way, the disposition of this issue must be made in the best interests of the parties’ children.
Most Courts and family law attorneys alike will look to a traditional parenting time arrangement to provide a basic framework for parenting time. Negotiations will then focus on modifying the Agreement to reflect the wishes of the parties. The parent of alternate residence is generally given alternate weekends for overnights, along with an evening or two each week. Fights over specific holidays can oftentimes hold-up an otherwise done deal.
Holidays are generally alternated between both parents based upon even and odd years. For instance, if the Father had the children for Thanksgiving in odd years, then the Mother would have the children for Thanksgiving in even years. The parties can enter into an Agreement for parenting time/custody as part of the Marital Settlement Agreement or as an independent Consent Order prior to the ultimate disposition of the case. This Agreement would then be embodied and/or incorporated into the Marital Settlement Agreement.
Modifying Parenting Time Agreements
Either party may, at essentially any time, move for a modification of the present parenting time arrangement. If the parties cannot agree upon a post-judgment modification, then the party seeking the modification will often file a Motion. The party filing the post-judgment Motion must first establish a change in circumstances. Then, he or she must also demonstrate that the modification would be in the best interests of the parties’ children.
Parenting time issues can be one of the most contentious parts of the divorce. Luckily, in many instances the parties can work together to create an amicable resolution of the parenting time issue.
Who Decides the Child’s Religious Upbringing?
In a New Jersey divorce–particularly one with young children–the following questions may arise:
- Should the children be raised to practice a particular faith or religion?
- If yes, how active should the children be in that religion?
- Should the children attend religious education? If so, what if that interferes with the parenting schedule? For example, in a divorce case where the wife is of Jewish faith and the husband is of Catholic Faith, if the parents agree to raise the child Catholic should the mother be required to take the children to CCD classes during her parenting time?
- Should the parents agree to split the costs for religious education? For instance, in the above example should the mother be required to help pay for her children’s holy communion luncheon or confirmation dinner?
- How often should the children attend religious ceremonies? For instance, should a parent be required to attend church/synagogue/etc., with the children even if they are not of the same faith?
- If the parents agree on raising a child in a specific faith, to what extent do they agree or not regarding parochial/private school in that religion versus public school?
The Role of Courts in Determining New Jersey Divorce Religious Choice Issues
In New Jersey most parties have joint legal custody at the time that they divorce.
This means that both parents are supposed to have a say in determining important issues of education, religion, health, and the like regarding their children.
This can present a unique challenge when a stalemate arises between the parties.
For instance, in the above classic example the Wife in the hypothetical is of Jewish faith and the Husband of Catholic faith. Perhaps the parties have a newborn at the time they divorce–or they have not yet agreed upon the proper faith/religion in which to raise the child. Now that they are divorcing, this may become an important issue for them. Perhaps the Husband is convinced it is in the child’s best interests to be raised in the Catholic faith–like the Husband. And perhaps the Wife is equally convinced it is in the child’s best interest that the child be raised in the Jewish faith–like the Wife.
Assuming the parties cannot work out this issue, it would come before a court at the time of trial? But how would the Court react?
The answer is that there are few issues Court’s abhor deciding more than religion. First Amendment (and other constitutional) issues are at play, judges are loath to make any decision (as it may appear they are preferring one religion to another); and moreover courts recognize that for any type of plan to work it will likely require buy-in by both parents. This is an issue that courts may “punt” entirely.
For instance–they can state that the children shall be raised in both faiths. Or: The Court takes no position on this issue at all. If the parties have a parenting coordinator then perhaps they can assist in such an issue (and mediation may help), but if not, what can be done?
Some guidelines that parties may wish to consider in such an instance may include:
- How religious (or not) each party is?
- The religious roots for both families;
- The importance of the issue to each party;
- Which parent will be more committed to the responsibilities associated with raising children in their respective faiths;
- Prior to the divorce have certain steps been taken to raise the child (or children) in any specific faith?
- Have other children of the relationship already been baptized/etc., or otherwise been raised in a specific faith?
- To what extent is both parties acting in good faith raising such issues?
- To what extent will the parenting plan allow for the children to be raised in their specific
faith. For instance, if there is a language component to a specific religion/faith, how will the parenting schedule allow the children to learn same to meet their religious requirements?
It will ultimately be very much up to the parties in such circumstances to put aside any animosity they may have toward their ex-spouse (or soon to be ex-spouse) and to cooperate in the best interests of the children to make such determinations.
Who Provides Health Insurance and Unreimbursed Medical Expenses for the Children?
During a marriage, it is common for one party to provide health insurance for the whole family. For instance, my wife works for a school district. Therefore, she is able to provide health insurance for me and our children through her work policy.
In a divorce situation, courts strive to preserve the status quo during the marriage. Accordingly, prior to the divorce being finalized, the party that has always provided health insurance should continue to do so.
Likewise, if there are any out-of-pocket expenses they should be paid in a manner consistent with any pendente lite support orders (court orders in place during pendency of divorce proceedings).
What About After a Divorce is Finalized?
In New Jersey the Divorce Agreement should set forth all of the obligations between the parties. This would include the treatment of unreimbursed medical expenses (i.e. out-of-pocket medical expenses) as well as requirements to maintain health insurance coverage.
Health Insurance Coverage for a Spouse
A quick note regarding health insurance and spouses. Regarding spouses, the obligation to maintain health insurance generally ends the day the divorce is finalized. Even if you wished to maintain your spouse on your policy, most workplace or other health insurance policies would foreclose your doing so. The most one can do is offer the other spouse COBRA insurance, generally to be paid to the spouse who lacks health insurance. The COBRA insurance can generally last up to 18 months. Accordingly, the finalizing of a divorce generally requires both parties to, moving forward, maintain their own health insurance policies.
Health Insurance Coverage for Children
The divorce agreement should set forth which parent will maintain health insurance for the children. Any out-of-pocket costs a parent pays towards a child/children should also be considered when calculating child support. The agreement may set forth alternative future considerations, setting forth, for instance, what would occur if a party were to lose their access to health insurance. If neither party has health insurance then the agreement may set forth the actions to be taken to obtain health insurance and the division of any costs, as applicable.
Unreimbursed Medical Expenses for Children
The divorce agreement should also set forth how unreimbursed medical expenses will be handled. Under general New Jersey law, the parent of primary residence is responsible for the first $250.00 each year (per child) and the parties thereafter will divide any additional out-of-pocket costs (such as co-pays, braces, dental work, or other out-of-network or out-of-pocket expenses).
The parties may agree to divide the costs (beyond the first $250.00 each year, per child) evenly (50%-50%) or they may agree to divide them in a proportionate manner (in accordance with their income). The parties may also include language in the divorce agreement addressing additional details, such as stating that both parties will endeavor to stay in-network absent an emergency, that the parties will keep the other party informed and advised, that proof of out-of-pocket expenses will be shown in a timely fashion, etc., (these are just examples as the parties can within reason include any additional language they wish).
The above issues are fact-sensitive and should be considered as part of any divorce settlement as applicable. As health care costs rise and health care and medical expenses become an increasingly important consideration in our society, it is important to be mindful of such issues when contemplating, negotiating, or finalizing a New Jersey divorce.
New Jersey Alimony
Alimony can be one of the thorniest issues in a New Jersey Divorce. In cases where the parties have no children, it is often the most difficult issue to negotiate. Over the past several years, the New Jersey Alimony Reform Statute and recent changes to the Federal Tax Code have made alimony even more difficult to calculate.
Alimony (also referred to as spousal support) involves payment due from one spouse to the other post-divorce in order to equitably preserve the marital lifestyle between the party’s post-marriage.
The standard type of alimony case initially considered by the court was the situation where one spouse put everything into their career and earned a large salary whereas the other stayed home to raise the children and now has a deflated earning potential. Alimony has now grown to be more prevalent than perhaps initially intended but was recently scaled back some by alimony reform.
Before we delve deeper into defining alimony, let’s imagine a couple of alimony scenarios. This will help us see New Jersey alimony through a number of prisms and to better understand how it may impact individuals in the real world.
People tend to have strong opinions about alimony, but the below examples should point out that alimony is a difficult matter not only from a legal perspective, but from a moralistic one as well.
History of Alimony
According to Wikipedia (so it must be true!), alimony and child support are discussed in writing as far back as the Code of Hammurabi and “the modern concept of alimony is derived from English Ecclesiastical courts that awarded alimony in cases of separation and divorce. Alimony pendente lite was given until the divorce decree, based on the husband’s duty to support the wife during a marriage that still continued. Post-divorce or permanent alimony was also based on the notion that the marriage continued, as ecclesiastical courts could only award a divorce a mensa et thoro, similar to a legal separation today. As divorce did not end the marriage, the husband’s duty to support his wife remained intact.”
So for anyone that complains alimony is a modern construct, that is not entirely accurate. That said, alimony did become increasingly popular in the 1970’s, particularly as the divorce rate itself peaked.
Example #1 (the Classic Example of alimony): In what we’ll call the “classic alimony scenario”, let’s imagine a woman named Sarah and her husband Sam. Sarah has a master’s degree in teaching and spent eight years working in the schools as a second-grade teacher.
When Sarah and Sam’s first child was born they both decided she should give up work outside the home. Sam had recently moved up in his company and they were able to comfortably live off of his income. Moreover, by the time their second child was born daycare costs would have been greater than Sarah’s income.
Fifteen years went by and Sam became a Vice-President of his company earning $200,000.00 every year. Sarah raised the children and eventually worked as a preschool teacher earning $20,000 per year. Unfortunately their relationship deteriorated and Sarah filed for divorce. Had Sarah remained working at the school she would now be earning $100,000.00 per year with a nice pension (that they would both share in a divorce).
Is it appropriate that Sarah expects alimony? Is it appropriate that Sarah expects to continue to live close to the marital lifestyle enjoyed? Could one argue that perhaps the middle-ground is appropriate, giving Sarah alimony for a certain number of years with the expectation that she can find gainful employment again? How do you feel when you review this scenario about what is just? If you’re in the middle of a separation or contemplating divorce, can you relate to either Sarah or to Sam? Let’s move on to one more example:
Example #2 (A More Modern Example): We’ll call this the “modern alimony scenario,” Jill and Jim have been married for twenty-two years. Jim has worked in construction his entire career and earns $125,000 per year. Jill built up an interior design company that now employs five people and she nets approximately $125,000 per year as well. Jim has ongoing back issues but never complains—they are likely caused by his job but he does not seek workers’ compensation.
One day Jim gets called into the office by management and is advised that he is being let go. He is advised they are unhappy with his work performance but he suspects they want to hire two younger people to replace his one salary. Jim is given a few months pension and attempts to find a job through his unemployment period.
Eventually unemployment benefits run out and Jim is unsuccessful. Jim begins drinking heavily and becomes depressed. Jill tries to make it work and even increases her income to $150,000, but eventually the relationship deteriorates and divorce is filed.
In this example should Jill have an alimony obligation to Jim? How much should she be required to pay and for how many years? How much income, if any, should be imputed to each of them? Should Jim be imputed income based upon his prior income, his current situation, or somewhere in-between? For that matter, should Jill be imputed income based upon an average of her business income, her recent higher salary, or $125,000.00 per year?
Differences Between Alimony and Child Support
Unlike child support, there is no definitive alimony calculation or calculator under New Jersey law. The child support guidelines utilize an algorithm with many inputs such as number of overnights with the children, age of the children, income and taxes paid by each party, alimony paid or received, and many other inputs ranging in importance to the ultimate calculation. Many divorce attorneys and judges utilize computer software programs for calculating the amount due.
Conversely, alimony has no such specific calculation. Moreover, child support generally has a firm end-date (when the last child from the relationship is emancipated). Alimony, on the other hand, must be defined not only regarding the amount paid, but also the duration of the alimony. For these reasons, one could say that calculating alimony (both its amount and its length) is more an art than a science.
In addition, unlike child support alimony can be waived by either party. Alimony can also be “bought-out” in the parties agree.
And so, unlike alimony child support cannot be waived by a parent. This is because the law considers child support as a right belonging to the child. Even though child support payments are made directly to the recipient spouse, as a matter of law they are intended to be utilized for room and board and other appropriate expenses for the child.
Accordingly, it is important to remember that child support cannot be waived if validly due to a child (unless proper consideration for the child is otherwise undertaken). Thus if you enter into an agreement waiving child support it could later come back to haunt you in the form of retroactive payment obligations.
Duration of Alimony
Although the alimony statute itself and other relevant statutes and published cases speak to a more global view, in a practical sense generally only the last year to five years will really be considered in most if not all instances of determining alimony length.
That means that the timing of filing for divorce is very important for calculating alimony and length of alimony. If you are filing for divorce when your spouse’s income is at an all-time low, then alimony may be impacted—in some instances greatly so. The Jim and Jill example above demonstrates this issue. In addition, overtime and bonuses may be considered in New Jersey divorce actions. As with Jill in our hypothetical scenario above, an individual’s recent success can end up harming the outcome of their case.
If Jill filed for divorce at the time she and Jim were both earning $125,000 per year then neither party would have likely had an alimony obligation. Because she waited to file until a few years later when Jim was completely unemployed and she was earning $175,000 from her business, it is likely that she would now have an alimony obligation.
Jim’s attorney will likely argue that she has a large alimony obligation and then Jill’s attorney will have to argue that the most recent history is inapposite to the general history and marital lifestyle enjoyed by the parties.
Duration of Alimony – Jim & Jill Analysis
My basic question is this: is this a fair result? If the recent status quo for a hypothetical couple was for one party to work 80 hours a week and the other to work part-time (even though they were healthy and free to work full-time), is it fair that alimony will often be based upon their recent earnings and W-2’s?
What if the party working part-time simply has no desire to work, or knows they can later rely upon a huge inheritance? What if the party working part-time has a higher level of education and a greater ability to earn income than the party working 80 hours a week? To use another example, what if one party’s salary is on an upwards trajectory—-how can that be factored in to create a fair starting point for alimony and child support?
Conversely, is it too nebulous a proposition for courts to focus more on all of the alimony factors? Or is it understood that focusing on merely the last year (or two? or three?) may be somewhat flawed, but that there is no better way to cleanly resolve such issues?
Now, the point is certainly not to infer that people should try and “game the system,” neglect maintaining the status quo, or start turning down all overtime work if they feel separation or divorce is imminent—because such “divorce planning” can not only be detrimental to a case, but in some instances, (particularly involving the hiding of assets) may even be illegal.
Rather, I wish to illuminate how the timing of a relationship’s ending can be just as important a factor as the ending achieved by divorce and a marital settlement agreement. This is because the facts associated with a relationship’s ending (particularly when a formal divorce pleading is filed), may affect, more than any other single factor, the ultimate disposition of a case.
Open Durational Alimony
A good rule of thumb is that a party is responsible for one year of alimony to the other for every two years of marriage. You won’t find this anywhere “on the books” but as a matter of custom this has been utilized by most New Jersey divorce lawyers as a sort of shorthand for alimony. In addition, under the Alimony Reform Statute of 2014, the statute states that alimony is “open durational” once the parties are married for twenty years.
Alimony & Good-Faith Retirement
Open durational alimony is very similar to what was previously called “permanent alimony.” The alimony statute also states that there is a rebuttable presumption that alimony will end when the party responsible for alimony reaches “good faith retirement,” which is generally defined as: a person reaching the age where they can claim full social security retirement benefits. Accordingly, this will depend upon what year you were born in as the younger you are the older you will have to be to qualify.
The Court will then review factors to determine if “good faith retirement” has been met. The law states as follows:
(1)There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled. The court may set a different alimony termination date for good cause shown based on specific written findings of fact and conclusions of law.
The rebuttable presumption may be overcome if, upon consideration of the following factors and for good cause shown, the court determines that alimony should continue:
(a)The ages of the parties at the time of the application for retirement;
(b)The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;
(c)The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;
(d)Whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;
(e)The duration or amount of alimony already paid;
(f)The health of the parties at the time of the retirement application;
(g)Assets of the parties at the time of the retirement application;
(h)Whether the recipient has reached full retirement age as defined in this section;
(i)Sources of income, both earned and unearned, of the parties;
(j)The ability of the recipient to have saved adequately for retirement; and
(k)Any other factors that the court may deem relevant.
Can We Waive Alimony?
It is common for a party to be entitled to some form of alimony at the time of divorce even now post-alimony reform. Alimony in New Jersey is viewed as gender-neutral, meaning that if the Wife is the “breadwinner” she may be required to pay alimony to the Husband.
Some of the types of standard alimony factors considered include: the income levels of the parties, whether additional income may be imputed based upon prior education or experience, the age and health of the parties, the marital standard of living, and the length of the marriage.
But what if a case presents a clear-cut alimony case but the other party is not interested in alimony? Can alimony be waived even if one of the parties is clearly entitled to it under the law? The answer is yes, provided that the Marital Settlement Agreement (“Divorce Agreement”) is freely and fairly entered into and contains certain language (known as Anti-Lepis language) stating that alimony will be waived permanently and no future change in circumstance can alter such waiver.
There are many valid reasons why a spouse may not wish to pursue alimony. For some, it is a point of pride or for other moralistic reasons. For others, perhaps a reflection of some inward guilt. It may be difficult to seek alimony if you believe the divorce is your fault, such as if you had an affair.
Others still may merely desire a quick divorce and are willing to leave money on the table in order to speed up closure of the marriage and minimize divorce counsel fees. Some people come from a history of domestic violence and are simply afraid to ask for alimony.
Regardless of the reason, the courts are expected to bind consenting adults to contractual determinations. It is recommended that anyone agreeing to pay alimony, receive alimony, buy-out alimony, be bought out for alimony, or waive alimony do so after careful review of all of the finances and a view to their future and the impact such decisions will make upon their future.
To that end, assuming there is no duress, you or your spouse may waive a right to future alimony payments. As noted above, in order to effectuate a permanent waiver it is advisable to include “Crews” language noting the marital lifestyle during the marriage and the impact the divorce will have on the parties’ lifestyle post-divorce (this should be standard in every MSA). More pertinently, the MSA should also include what is known as “Anti-Lepis” language.
Lepis is a case that allows changes in child support or alimony based upon “permanent and substantial” changes in circumstances. Your MSA will essentially state that you waive the right for future modification under Lepis and is thus known as “Anti-Lepis” language.
What if I Want to Waive Alimony?
Although every case is fact-sensitive, you should be very careful about waiving your right to alimony. If the Divorce Agreement properly addresses the issue then it will be difficult or impossible to later petition the Court for alimony if you waive it.
The future is unknown to all of us and it’s possible that circumstances could change (including how you feel about things) in the future but at that point in time not have a recourse. You should consult with a lawyer to understand your alimony obligations or rights before entering into any such divorce agreement.
This is particularly true if the marriage has been emotionally or otherwise draining. In such an instance you may be considering waiving alimony merely to move forward, but you will likely come to regret that decision (or see it as another element of control) in the future when options are no longer available. Alimony waiver is a serious step for either party to take: having a divorce lawyer to guide you can help level the playing field.
NJ Alimony Reform Act
On September 10, 2014 the Legislature enacted the Alimony Reform Act.
The basic factors judges will consider when determining an alimony award may now include:
1) The actual need and ability of the parties to pay;
2) The duration of the marriage;
3) The age, physical and emotional health of the parties;
4) The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
5) The earning capacities, educational levels, vocational skills, and employability of the parties;
6) The length of absence from the job market and custodial responsibilities for children of the party seeking maintenance;
7) Parental responsibilities for children;
8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
9) The history of the financial or non-financial contributions to the marriage by each party, including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
10) The equitable distribution of property ordered and any payout of equitable distribution, directly or indirectly, from current income, to the extent that this consideration is reasonable, just and fair;
11) The income available to either party through investments of all assets held by the party;
12) The tax treatment and consequences to both parties of any alimony awards, including the destination of all or a portion of the payment as a nontaxable payment;
13) The nature, amount, and length of pendente lite support paid, if any; and
14) Any other factors the court may deem relevant.
Ok. But what does the above really mean? How will these factors coalesce into an alimony award—assuming an alimony award is appropriate at all?
When I explain alimony reform to new clients, I generally do not focus on the above factors. The truth is, those factors do not form the heart of real-life alimony negotiations. Instead, I believe those new to the concept of alimony should focus on the following:
- Alimony is, legally speaking, now “gender neutral.” Although in application we
may not have reached 100% gender neutrality, we are getting closer. Accordingly, if the Wife is the breadwinner in a long-term marriage then she may expect to pay alimony.
- The length of the marriage is extremely important. There are different types of alimony that may be awarded in New Jersey, including open durational alimony (analogous to what was previously referred to as permanent alimony). (there is also rehabilitative alimony, limited duration alimony, and reimbursement alimony, discussed in greater length below). Also, permanent alimony for those divorced prior to the reform continues prospectively).
For obvious reasons, most breadwinners want to avoid paying long-standing or open durational alimony. The longer the parties are married, however, the greater the chances are that they will be faced with such a burden.
This is particularly true of marriages that exceed twenty years in length, although there is no hard and fast rule to determine whether alimony is “open durational” or not. The alimony reform statute does state, however, that “For any marriage or civil union less than twenty years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.”
The factors for “exceptional circumstances” for an award to last longer than the marriage include: (1) the age of the parties at the time of the marriage or civil union and at the time of the alimony award; (b) the degree and duration of the dependency of one party on the other; (3) Whether a spouse or partner has a chronic illness or unusual health circumstances; (4) Whether a spouse or partner has given up a career; (5) Whether a spouse or partner has received a disproportionate share of equitable distribution; (6) The impact of the marriage or civil union on either party’s ability to become self-supporting; (7) Tax considerations; or (8) any other relevant factors.
3) Alimony Was Historically Taxable to the Recipient and Deductible to the Payer –But not anymore following the Tax Code Changes.
4) “Lump Sum Alimony/Alimony Buy-Out”. This can be bargained for if both parties are interested in pursuing this over payments made over time. Such buy-outs are generally “tax affected” which leaves this option somewhat up in the air given the pending tax reform.
5) Life Insurance Obligation. There may be an obligation to provide life insurance “security” for the alimony due.
6) Good faith retirement, cohabitation, or remarriage. These additional factors may provide sufficient reasons to terminate, suspend, and/or modify alimony. Assuming there is no language to the contrary, “permanent and substantial” changes in circumstances may also provide reasons to amend and—in some instances—to even terminate an existing alimony obligation. The Alimony Reform Law made substantial changes to cohabitation and particularly to good faith retirement, including the creation of a “rebuttable presumption” that alimony should be terminated upon the obligor reaching a good faith full retirement age.
However, this rebuttable presumption could be overcome based upon other factors including the age of the parties at the time they applied for retirement, the ages at the time of the entry into the alimony award, the degree and duration of economic dependency, the duration or alimony or amount already paid, the assets, sources of income both earned and unearned, and other factors as deemed relevant by the court.
Like most of family law, alimony law is extremely fact-sensitive, but the above will provide you with a quick summary of how it may ultimately be calculated or whether there is a valid alimony claim in your case or not.
Use of Experts in Contested Alimony Cases
Unfortunately, as you can probably now see not every family law matter is simple. Alimony issues can be very emotional, facts may be in dispute, and determining an appropriate payment can be very divisive.
Particularly in contested divorces or other contested family law matters, a need may therefore arise for one or more “experts.” This post will briefly review some of the more common types of experts.
These experts will often times review materials/meet with parties and/or their children, write reports, and sometimes testify in Court. Some experts are ordered by the Court and others are retained by the parties. In addition, each party may retain their own expert or, in the alternative, can agree upon a “joint” expert.
Business Appraisers for Alimony
Valuation of a business can, at times, be the most important issue to resolve in a divorce. Although one cannot technically “double dip”, which we can define as having a portion of a business value be given in equitable distribution but also being imputed that same portion of the business value as income for alimony, businesses can be difficult to value.
In addition, in small businesses—and particularly closely held businesses, it is easy for parties to manipulate income. A party gearing up for a divorce may re-invest in the business to a greater extent that normal in an attempt to deflate the profitability or any income that may be imputed to them for purposes of calculating alimony. Accordingly, a business appraiser or other accounting experts may need to be utilized to go through the business “books” to determine if everything adds up.
In the “Jill and Jim” example above, Jim’s attorney may retain certain experts to value Jill’s business, whether she is claiming an appropriate amount of income, and perform other analysis’ impacting not only the value of the business but also the appropriate alimony amount. Forensic accountants may also be used to assist with this type of work and analysis.
If an individual is alleged to be underemployed or if there is an issue as to income imputation, then an employment expert might be retained to review the individuals work history and degrees and draft a report as to his or her income potential. Accordingly, in the “Sarah and Sam” example, either party may hire an employment expert to determine if she could now earn more than $20,000 per year with a master’s degree but being out of the job market for an extended period of time.
Life insurance will also often play a role in protecting alimony. For instance, if the Marital Settlement Agreement grants the Husband alimony in the amount of $1,000 per month, and it is expected that this alimony will continue to ten (10) years, then the Agreement should require the Wife to maintain life insurance naming the Husband as beneficiary in an amount sufficient to protect that alimony interest. In this case, about $120,000.00.
The amount may be reduced each year in proportion to the decreased amount expected to be owed.
How the Tax Cut and Jobs Act of 2018 Impacted Alimony
The “Trump” Tax Reform Act of 2018 made several changes to New Jersey Divorce law, including making alimony a tax-neural event. the Federal Tax and Jobs Act therefore modified alimony so that it will no longer be a taxable event effective January 1, 2019.
That means that moving forward alimony will not be taxable to the recipient and that the person paying alimony following a divorce will no longer be able to claim alimony as a tax deduction.
The prior status quo was for alimony to be a taxable event to the person receiving alimony and that the person paying could deduct alimony.
As the person paying alimony is generally in the higher tax bracket this change was made at the federal level to support some of the tax deductions as part of the Tax Act.
Moving forward there is now some confusion as divorce attorneys and judges will have to learn how to tax-effect future divorce agreements to not provide an unfair advantage to either party and to ensure consistency with the current status quo.
That will likely mean that individuals will pay less (in terms of the actual number) for alimony but will effectively pay the same as they would have been required to prior to the tax code changes. A prior rule of thumb and custom utilized by New Jersey divorce lawyers was that a party would be imputed 30%-33% of the difference between their income (or the income imputed for purposes of calculating alimony) and the income of their spouse (or again, the amount imputed).
It should be noted that most pendente lite alimony awards are unallocated and/or mixed with child support payments and have therefore generally been a tax-neutral event.
Prenups and Alimony
As you can now see, alimony is generally available to many parties to a divorce in New Jersey. In general terms, the greater the disparity in income between the parties coupled with the longer the duration of the marriage, the more a party may have alimony exposure to the other.
A prenuptial agreement may call for a permanent waiver of alimony. In such a situation it’s important to recognize what your expected exposure (or benefit) from alimony may be.
It may prove difficult or impossible to fully understand (as you are negotiating in the present an unknown future), but it’s important that you view the more realistic potentialities and have an understanding of what you will be giving up (or gaining) by that specific language contained in the prenuptial agreement.
You should therefore review the entire contract through that prism and then view it globally to determine if it is reasonable and fair.
To be enforceable, there is no requirement that the agreement be fair, just that it not be so unfair as to be “unconscionable” at the time the agreement is entered into. Accordingly, for those not yet married they should consider whether a prenuptial agreement makes sense. For those getting divorced they should determine whether or not the agreement is enforceable and to what extent it impacts alimony.
The general burden of proof is on the party seeking alimony or seeking to modify the alimony amount. Thus the legal standard for both initial alimony awards and any subsequent motions to modify alimony is whether the supported spouse will be able to maintain a lifestyle reasonably comparable to that enjoyed during the marriage itself. An important case on this subject is Crews v. Crews, 164 N.J. 11, 16 (2000).
Pendente Lite Alimony
What are My Responsibilities while the Divorce is Pending?
Essentially both parties are required, while the divorce is pending (known as the pendente lite phase of litigation) to maintain the “marital status quo.” This means maintaining insurance, not encumbering or dissipating marital assets or incurring inappropriate marital debt, paying certain regular expenses, and the like.
Parenting time and access to children should also maintain the status quo of the marriage. Pendente Lite is fancy legal-speak for “during the pendency of the divorce, i.e. what will happen after divorce is filed but before it is finalized.” Unlike other areas of the law that involve singular incidents divorce law is a “moving picture” rather than a “single camera snap” and people must continue to live their lives even as the divorce is ongoing. Temporary parenting time, custody, child support, and yes, alimony, may be ordered pendente lite or agreed to between the parties by consent.
So, essentially both parties are required to maintain the “marital lifestyle.” If the Husband normally pays the mortgage and the Wife pays the car notes then that practice should continue. Occasionally circumstances will change such as one party leaving the marital residence. In such circumstances the court will view the available money for each party and attempt to equalize that amount. The court may order a temporary “pendente lite” alimony amount, which is tax-neutral. Such an amount would be extinguished at the time the actual divorce is finalized.
It is important to also note that pendente lite support may be combined with child support and that it is generally made “without prejudice,” meaning that an overpayment of pendente lite support may later be reimbursed at the time the actual divorce is finalized.
Note: The courts take the marital lifestyle quite literally. There is case law that states even if the parties have been living beyond their means and are going increasingly into debt that during the pendente lite phase of the litigation that they should continue to do so. So, in the example above involving Jim and Jill, the Court would likely require Jill to continue making all marital payments or to forward a sum of money to Jim every month if he moved out of the martial residence in an attempt to continue the status quo of the marital lifestyle.
Note2: Using military parlance one often hears about winning the battle but not the war. One of the most important parts of a contested New Jersey divorce is making sure your client is minimizing or maximizing (depending upon whether you have the payor or payee spouse) the pendente lite support amount.
This will take away the other side’s ability to maneuver during the actual divorce negotiations. For instance, if Jim’s attorney (using the example of Jim & Jill above) does not file an appropriate pendente lite motion or does not broker a deal and Jim is left in an apartment with minimal income then he will likely be quick to settle for a lesser sum than he is truly due so as to not effectively starve. Sometimes winning the battles can lead to winning the war. For this reason you will often see a great deal of gamesmanship with parties filling out their Case Information Statements, which set forth the “Schedules A, B & C” of the marital lifestyle.
Alimony at Trial
In New Jersey each County has a Superior Court. If you get a minor traffic ticket you will go to what’s called a “municipal court,” which may be broken down by town. There is a County Court (“State Superior Courts”) for each County in New Jersey, although some combine to form a “vicinage.” If your divorce is venued in Hunterdon County, New Jersey, for example, then your alimony claim will be heard at the Hunterdon County Superior Court.
Alimony can be negotiated at any time between the parties. However, if the parties cannot negotiate an amount then the Superior Court judge (“Trial Court Judge”) will have to make a call for the parties regarding alimony amount and duration, as applicable. The trial court may rely upon experts (as discussed above), testimony, and a review of evidentiary records to determine the appropriate alimony award. Consistent with cases such as Crews v. Crews, and Lepis v. Lepis, 83 N.J. 139 (1980), the marital lifestyle will be determined, income will be found or imputed, and a baseline for future alimony motions will be created.
If a pendente lite alimony amount was previously ordered or consented to, then it will cease at the time the parties finalize their divorce (or a trial court decision is made if the parties cannot agree). Cases such as Weishaus v. Weishaus, 360 N.J. Super. 281 (App. Div. 2003) state that the trial court’s decision should be based upon the actual lifestyle rather than what the parties’ lifestyle should have been based upon their income, assets, and marital debts. The parties can also agree to a buy-out or the court could, in certain circumstances, order a buy-out or the liquidation of certain marital assets inuring to one party over the other to satisfy an alimony obligation.
A Quick Note on Exempt Property
Certain types of property are generally exempt (unless commingled) during a New Jersey Divorce, such as inherited property, gifted property, pre-marital property, and a portion of personal injury or worker’s compensation award attributed to injury.
Although somewhat beyond the scope of this course, the interplay between equitable distribution and alimony cannot be underestimated. As noted elsewhere in this course, there cannot be a “double dip” whereby a party has to divide an asset and then pay out as alimony a portion of their share of that asset to the other party for support.
Things get more interesting when there is an exempt property. For instance, in the Jim and Jill example, if Jim had instead gone of worker’s compensation and received approximately 70% of his income and the parties then divorced during the same time-frame, how would this be treated for purposes of alimony?
If Jim’s salary was now effectively $87,500.00 versus $125,000 for Jill (she never increased her production at work in this timeline), then would he be imputed income at $87,500.00 or a lesser amount as by law the portion of a workers; compensation award for pain and suffering is not subject to division as part of a divorce. Conversely, the portion attributable to lost wages (likely the majority of the award) would be— and the same is true for personal injury awards.
As you can see there can be a lot of interesting arguments made regarding the appropriate alimony award when issues of exempt property or exempt earnings (and any income, debt, or interest inuring therefrom) enter the picture.
Types of Alimony
Open Durational Alimony, Rehabilitative Alimony, Limited Durational Alimony
In most instances the question of alimony will be whether or not a party receives open duration alimony or limited duration alimony. The major difference is whether alimony has an open-ended payout time-frame or a specific end-date. In either instance alimony may be terminated by certain events (even if open duration alimony).
The types of alimony available are by statute and were impacted by the New Jersey Tax Reform Act of 2014. It should be noted that another form of alimony is pendente lite, alimony, which is paid during the pendency of the divorce (this type of alimony is addressed earlier in the course, above).
Superseding Alimony Termination Events
Most divorce decrees state that alimony will terminate upon the end date of alimony as negotiated between the parties, or when:
- The Payee of alimony dies;
- The Payor of alimony dies;
- The remarriage of the payee;
- Alimony may be renegotiated (but generally not terminated) upon the cohabitation of the payee with another adult in a romantic partnership that provides economic support or advantage to the payee (see cases such as to the payee (see cases such as Gayet v. Gayet).
So, rest assured, you will generally not be required to continue paying alimony after your death—so at least that’s a relief! But don’t worry, the life insurance provision in the Divorce Agreement will likely kick in making your spouse whole. So when it comes to alimony, in a sense not even your death is enough to stop your spouse from benefiting from your labor.
It should also be noted that once alimony is terminated it generally cannot be reinstated. In other words, if alimony is terminated by your spouse’s remarriage and they then later divorce they cannot come back after you for divorce. However, there has yet to be a case heard at the Appellate level with interesting facts such as: a short remarriage annulled after a week. I’m not sure how an appellate court would come down on a case with those types of facts and I could certainly see the arguments both ways.
Limited Durational Alimony
For New Jersey marriages that last less than twenty-years the parties will generally negotiate limited durational alimony. This is alimony with a set end-date. For instance, in a sixteen-year marriage the parties may agree to limited duration alimony of eight years. As noted above, alimony may end sooner if one of the superseding termination events occur such as the death of a party or remarriage of the alimony recipient.
Open Durational Alimony
This is the type of alimony that replaced what was previously called “permanent alimony” prior to the New Jersey Alimony Reform Act of 2014. It is somewhat softer than “permanent alimony” in that it allows for a rebuttable presumption of alimony termination along with a good-faith retirement. This issue was addressed earlier in the course, above.
Rehabilitative alimony is less common than open durational alimony or limited durational alimony. This type of alimony is meant to provide a period of time for an individual to obtain education, to update his or her credentials, or to otherwise take the steps necessary to be able to become self-supporting or more self-supporting. This type of alimony may be ordered in lieu of the other types of alimony or it may work in tandem with open durational or limited durational alimony. There have been court cases where open durational alimony has been ordered after rehabilitative alimony ended.
For example, in the Sarah and Sam example above the parties may negotiate (or the court may order) that Sarah be imputed $20,000 for a period of two years and given rehabilitative alimony to pay for additional coursework or credentials to become a fully licensed teacher again so that she may then increase her income. After the passage of two years if Sarah is then gainfully employed as a teacher earning $50,000 per year then the court may order additional alimony to reflect the difference between her income and that of Sam’s.
Can “Fault” Impact an Alimony Award?
It should also be noted that New Jersey is a “No-Fault” divorce state. That means that if one party is adulterous and abusive and the other is a saint it should make no operative difference regarding the final alimony award. So, in the example above of “Sarah and Sam”, if Sarah was having an affair and was emotionally abusive, that would not make any difference in calculating alimony as New Jersey is a no-fault divorce state. That’s not to say it may not make a difference in custody or parenting time arguments, but courts are not allowed under the case law (see cases such as Mani v. Mani, 183 N.J. 70), to impute alimony, decrease alimony, or otherwise impact alimony based upon the behavior of one spouse towards the other.
That said, courts can make a determination of “fault” should one party’s actions or inactions intentionally impact alimony. For instance, a party may not get out of their alimony and/or child support obligation if they quit their job, if they go to jail for a crime, or if they take steps to reduce or hide their income.
For instance, in the example of “Jill and Jim,” utilized at the outset of this alimony course, there would be a different analysis if Jim lost his job because he was, for example, caught drinking while operating a forklift. Or if Jim quit his job with an intent to later file for divorce when his income was at an all-time low. The subject of “fault” therefore does have its place in an alimony calculation, but in a much more specific manner. Courts will impute income if they believe a party is intentionally unemployed or underemployed.
If you are out of a job during a divorce or post-divorce then you should document all of your attempts to procure new employment. Save copies of your job applications and log the hours you spend on job boards, networking, increasing your skills, interviewing, or applying for jobs. This will all help assist you should the other party seek to convince the court that you are intentionally unemployed, underemployed, or otherwise attempting to game the alimony system.
In addition, if the other party physically harmed you then you may have a “marital tort” claim under cases such as Tevis v. Tevis, which is similar to any other type of personal injury action and would involve “fault” but is not truly a form of alimony.
A marital tort is meant to pay out for actual harm whereas alimony is meant to replace income or to otherwise ensure that both parties can continue to enjoy a lifestyle reasonably similar to that enjoyed during their marriage.
In sum, the concept of fault in a divorce will generally only impact alimony when that fault as impacted the finances such as causing your spouse to lose your job, intentionally losing your job, or otherwise attempting to “game” the system to pay out or receive more alimony than would normally be due under the law and facts of your case.
Above we briefly reviewed the subject of terminating alimony, but to what extent may alimony be modified after the fact? Obviously in a lump-sum buyout one of the advantages to the party receiving the money is less risk should either party pass away or should that spouse decide to remarry or cohabitate. Also, there is an economic principal called the “time-value of money” which essentially states that money is worth more today than in the future (due to factors such as ability to invest now, future money being reduced by inflation, etc.). As the proverb goes, “a bird in hand beats two in the bush.”
Parties can also negotiate whether or not alimony will be non-modifiable or whether alimony may later be increased, decreased, suspended, terminated, or otherwise modified based upon a “permanent and substantial change in circumstances.”
The case of Lepis v. Lepis states that in general alimony may be modified based upon such a “permanent and substantial” change in circumstances. However, if the parties add a clause to their divorce agreement stating they agree to never modify regardless of what the future brings then the courts will generally honor that clause. This clause is referred to, appropriately enough, as the “Anti-Lepis” clause. Under addendum 1, below is an example of an Anti-Lepis clause for anyone interested.
Limited Durational Alimony Modification
So what happens if your ex gets a great job a year after your divorce or even more distressingly wins the Power Ball a day after your divorce is finalized? Can you go back and seek a greater alimony amount? The answer is “perhaps.” What about changing limited durational alimony to open durational alimony, would that be allowed?
In the Appellate case of Gordon v. Rozenwald, 380 N.J. Super 55 (App. Div. 2005), the Appellate Court held that a subsequent increase in earnings and career improvement by the alimony payor should generally not lead to open durational alimony (then permanent alimony) because alimony is based more upon the marital lifestyle and the amount awarded was consistent with that marital lifestyle. In other words, your spouse may be required to maintain you in the lifestyle you are used to but not an amount of an inflated lifestyle greater than that of the marriage and subsequently obtained. Thus as a matter of law the main consideration (noted under cases such as Crews v. Crews) is to what extent the ever-important “marital-lifestyle” is maintained.
Permanent and Substantial Change in Circumstances
As noted above, a court may modify certain types of alimony (such as open-durational with no “Anti-Lepis” language contained in the Divorce Agreement) if a permanent and substantial change in circumstances is found. Back to the subject of fault, it must be shown that the loss of income is not through the fault (or is intentional) on the part of the party now seeking to suspend, terminate, or reduce alimony. A similar standard is utilized for the modification of child support.
Sometimes clients will come to me wanting to change their alimony obligation a few weeks after losing their job. Unfortunately that duration will not generally meet the “permanent” requirement of Lepis and its progeny.
New Jersey courts historically required a change of eighteen months or two plus (2+) years before they would require the “permanent” requirement met for a reduction, termination, or suspension of alimony. During the Great Recession (a period of time I was clerking for a New Jersey Family Law Judge) I was able to see first-hand that the courts began to soften on that stand and now six months or a year may be enough (depending upon the other factors involved in the case) to successfully seek a modification.
Regarding substantial, there is no clear-cut definition of “substantial” but is treated on more of a case-by-case basis. Obviously more than a minor change is required for a court to feel it warrants a modification of an alimony award (in either direction).
Payment of Alimony
Alimony can either be paid directly (between the parties) or through the Probation Department/Family Support Services. The parties’ agreement will generally state how alimony will be paid along with the frequency, amount, and what would happen if alimony is not paid in a timely fashion. A party seeking payment through probation is by law allowed to receive money in that manner. Most alimony payors do not want to pay through probation but it’s not an area you can much negotiate if the other side does not agree.
Alimony Collection Issues
If the alimony payor stops paying alimony then you will generally petition the court that direct-pay alimony now be through probation/family support services. If the party stops paying and they are already paying through probation then the probation department will likely take certain steps such as suspending the payor’s driver’s license all the way up through temporary incarceration.
Most payment is through wage garnishment and it is the payor’s responsibility to advise the probation department of any employment changes or changes to his or her physical address or work address. Alimony and child support are also treated—as a matter of law—as a temporary lien on any property owned by the payor.
Accordingly, if there are alimony arrears the other party may pursue (through the family division, not the civil division) enforcement actions seeking payment of arrears, having the other party turnover their passport until they pay, interest, counsel fees liquidating property via the lien, and any other appropriate enforcement actions somewhat similar to the collection of any other type of debt.
How Does Bankruptcy Impact a Divorce or Support Obligations?
Under bankruptcy laws, most types of debts are discharged if a successful “chapter 7” bankruptcy is completed. There are certain types of debts, however, such as student loans that are generally non-dischargeable. With a consumer debt, there is certain leverage that a debtor or his attorney may have in a lawsuit as they can threaten to file for bankruptcy upon the completion of the matter of actually file for bankruptcy to wipe away most debts. Can such an action be taken in a divorce proceeding? The short answer is “no.”
The Bankruptcy code generally considers “domestic support obligations” as non-dischargeable debts. However, it is possible that in certain filings, such as a “Chapter 13,” that you may be granted additional time to pay back alimony and/or child support due. It should be noted that even equitable distribution debts are considered “domestic support obligations,” meaning that the bankruptcy code gives a broad interpretation to “domestic support obligations.”
Another issue that has a less clear answer is whether or not legal fees agreed to or awarded as part of a New Jersey divorce are dischargeable, with some conflicting information and opinions on this matter generally revolving around the intent of the counsel fee order.
New Jersey bankruptcy attorneys can assist you or your divorce attorney in planning appropriate strategy regarding bankruptcy issues impacting a pending divorce. In some instances it may make sense to file jointly prior to the divorce and in others to file separately. This is sometimes complicated and requires a bankruptcy attorney to represent or at least consult on the appropriate course of action.
Although the economy is in a better state that it was during the “Great Recession,” debt remains an important consideration for those contemplating divorce. Alimony and child support obligations can feel overwhelming or conversely, you may wish to know that the support payments will continue even if bankruptcy is contemplated. The above brief overview is merely that, as like most instances in new jersey family law courts, there are fact-sensitive considerations to entertain.
Now that you have a better understanding of the relevant law that may impact your divorce, let’s turn now to more specific advice and tips that can assist you on your journey towards divorce and a fresh start.
SECTION IV: DIVORCE TIPS
What Types of Issues Should Be Addressed in a Divorce Agreement?
For couples considering a New Jersey Divorce, the ultimate goal is reaching a divorce agreement, commonly known as a Marital Settlement Agreement (“MSA”) or a Property Settlement Agreement (“PSA”).
It may take months or years to reach agreement. Throughout your divorce process, the divorce agreement will likely feel as though extended in space–just out of reach. Some couples can find common ground in a matter of hours, whereas others require extensive discovery, court motions and actions, and hundreds of hours of negotiation.
But one thing I find is that many clients are uncertain about just what can be addressed in a Marital Settlement Agreement. The purpose of this section is to briefly summarize some of the considerations in a standard Divorce Agreement.
The Standard Divorce Agreement Considerations
- Child Custody. If there are children from the marriage then this will be a major divorce consideration. New Jersey considers both legal custody (the ability to make important decisions on behalf of the child) and physical custody (who spends more time caring for the children on a day-to-day basis). Agreements veer toward joint legal custody, in recent years joint physical custody is becoming increasingly popular.
- Parenting Time. Parenting time (previously referred to as child visitation) delves more deeply into the day-to-day technical details of sharing parenting. It will address drop-off and pick-up, daycare or school transportation, holiday parenting time, vacation/summer parenting time, and which days/hours per week each parent will exercise parenting time with their child(ren).
- Alimony. Alimony (also referred to as spousal support) involves payment due from one spouse to the other post-divorce in order to equitably preserve the marital lifestyle between the party’s post-marriage. The standard type of alimony case initially considered by the court was the situation where one spouse put everything into their career and earned a large salary whereas the other stayed home to raise the children and now has a deflated earning potential. Alimony has now grown to be more prevalent than perhaps initially intended but was recently scaled back some by alimony reform.
- Child Support. Child support in New Jersey is essentially an algorithm that will take inputs (such as number of overnights and incomes of parents) to produce a child support obligation.
- Equitable Distribution (the division of assets and debts). Equitable distribution is a very broad category of the New Jersey Divorce and may include everything from ownership of your pet (yes, even dogs are considered property in New Jersey) to credit card/personal debts, vehicles, the marital residence or other real property, stock options, retirement accounts, personal items, and much more. Cases where one or both parties own a business can further complicate equitable distribution in a Divorce Agreement.
- Counsel Fees. Divorces can sometimes be costly and time-consuming. One thing that should be considered is whether one party should be responsible for reimbursement of counsel fees to the other.
- Future Education Costs. Another consideration is how future college costs, private school costs, or even daycare costs will be paid and the obligation each party will have towards such payments in the present or future.
- Life Insurance Requirements. The Divorce Agreement should also address using life insurance as a collateral to protect future child support, spousal support (alimony), educational costs, or other appropriate future costs.
- Health Insurance/Future Health Costs. A Divorce Agreement should also contain language regarding COBRA for the uninsured spouse (generally available at-cost to the uninsured spouse for 18 months), coverage for any children of the relationship, and to what extent each party will be responsible for the child(ren)’s future unreimbursed medical expenses.
- Tax Treatment. Although most New Jersey divorce attorneys are not tax experts (and thus cannot provide tax advice), you should speak with a CPA/tax attorney (and collaborate with your divorce attorney) on issues of taxation and divorce.
- Education/Child’s surname/Religious Upbringing. The Divorce Agreement should also address potential parenting issue such as religious upbringing, education (for instance: private school or public?), non-disparagement clauses regarding the other parent/their family, and other miscellaneous provisions.
- Additional Clauses. The above list is by no means exhaustive but should provide a good framework for the types of issues that will be addressed in a Divorce Agreement.
Using Civil Litigation Tactics in a High-Conflict Divorce
Now, as I’ve advised throughout this book, many divorces are not knock-down drag-out kinds of events. By now you’re probably aware that I generally advocate against such a junkyard dog mentality. When you’re a hammer, everything is a nail and you can force the litigation costs way up by taking overly aggressive and ultimately pointless positions.
There’s plenty of uncontested divorces and most of my clients find a way ultimately to an amicable resolution. Perhaps neither party is completely happy with the settlement but they can both live with it and move forward in their lives. There is a real value to that certainty and to that ability to get unstuck. Many of the cases I work on tend to go fairly smoothly and there’s really no need for emphasizing a great deal of litigation techniques or tactics.
Invariably, there are cases that are for whatever reason, whether it’s the emotion of one or more parties, whether it’s the amount of assets, whether it’s the custody issues, there are from time to time cases where there is higher conflict; there are more motions that need to be filed, more techniques and tactics that need to be utilized. This section of the book is all about what kinds of tactics are out there if you’re contemplating a New Jersey divorce. I know some of you reading this are probably interested in some of the more aggressive techniques you can try or that you may need to defend, so here is a short primer utilizing my civil litigation background:
Now my background is somewhat interesting in that I’ve always done family law, but for a period of time I also served as deputy county council for a county and I handled a lot of cases in federal courts and state courts. I had a great deal of exposure during those years to civil litigation. Just like how sometimes reading a book outside of your industry can give you new ideas, or have you view things in a new way, that experience was helpful for my divorce practice when it comes to high-conflict matters.
Actually, the impetus for my including this section in the book is I recently was published in Family Lawyer Magazine with the article titled: Utilizing Civil Litigation Techniques in High-Conflict Divorces. Now that article was aimed more at other attorneys. That’s a national magazine that is written for other attorneys and family law experts as the audience. The main takeaway was that as divorce attorneys, we have the entire playbook available to us. We have many court rules that apply to not just civil litigation, but to us as well, but we tend not to utilize them for whatever reason, whether it’s custom, whether it’s just the belief system of specific attorneys, but there are many possibilities to gain leverage there. Again, these are ideas that aren’t going to apply to every case, but there’s certain techniques out there that some attorneys are using, but not all. I later did a Podcast on the subject but aimed at those actually going through a divorce and I am now including some of that information in this book.
So, I have thought long and hard about how to take that experience doing civil litigation practicing in federal and state courts and appellate courts and put forth a manual, or a list of ideas that family law attorneys could utilize. One of the issues is what do you do if you have a prenuptial agreement? Plenty of people have prenuptial agreements and then they’re somewhat disappointed when they learn that there’s still some burden on them during the divorce process to prove that the prenup is valid.
There’s also what’s called summary judgment motions. These are motions that are usually utilized by insurance companies or other defense attorneys and civil litigations. The idea is there’s not enough here to go to trial on these issues. As family law attorneys, we tend not to utilize motions for summary judgment, but in instances where there’s a claim of marital tort where you’re saying there’s a personal injury from the marriage, or if somebody’s alleging that against you in instances where you’re trying to prove a prenup is not valid or prove that it is, filing a motion for summary judgment can be a very fascinating way to gain some leverage in the litigation to put certain issues to bed and to make sure that you can focus on the more important issues that are out there.
It’s not a total victory in family law, like it may be in civil litigation where you can prove via a summary judgment matter that perhaps an immunity exists and you can win on that issue and be out the case. In family law, you still have to get divorced, you may still have to address custody issues, which obviously would tend not to be good for summary judgment, because one of the standards of summary judgment is that no uncontroverted fact exists and it’s really more of a legal argument. You can win on the law on issues of whether a prenup is valid, whether a reconciliation agreement is valid. If you utilize those techniques, you can really go far in gaining leverage and bringing the case to a head.
To that end, another thing that family law attorneys don’t do as often as civil litigation attorneys is we don’t depose people. Now in TV shows and in movies, people – lay people watching those types of shows will not see that many depositions. Usually, if somebody’s being questioned by an attorney it’s during an actual trial.
There’s actually the ability to have what’s called a deposition prior to the trial where you put key witnesses or even the parties themselves under oath. Each attorney will be there and the other side’s attorney will have a chance to question you, to cross-examine you under oath. That’s why when they say never ask a question at trial you don’t know the answer to, depositions is where you get some of those answers. It’s also where you can impeach the credibility of somebody if they later change their story during the trial.
Another nice thing about a deposition is it can be utilized to point you towards new discovery. You can ask people certain questions that may open up new lines of discovery beyond the actual discovery requests. For whatever reason, historically family law attorneys do not utilize depositions. That’s an area that in a high-conflict divorce, you can utilize depositions. Is it going to cost a little bit more money than not using them? Sure. Is it for every case? Definitely not.
In these certain types of cases where it’s high-conflict, where there is certain discovery issues you need, or you have a – somebody your trial lock-in to a certain view or a certain truth that you want them to say, it could be very, very useful and it can be the type of thing that can bring a case back from the brink, or bring a case to a logical conclusion earlier than they would otherwise go.
Another discovery technique that has gained some increased use over the years from when I first started practicing (but still somewhat underused in my opinion) are requests for admissions. This is the cheaper way to do a deposition. You send statements to the other side and they have to say whether they are true or not true. If they don’t answer them at all, then you can make a motion at trial to state essentially that they have admitted everything in the statements that everything is admitted and therefore, they waive the right to now deny it. You can get a procedural upper-hand using admissions.
It’s the in-between, not all the way up to a deposition, but you can get certain statements made. You can start to carve out what the factual discrepancies may be between the parties and it could be very useful. Another technique that we use a lot in civil litigation but not very much in a New Jersey divorce is a claim of frivolous litigation.
Now this will come up particularly in post-judgment matters, where people will continue to file motion after motion. Then you can file a counter motion with the court asking that the person be barred from filing future motions, or that they may have to pay for counsel fees. You can use frivolous litigation rule 1:4-8. In many other circumstances, you could use if somebody files a marital tort against you and you know that it’s bogus. You could use it if somebody is attempting to file an adultery claim against you and you know it’s not true and you can prove it’s not true, it’s just meant to harass.
What you do is you have your attorney send a letter to the other side threatening damages for frivolous litigation and advising that you’re going to seek all sanctions available under the frivolous litigation law. We’ve talked a lot today about discovery. Another thing that is very common in civil litigation but not as common thus far in family law is non-spoliation of evidence claims. Usually, when a civil litigation case starts out, you’ll send a letter to the other side saying, “Please maintain all discovery or potential discovery pertaining to the case. If you don’t, it’ll be considered a spoliation of evidence.”
In family law, this could be really important for Facebook or social media accounts, for example. You can send a letter to the other side saying, “Please maintain all discovery,” so if the person later takes down a picture of them out partying when they’re fighting for custody, you can say that they spoiled the evidence and you can get an award of damages and positive inferences drawn towards your case, because the other side spoiled that evidence. You could also add that in as a count in your complaint for divorce, or counterclaim for divorce; it’s another way to gain leverage and high-conflict divorces like all litigation, or most litigation, it’s all about leverage. How do you gain that leverage to bring the case to a satisfying conclusion? If you can’t, how can you properly prove your case before a judge?
One last thing I want to talk about is Open Public Records Act. When I served as deputy county counsel for Somerset County for several years, OPRA or the Open Public Records Act was the bane of my existence, in that there’s just so many requests for records and it is very fact-sensitive, whether a government entity should give those records out or not. Because of that experience handling those types of matters and trial courts all the way up through appellate courts, I have a good familiarity with them and what kinds of requests can be made and what kinds of requests can’t be made.
If you have a spouse who works for a government entity, you might be able to circumvent some of the discovery by requesting their salary information, for example, or their certain employment information; not all of it. Some of it is exempt, but some of it directly from the source, and that can help get you records quicker, it can help get you records that your spouse or his attorney would otherwise object to, and it’s another way that you can gain some leverage, gain information and move the case forward. It’s not something that you see very often, but it’s certainly an area of information and documentation available to us that we could utilize in certain circumstances.
So there you go, a little taste of red meat for those who want to be aggressive in a divorce. But don’t say I didn’t warn you if the ends do not justify the means. Our firm is in this for the law hall and we try not to burn bridges or take positions that are ridiculous so we can attempt to maintain our reputation in the community and more specifically in the legal community. That said, you can’t be a pushover and sometimes more aggressive tactics are the correct play. It’s sort of like in a game of football: you’re not going to blitz on every play but sometimes an aggressive blitz package can disrupt the other side and cause a game-changing turnover. Or since we’re now in a football era where defense is semi-banned: it’s like throwing a deep pass. You want to work on the workmanlike run game and short passes and then go for the big play downfield. The problem with being aggressive all the time is you’re easy to read. The element of surprise is important at times in a divorce just like in any litigation. And often times all litigation boils down to a high-stakes game of chicken.
During the Divorce, Should I Leave the Marital Home?
One of the most common questions I hear is whether or not a party should leave the marital home during the divorce proceedings or prior to filing for divorce. It’s a simple question but one with a somewhat complicated answer. The purpose of this section of the book will be to discuss some of the issues that may impact a decision on this important issue.
In Favor of Not Leaving the Marital Residence
Firstly, the common advice is to generally not leave the marital residence. The idea behind this classic advice is that once you leave the home you are left to take on more expenses, you may hurt your pendente lite (during the divorce proceedings) or even post-divorce custody and parenting time (courts may favor parent that has larger home, home children are familiar with, in children’s school district), and that you also may lose some control over the process of listing the property for sale or possession of certain personal items such as furniture, etc. There is a lot to be said in favor of such arguments.
Also, given that finances are often strained during a divorce, it is often beneficial to reside in the marital home so as to cut down on the expense of having two separate households. Courts like to favor the status quo during the divorce process and residing together during the divorce helps maintain that status quo.
However, it should be noted that if there is an active restraining order in place then you cannot reside in the same residence as your spouse/soon to be ex. In addition, there may be some further qualifications to consider such as whether the house is solely one parties property or not, whether there is a prenuptial agreement addressing such issues, and what would be in the children’s best interests, as applicable. Also, certain professionals such as law enforcement officers may want to vacate as entry of a restraining order can impact their careers.
In Favor of Leaving the Marital Residence
There may be certain variables at play that may inure toward leaving the marital residence. Although it may be better for you to have your spouse leave, they may not be willing or able to do so.
One of the benefits of leaving the marital residence may simply be peace of mind. It’s sometimes easy to dismiss the intangible benefits of something, but parties pursuing a divorce often have their issues with one another. At the very least, one of them is pursuing an action so as to not continue to live with the other.
Although old movies like “The War of the Roses” may present such issues as farce, it may be difficult to continue to reside with a spouse when there is constant bickering or worse. Also–and this is true particularly for men (but could apply to either party); there is some concern if you do not reside about your spouse potentially pursuing an unwarranted restraining order to get you out of the marital residence. There have been occasions where the domestic violence laws have been used (by both sexes) as a “sword” rather than a “shield,” and case-law has warned about such issues. As noted above, this may be particularly true if you are in a job such a law enforcement that relies upon being able to legally carry a weapon for your line of work.
In addition, since divorces can take upwards of 1-2 years if they do not settle, moving out of the marital residence can also assist both parties in moving forward with their lives. Being caught in limbo for a period of years can be detrimental to one or both parties. Such “limbo” is how several of my clients have defined the process of residing together with a spouse for an extended period of time post-separation.
If you do decide to vacate the marital residence, it is important to take an inventory (video inventory would be best) of all of the marital possessions should your spouse later sell or destroy your property (or joint legal property). It is also best to make copies of any important documents (either your own or joint documents) prior to vacating.
Again, leaving the marital residence may raise particular issues for you if there are children of the marriage, as a pendente lite order may disfavor you, you may be seen as “abandoning” the family, and it is difficult to regain access once you formally vacate (otherwise if you both own the property there is no legal requirement to vacate absent restraining order or other court order).
All of these considerations, both for or against leaving, should be viewed respecting your own individual factors and how they may impact your case. Ultimately, you need to discuss these issues with your own attorney.
Divorce in the Age of Bitcoin – Divorcing in the Techno-Age
Sometimes when I’m really bored I’ll think about how interesting dogs are. How did a creature that was a wolf (and biologically is still essentially a wolf regarding chromosomes, etc.), tens or hundreds of thousands of years ago become a creature that is adept enough at co-existing to comfortably travel with us in a car, for instance?
Being a divorce lawyer has certain similarities—we must constantly be adapting to changes in the law, but also changes in society. I never thought when I was in law school that something like cryptocurrency could be an issue in a divorce case, but here we are.
I was one of the first divorce lawyers in the country to write an article addressing the need to search for cryptocurrencies in the divorce and to learn about how new technologies like Bitcoin could impact even a suburban divorce practice and its clients.
In full disclosure, for quite some time my general attitude toward “cryptocurrencies” had been as follows: ignore them and hope they go away. Unfortunately, divorce lawyers and our clients can no longer bury our heads in the proverbial sand.
Cryptocurrencies and “block-chain” technology may or may not be the wave of the future, but they are an increasingly commonly held “asset” class—and one that will have to be dealt with in equitable distribution and in divorces in general. As usual, the law tends to lag behind technology, meaning there are few if any published opinions on this subject.
OVERVIEW OF “CRYPTOCURRENCIES”
Cryptocurrencies (“cryptos”) are a form of decentralized virtual currency that were created in 2009 and have been increasingly traded, often on virtual currency platforms. They are often anonymously owned and thus pseudonymously traded. They can be stored in various avenues such as a “virtual wallet,” on a smart phone, or in a virtual cloud. These currencies generally utilize novel “blockchain” technology to record permanent, decentralized, and encrypted transactions.
In 2014 Under Notice 2014-21 the IRS defined cryptocurrencies as follows: “Virtual currency is a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value.” The IRS also noted in 2014-21 that: “The IRS is aware that ‘virtual currency’ may be used to pay for goods or services or held for investment.”
Security is a great concern regarding these types of currencies. Although Bitcoin is the most well-known type of cryptocurrency, there are now various types of these “coins” ranging from Bitcoin down to “penny-stock” type of exchanges. And they have been an extremely volatile investment. During 2017 the price of one Bitcoin rose from around $900.00 to a high of $20,000. Less than a year later it was back down to $3,000.00. There have also been well-known scams, thefts, and the shutting down of crypto-exchanges. In other words, it’s the “Wild West” of “investing” (or speculating depending upon your point of view).
In a run-up commonly compared to Holland’s 17th Century “Tulipomania” bubble, the investment class has at times outpaced a hot stock market and at others cleaned people out. You can now hear about cryptocurrency investment tips while getting your hair cut, riding an Uber, or talking to your uncle at the annual family get-together. If I wrote this book even two years earlier this chapter wouldn’t even exist, now it’s an important “cutting-edge” topic to consider when negotiating certain divorces.
Their relative anonymity makes it a difficult asset to locate—meaning it may be ripe for inappropriate divorce-planning attempts. That risk coupled with its increasing use amongst the general population means that divorce attorneys must learn the basic principles of cryptocurrencies to provide clients with necessary guidance.
Cryptocurrencies and Equitable Distribution
The treatment of cryptocurrencies for equitable distribution purposes is in theory not too dissimilar from any other asset. If at the time of divorce there exists two Bitcoins and no marital exemptions apply (such as non-commingled premarital property, gifts, inheritance, etc.) then each party should generally be entitled one Bitcoin. Likewise, one party could buy the other out provided there is agreement as to the valuation. The more interesting questions arise under protecting against a party attempting to hide these digital assets.
Because cryptocurrencies can be pseudonymously transferred to others, it may be difficult to determine ownership. In an article on the subject of cryptocurrencies and divorce, the website mensdivorce.com calls the attempt to hide such assets: “The high-tech method of burying a sack of cash in the woods.” As divorce practitioners, what can we do to effectively foreclose such inappropriate actions?
Firstly, it may be prudent to add specific cryptocurrency questions to all initial discovery requests. Although general questions as to currencies, monies, or assets may be sufficient, it may be helpful to ask in interrogatories whether the spouse owns or has ever owned any cryptocurrencies. Likewise, this issue can be specifically raised in requests for admissions, at depositions, and at trial. By specifically addressing these issues the opposing spouse is more likely to be upfront and also more likely to be sanctioned if it is later discovered they are attempting to hide assets.
If there remains a suspicion of a spouse harboring hidden cryptocurrency, then it should be noted that although Bitcoin and the like are generally pseudonymously held, their purchase and sale do create trails as follows: such currency will generally be purchased using fiat currency (creating a record) and most cryptocurrencies are purchased via an exchange (the largest one at the moment is Coinbase.com), which will charge transaction fees. It is also possible that you could subpoena such exchanges to procure such records.
The IRS has recently issued a summons seeking “a wide variety of records [from Coinbase.com] including…taxpayer identifiers for all of its customers who have bought, sold, sent or received crypto currency worth $20,000 or more in any tax year from 2013 to 2015, transaction logs, and correspondence.” Accordingly, there may be ways to obtain releases and or to subpoena such records to determine the existence of cryptocurrencies. Tracking such assets on tax forms in future years should make it easier to follow the crypto trail in future years. As always, the option to retain forensic accounting or other such experts may be appropriate when in doubt and if it is believed sufficient hidden assets may exist.
Whether cryptocurrencies will be merely a “flash in the pan” or the start of a new way of global commerce, not even our foremost futurists know for sure. But in the present moment, there will increasingly be cases where a portion of marital wealth will be held in the “blockchain.” Using innovative discovery techniques to locate such assets will be important now and in the future.
For you the main take-away is this, think long and hard about whether your spouse is or may be utilizing cryptocurrencies and discuss with your attorney how you can address locating and valuing such assets as part of your divorce.
How Can You Fund Your Divorce?
During almost every initial consultation the biggest elephant in the room is
cost. Clients know that getting divorced can be expensive–sometimes prohibitively so. They also know that divorce lawyers generally bill by the hour at the rate of hundreds of dollars per hour.
When people say they are concerned they cannot afford their divorce they are often referring to paying their divorce lawyer’s fees just as much as they are expressing concern about carrying two households, paying child support, or paying alimony.
When I first started practicing law we were in the early stages of the “Great Recession.” Clients could no longer rely upon equity in their home to take care of legal fees at the end of the divorce. Although unemployment is at near all-time lows and the stock and housing markets have rebounded (at the time of this writing), most Americans do not have $5,000.00 or more laying around for an initial retainer deposit. Likewise, a divorce cannot be financed directly by a law firm and interest cannot be charged, so lawyers loathe playing banker (this writer most heartily being included in that camp). This may create tension in the relationship and concerns that a lawyer is:
- “nickel and diming” their clients (only it’s a lot of nickels);
- Is dragging out the case and/or “over-lawyering”;
- Is working through the retainer quickly and then withdrawing if the client cannot replenish in accordance with the retainer agreement.
- Is charging not just for every tiny expense but also every communication.
These are all legitimate concerns and both attorney and client should discuss the particulars of what is expected and how the case will be handled. In my own practice I attempt to look to studies and surveys about what clients find most dissatisfying about their lawyers and then attempt to implement policies that address such concerns or take the opposite tact. Regardless, there is sometimes miscommunication on both sides… it cannot be assumed that clients read the retainer agreement or fully understand its terms.
Another potential problem is that the biggest issue in any divorce is often not a legal issue or a complicated financial analysis, but rather the raw emotion that may interfere with settlement. That means that the cost for the divorce of a modest household may not be all that different than the divorce of those with substantially more assets. In most divorces there is at least one party that does not even want to be getting divorced, which may further complicate the emotions of the situation.
Paying for a divorce and particularly the initial retainer is thus sometimes difficult (to say the least). Although I cannot speak for any other firms, I have attempted to make it easy for clients to meet this obligation. For instance we’ll accept payments in the following manner:
- Cash (with receipt given);
- Credit Card (links for payment through Law Pay are given and clients can also pay at the firm’s Flemington, New Jersey location;
- Money Order
I suspect this is similar to most other practices although some firms will not take credit cards.
Like many firms, I expect the retainer amount to be replenished. I encourage clients to call me if they question any portion of their bill to discuss as I would rather know if a client is dissatisfied. I also attempt to minimize minor pass-through costs such as for telephone calls, faxes, or the like. Moreover, I attempt not to fully bill for attorney-client communications in divorce matters such as simple calls or emails as I want to keep the lines of communication open as much as possible.
In some cases I obtain counsel fees from the other party. Nevertheless, I expect payment from my clients who must then seek reimbursement from their ex. This too is standard in most New Jersey divorce retainer agreements. I do not like to extend payment plans as I am not a bank and believe there are more appropriate ways for clients to obtain credit.
Communication between attorney and client is paramount in limiting counsel fees and ensuring a positive outcome in the case.
A mentor of mine once said it’s difficult to make a living as a “necessary evil.” Even us divorce lawyers will admit that clients would have much more fun spending money on a cruise, piece of artwork, new car, or home improvements. Few people want to get divorced and paying for the sometimes “necessary evil” of dueling lawyers can exacerbate an already difficult situation. The added benefit of fully understanding the process and your risks, responsibilities and obligations is the divorce lawyer’s stock and trade. If you want to retain my firm but are uncertain if you can afford it, I hope this section will assist you in understanding the potential payment methods and some of the philosophy behind the divorce attorney-client relationship.
Who Pays counsel fees in a divorce?
Given the above, you may be concerned regarding how you will pay for the attorney and counsel fees. If your spouse attempts to cut you off from the marital funds, then you may need to pursue court action, but may be involved in a “Catch-22” situation where you can’t retain an attorney due to not having funds. Likewise, you may be in a marriage where your spouse earns substantially more than you or has access to greater assets than you with which to fund litigation.
New Jersey generally operates under what is known to lawyers as “the American system.” In general, this means that each party to a litigation is responsible for their own legal fees. In addition, absent a “fee-shifting” statute, even if you win it is difficult to get reimbursed for the costs of litigation. (The other primary system is known as “The English System,” wherein the loser pays both sides counsel fees).
But divorces are different—they generally involve a pot of communal monies. So in the divorce setting, who pays?
Which Party is Responsible for Divorce Counsel Fees?
Subject to the provisions of Court Rule 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite (i.e. during the pendency of the divorce) and on final determination, to be paid by any party to the action [in the family part]. R. 5:3-5(c) for the award of counsel fees.
In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors:
(1) The financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained: (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
Statute N.J.S.A. 2A:34-23 also authorizes an award of counsel fees in a matrimonial action and further requires the judge to “consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties and the good faith or bad faith of either party.” An application for an allowance of counsel fees must be supported by an affidavit of services addressing the factors enumerated by the Rules of Professional Conduct 1.5(a) ((RPC 1.5(a)). R. 5:3-5(c).
Issues such as acting in bad faith or refusing to act in a reasonable manner may inure to the imposition of counsel fees against a spouse. The Court will also look to the financial circumstances of each party to determine whether counsel fees should be awarded or advanced. Courts will particularly emphasize any financial disparity between the divorcing parties.
Most counsel fee awards are without prejudice, meaning that the Court reserves the right to address the final award of counsel fees at the time the divorce is finalized.
If you do not have the funds to seek a divorce but your spouse does, you should discuss this issue during an initial consultation with your attorney to determine if appropriate action may be taken to ensure you can afford to keep up with the divorce litigation expenses.
Collecting Money Due in Family Law Court
Marital debt is unlike other types of debt due. For one thing, most debt is
collected in the Civil Division of the Courts, particularly the law division (if it’s a large debt) or in the Special Civil Part or Small Claims (if less than $15,000). Another interesting facet of collecting monies owed to someone in family court matters, is that child support may be considered an automatic lien.
Although docketing monies due may still apply in divorce law, there is an easier path to navigate to collect. This is particularly true and in family court cases if a parent owes money and is held in contempt he or she may be jailed until they pay a certain portion of money due and owing.
Some of the methods of collection available in civil court cases, which may also be pursued as part of enforcement actions in family court matters include wage garnishment, bank levy’s, and chattel (property) levies. If support is being collected by Probation/Family Support Services then action(s) may be taken to collect on your behalf even absent court intervention.
It is your right to ask that payments be made through Probation and this is generally chosen over “direct pay” in New Jersey divorces. Another type of relief that may be pursued is what’s known colloquially as a “Constructive Trust,” or seeking that certain funds (such as retirement funds) be “sequestered.” This may come in handy if a party owes monies for college or private education, for instance and is not paying. The Courts may order that certain funds be liquidated to pay monies due.
New Jersey statute N.J.S.A. 2A:34-23 provides, in relevant part, that:
If an obligor shall abandon an oblige or separate from the oblige and refuse or neglect to maintain and provide for the oblige, the court may order suitable support and maintenance to be paid and provided by the obligor for the oblige and their children. If the obligor fails to comply with the order of the court, entered in New Jersey or another jurisdiction, the court may impose a lien against the real and personal property of the obligor who lives in or owns property in New Jersey to secure payment of the overdue support and for such time as the nature of the case and circumstances of the parties render suitable and proper. (Emphasis Added).
Accordingly, certain real property may be subject to a lien if an obligor (the person who owes money) does not remit payment in a timely fashion to the obligee (the person owed the money).
If you (or your minor children) are owed money, it may be important to act fast to protect your rights in Court. That is because Courts may impose the equitable doctrine of “laches” against you if you do not pursue your interests. “Laches” essentially means that you “slept on your rights.” Under the New Jersey case of Rolnick v. Rolnick, 262 N.J. Super. 343 (App. Div. 1993) and its progeny, a party urging application of “laches” must demonstrate that the other party: 1) delayed in asserting a claim now stale without explanation or excuse; 2) that the delay was unreasonable given the circumstances; and 3) that the delay was prejudicial to the party urging the defense.
Laches are an affirmative equitable defense that may bar rights afforded to a party under a Marital/Property Settlement Agreement, a judgment, or an Order.
Collecting monies due to you in a New Jersey divorce action can be tedious and feel like throwing “good money after bad.” Indeed, a large percentage of child support and alimony ordered or agreed to is never paid. I have, however, been able to utilize creative methods throughout my career to assist clients in obtaining monies due them (or their children).
Such enforcement actions should be viewed with an eye on a careful cost-benefit analysis and are fact-sensitive.
If One of Us Remarries Does that Impact Child Support?
If your ex-spouse recently remarried or is about to have children from a subsequent relationship, you may be curious about how this may impact your own children’s child support. I will limit this discussion to situations where your ex is recently remarried and/or recently is a new parent from a subsequent relationship.
The seminal New Jersey case setting forth the standards and procedures of child support modification is Lepis v. Lepis, 83 N.J. 139 (1980).
In Lepis, the Supreme Court acknowledged the right of trial courts to modify support provisions at any time, provided there is both a “permanent and substantial change in circumstances.” The Lepis Court further provided a list of “changed circumstances” examples. This list includes:
- An increase in the cost of living;
- An increase or decrease in the supporting spouse’s income;
- A party’s illness, disability or infirmity arising after the original judgment;
- The dependent spouse’s loss of a house or apartment;
- The dependent spouse’s cohabitation with another;
- Subsequent employment by the dependent spouse;
- Changes in federal income tax law.
The Lepis Court further provided the proper procedure for judicial review. Specifically, the party seeking relief must make a prima facie showing of changed circumstances. Thereafter, if such prima facie showing is made, the other party may be required to provide discovery of his or her current financial status.
The Isaacson v. Isaacson case states that in high income child support cases, a balance must be struck between reasonable needs, which reflect lifestyle opportunities, while at the same time precluding an inappropriate windfall to child(ren) or infringing upon the legitimate right of either parent to determine the appropriate lifestyle of the child(ren).
In the case Loro v. Del Colliano, the Court held that: “The custodial parent should not gain a benefit through the guise of child support that is beyond that which is more than incidental to the benefits being conferred to the child.
Strahan v. Strahan developed that concept further and reminded courts that it is important in high income cases that judges make an analysis of the reasonableness of the needs claimed by the custodial parent for the child(ren).
In addition, New Jersey Court Rule 5:6A is instructive when considering such cases, as it further illuminates the appropriate standard of review. R. 5:6A specifically provides that child support guidelines may be modified or disregarded by the Court only where “good cause is shown.”
The Appendix to the Child Support Guidelines states that the Court may not extrapolate child support when the parties’ combined net income exceeds $187,200.00. Appendix IX –A Paragraph 9, provides that only certain expenses may be added to the basic child support obligation, and such expenses are child care expenses, health insurance for the child, predictable and recurring health expenses in excess of $250.00, special needs for disabled or gifted children, or visitation transportation expenses.
Moreover, the Child Support Appendix further indicates that if net income of the parties is greater than $187,200.00 per year, that the Court must apply the child support guidelines up to $187,200.00, and thereafter may, but is not required to supplement additional income based upon factors set forth in the appendix or in N.J.S.A. 2A:34-23a.
Isaacson provides that in an alleged high-income case, the Court must consider the reasonable needs of the children in the context of the parent’s standard of living.
Thus the case-law states that a parent—particularly a parent who feels they did not bargain for sufficient alimony—cannot later use their child(ren) in an attempt inflate their own standard of living.
N.J.S.A. 2A:34-23a provides that, in deciding a child support amount, the Court should consider the following factors:
* The needs of the child;
* The Standard of living and economic circumstances of each parent;
* All sources of income and assets of each parent;
* The earning ability of each parent, including educational background;
* All sources of income and assets of each parent;
* The need and capacity of the child for education;
* The age and health of the child and each parent;
* Income, assets, and earning ability of the child;
* Responsibility of the parents for the court-ordered support of others;
* Reasonable debts and liabilities of child and each parent; and
* Any other factor the Court may deem relevant.
The above thus provides a framework of child support modification in New Jersey (upwards or downwards). Although your ex-spouse may enjoy a greater standard of living after cohabitating or remarrying, the new spouse does not have any obligation to provide support for your children.
Accordingly, courts will generally not impute additional income to your ex or consider his or her new spouse’s income requiring a recalculation of child support. If a child is born from a subsequent marriage or relationship, however, then courts may consider that to be an appropriate “permanent” and “substantial” change in circumstances warranting the recalculation of child support.
The guidelines themselves taken into consideration how subsequent children may impact child support. In that situation you may also be entitled to understand the new spouse’s finances to determine just how much support your ex is diverting to the child from his or her new relationship.
These matters tend to be very fact-sensitive and can be somewhat complex. If you have any questions regarding modifying child support after your ex-spouse remarries or cohabitates, then it’s best to schedule a consultation with a New Jersey divorce lawyer.
Remember that the same would apply to you if the situations were reversed.
The Types of Experts Available for a Contested New Jersey Divorce
Unfortunately, not every family law matter is simple. Particularly in contested divorces or other contested family law matters, a need may arise for one or more “experts.” This post will briefly review some of the more common types of experts. These experts will often times review materials/meet with parties and/or their children, write reports, and sometimes testify in Court. Some experts are ordered by the Court and others are retained by the parties. In addition, each party may retain their own expert or, in the alternative, can agree upon a “joint” expert.
Real Estate Appraisers
If there is a question as to the value of the marital home or other real estate, a real estate agent may be retained to perform a real estate appraisal. Real estate agents may also be retained to advise of the proper listing price and what, if any repairs will be required before the house can be listed. This is particularly necessary when the parties cannot agree to repairs, a listing date or a sales price.
A common concern amongst parties is the possibility that their spouse/soon to be former spouse is or may be hiding assets. Discovery methods are utilized to procure documentation and information, but sometimes a forensic accountant may be required to follow the trail of money and assets.
Child Custody Experts
Certain psychologists specialize in meeting with the children and the parents and advising as to the best custody and parenting time schedules.
From a rare stamp collection to sports memorabilia valuation, sometimes an expert in a specific field might be required to appraise the value of item(s) for buy-out and other valuation purposes.
Valuation of a business can, at times, be the most important issue to resolve in a divorce.
If an individual is alleged to be underemployed or if there is an issue as to income imputation, then an employment expert might be retained to review the individuals work history and degrees and draft a report as to his or her income potential.
The above are just some of the many potential experts that may be retained in certain New Jersey family law actions.
Assets Not Subject to Equitable Distribution
As a general rule, most property owned by a divorcing couple in New Jersey is subject to equitable distribution. Equitable distribution is a legal phrase that basically means “dividing marital property.” There are, however, certain assets that are normally excluded from equitable distribution in New Jersey. Please note that for all of the following, there is no bright-line rule. Commingling funds, for example, may take away a property’s separate nature.
Equitable distribution traditionally refers to property acquired during a marriage. If you enter into a marriage with a house, for example, that house will likely not be subject to equitable distribution at the time of the divorce. Again, this is a fact sensitive determination and you will have to speak with an attorney or other expert to determine whether your property is in fact excluded from equitable distribution. If property is commingled then it might become marital property. Same thing if someone puts their spouse’s name on the deed. Rental or other income may be considered for purposes of alimony and child support. Also, a spouse who contributes to the house or other property (and this could be financial or “sweat equity”) might also have a successful claim to a portion of a property. (These caveats will likely apply for all exceptions, and I will therefore not repeat them below, but it should be noted that they do likely apply).
Gifts from third parties are often not subject to equitable distribution. Gifts to each other during the marriage, however, (think: jewelry) will likely be considered marital assets and thus subject to equitable distribution. If someone gives a gift to both spouses, then it is likely subject to equitable distribution. A common fact pattern involves in-laws giving a gift and now claiming it was only for their son or daughter but not the son-in-law or daughter-in-law. The burden of proof generally falls on the party seeking the exception.
As with gifts, most inherited property is not subject to equitable distribution.
Personal Injury Monies
The portion of a personal injury (or other such lawsuit) award regarding physical or emotional pain is generally not subject to equitable distribution, although the rest of the award, if applicable, generally will be considered marital property.
Even when one party is the breadwinner and the other party does not work outside the home, unless there is an exception such as outlined above, most property will be subject to equitable distribution.
Again, the above exceptions are very fact sensitive. The above information is general in nature and should not be relied upon for your specific case. To see if your property falls into an exception to equitable distribution, you should speak with an attorney who is licensed in your area and practices in this area of law.
Negotiating Life Insurance Obligations
Not too many people find insurance all that interesting. For most of us, it’s something you often need, but not something you like to think about.
Accidental death. Life insurance. Health insurance. These are the expenses that seem to only pay out when something bad is going on.
I’m no different. In my personal life, I’d rather not think about insurance. But when it comes to a New Jersey Divorces, insurance can play an important role during a divorce and during divorce negotiations. In this post, I’ll explain a few of the basics of life insurance and how they relate to a New Jersey divorce.
Types of Life Insurance
There are all kinds of life insurance vehicles, but for the purposes of this discussion, I’m going to limit it to the basics: whole life and term life.
More exotic types of life insurance exist but are beyond the scope of this discussion. The important distinction is that whole life insurance has an equity component—an amount that can be “cashed in” whereas term life insurance merely contains a death benefit.
- Term Life Insurance
Term life insurance is less expensive and merely contains a death benefit. There is no value to a term life insurance and thus it will not factor into equitable distribution.
- Whole Life Insurance
Conversely, whole life insurance may have a value aside from its death benefit. In most cases it will possess a value subject to equitable distribution in a New Jersey divorce. For this reason, whole life insurance is generally more expensive than term life insurance. It may also be possible to borrow against whole life insurance.
Life Insurance During Divorce Process
While a divorce is ongoing (known as the pendente lite phase of a divorce), applicable New Jersey laws require that each party maintain the “status quo” of the marriage. The same holds true for life insurance and other types of insurance such as health and car insurance.
For example, if the Wife always maintained and paid for term insurance naming the children as beneficiaries, then she must continue to do so throughout the divorce process. The parties must also provide the Court with insurance information after a divorce complaint is filed.
Life Insurance During Divorce Negotiations
Life insurance will factor heavily in two sections of the Marital Settlement Agreement: (1) Equitable Distribution and (2) Life insurance obligations.
Equitable Distribution and Life Insurance
As stated above, if a life insurance has a cash-out value—such as in most whole life plans—then that value will be subject to equitable distribution. Note, I am not talking about the value of the death benefit, but rather any equity built up with the insurance. If the insurance is term life, then it will not be subject to equitable distribution because it will have no cash surrender value. It would only pay out in the instance of the death of the insured party.
Protecting Alimony and Child Support
Life insurance will also often play a role in protecting alimony and child support. It may also be required to protect other expenses such as college costs.
For instance, if the Marital Settlement Agreement grants the Husband alimony in the amount of $1,000 per month, and it is expected that this alimony will continue to ten (10) years, then the Agreement should require the Wife to maintain life insurance naming the Husband as beneficiary in an amount sufficient to protect that alimony interest. In this case, about $120,000.00.
The amount may be reduced each year in proportion to the decreased amount expected to be owed. The same could be applied to child support or college costs.
So, after that exciting review everyone drink a strong cup of coffee and then let’s regroup onto the next topic!
How the Tax Cut and Jobs Act of 2018 Impacted Divorce
The “Trump” Tax Reform Act of 2018 made several changes to New Jersey Divorce law, including making alimony a tax-neural event. Below is an analysis of some of the changes to look out for post 2018 unless or until the law changes again:
- Increased Child Tax Credit. Currently (subject to a phase-out) parents may receive a tax credit of $1,000.00 per child. The Tax Reform bill has doubled this amount to $2,000.00. In divorces the child tax credits are generally evenly divided between the parties. Accordingly, if there are two (2) unemancipated children from a marriage, both parents will claim one of the children. If there is one child, the parents will alternate even and odd years claiming the children. I like to add language to my divorce agreements that if a parent cannot benefit from a deduction in a given year that they will allow the other parent to claim the child. This provision increases the value of child tax credits and instantly makes it twice as important a consideration for future divorces.
- State and Local Tax Deductions and Property Taxes – The reform no longer allows residents to deduct state or local income or sales taxes. It also limits property tax deductions to $10,000.00. Nobody that resides in New Jersey needs me to remind them that we’re a heavily taxed State with high property values (and high property taxes as well), but how does this impact couples seeking a divorce in New Jersey? For one thing, many experts are forecasting that home values may be reduced, particularly for properties with $10,000.00 or more in property taxes. Just as many people attempted to pre-pay their property taxes before the changes go into effect, there may be more people considering filing for divorce before the values of their homes decrease. For most individuals their largest single asset is their home. If their home decreases in value then so does the marital pot for purposes of equitable distribution. Thus this too requires careful monitoring, particularly as we enter the post-holiday divorce season.
- The Divorce Rate May Momentarily Increase – Maybe I’m subscribing too much to the idea of “chaos theory”, but I’ve always observed money to have greater force than the flapping of butterfly wings. Divorce lawyers tend to refer to tax return season as divorce season. There is a sense of finality to the prior year and the tax refund is often sufficient capital for a divorce retainer. With the holidays firmly in the rear-view mirror, this is the time of the year that divorce consults are generally at their busiest. Whether you are for or against the tax reform bill, it is evident that over the next several years more citizens than not will be paying less in taxes. Moreover, the alimony tax deduction will be taken out of the code commencing January 1, 2019. Thus, for better or worse it figures to be a buy divorce year in 2018.
- Businesses May Be More Profitable While Appearing Less Profitable. With the corporate tax rate being significantly reduced and even pass-through companies receiving greater deductions, the evaluation of businesses and their value will have to be tweaked moving forward. That said, on paper businesses may appear less profitable than usual as from 2017-2022 the 50% cap on business expenses will be replaced by businesses ability to fully deduct certain business expenses (such as a new computer). Accordingly, it may appear on paper that businesses were less profitable and there is perhaps greater room for gamesmanship when addressing these issues.
- Alimony Deduction Eliminated – The most well-known impact of the reform is that commencing January 1, 2019 you could no longer deduct alimony payments on your taxes and alimony received was no longer considered income. This portion of the Act eliminated a 75-year-old tax provision and has been referred to by some as a “divorce penalty.”
The Internet and Divorce: Best Practices
I’ll be honest: sometimes I fantasize about practicing law in the pre-internet era. I wouldn’t be cold-called everyday by “SEO Experts,” claiming they can “triple my business,” I wouldn’t have to concern myself with learning about “cloud-based” storage or other technological advanced that help “save my firm time and money,” and most importantly, my clients wouldn’t be able to incriminate themselves or damage their cases by posting inappropriate photos on Instagram, friending the wrong person on Facebook, or “Twittering” the wrong message.
It seems that a fair share of my conversations about social media with clients or potential clients go like this:
Me: You should be very concerned about your web-presence from now on. You’re about to go through a (divorce, contested custody, contested paternity, etc.) case and if you say the wrong thing or post the wrong picture it could really hurt your case. Although you probably can’t remove what is already up there as that could be considered spoliation of evidence, please keep that in mind from now on. I just don’t want to see you giving the other side ammunition or evidence that could hurt your case.
Client/Prospective Client: No worries. I am active on Facebook but my settings are on private. And I would never be absent-minded enough to post anything incriminating on the internet while engaged in litigation.
(2 weeks later)
Me: How is everything? You left a message at my office last night at 8 PM, is everything alright?
Client: I think I messed up. I posted a photo on Facebook of me drinking at a club on the night I was supposed to be exercising parenting time. Also, after I got home I was still drunk and I posted a comment about how my ex is a terrible father and that I always tell my child he deserves two good parents but unfortunately he/she only got one.
Me: Ok—hopefully your ex won’t see it.
Client: They already have. They called me last night and said they were going to tell their attorney about it and that they are upset I would drag our child into the divorce litigation. They also said they were going to claim I have a drinking problem.
Me: I thought you said the account was private.
Client: Yeah, I thought so. So should I just delete everything?
Me: No—as I said before that might be a spoliation of evidence. We just have to go into damage control mode.
Client: Wait—why can’t I just delete everything again?
The internet can be used for good or for evil, like most things in life. Unfortunately, it’s such a powerful tool that sometimes even the best people can slip up or have a down-moment. Reputation and credibility are so important in family law cases and given that spoliation of evidence rules make it so it may be improper to later remove or change posts, pictures, etc., let this post (with its fictional dialogue) be a reminder to all practitioners to remind their clients of these issues and to anyone in the process or confronting these issues to be mindful of the dangers when posting online.
This is particularly true with regard to family law, where such postings can be a particularly fertile ground for evidentiary purposes. I can’t count how many times our firm has been able to attach social media postings by the other side and gain an advantage in the courtroom. You live by the sword and die by the sword in our interconnected 24/7 world. Be careful.
Dissipation of Funds During the Divorce
One of the basic tenants of a New Jersey Divorce is that, absent consent of the other party or Court Order, a party may not dissipate marital assets during the pendency of the divorce. This makes a lot of sense, as it would be unfair for one or both parties to spend freely throughout the divorce litigation when those monies have yet to be accounted for and divided between the parties. That said, a lot of parties try to get away with dissipating assets. In a worst-case scenario, the other party may even have to retain the services of a forensic accountant, who may work closely with a divorce attorney to try and decipher how funds were used, whether funds were hidden, and the like.
Forensic accountants can be very expensive, however. Some examples of dissipating marital assets may include:
1) Encumbering a marital asset with a loan;
2) The obvious example of removing money from a bank account, spending cash that belongs to both parties, or the like;
3) Selling an asset without permission of the court or the other party, such as a car.
4) Gifting marital property to another without permission.
5) Changing or attempting to change the title so that it will solely be in one individual’s name;
6) Allowing something to fall into default, such as a car loan;
7) Allowing a family business to decline in value;
8) As you can imagine, there are many other instances where the alienation, encumbering, dissipation, etc., of marital assets can occur.
Such dissipation of marital assets is often considered as an important factor when determining equitable distribution. Although the definition of dissipation is somewhat nebulous, in cases where such dissipation can be demonstrated, it can lead to the imposition of counsel fees, requirements to pay back the amounts dissipated, or other such sanctions or monetary requirements via equitable distribution.
For instance, in the case of Siegel v. Siegel, (1990) the Court held that a party that dissipated marital assets via gambling could be required to reimburse the other party for those monies.
The party that is accused of dissipating assets may be required by the Court to prove that such dissipation is legitimate. Another issue that clients and their attorney’s must consider, is whether or not the items dissipated are truly “marital.” For instance, there are a number of exceptions to the equitable distribution statute. For instance, in general non-commingled funds that are obtained from an inheritance, via gift, via personal injury suit (the personal injury section), or that are pre-marital are not subject to equitable distribution.
Often during the pendente lite phase of litigation, a party will request non-dissipation as part of a Motion. In addition, if someone is the act of dissipating a joint marital asset, then the other party may often file an Order to Show Cause (or motion, if less time-sensitive) seeking that the party be enjoined from such behavior. Although the dissipation of funds on a large scale is, thankfully, not as common as one might expect, this type of issue often rears its head at some point on a small scale in almost every case.
For instance, a client might ask his or her attorney: “can I sell some of these old books on eBay.” But if those books are considered a joint marital asset, even such an innocent action might draw the ire of the other party. As such, this is an important consideration for clients or family law attorneys to consider during the pendency of a divorce.
Family Law Appeals
Given the nature of family law cases, parties are often unsatisfied with the decision made at the trial court level (Superior Court level). Sometimes, those parties will look into appealing the decision. And occasionally, the parties will even formally appeal such a decision.
Family law appeals are rare for several reasons. Firstly, they are very expensive. The party filing the appeal is required to obtain the transcripts from the trial court, and that is expensive in itself. Also, the filing of an appeal is a labor-intensive process. If an attorney will be retained, the legal fees will likely be daunting. Secondly, there is case law that states the appellate court is to give superior court judges a great deal of deference in their decisions—appeals will often times be unsuccessful. Thirdly, parties are not provided with a lot of time to render the decision of whether or not to appeal.
- 2:4-1(a) provides in relevant part that:
“Appeals from final judgments of courts, final judgment or orders of judges sitting as statutory agents and final judgments of the Division of Workers’ Compensation shall be taken within 45 days of their entry. However, appeals from final judgments terminating parental rights shall be taken within 21 days of their entry.”
Moreover, if the matter is appealed to the Appellate Division, the appellate court decision may then be appealed to the New Jersey Supreme Court, if granted certiorari. This means that cases could conceivably be tied up in appellate courts for years. That may be fine for major corporations or governmental agencies, but family law involves individuals. It is more common, however, for even a successful appeal to lead to a “remand”—whereby the case will be sent back to the original trial court for additional rulings. For many, the process simply demands too much and offers too little.
That said, every case is different. Every case is entirely fact-sensitive. There have been times I have advised my clients to appeal. There have been more times I have advised clients of the pros and cons of their appealing a certain issue and they have decided against pursing an appeal. The appeals process likely will take between 1 and 2 years from start to finish. It may cost tens of thousands of dollars. The appeals court will be constrained to only review the decision of the trial court and the evidence presented at the trial court.
Although appeals are rare, they are an important part of our state’s judicial process. And sometimes under the right set of facts or circumstances, our Appellate Courts even rise beyond the function of correcting a mistake—rise instead to the level of righting a wrong or even creating new law—or rather the different interpretation of law.
What If I am Not Happy with My Divorce Lawyer?
I have a friend from another jurisdiction that has called me a few times about a divorce. When I told this friend that I could not provide legal advice (because it was a different jurisdiction and the friend was represented by counsel), the friend asked if I could merely listen to her situation. In sum, she wanted to know whether or not to change divorce lawyers. My friend described the following issues, from their perspective the lawyer was:
- Slow to respond or communicate;
- Dismissive of ideas;
- Sent bills that were difficult to understand and seemed overly expensive;
- Failed to push the case forward and seemed to be dragging it out;
- Did not educate my friend about rights and responsibilities or what the game-plan was moving forward.
I listened and when my friend was done I asked whether they had told any of this to their attorney. The answer was “no.” My friend had been unhappy for perhaps a year but had dutifully paid the invoices each month, replenished the retainer, and not communicated any outward signs of resentment or unhappiness (other than with how the case was proceeding generally). Lawyers have a general ethical requirement to communicate with our clients, but (retainer language aside) there is no such requirement for clients to effectively communicate with us.
This was a great lesson for me because I was able to see a divorce through a client’s perspective without any prior history or my own opinions or emotions being involved. I know this person is logical, hardworking, and not a difficult person to get along with. I have had clients advise me they are not satisfied with the process and at times not happy with some of my advice (sometimes emphatically so), but I could always brush it off as the client being the type of person that would not be satisfied with a reincarnated Clarence Darrow representing them (or so my fragile ego likes to believe).
Now I know–as management books teach us–that there is also likely (for any professional services firm) a group of seemingly satisfied (on the surface at least; if not overwhelmingly so) clients that are in fact quite unhappy. So what can we do as attorneys and clients to better communicate? The mission since I opened my firm has been to educate clients about the process and to have good communication with my clients. I am an attorney that will at times give my clients my cell phone and will attempt to answer their calls even on weekends, at night, or sometimes during holidays. But that’s not sufficient–because some people do not like conflict.
There are some clients (I hate to admit to myself) that may not be satisfied with me but I will never know. They may be searching the web right now or reading books, learning about changing divorce lawyers.
As an attorney, I really want to know when my clients are unhappy with me, our staff, the direction of the case, or the firm in general. I would prefer you not present a pleasant facade while likely becoming more embittered at the costs, at the results (or lack thereof), etc. If you buy a bad slice of pizza it’s $2.00 down the drain and the next day you’ve forgotten about it. If you hire a lawyer you’re not satisfied with you will spend at least thousands of dollars with no guaranteed result. So what can we do to try and improve these situations:
- Lawyers and clients have to always endeavor to be honest with one another. If a client has a weak argument or is about to file a Motion that will cost thousands of dollars without a great chance of success then this is a discussion that should be made from the outset. Likewise, if a client does not understand a legal concept or does not understand why a lawyer took a specific action then they should bring this to the lawyer’s attention;
- Lawyers should follow up with clients regularly to ensure the client understands the process, is satisfied (or not) with the status of the case and the services rendered, and should consider using client surveys or other anonymous methods to improve service quality to clients;
- Bad news in a client’s case should be brought to the client’s attention immediately and honestly presented;
- Lawyers should encourage being challenged by clients. My clients have found errors in my agreements or misunderstandings of what I thought they wanted and their speaking out has assisted the case in moving forward. It’s in many ways a team-effort and although lawyers have greater training and are considered the “expert” in the matter (that is why they are being paid), everyone is fallible and today’s clients are more sophisticated than ever thanks to technology and the internet;
- Lawyers and clients should not be afraid to walk away if a case is not a good fit. I’ve had cases or clients where I’m simply not a good fit. A long initial consultation hopefully weeds these cases out but sometimes it only becomes apparent after a few weeks or months. It is a situation that rarely improves and can be harmful to both parties. The initial consultation is a mutual vetting process. There should be no hard feelings on either side if one party or the other decides not to work together.
- Lawyers should provide resources to clients to advise them about the process and should not sugar-coat the process or the likely results. This saves clients time and money and helps make discussions between attorney and client more productive. Many other lawyers do the same. I would rather a client seek resources through my website (that I have drafted and/or vetted) rather than from the internet at large, which may contain information that is inaccurate or relevant to other jurisdictions.
Equitable Distribution for personal injury awards, employment discrimination awards, or workers’ compensation – the impact on new jersey divorces
Let’s say you or your spouse recently received or will receive monetary payouts for personal injury, for workers’ compensation, or for employment discrimination; what impact will receipt of such monies have on a subsequent divorce action or the drafting of a prenuptial agreement?
PERSONAL INJURY TORTS AND NEW JERSEY DIVORCE
Personal injury matters stemming from “slip and falls” and car accidents are among the most commonly encountered torts. With awards potentially ranging into six figures and beyond, it’s imperative to understand how to address such awards in a family law setting. The basic legal principal for the treatment of personal injury awards in equitable distribution was enumerated in the New Jersey Supreme Court case Landwehr v. Landwehr, 111 N.J. 491,495 (1988). The Landwehr decision held that the portion of a settlement intended to compensate for personal pain, suffering, and mental and physical disabilities was personal and therefore is not subject to distribution. Likewise, any award for loss of consortium to the non-injured spouse was not distributable to the injured spouse and would therefore remain the non-injured spouse’s separate property. Finally, any portion of a settlement compensating for lost earnings, medical expenses, or the like, are subject to equitable distribution. ”
The philosophy behind this determination was that wages are generally marital in nature, and any reimbursement for lost wages must therefore be distributed. Likewise, medical expenditures deplete the marital estate. One interesting point not addressed directly by the case law is how such distribution impacts alimony, or when such awards may lead to an inappropriate “double dip.”
The Landwehr decision also informs that the injured spouse has the burden of demonstrating what portion of his or her award represents separate property. As such, to the extent a party seeking to avoid equitable distribution fails to prove a portion of an award is separate; same must be classified as a marital asset subject to equitable distribution
In the chancery division case Ryan v. Ryan, 283 N.J. Super. 21 (Ch. Div. 1993), the court held that funds received for pain and suffering could be transmuted into joint funds subject to equitable distribution when commingled between spouses, unless it is demonstrated that there was no intent to so commingle and encumber the funds.
WORKER’S COMPENSATION AWARDS, DISABIILTY PENSION, MALPRACTICE, EMPLOYMENT DISCRIMINATION – IMPACT ON NEW JERSEY DIVORCES
The “dual-classification” holding evidenced by Landwehr helps to form the cornerstone of the intersection between family law and personal injury awards. For example, with respect to workers’ compensation awards, the portion of a workers’ compensation award attributable to loss of wages or reimbursement of medical expenses is subject to equitable distribution. The portion of an award meant to compensate a worker for permanent disability reducing future earning capacity, however, is ordinarily not subject to equitable distribution. See Lentini v. Lentini, 236 N.J. Super. 233,565 (App. Div. 1989).
Similarly, the portion of a disability pension representing the retirement portion is subject to equitable distribution, whereas any income compensation or reimbursement for personal loss from the disability would not be subject to equitable distribution. See Avallone v. Avallone, 275 N.J. Super. 575, 583-84 (App. Div. 1994), which also demonstrates how difficult a burden of proof it may indeed be for a party seeking exemptions as to a disability share.
The court in Weir v. Market Transition Facility of New Jersey, 318 N.J. Super. 436 rendered the interesting holding that an employer or carrier that provided workers’ compensation benefits to an injured employee is generally barred from asserting a workers’ compensation lien against that employee’s spouses per quod share of recovery obtained in any third-party action.
In the realm of medical malpractice, the same “dual-classification” principals hold (see Amato v. Amato, 180 N.J. Super. 210 (1981). In Amato the Appellate court also addressed the issue of rights to sue for medical malpractice or other personal injury. For instance, if a divorce is finalized at a time when such claims remain pending, how should such “inchoate” or putative rights be addressed?
The Amato court made reference to the utilization of special jury interrogatories utilizing R. 4:39-1, 2 to address the proper disposition of such interests by way of future percentage (%) of any recovery. Although this portion of the Amato decision rests strictly within the realm of dicta (i.e. is not binding law) and therefore lacks statutory or case-law weight, this demonstrates a likely outcome for a case involving these issues should the parties fail to agree upon a reasonable allocation of such inchoate rights. The Amato court also stated that if either party thereafter believed the final determination of such rights was unfair, they could make application before a family court judge to determine pro rata responsibility.
Regarding employment discrimination or similar such claims, although there are no published cases directly on point, it is evident by analogy that any pain and suffering attributed to an employment discrimination lawsuit would likely not be subject to equitable distribution, whereas any lost wages or lost opportunities likely would be.
PUNITIVE DAMAGES: EQUITABLE DISTRIBUTION IN NEW JERSEY DIVORCE
There is no New Jersey case directly on point addressing distribution of punitive damages. Looking to other jurisdictions employing similar “dual classification” principals, case law is similarly scarce. In Lundquist v. Lundquist, 923 P 2d 42 (Alaska, 1996), the Supreme Court of Alaska held that punitive damage award distribution in a divorce should mirror the percentage (%) of the claim awarded to each party underlying the punitive damages. It is likely
New Jersey courts would likely follow this or a similar approach should this issue arise. As a practical matter, it would be rare in actual practice to come across a divorce case where distribution or division of punitive damages would be in issue. If so, Lundquist provides a roadmap for arguments to be made.
THE INTERPLAY BETWEEN PERSONAL INJURY ACTIONS AND FAMILY LAW MATTERS
The first thing we must do is ascertain whether or not personal injury or related claims, whether actual or “inchoate,” may impact a case. This issue should be discussed as early as the initial consultation. Both equitable distribution and support obligations should be viewed through this lens to ensure an appropriate outcome.
If a matter is pending, your divorce attorney may wish to speak with your personal injury attorney, for example, to determine how the settlement may be structured. Care should be given to not interfere with the personal injury attorney or to not inappropriately meddle with the structure of such an award. Evidence, however, should be maintained throughout the process should a hearing be ordered involving inchoate personal injury rights. To that end, discovery should be tailored—and perhaps depositions ordered—addressing such issues to ensure that these issues are aggressively pursued and resolved.
Because pain and suffering claims are generally not taxable (but lost wages generally are subject to taxation), there is already an inherent incentive in personal injury actions for the injured individual(s) to seek lump sum pain and suffering payouts. This course of action, however, could potentially cloud a fair distribution of marital assets in a subsequent divorce action as to the non-injured spouse.
Cases such as Amato could, by extension of legal argument, potentially provide the non-injured spouse an avenue of collateral attack to seek a portion of such funds. Should the parties have children, even more complex issues of trusts or allotment to children may become an issue in either the personal injury action and/or the divorce proceeding. Care should also be given to the date the injury accrued, as same may either trigger or bar equitable distribution to the non-injured spouse.
Although family law attorneys and personal injury attorneys often attempt to avoid any overlap between proceedings, such ensnarement may potentially occur and you should help as a client to facilitate such dialogue. A greater dialogue between both sets of practitioners, along with perhaps estate attorney practitioners, will provide a more holistic approach to these types of issues. Such dialogue along with a more nuanced understanding of the relevant case law can only assist clients and those attorneys confronting such issues on a regular basis.
Like most of family law, distribution of funds from worker’s compensation, personal injury, and the like is extremely fact-sensitive. Accordingly, it may be important to meet with an attorney to determine how your specific facts may be applied, particularly in a post-alimony reform world in New Jersey.
A Brief Overview of Domestic Violence Law in New Jersey
Domestic Violence Act – Overview
This is merely a brief overview as anything more is beyond the scope of this book. Whole books have been written on this important subject.
The Prevention of Domestic Violence Act (“DVA”) was enacted in 1991 in response to the New Jersey Legislature’s findings that domestic violence is “A serious crime against society with a large number of victims that were not receiving proper protection under the present laws” prior to its enactment. There is now a two-party system whereby a victim seeks a temporary restraining order (“TRO”) and then a final restraining order (“FRO”).
Indefinite Length of Final Restraining Orders
In New Jersey, a Final Restraining Order extends indefinitely unless extinguished by a judge after a formal hearing.
Confidentiality and Restraining Orders
The Act itself requires confidential statistical record-keeping but the test for confidentiality is performed on a case-by-case basis balancing (1) the potential harm to the victim; (2) possible discouragement of the victim coming forward; and (3) the balance of 1st amendment confidentiality interests.
Definition of Victim Under the Act
(1) Any person who is 18 years or older;
(2) An emancipated minor who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.
(3) Any person, regardless of age, with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant; and
(4) Any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship (this cannot be applied retroactively).
The “Battered Spouse” Defense
This is a defense created in the murder case of State v. Kelly, (Supreme Court of NJ 1984) wherein a battered spouse may argue a form of “Self-defense” even if committed during a time where the victim’s life was not immediately in danger. For instance, when the Husband is sleeping. The Victim must argue that she (or he) was certain that if she didn’t kill her spouse, she would be killed after a long history of domestic violence. The Kelly case held that battered-woman’s syndrome was relevant to honesty and reasonableness of defendant’s belief that she was in imminent danger of death or serious injury and was appropriate subject for expert testimony (a very rare and somewhat controversial clause).
Jurisdiction and Venue for Issuing a Restraining Order
(1) Where the Plaintiff resides;
(2) Where the Defendant resides;
(3) Where the alleged violence occurred; or
(4) Where the parties reside if the alleged violence occurred outside the state.
(1) Where the alleged act of domestic violence occurred;
(2) Where the Defendant resides; or
(3) Where the Plaintiff resides or is sheltered.
10 Day Rule
Note: Under N.J.S.A. 2C:17-5-29a, the Domestic Violence Act requires that a final hearing be held within 10 days of the filing of a complaint…in the County where the ex parte restraints were ordered…but the 10-day rule does not preclude a continuance where fundamental fairness dictates allowing a Defendant additional time (due process).
Temporary Restraining Orders (TRO’s)
The three factors for the issuance of a TRO are:
(1) Does the Plaintiff qualify as victim (see above);
(2) Did the Defendant commit an act of Domestic violence?
(3) Is there a history of domestic violence.
The types of relief that may be available under a TRO include injunctions barring Defendant from returning to the scene, barring defendant from possessing firearms, no contact, granting victim exclusive use and occupancy of the residence, granting temporary custody of any child in common to the victim and providing for interim parenting time for defendant, granting temporary financial support.
The application for a TRO must be obtained upon sworn testimony from the victim, either personally in court or via electronic communication. The denial of a TRO by a municipal court does not bar the putative victim from seeking and receiving an emergency ex parte hearing de novo (new hearing) from the Family Part of the proper County Superior Court. The Defendant may also have a right to return to the scene while supervised to retrieve his or her personal belongings, but only buy order restriction time and duration and almost always with police supervisions.
The Domestic Violence Complaint
The Complaint must be filed either through the Superior Court, Family Part or on an emergent basis either through a Superior Court Judge or a Municipal Court Judge. Each Complaint must allege at least one cause of action for domestic violence. Generally a confidential Victim Information Sheet is also required to be filled out at the time of the filing of the complaint.
Discovery at a Final Restraining Order Hearing
Under R. 5:5-1 discovery at these hearings is only with Court approval upon a showing of “good cause.” This is why some attorneys refer to domestic violence trials as “The Wild West” or “Trial by Ambush.” There are generally no depositions or formal discovery actions. Discovery items you may wish to procure include relevant police reports, TRO transcript, complaints, 911 transcript, pertinent medical records, and potential subpoenas for any out of court witnesses.
Standard of Review/Standard of Proof
The standard for both TRO’s and FRO’s is “Proof by the Preponderance of the Evidence.” For criminal charges relating therefrom (such as contempt) the standard is beyond a reasonable doubt. All of the Rules of Evidence apply to both hearings.
Final Restraining Orders
Entry of a FRO requires the following three factors:
(1) Does the Plaintiff qualify as a “Victim” under the Act?
(2) Did the Defendant commit an act of Domestic Violence?
(3) Is there a History of Domestic Violence or does the Domestic Violence involve an Egregious Act?
The fourteen domestic violence offenses recognized by New Jersey include:
(1) Homicide, (2) Assault, (3) Terroristic Threats, (4) Kidnapping, (5) Criminal Restraint, (6) False Imprisonment, (7) Sexual Assault, (8) Criminal Sexual Contact; (9) Lewdness, (10) Criminal Mischief, (11) Burglary, (12) Criminal Trespass, (13) Harassment, (14) Stalking. The most common elements I see in my practice are allegations of harassment with assault coming in second. Definitions for harassment are the same as criminal harassment (domestic violence actions being considered quasi-criminal). A touchstone of harassment is demonstrating a “purpose of intent to harass” on the part of the Defendant. If there is a history of violence then an “ambiguous incident” may rise to the level of entry into a FRO; if not an “egregious action” is required. A history of domestic violence need not be proven by prior adjudications.
Appeals of Final Restraining Orders
Findings are binding on appeal when supported by adequate credible evidence. Great deference is thus generally given to the trial court judge’s determination given that such evidence is largely testimonial. Family Court Judge’s expertise in such matters is thus noted.
Types of Relief Offered by a Restraining Order
(1) Economic relief (temporary transfer of real/personal property, damages, support–but not equitable distribution);
(2) Custody/parenting time modification;
(3) All other relief appropriate to prevent further abuse;
(4) Barring future acts of domestic violence;
(5) Barring certain locations (home and work);
(6) Barring contacting the Victim;
(7) Barring entering a certain proximity near the victim;
(8) Modifying drop-off/pick-up schedule for parenting time;
(9) Barring weapons and issuing a search warrant for weapons;
(10) Ordering counseling;
(11) Vacating the marital residence.
Marital Torts (“Tevis Claims”)
Domestic violence may be utilized in a divorce lawsuit for seeking specific damages known as “Tevis Claims” akin to personal injury claims in the civil litigation setting.
Dismissal of Restraining Orders
FRO’s are permanent unless dismissed by a court. Court’s look to the “Carfagno Factors” to determine if a restraining order should be dismissed. These factors include: (1) victim’s consent; (2) victim’s fear of defendant; (3) Current relationship between the parties; (4) Number of contempt convictions, if any; (5) Defendant’s use of drugs and alcohol; (6) Defendant’s violence towards others; (7) Counseling; (8) Age and health of Defendant; (9) Whether Plaintiff is acting in good faith in opposing the dismissal; (10) Whether another jurisdiction has an order protecting the victim from the Defendant; (11) Any other relevant consideration why a restraining order should be dismissed. A Defendant moving for dismissal must also demonstrate the lapse of a year, good cause, and a substantial change in circumstances considered with the history. If the Plaintiff moves then good cause need not be shown but Plaintiff must demonstrate request is made voluntarily and without coercion. Conversely, contempt of a restraining order (whether a TRO or a FRO) can lead to a 4th degree crime.
Although domestic violence matters cannot be negotiated under the Law, Court’s may allow “civil restraints” to be entered into between the parties. Such an Order would have a no-contact provision but would lack the “teeth” of a formal restraining order should the defendant violate same. Civil restraints cannot be entered into on the domestic violence (“FV”) docket but rather on a concurrent proceeding (such as a divorce or legal separation action).
My experience serving as the appointed municipal prosecutor in various towns has shown me first-hand that it is difficult for victims to push forward with charges in a criminal setting as well as in family courts. Make sure you take the appropriate steps to be safe if this portion of the book pertains to you or someone you know.
Equitable Distribution When a Party is a Minority Shareholder in a Business
One of the factors that can complicate a divorce proceeding is when one (or both) of the parties has an interest in a closely held business/corporation. After an analysis is conducted to determine whether the business is subject to equitable distribution, the major issue becomes one of valuation. Unlike publicly traded companies, it might be difficult to value how much each share in a closely held corporation is worth. Yet, it will be nearly impossible to settle a divorce without agreement as to this important issue.
This portion of the book is going to briefly examine one element of valuation: the amount of control an individual has in a closely-held corporation.
Often times, experts will be retained to perform an evaluation of a parties’ interest in a closely-held corporation. While every expert may have their own techniques, there are some commonly accepted principles they should follow. One principle that might be used is the idea of a discount for minority shareholders. The thought process behind such a principle is that minority (sometimes call oppressed) shareholders do not have as much power/decision making ability—-and therefore lack the ability to shape the direction of their business. In short, the minority shareholder’s shares may not possess the value of a majority shareholders.
Parties to a divorce and/or the parties attorneys are free to reach an Agreement regarding valuation and whether a minority discount would apply. In recent years, however, New Jersey courts have become increasingly reluctant to render a decision taking a minority valuation into account. The case Brown v. Brown, 348 N.J. Super. 466, 487-88, 792 A.2d 463, 476-77 (App. Div. 2002), provides a great overview of the Court’s mentality.
That said, many appraisers/valuation experts will maintain that a minority discount makes mathematical and logical sense. A lack of control renders a minority shareholder’s assets less valuable than a majority shareholder.
In most cases, valuation of a closely held corporation will not be at issue. In more complicated cases, where the case may turn on such a valuation, careful attention needs to be made to whether a minority shareholder’s shares will be granted a discount in valuation due to their lack of authority and control within the company.
But When Should A Client Change Lawyers?
Enough dancing around the issue though, at what point should a client change lawyers in the middle of a divorce? The answer is nuanced and nobody can make the decision except the client. Changing divorce lawyers in New Jersey may also require certain court procedures such as entry of a substitution of attorney. Just like I advised my friend, here are some considerations to determine whether the attorney-client relationship is beyond repair:
- When you hire a new lawyer in the middle of the divorce, you will likely have to pay money (sometimes a substantial sum) for the new lawyer to read all the prior pleadings, correspondence, and other documents and to get up to speed. This should be a consideration in determining whether to make a change.
- Some attorneys see a perspective client with multiple attorneys as a potential red flag. It is the policy of some attorneys to never accept cases they do not start.
- But beware the sunk cost fallacy: a bad bargain or bad relationship may not improve in time (things tend to get worse, if anything) and staying in a bad attorney-client situation just because you already paid a lot of money may not improve your situation.
- You only get one shot at a divorce – once you have a global divorce agreement, that is it. Although you can often modify terms post-judgment, if you are dissatisfied it’s best to take action before the divorce trial or before signing off on a binding agreement.
- Be honest about the situation: is your lawyer really incompetent or acting inappropriately or are you merely upset about the case in general? Even with a great divorce lawyer the results may not be all you hoped, the case may take longer than expected, and may cost more than you desired to spend. There are many factors at play in a divorce, some of which are out of our control. Consider therapy to help you deal with the stress of a long, drawn-out divorce.
- Does your lawyer communicate with you on a regular basis? Does the lawyer quickly return you calls? Explain your invoices if asked? Answer your questions? Seem to know what they are talking about? These are the baseline requirements and may even be ethical imperatives. If these questions are not in the affirmative then it may be worth considering new counsel.
Only you can determine whether an attorney-client privilege is worth continuing. I hope the above assists you in considering the unique nature of a New Jersey Divorce Lawyer/Client relationship. I have changed doctors and other professionals, often without advising why. A good lawyer will want to hear your concerns and have the opportunity to earn your continued business. That said, in some instances a fresh start may be necessary and appropriate.
SECTION V: COVID AND DIVORCE
The ongoing Covid pandemic has had a serious and lasting impact on divorce across many verticals. While many people focus on the impact of Covid on custody and childcare related issues, such as Covid and vaccines for children in a divorce, Covid impacts family law financials as well.
The Impact of Covid on Alimony
Covid has not only changed the way we live, it has also changed the way we work. Some of the changes include increased unemployment, child care issues, financial troubles for business owners, federal stimulus checks, an increase in people pursuing graduate school, and an emphasis on working remotely.
As with anything, there have been winners and losers in the Covid economy. Certain industries have done quite well, and others have struggled or even disappeared.
Change—whether it be positive or negative—likely impacts a potential alimony award. If someone lost their business during Covid, then it may be difficult to impute the same type of income to them in a subsequent divorce. (Assuming it can be demonstrated that the business owner was acting in good faith and not using Covid as a shield to hide behind to reduce or eliminate alimony).
What is the Alimony Formula?
Unlike child support—which utilizes specific guidelines—there is no formula for alimony. Although many practitioners may use a percentage (20%, 25%, etc.) in attempt to negotiate and settle a divorce case before it heads to trial, alimony is actually based upon a normal of statutory factors.
Some of the alimony factors include:
- The income levels of the parties.
- Whether additional income may be imputed based upon prior education or experience.
- The age and health of the parties.
- The marital standard of living, and
- The length of the marriage.
What Covid throws into flux is how much income may be imputed in certain types of cases. If both parties were W-2 employees, and Covid did not impact their employment, then it’s likely that Covid had no impact on their alimony. But what if one of the parties lost their job as a result of Covid? What if one of the parties was a small business owner whose profits were cut in half during Covid? What if one of the parties got sick and is now a Covid “long-hauler” because of continuing issues from the disease?
As you can see, there are numerous ways that Covid could impact an alimony analysis. One of the things that courts and practitioners will need to analyze is whether the changes are short-term, long-term, or permanent. Such issues would like also impact a child-support analysis, though the analysis may be limited to the imputed income amount if actual salaries are not utilized.
Similar arguments will need to be made if you’re a party who financially benefited during Covid. Perhaps your medical supply company has enjoyed unparalleled financial success the last two years, but should you be imputed at that higher income for the next ten years you pay alimony? Your lawyer will need to work your case to make arguments based on averages, to make sure you’re not overpaying alimony (and perhaps child support) in the future.
Covid has brought sweeping changes, and that makes it difficult for alimony analysis, which is easier to analyze when consistent factors are at play.
Your lawyer may suggest that you retain experts such as business evaluation experts or employability experts to determine an appropriate sum of alimony, as well as the proper valuation of business(s) for purposes of equitable distribution (division of marital assets).
COVID AND ALIMONY
Covid opened up many different avenues of unemployment. For instance, unemployment became available (for a period of time) to struggling business owners and independent contractors. Covid unemployment benefits also increased under the Federal PUA program.
Other business owners took out business loans through the federal PPP program. For 2020, unemployment income may not have been subject to federal taxes.
All of this means that for certain individuals, they might have received more money in unemployment benefits than what they enjoyed while employed. But such benefits were likely temporary, and alimony must often take a longer view of duration and sum.
For other individuals, perhaps they have lost stable careers because of the pandemic. Childcare obligations have not made it any easier as many schools were or remain closed (or remote) because of the pandemic.
Finding an appropriate income to be imputed will be necessary to finalize any alimony discussions.
Negotiating alimony will continue to be challenging so long as the pandemic persists. In truth, alimony was one of the more contentious items to negotiate even before Covid.
You should work with your lawyer to help determine how much income should be imputed to you and your ex, to help ensure a fair alimony number
(or no alimony at all).
During the past several months, many people have had to make a personal decision about whether they will receive COVID vaccines. Although certain jobs may require vaccination, for the most part this is a personal decision. And indeed, a decision that many people feel strongly about, and which may impact their children.
Vaccines are now available for children over twelve and may soon be available for children aged five to twelve. If you are the parent of minor children, then you will need to determine whether your children will be vaccinated or not. Depending on your beliefs, this may be a simple or a difficult decision to make.
But what if you and your ex-spouse do not agree about vaccination?
What if Your Ex Does Not Agree About Covid Vaccinations for Your Children?
Perhaps you and your ex have argued about other vaccinations such as chicken pox or measles. But more likely than not, you probably did not have arguments about such vaccinations. Polio vaccines, for instance, have been around for a long while.
Covid-19, and the vaccines aimed at mitigating its risks are new and many people are confronting this issue for the first time. If you both agree to vaccinate, or to not vaccinate your child, then there shouldn’t be much of a legal issue to confront. But what if you and your ex can’t agree whether to vaccinate your children?
What does the law say about Covid-19 vaccines for children in such instances?
CONSENT FOR MINOR’S VACCINES
Vaccines of any kind are generally considered a medical decision. When it comes to medical decisions, courts consider the concept of “Legal Custodian.” In New Jersey divorces, the concept of legal custodians is simple: it is the parent or parents who will make important decisions pertaining to their minor child’s health, education, or religion.
Day-to-day decisions fall under the penumbra of physical custodian, but legal custodian addresses big-picture, and often large issues. For instance, what religion to raise a child, whether a child will attend private or public school, and whether a child should be vaccinated would all be decided by a child’s legal custodian(s).
Divorce or custody agreements generally address which parent or parents are the legal custodians of children. But it is most common in New Jersey for both parents to be considered legal custodians. When both joint custodians disagree, what then? Who is the tiebreaker?
If you’re reading this book, perhaps you or someone you know is at a stalemate on whether to vaccinate a minor child. If both parents share joint legal custody, and both disagree, then clearly something must be done to break the tie. Unless the child is a teenager, the court will probably not consider the child’s own views on vaccination.
Instead, the Court will operate under its common standard: “the best interests of the child.” In other words, if both parties cannot agree, the Court will look to whether vaccination is in a child’s best interests.
Courts and judges are loathe to make such determinations, which are very personal, but if forced to do so this “best interests of the child” standard is the framework they will utilize. As to the result if a Motion is filed on this type of action, it will come down to the specific facts of the case. For instance, there may be specific factors that would make a judge more or less likely to agree with each parent.
Some factors about whether to order vaccination or not may include:
- How old is the child?
- Are there religious reasons to not vaccinate?
- Does the child have any specific medical issues for or against vaccinating? For instance, does the child have a compromised immune system?
- If the child is a teenager, do they have an opinion on their Covid vaccination?
- Was the child vaccinated for other diseases such as mumps, polio, and chickenpox?
If you and your ex cannot come to an agreement on the issue of Covid vaccination (whether with the assistance of attorneys or not), then you may need to file a Motion or perhaps even an emergent application with the court to address it.
When you file a Motion, your attorney will include the reasons for or against vaccination depending on your point of view. Remember, this will be a fact-sensitive matter, so be sure to discuss the specifics of your case with your lawyers so the proper arguments may be made.
If your divorce is not yet finalized, then you will need to address this issue as part of your divorce agreement. You may need to file a motion before the divorce is finalized to address this issue, as it is often time sensitive.
SECTION VI: Happily EVEN After
We’re finally there: the Paradiso section of the Book. We have gone through the inner-circles of New Jersey divorce law and now fully understand how we can navigate the law, use it to our advantage, and keep our focus on our long-term goals to effectuate not only a fair divorce but a solid chance at a brighter future.
This section will contain some advice for how to script your post-divorce life to make sure you can move forward to greener pastures and how to avoid common land-mines post-divorce.
This is the goal, the nirvana, the end-game. If you’re going through a divorce it’s important to read this chapter to help you visualize what your Happily EVEN after will look like. If you’re already divorced then this section can be of assistance in charting your future.
What is Happily EVEN After?
Many people give up on marriage too easily. I see it all the time in my practice. Other people tend to hang on too long to bad marriages, broken by the inertia of their situation. They let emotions like fear of change get in the way of their happiness. Many people equate divorce to a death but it’s also a chance at rebirth. Like a phoenix you can rise up from the ashes of your failed marriage to inhabit who you really were meant to be. Your children can be happy and you too if you handle your divorce and its aftermath to the best of your abilities.
Our tagline is of course a play on the fairytales we grew up on as kids. We were told that if we found the right person we could perhaps move past our problems and live happily ever after. Happily EVEN after is the living embodiment of the ideal that your best days are ahead and that although you have a long and arduous journey ahead of you, you can get through the circles of hell and to your Paradiso, whatever that may be. Part of that may involve new activities, new friends, new loved ones, and new thought processes.
Loose End Baggage: Addressing Common Post-Divorce Issues
When individuals finally get divorced, in many instances they have reached the end of a long journey. Like Dante, they have gone through hell and purgatory in order to, hopefully, reach heaven. The hell of divorce is the uncertainty, the breakdown of a sacred trust that will affect everything from finances to the time one gets to spend with their children. The purgatory in my (admittedly extended) metaphor is the waiting—-waiting to finalize an Agreement, waiting for court dates for a trial, waiting with no certainty as to the outcome. The type of heaven offered is merely this: the chance to pick up the pieces and move forward with your life.
Unfortunately, the finalization of a divorce does not often absolve one of dealing with an ex-spouse. Besides issues of co-parenting or finalizing the sale of property, there may also be retirement accounts to be divided (VIA QDRO), and a myriad of other loose ends to tie up. You should make plans to change your will, if you have not already done so.
As for the Marital Settlement Agreement, it is sometimes not the panacea people hope. I tell my clients that the Marital Settlement Agreement is essentially a rulebook. It advises the parties of their rights and responsibilities in their new post-divorce lives. This “rulebook” will provide guidance of who can claim the children on their taxes or who gets the children from Thanksgiving in even or odd years, but it cannot address every issue that might arise post-divorce. Nor can it, absent Court intervention, force the other party to comply with its language. It is the goal of most divorces and perhaps the most important document in family law, but it is neither all-encompassing nor intractable, no matter how well drafted.
For instance, there are times when a post-divorce change in circumstances may warrant modifying the Marital Settlement Agreement. For instance, since the Recession, many individuals have successfully petitioned the Court for a downward modification of child support or alimony. While there is certain language that can be added to the Marital Settlement Agreement—such as “Anti-Lepis Language” to defeat certain modifications, none of us can guess the future and whether such language will be helpful or harmful to a client’s position in five, ten, or twenty years.
Some of the typical types of “Post-Judgment” Divorce Motions include:
1) Motion to Enforce Litigant’s Rights – Filed when one party is not complying with the terms of the Divorce or subsequent Orders of the Court.
2) Motion to Modify Alimony or Child Support – Is there a “permanent and substantial” change in circumstances warranting the modification—either upwards or downwards—of alimony or child support?
3) Motion to Emancipate Children – New Jersey uses a nebulous standard (“Has the child moved beyond the sphere and influence of his or her parents?”) to determine emancipation. Absent consent of the parties this often needs to be proven in Court via Motion practice.
4) Motion to Relocate – In New Jersey, the custodial parent generally needs the consent of the other party or the Court’s permission to relocate to a different state.
5) Motion to Modify Parenting Time or Custody – Is there a change warranting a modification of previously ordered or agreed to custody or parenting time.
6) And so on, specific to the facts of each case.
In short, when you are divorced and the bittersweet moment occurs and you are no longer legally married, remember that there might be additional issues in the future. Enjoy the moment but keep your records organized and make sure timely compliance occurs—and that you are in compliance as well. The more the parties can work together (absent domestic violence type issues, etc.), the more additional legal fees for post-divorce issue may be avoided. By preparing for these loose ends your post-divorce life will not be derailed before you get a chance to move forward.
The Benefit of Working Together with Your Spouse Post-Divorce
Just because two people are divorced, doesn’t mean they will have no relationship at all. They will often still have to work together with regards to their children, etc. Sometimes the parties are able to work together in the best interests of their children. Other times, old wounds from the divorce make it difficult to agree or compromise. This can impact your future bliss.
Holiday Parenting Time
Suppose the Father is supposed to exercise parenting time on the Fourth of July. At the last minute, he realizes he has to work that day. If the parties get along, he might be able to call the Mother and work out an arrangement that is mutually beneficial for all: such as he’ll have the child July 5th. This issue would therefore be quickly resolved.
On the other hand, if the parties wanted to get worked up over this issue, then they might have to bring in their attorneys and pay perhaps thousands of dollars in fees trying to work out this issue.
I’ve also seen instances where the one party loses their job and the parties have then worked together regarding alimony until a new job is found. Otherwise, a motion for post-judgment relief might have to be filed, which could be costly. This is another example of the benefits of working together post-divorce. There are going to be moments where each party likely needs the assistance of the other (whether they like it or not), in those instances, the warm memory of a previous accommodation might be remembered.
There are instances where court, attorney or other intervention is required. In some instances, one party will not be reasonable or a child’s safety or health might be at risk. But there are also other times, where the parties could probably work something out together. And in those times, that is likely the best option to ensure smooth-sailing post-divorce.
Addressing the “Custody” of Pets
First, what I’m going to say in this section of the book could also apply to cats and perhaps other pets as well. But I’m a dog person and it’s easier to focus on just one animal. Plus, I don’t want to risk upsetting my Collie Isla by choosing cats over dogs in this hypothetical analysis. Unlike Lassie she will find a way to get even!
Second, I want to note that the issue of dogs and divorce doesn’t come up as often as non-divorce attorneys might believe it does.
Have there been cases where people have spent years and perhaps even hundreds of thousands of dollars fighting over their beloved family dog? Yes, but those are the exceptions to the rule (and the parties extremely rich). I have never personally worked on such a case but I understand quirky cases like that arise from time-to-time.
Most dog-related issues in a divorce are worked out amicably, as part of the parties’ Marital Settlement Agreement (a/k/a Property Settlement Agreement). Please note that this is an area of law that is in flux.
Who Gets the Dog?
The truth is, it depends. Here’s the important question: who’s the Judge?
I’ve heard a tale (perhaps it’s an urban legend, but my source is good) where a Judge once in chambers told a couple fighting over their dog: “Both parties need to agree to an arrangement for the dog within 48 hours, or I will Rule that the Dog will be sent to the SPCA.”
Such modern-day “King Solomon” types of rulings are increasingly rarer, as pets are more often being seen as a “part of the family” rather than merely property, or “chattel.” Still, although dogs are getting more respect from New Jersey courtrooms, they are still currently only seen as an “elevated” form of property, on par with family heirlooms, for example.
Again, it’s unlikely a Judge will have to make a call on this issue. But if they did, there is a number of ways they could rule. They could give “custody” of the dog (note: New Jersey does NOT recognize pet custody), to one party or the other. They could also find the dog should be given to a third party (very rare). Or, they can come up with a doggie parenting plan.
“Husband gets Fido whenever he has parenting time with the kids” would be a good example of this. Another would be: “Wife gets Spot one month, Husband gets Spot the next.” And on and on.
Some of the factors the Court might look to include:
- Did the dog belong to one of the parties prior to the marriage?
- Are there children who are attached to the Dog?
- Who treats the dog better/has a greater bond with the dog?
- Does one party have a history of abuse, towards the dog or otherwise?
I love dogs as much as the next person (and I’m not just writing that out of fear of retribution). I can see wanting to fight strongly for a dog in a divorce. But I also believe that more times than not, it’s the parties who are better able to work out an arrangement with respect to their dogs (or other pets), rather than the Courts.
Such a resolution should lead to less hostility, less legal and court fees expended by both parties, and a fairer resolution in the best interests of the parties’ Dog(s).
If the tide is turning one way, however, it appears that the courts are beginning to consider pets more and more as a part of the family rather than simply a possession. Something us pet owners have known all along.
What Can We Learn About Personal Finance from Divorced Couples?
It’s a little-known fact about me–something even some of my close friends and family members do not know. Up until about ten years ago, I used to blog anonymously about personal finance. My website eventually received thousands of unique visitors per month and actually generated some money that helped me pay down some of my then significant student loans.
When I eventually ran out of things to write, I was able to sell the blog. As a newly minted lawyer I wanted to focus on my clients. To this day that blog remains on the internet with the buyer of the website continuing to blog about personal finance. The primary impetus for me starting the blog was to hold myself accountable for paying off six-figure law school loans.
About eight years after we graduated (me from law school and my wife with a masters in school psychology) we achieved one of our primary goals: paying off close to $200,000 in student loans. Other than our mortgage, we are now completely debt free.
Personal finance has always been something that has interested me greatly. The methods for debt repayment, savings vehicles, and creating tax-advantaged decisions (coupled with great willpower) is something I find highly fascinating. I enjoy tracking my spending each month, creating spreadsheets, and performing monthly and yearly budget projections. In some ways this has been a great background for me, as a great deal of family law essentially involves family and personal finances. I often jokingly refer to divorce law as “personal finance with someone you now hate.”
The Case Information Statement (“CIS”) that the court requires each divorcing spouse to fill out has a Schedule “C” that is essentially a monthly budget. You’re asked to fill out your monthly expenditure while intact and individually down to the tiniest line items such as “toiletries.” You’re also required to list all of your assets and liabilities to help determine a net worth. Statistics and math come into play in negotiating the division of retirement accounts, stock options, rolling over IRA’s and the like.
Again, many people may find it boring but it’s right up my ally. Even better, I have learned a great deal about personal finance from going through numerous divorces with my clients. There are many takeaways that can assist all of us–even those not currently contemplating a divorce. Here are some of the takeaways I have learned from client’s divorces and that may be able to assist you during your divorce or post-divorce:
- Be aware of the Family’s Finances. Although one person may take the lead in personal finances for a family, it’s important that both parties understand the financial picture of the family. This is important for a number of reasons, not the least of which is that financial issues are one of the biggest predictors of divorce. It shocks me how many clients come in to initial consultations with no firm grasp on their own family finances. They’re not sure if their spouse has a pension or some other type of retirement account, they do not know what the family’s monthly budget is, they are even unsure if the car they drive is owned or leased. They cannot provide a breakdown of their monthly budget, nor can they accurately list the family’s assets and liabilities. It is very difficult to know how to divide assets if you’re uncertain what the assets are. Although discovery will help unearth such issues, it’s something all couples (whether contemplating divorce or happily married) should endeavor to understand. Not to mention, even in an intact household there could be great ramifications if something were to happen to your spouse and then you’d be unaware of assets and liabilities. My wife and I have made it a practice in our household to have monthly discussions of budget and finance and to write down all accounts to banks, etc., so that we’re aware of the financial picture of our household. When you go to an initial consultation for a divorce it is helpful to have copies of all records in advance.
- Work Together as a Team. Not to get all Pollyanna again, but it’s simple game theory that working together (whether happily married or not) can lead to better results for all involved. If you have an uphill battle (like my wife and I did by finishing law school and graduate school in 2009 with nearly $200,000 in student loans), then you can either bury your head in the sand or you can team up and fight together. In our case we made a chart with each box representing $1,000.00. Each time our loan balance went down another $1,000.00 we crossed off one of the boxes until our loans were eventually paid off (about 8 years later). If we allowed the situation to stress us out and did not act as a team together, the debt would have assuredly negatively impacted our marriage. Instead, by working as a team to find new ways to be frugal and making debt the enemy, the whole ordeal strengthened our marriage. Likewise, even a divorcing couple should be smart about their situations. Maybe you can both agree to remain in the marital house to cut down on the added expenses of having two separate homes. Maybe you can agree to work together in the divorce to negotiate in good faith and to not waste thousands of dollars in counsel fees fighting over furniture that is barley worth $500.00. The more you want to punish the other person in a divorce the more you’re really punishing yourself as well, because of the added costs. After your divorce you will likely date again and statistically there are good odds you will remarry. This type of mindset change can help make your post-divorce life more satisfying. You want to learn from the issues that plagued your first relationship and you do not want to make the same mistakes again. That is not the pathway to living Happily EVEN After.
- Don’t be Judgmental. It’s only common that you’re going to have different opinions regarding personal finances. For instance, my wife and I have different tolerances for risk. I like to invest most of our funds in stocks whereas my Wife would prefer a larger emergency fund and to invest a higher ratio in bonds or other safer investments. We work together to find common ground (not always achieved) and we attempt to be supportive even if investments or decisions are ultimately proven to be less advantageous than initially hoped.
- Although I can’t expect everyone to be a “personal finance dork” like I am, our finances are increasingly important in this modern society. Perhaps you can each take turns learning about new subjects and becoming “experts” on them. Then you can report back to your spouse. For instance, one of you can focus on frugality and budgeting and then the two of you can think of ways to implement the savings.
- Keep Good Notes/Document. Finally (and with tax-season incoming this is more important than ever) it’s helpful to keep good notes and to properly maintain documents pertaining to the household’s finances.
Although personal finance/money issues may not be the cause of divorce in all cases, I have noticed a lack of communication and money stress as being an important symptom leading to divorce for many of my clients. Whether you’re happily married or pursuing divorce, it’s important to keep some of the above ideas in mind to assist in achieving the best outcome for you and your family.
If you’re handling your own finances post-divorce for the first time in a while make sure you read up on the subject and talk with accountants or other experts as necessary to make sure your finances are in good working order. I’ve fought hard with many clients to preserve their assets only to later learn post-divorce they made regrettable decisions.
As soon as your divorce is finalized make sure you get a new will drafted, that you follow up with your divorce terms to obtain your assets, and that you learn about personal finance if it’s not in your wheelhouse to make sure you can properly preserve the divided assets, pay off your share of the marital debt, and have significant cash-flow for yourself and your children.
Should You Use a Parenting Coordinator Post-Divorce?
Making day-to-day parenting decisions can be difficult enough in an intact
family. I grew up in a family that allowed me to watch PG or even PG 13 movies at a young age. My wife recalls not realizing Disney movies had villains until she was much older—her mother would fast-forward through the “scary” scenes.
With the newest Star Wars out, for instance, there was some discussion about whether my older daughter was too old to accompany me to the theater. It’s a little issue, but even with two parents in an intact relationship raised much more debate (about appropriate parenting) than anticipated. The same small issue might arise when your 9-year-old son asks to have a soda instead of milk at a party. One parent might think it is alright while the other might object.
In a New Jersey divorce, parents are generally given joint legal custody. This means that the parents should both collaborate together on important wide-ranging (in other words, not day-to-day) decisions such as deciding a child’s religion, educational decisions, and the like. Parents are then generally given wide-latitude in raising their children as they see fit (assuming nothing rising to the level of abuse or illegality occurs) during their own parenting time.
Part of living Happily EVEN After is being able to effectively co-parent. That doesn’t mean there won’t be issues or that it will be easy. Sometimes having that referee available—or the threat of that referee available—can make the difference between post-divorce litigation and headaches or appropriate compromise. It’s not cheap, it’s definitely a luxury, but a good parenting coordinator can really be a game-changer for those that require that additional incentive.
For instance, in the above example if the 9-year-old son asks for soda while at his mother’s then the answer may be “yes,” and while at his father’s the answer may be no. While this “two separate homes, two separate sets of rules” may be somewhat confusing to children from divorced families, it is also not wholly untethered from what many children experience (children will instinctively know which parent they can manipulate better in a specific circumstance).
But what if these smaller, day-to-day issues begin to fester and the divorced or separated parents lack the desire or ability to negotiate such issues together? In such instances, the parties may agree (or the court may appoint) what is known as a parenting coordinator.
As defined in the Overview section of the Program Standards for the Parenting Coordinator Guidelines (Pilot Program, 2007),
A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own. The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.
The “Pilot” program for parenting coordinators ended in 2012 in New Jersey (although courts may still appoint them and parties may still agree to utilize them). In 2013, I understand that Pennsylvania family courts essentially barred the use of parenting coordinators. The use of such coordinators in New Jersey has thus waxed and waned over the years. Nevertheless, this role (often filled by an individual with mental health, social work, or divorce law background) still remains an option—and at times something foisted upon parties whether they desire the use of such a “referee” or not.
It should also be noted that the primary role of such coordinators is to facilitate communication between the divorced parties regarding parenting issues. The parenting coordinator cannot take the place of a judge and cannot enforce or modify any orders, but rather should attempt to work within the confines and parameters of any active agreements between the parties.
Parenting coordinators may thus make an expected (or not so expected) cameo in a New Jersey divorce proceeding or respecting post-judgment issues. It’s important to have an understanding of their purpose should you consider their use or be ordered by the Court to utilize such services. Effectively utilizing parenting coordinators can be a luxury worth pursuing for those that are divorced but have a strong desire to effectively communicate and co-parent despite remaining baggage and issues. It’s a neutral third party and sometimes what we really want is to be heard. Being heard by a parenting coordinator is not cheap but it’s much less expensive than petitioning to be heard by a judge on post-divorce issues regarding children and parenting. Issues.
A Word on Prenuptial Agreements – For Those Who Intend to Remarry
Oftentimes getting to Happily EVEN After involves remarriage. Many second and third marriages are extremely satisfying, but there is a higher risk of divorce in subsequent marriages.
In my Flemington, New Jersey family law practice, I often negotiate prenuptial agreements for couples contemplating marriage but looking to set specific parameters in the event of their divorce or the passing of one of the parties. I always refer to prenuptial (also known as a premarital agreement or antenuptial agreement) agreements as the most-tricky document to negotiate in the realm of family and divorce law–as certain objectives are sought in the negotiation–but negotiating too much can upset an otherwise happy couple.
Although prenuptial agreements are more common in second marriages and/or where one or both parties have accumulated substantial wealth, prenuptial agreements are becoming increasingly common among all age groups and asset classes.
That said, there is often one party that is the driver of the prenuptial agreement. Sometimes, that party isn’t even the one getting married. (I’ve noticed over the years many parents are actually the driving force behind their son or daughter’s premarital agreement).
With all that said, what should you do if you’re engaged and your spouse asks you to enter into a prenuptial agreement? Or if you’re looking to remarry, should you demand a prenuptial agreement the second time around?
First we must define what is the purpose of a prenuptial agreement? Indeed, what is a Prenuptial Agreement?
To first answer that question, it’s perhaps important to better understand what a prenuptial agreement is and isn’t. Prenuptial agreements are a form of contract setting forth an understanding between the parties about their marriage and the end of their marriage. It is required that this agreement be made prior to the marriage (although reconciliation and postnuptial agreements are sometimes contemplated by New Jersey law).
A prenuptial agreement only becomes enforceable upon the parties actually marrying. Such agreements can be quite simple or very complex. As a form of contract, the parties are given great leeway in drafting the agreement’s specific terms and language.
To be valid a New Jersey Prenuptial Agreement must be in writing or it will not be enforceable. They must also have a “statement of assets” annexed/attached to the Agreement. Like most contracts, “consideration” must be given, and the Agreement must also be signed by both parties so as to be legally binding. Both parties must be represented by independent legal counsel.
Under the Uniform Premarital Agreement Act, the parties may contract respecting some of the following types of issues:
- Rights and obligations relating to real property and the disposition of such property;
- Choice of Law for a separation/divorce/etc.;
- Spousal support;
- BUT NOTE: prenuptial agreements cannot waive a child’s right to support from either parent and cannot address custody or parenting time issues.
- To be enforceable a prenuptial agreement cannot be unconscionable (as judged at the time the agreement is entered into and notat the time it is sought to be enforced–as modified by 2013 bill signed by Governor Christie).
- The agreement cannot be made under duress.
- Also, it should generally be made with sufficient time to review and negotiate and both parties should have independent counsel.
- It should also be noted that the burden of revoking or amending a prenuptial agreement (absent consent) inures to the party that is seeking to invalidate the agreement.
- Finally, it should be noted that certain protections are in place in New Jersey even absent entry into a prenuptial agreement. For instance, non-commingled pre-marital property generally remains separate property in New Jersey. So if you own a home in your name and do not commingle that asset (or allow your new spouse to provide labor, equity, or significant seat-equity into the home), then that house should generally remain separate regarding equitable distribution at the time your separate or divorce. Likewise, inherited property or gifted property (along with portions of most personal injury awards will remain separate property provided they are not commingled.
Should I Agree to Sign a Prenuptial Agreement?
Now that the basic framework of a New Jersey prenuptial agreement is understood, onto the primary question of this section of the book: what should you do if your spouse seeks a prenuptial agreement?
Firstly, it’s important to not take the suggestion of a prenuptial agreement personally or as an indictment of your relationship or your fiancée’s trust in you. There are many reasons to seek a prenuptial agreement, and not all of them are negative.
As noted above, it’s a growing trend and helps provide some control to both parties to determine what would occur in a worst-case scenario outcome. For risk-adverse people (and with divorce rates still somewhat high), this may simply be a reasonable request).
If you are concerned, you should discuss your concerns with your fiancée and get a sense of their motivations. It may be that it is not necessary to pursue a prenuptial agreement. If they persist, make sure you both have an understanding of the process to be utilized and the reasons behind the request so as to not strain the relationship.
If your spouse does insist on negotiating a prenuptial agreement, it’s important that you select your own independent counsel to review the agreement and to help you negotiate it, as necessary. Do not allow your spouse or their attorney to select your attorney for you. It may seem ok now but will only lead you to feel cheated and upset by the process later on at the time of enforcement (even if everyone is operating in good faith).
Make sure your attorney fully explains the process to you along with the specific repercussions of what you are signing. You should have a firm understanding of what the law would be absent a prenuptial agreement versus the language contemplated, so you can understand what you are gaining (or losing) by entering into the agreement versus the natural status of the law. For instance, alimony is available to many parties to a divorce in New Jersey. In general terms, the greater the disparity in income between the parties coupled with the longer the duration of the marriage, the more a party may have alimony exposure to the other.
A prenuptial agreement may call for a permanent waiver of alimony. In such a situation it’s important to recognize what your expected exposure (or benefit) from alimony may be. It may be difficult or impossible to fully understand (as you are negotiating in the present an unknown future), but it’s important that you view the more realistic potentialities and have an understanding of what you will be giving up (or gaining) by that specific language.
You should review the entire contract through that prism and then view it globally to determine if it is reasonable and fair. To be enforceable, there is no requirement that the agreement be fair, just that it not be so unfair as to be “unconscionable” at the time the agreement is entered into.
You should work with your attorney to provide financial documentation (and to review financial documentation from your spouse) as this is a requirement of a prenuptial agreement and will help you determine whether or not proposed prenuptial agreement language is fair.
In my opinion, you should also not be afraid to voice your concerns to your lawyer and to negotiate the matter (even aggressively if so required). If your fiancée is the one seeking a prenuptial agreement then their feelings should not be hurt if you are seeking to negotiate an agreement that is fair to both of you.
Your fiancée is looking to protect their interests, or they wouldn’t be asking you to sign a prenuptial agreement. Likewise, you should take this opportunity to likewise ensure that your interests are being protected. You will only regret it later on if you let the bliss of upcoming nuptials silence valid concerns. By that point in time it will be too late to wish the agreement away, as it will likely be binding.
As with most legal documents, you should not sign anything or waive any rights (such as a right to independent legal counsel) without first meeting with your own attorney and having your attorney review the agreement and advise you regarding its pros, cons, and legal meanings.
If you’re contemplating marriage or remarriage, then you should consider your circumstances and that of your significant other to determine if it is worth the time and expense of negotiating a prenuptial agreement. I have heard too many clients say they wish they had gotten one before they got married to not believe in prenups as an important tool for anyone contemplating marriage. We often go into a first marriage with some naivety, but for those facing remarriage you’ve already been through hell and into Paradiso—you don’t want to revisit the inner-circles again!
When Your Ex’s Baggage Threatens Your Happily EVEN After Post-Divorce
When children are involved, there are few things more frightening than learning
your ex-spouse is using drugs again, relapsing, or having a mental breakdown or psychotic break. This section of the book will discuss some of the legal steps that that may be considered when approaching such situations and to best preserve your children’s safety and happiness as well as your own.
The Impact of Drugs and Mental Health Issues on a Marriage
As a divorce lawyer practicing in Central New Jersey my clientele tend to reflect the demographics of the surrounding region, which is to say that many of my clients have good jobs and significant resources. Nevertheless, mental health issues and drug and alcohol abuse issues tend to present across all demographics. Addiction and mental health issues for one or both parties to a divorce is a common issue and is often-times the (sometimes unspoken) impetus for the divorce itself.
Provided there are no children and absent domestic violence concerns, such issues may not make much of a difference in the treatment of the case or the entry of a Marital Settlement Agreement (a/k/a the “Divorce Agreement.”) When children are present, however, there may be significant negotiation regarding custody and parenting time issues, particularly with relevant New Jersey law suggesting that you may be found guilty of neglect and/or child endangerment for leaving children with an intoxicated spouse.
The Divorce Agreement in such circumstances will often require certain steps on the part of the spouse that uses drugs and/or has severe mental/emotional health issues, there may be requirements of supervised visitation as well as AA/therapy requirements, and perhaps requirements for drug testing.
But What if Such Issues Occur After the Divorce is Finalized?
In many regrettable instances, however, issues will flare up after the divorce has already been finalized. For instance, you may drop off or pick up your children and when you see your spouse you may see the tell-tale signs that something is not right.
It could be a full-borne psychiatric break, slurred speech or red eyes perhaps indicative of drug or alcohol abuse, or other signs that you as the expert on your former spouse may immediately recognize. In this instance, when the divorce is already finalized, what are the next steps?
- Document everything.Many situations involving drug and/or alcohol abuse (and even severe mental health issues) may be momentary in nature. Your spouse that is clearly under the influence of drugs and alcohol (or not sufficiently well to care for your children) on the date in question may be the same person that comes to court looking sober and put-together. It’s important to consider recording/taping the behavior, making immediate notes, and/or contacting the police and/or DCPP as appropriate.
- Consider filing an Order to Show Cause.Motions generally take a month or longer to be heard. Conversely, Orders to Show Cause are reserved for when a matter is time-sensitive (such as impacting on immediate the safety and welfare of children) then courts allow for entry of an Order to Show Cause. Courts generally frown upon “self-help” actions such as withholding your children, so court intervention may be necessary to temporarily (at least at first) suspend parenting time or requiring supervised parenting time.
- Pursue Legal Actions While Evidence is at its Strongest. Much like the “Cycle of Violence,” many relapses from drugs or alcohol and/or psychiatric episodes are cyclical. By the time you determine it is best to pursue the case, your spouse may be on the straight and narrow again and you’ll be left wondering what to do when the next meltdown inevitably arises. Taking action when your spouse is committed, is in rehab, or is otherwise at their worst can help courts or agencies understand the severity of the situation and inure towards taking appropriate actions now so that the “next time” does not occur.
- Move swiftly to Protect the Children. Even if a court order requires parenting time, looking the other way may be seen by courts or agencies as inappropriate action on your part, if you leave your children in a situation where they are likely to be harmed. It is important to consider acting quickly if a situation warrants it.
- If a crime has been committed or is being committed, contact DCPP and/or the Police. Courts and lawyers will never be able to move as quickly as the police in mobilizing if there is a crime occurring or a risk to your safety or that of your children. Consider moving quickly to contact the police and/or appropriate agencies such as the DCPP (formerly known as “DYFS”) if you believe abuse, neglect, or the like are occurring by your former spouse/former partner.
When you have children you will never be completely free of your ex. Don’t let
their negative actions have harmful consequences on your children’s safety. Nip issues in the bud to ensure the best outcome for you and your children.
Post-Divorce Out of State Relocation/Removal Law
One thing most of us take for granted is the ability to live anywhere we choose. Moving can mean uprooting your family, changing your job, or otherwise going on an adventure. But for those who are divorced or separated, moving out of state with children can also trigger serious legal considerations.
Removal Law in New Jersey
Removal law is governed by N.J.S.A., 9:2-2, which provides that when the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living apart…they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify same, nor while under that age without the consent of both parents, unless the court shall otherwise order.
In O’Connor v. O’Connor, 349 N.J. Super. 381, the Court addressed some of the differences between parents that share physical custody (regardless of whether same is “de facto” shared physical custody or court-ordered/agreed to shared physical custody v. where one parent is the parent of primary physical custody and the other parent has secondary or alternate physical custody.
Some of the language in O’Connor includes: “In a child custody modification context in determining the standard to be applied to a parent’s removal application, the focus of the inquiry is whether the physical custodial relationship among parents is one in which one parent is the ‘primary caretaker’ and the other is the ‘secondary caretaker.’ If so, the removal application must be analyzed in accordance with the criteria outlined in Baures. (Emphasis Added).
Conversely, in a child custody modification context, if the parents truly share both legal and physical custody then an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent.
If one parent is the primary physical custodian, however, then if that parent can demonstrate they are not leaving the state for bad faith reasons, then it is up to the non-relocating parent (non-custodial parent) to prove that the move would be inimical to the children’s best interests. Thus procedurally, the first step of a removal test considers the type of parenting arrangement between the parties.
As the two (2) prong analysis in Baures v. Lewis, 167 N.J. 91 provides: A custodial parent will, absent joint physical custody, be permitted to move if (1) that party has a good faith reason to do so; and (2) the children will not suffer from the move. Baures provides a whopping twelve (12) factors to assist in this analysis.
Thus, procedurally, the first step of the removal test considers the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case. For example, a removal motion by a party in a case where the children rotate between houses, with each parent assuming full parental responsibility half of the time, is clearly an application to change the custodial status which cannot be maintained from a distance. In contrast, an application by a custodial parent to move away in a case in which the noncustodial parent sees the children once or twice a week and is not seeking to change that state of affairs, is a removal motion. The possible scenarios are limitless; whether the motion should be viewed through the Baures prism or as one for custody will depend on the facts. In a custody case, the focus is entirely on the child’s best interests. In a removal case, the parents’ interests also take on importance. Morgan v. Morgan 205 N.J. 50.
Let’s imagine a case where the Plaintiff is the parent of primary residence. She is merely seeking relocation to New York, and the Defendant’s parenting time will not be interfered with in any manner. The parties own consent order, signed as part of settlement in a previously disputed paternity case, demonstrates that although they share joint legal custody, it is the Plaintiff who is the parent of primary residence and exercises the majority of time with the child.
The twelve (12) factors in Baures are as follows would include:
(1) The Reasons Given for the Move;
(2) The Reasons Given for the Opposition;
(3) The Past History of Dealings Between the Parties Insofar as it Bears on the Reasons Advanced by Both Parties for Supporting and Opposing the Move;
(4) Whether the Child will Receive Educational, Health, and Leisure Opportunities at Least Equal to What is Available Here;
(5) Any Special Needs or Talents of the Child that Require Accommodation;
(6) Whether a Visitation and Communication Schedule can be Developed that Will Allow the Non-Custodial Parent to Maintain a Full and Continue Relationship;
(7) The Likelihood that the Custodial Parent will Continue to Foster the Child’s Relationship with the Non-Custodial Father;
(8) The Effect of the Move on Extended Family Relationships;
(9) If the Child is of Age, his or her Preference;
(10) Whether the Child is Entering his or her Senior Year in High School;
(11) Whether the noncustodial parent has the ability to relocate;
(12) Any other Factor Bearing on the Child’s Interest.
The Court would view each of these factors in crafting a decision. Leaving for legitimate reasons such as a change in work or to be close to family will be viewed in a better light than merely a desire to leave the state.
It should be noted that the non-custodial parent may leave the state any time they desire but doing so would likely open them up to a potential motion to change parenting time.
The law in this area is constantly changing and very fact-sensitive, so it is best to discuss these issues with an attorney before you plan to relocate.
After the Divorce: Store Your Important Documents in a Safe Place
For obvious reasons, there is a sense of closure associated with the finalization of a divorce. There are, however, many ways the case may be revisited, particularly via post-judgment motions. For some, the divorce decree will be the final court action, but for others divorce issues will continue, off and on, for many years.
I have had clients or potential clients come to me for advice regarding post-judgment divorce actions thirty, forty, and sometimes even fifty plus years after their marriage ended. Some of the common post-judgment issues include modification of child support or alimony, the emancipation of a child, retirement issues, college cost/health care reimbursement issues, and other enforcement of litigant’s right’s issues.
From my own personal observations, the biggest mistakes I see people make when filing “pro se” (i.e. without an attorney) motions is they fail to provide adequate documentation. In most instances, an original and new Case Information Statement and a copy of the Marital Settlement Agreement/recent Orders are required to be attached. Without these documents, a Court will often deny requests for relief “without prejudice.”
Letting the after-effects of a divorce linger for years after the fact is not my definition of living Happily EVEN After. All too often people are in a rush to get the divorce finalized, do not address all terms, or do not retain attorneys and then have divorce agreements that make little or no sense, causing ongoing issues.
Accordingly, here is a starter (but by no means exhaustive) list of some of the documents an individual should store somewhere safe should the need to file or defend a post-judgment divorce motion/other hearing arise. This documentation will be helpful whether you decide to retain an attorney or attempt to proceed on your own:
- An original (from the time of the divorce/etc.) Case Information Statement. For most types of modification and other motions, a new Case Information Statement will also need to be appended to a Motion.
- An original (gold-sealed) Divorce Agreement (a/k/a Marital Settlement Agreement, Property Settlement Agreement) and divorce decree.
- Original child support guidelines.
- Any other orders, including consent orders, entered by the court or between the parties.
- Receipts or other proof of child support or medical expenses, college expenses, etc., paid or received.
- Bank account or other documentation as to joint accounts or when held in the name of or for the benefit of a child.
- Federal income tax returns and W-2’s, pay-stubs.
- Proof of job searches (if attempting to later prove loss of employment or change of circumstances involving employment).
A lot of the above will also be helpful to take with you to an initial consultation with an attorney to explore possible post-judgment motions or actions. These documents should be kept in a safe place, perhaps in a binder/kept together, for ease of finding should the need arise. It may also be helpful to store copies of these documents in a safety-deposit box for safe-keeping. Be careful too in ensuring the documentation is kept in a confidential and secure place.
In short, even after a divorce is finalized, prepare as though it’s not the end of the legal issues between you and your ex-spouse—although hopefully this planning is merely that.
YOUR CHILD’S WEDDING: A NOTE ON CONSIDERING THE FUTURE
Right now, your child may be young – you may not be thinking about their future wedding. Perhaps in passing you’ll consider putting aside some money, but for the most part it’s not on your mind. That is way off in the future, if it ever happens at all.
Especially right now when you’re going through your own divorce.
Maybe right now your son(s)/daughter(s) seem like the only good thing about your relationship with their mother (or father). Everything else feels cloudy, or worse.
You know instinctually as you go through your divorce that you will need to protect your children. But from what? Perhaps there is a legitimate reason to protect them from your spouse. Or maybe you’re letting your own emotion cloud the situation. Maybe they are doing the same with you. It’s hard to not want to retaliate…
Right now, maybe it seems easy to make dismissive comments about your spouse, sometimes even in the presence of your children. Maybe you think they are too young to understand, but I bet they are listening.
Right now, it’s easy to focus on the past and a cloudy present and to lose sight of the future. But be careful. Because someday your child (or children) will grow up. And the way you handle your divorce will have an impact on them. It will impact their own relationships as an adult. It may impact their ability to hold down jobs, to be self-assured, to avoid issues with drugs and alcohol. The statistics show this to be true.
It will also impact you. A high-conflict divorce will take a lot out of you financially and emotionally, you will not be the same person as when you started the journey.
Every time you scream at each other in front of your children you are creating trauma, whether you mean to or not and whether you realize it or not.
Every time you use your children as a pawn in a divorce you are harming them whether you mean to or not and whether you realize it or not. (Often, this is done subconsciously).
It’s so easy to be caught up in the moment that we forget such things.
But someday your child will grow up and they will decide what kind of relationship they will have with each of you, if any.
And someday your child will get married (or get a big promotion/or have kids of their own/or graduate from college) and you will likely have to be in the same room as their dad (or their mom).
You should want to be in the situation where your ex’s presence does not ruin your enjoyment of that day. You should want to be in the situation where old wounds are healed enough that you do not in some way damper your child’s big day.
You want to be working towards your Happily EVEN After, not perseverating on a darkened past.
The path forward starts today.
As you reach the conclusion of this book I hope you have a better understanding not only of the nuts and bolts of New Jersey Divorce law and procedure, but also how the human element of a divorce can make or break your chances at success.
As humans we like to be in control, but in a divorce certain elements are out of our control. We largely cannot control the judges, the law, or how the other side acts. We can control our own though processes and actions to move forward in the right spirit seeking the most advantageous yet reasonable approaches available to us. It’s only human to feel negative emotions such as anger, frustration, disappointment, jealousy, and guilt during a New Jersey Divorce.
Working as a divorce attorney, I know that sometimes I too must address my own emotions when caught up in a moment. But it’s ultimately a lot cheaper and more effective to take those emotions out in a healthy way. Go trash a guitar, take a long run, or hit a punching bag: you’ll be better off in the long run and so will your children if you have them.
If there is one philosophy I hope I got across in this book it’s that emotion is the single-largest X-Factor in a divorce. How you bob and weave through the difficult process will have a great impact on your post-divorce life and happiness. Although your attorney is important, nobody will have a greater impact on your divorce or play a more important role than you!
Like Virgil I stand ready to help you and be your guide through treacherous pathways and seemingly hopeless times. And I want nothing more than to see you get through to your own personal version of paradise, so that you may live Happily EVEN After.
Get to Happily EVEN After
So What Now?
Thank you for reading my book. If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options. You can schedule an initial consultation by calling our office at 856-600-4004, or by scheduling your own consult on my firm’s website, www.taylordivorcelaw.com.
Why Choose Taylor Divorce Law, LLC
With so many talented lawyers in our State, it can be difficult to find the right lawyer for your case. There is nothing that I enjoy more than working with clients. I find it an honor and a privilege to be an attorney. I work tirelessly for the satisfaction of my clients, and enjoy the opportunity of righting a wrong, making my clients whole again, and leaving my clients in a better position than when they first walked through my door. Finding the right attorney is an important decision, and one that you should take very seriously.
The ability to exert a positive influence on the local community and my clients, is a privilege, and a responsibility Taylor Divorce Law, LLC takes very seriously.
I stand ready to answer your questions, work towards the desired results, and to, when required, give my all to be a shining light during a dark time in my client’s lives. Like Virgil in Dante’s Inferno I stand ready to work with you through the toughest of times to guide you to the light of a brighter future.
I hope that whether you contact our firm or not that you enjoyed our book and will seek to incorporate some of its ideals into your New Jersey Divorce or serious family law matter. I wish you all the best in finding your Happily EVEN After.
Very Truly Yours,
Taylor Divorce Law, LLC
Moorestown, New Jersey