NJ Family Legal Blog

APPLICATIONS FOR MODIFICATION OF SUPPORT AWARDS

sfava@foxrothschild.com (Sandra C. Fava) — Fri, 20 Nov 2009 08:25:45 -0500

It is no secret that our country as well as the global economy is in the midst of a downward turn. Jobs are being lost in nearly every industry and the financial world has been turned upside down.

These economic global problems have touched nearly everyone of us. For those who have a financial obligation to support a former spouse or children, the failure to comply with court Orders pertaining to their financial obligations could have dire consequences.

It is not uncommon for a new client to ask, "Will the judge really understand my situation?" or "Am I going to get a break from my financial obligations or will I be spending money on these proceedings in vain?"

Up until recently, this was a question that received different answers from attorneys and judges across this state. The courts had not handed down much guidance on whether they were viewing the current economic crisis as permanent or something temporary that would pass. Attorneys were armed with an understanding of this global problem as it affected their current clients who were in the midst of the divorce process. The stickier question pertained to those individuals who had been divorced for months or even years and could no longer afford to pay that which they agreed or had been ordered to pay.

When filing an application to recalculate or terminate a support obligation, it is the burden of the party requesting the change to first prove to the court that the circumstances have changed significantly from the time of the original support obligation Order, that a review is necessary and fair. If the party requesting the change can show changed circumstances, the court can review the support obligations. For child support, the same standard would apply as that which was used originally. The income of the parties (including if alimony is paid), age of the children, and amount of overnight parenting time with the non-custodial parent, are the most common considerations. In cases where applicable, judges will look at other items such as social security or disability benefits, rental income, child care expenses, extraordinary medical expenses, etc. There is case law, however, that says passage of time can constitute a change of circumstances for child support purposes.

As for a modification of alimony or spousal support, the court must again consider the circumstances considered at the time of divorce- the age and health of the parties, the length of the marriage, the income of the parties, the assets received by way of equitable distribution, the dependent spouse's needs, the other spouse's ability to pay, and the ability of the dependent spouse to contribute to their own needs. A court is only obligated to follow a settlement agreement to the extent that it is fair.

In an application brought by the payor or supporting spouse for a downward modification or termination of alimony, an issue central to the court's evaluation is the supporting spouse's ability to pay. In order to reach that issue, it is the burden of the supporting spouse to provide the court with sufficient credible evidence as in: an updated Case Information Statement (i.e. detailed financial statement form), pay stubs, tax returns, W-2's, resume, job search, and anything else that can verify the change in their income and its effect on their ability to pay at the current rate.

Finally, the Appellate Division has given some guidance in the recently published matter of Gonzalez-Posse v. Ricciardulli, A-6446-06T3, decided November 9, 2009. In this matter, after 10 years of marriage and 3 children, wife filed for divorce. Both parties were natives of Argentina who were residing in the U.S. on a work visa obtained by the husband, who at the time was working for a large law firm in New York. At the time of the divorce, he was employed by Direct TV Latin America. The last year for his visa arose and Direct TV filed the paperwork to extend the visa. However, in the midst of the divorce's finalization, husband was laid off by Direct TV and they rescinded the application for the extension on his visa. He was given the choice to return to Argentina on his own or be deported.

In the Property Settlement Agreement executed by the parties, support was calculated based upon husband's then income of $150,000 and wife's then income of approximately $21,000. Alimony was agreed upon for a 5 year limited period of time.

Upon his return to Argentina, husband obtained employment in a law firm. With the exchange rate, his income converted to approximately $26,000 U.S. dollars per year. He filed an application to recalculate his child support obligation and terminate his alimony obligation. His ex-wife opposed his application. The trial judge reduced the child support obligation. As for alimony, the judge reduced the weekly sum to be paid but converted the limited duration of 5 years to an obligation of 17 years. Both parties appealed from that Order.

On appeal, the Court found that the recalculation of husband's child support was correct. As for the lower court's ruling on husband's alimony obligation, the Court reversed and remanded to the trial court finding that it was error to extend the term of the alimony obligation and stating that the lower court failed to consider the inconsistencies in wife's income and her ability to contribute to her own financial support.

These applications are very fact sensitive and require attention to detail and a presentation of all the facts to the court so that the judge is not left with any question as to the validity of a paying spouse's change in circumstances.

Divorce From Bed and Board - New Jersey's Answer to Legal Separation?

repstein@foxrothschild.com (Robert A. Epstein) — Thu, 19 Nov 2009 07:18:46 -0500

Many times I have been asked whether New Jersey has a form of legal separation. The answer? The closest form of legal separation is what is known by statute as divorce from "bed and board," also known as a "limited divorce." In simple terms, it means that two spouses have obtained a divorce from a financial standpoint, but they are still actually, legally married. Assets are distributed, support is determined. Notably, both parties must agree and request to a divorce in this form pursuant to the divorce from bed and board statute, N.J.S.A. 2A:34-6.

The statute even says that the grounds upon which the divorce is based are the same available in a standard divorce situation. As the parties are still legally married, they can then later reconcile, apply for a revocation or suspension of the Judgment of Divorce or, should no reconciliation occur, either may apply to the court for a conversion of the divorce from bed and board to that of a standard divorce "from the bounds of matrimony." The conversion application must be granted to the requesting party. A divorce from bed and board allows each party to acquire property free of the rights that the other party would have if there were no divorce in place. Similarly, such a divorce prevents a spouse from inheriting the other spouse's property at that spouse's death where there existed no Will.

This type of divorce was recently at issue in Pipitone v. Pipitone, an unreported (not precedential) decision from the Appellate Division holding that the bed and board statute does not mandate that an alimony award, entered into years after the bed and board divorce, must be deemed retroactive to the date of the bed and board divorce order. Simply put, such an award is prospective only. The Appellate Division reasoned that, in a situation where one spouse attempts to convert a bed and board divorce into an divorce from the bounds of matrimony or "absolute" divorce, there is an opportunity to revisit the support and distribution terms of the prior property settlement agreement.

While the property acquisition freedom associated with a bed and board divorce may be beneficial to some, many people avoid this antiquated concept and prefer to end the bonds of matrimony with an absolute divorce so that the legal attachment to the other that remains with a bed and board divorce no longer exists.

YET ANOTHER CELEBRITY DIVORCE - DODGER STYLE

esolotoff@foxrothschild.com (Eric S. Solotoff) — Wed, 18 Nov 2009 15:09:44 -0500

Since they have been in the news a lot lately, I have bloged a lot recently on celebrity divorces, be it John & Kate, Stephanie Seymour or Jim Nantz. That is why the article from Billy Witz that recently appeared in the New York Times about the divorce of Frank McCourt and Jamie McCourt, the owners of the Los Angeles Dodgers got my attention.

Both parties claim to own the team - though Frank claims to be the sole owner. Both worked for the team until recently, when Jamie was fired. As a sign of the war to come, Jamie's lawyers budgeted her legal fees for this matter to be $2 million. Per the article, the central issue is as follows:

"The key legal issue is whether the Dodgers are considered the McCourts’ community property. Under California law, a couple’s assets are split 50-50 unless a written agreement states otherwise. Shortly after buying the Dodgers, the McCourts put the team in Frank’s name and all their property in Jamie’s name to protect the homes from potential creditors. One of her lawyers, Michael Kump, said they would challenge the validity of the postnuptial agreement.

If the agreement is not valid, Fisher said, the McCourts would probably be forced to sell, as John Moores did with the San Diego Padres when he divorced."

The result would probably be the same in New Jersey. It seems pretty clear that when people divorce, the cannot remain in business together. In fact, in the well known Borodinsky case, the Appellate Division held:

It seems almost doctrinal that the elimination of the source of strife and friction is to be sought by the judge in devising the scheme of distribution, and the financial affairs of the parties should be separated as far as possible. If the parties cannot get along as husband and wife, it is not likely that they will get along as business partners.

Obviously this is the case with the fighting McCourts. We will pay close attention as to how this works out but until then, play ball.

ALIMONY TERMINATES AT REMARRIAGE, DOESN'T IT?

esolotoff@foxrothschild.com (Eric S. Solotoff) — Tue, 17 Nov 2009 14:22:27 -0500

Alimony terminates at remarriage, doesn't it? At least that is what we have learned. In fact, there is even a statute, N.J.S.A. 2A:34-25, that says permanent or limited duration alimony terminates upon death or remarriage of the recipient. This is not the case for reimbursement or rehabilitative alimony, per the statute, absent an agreement to the contrary or good cause.

Fast forward to November 17, 2009, the date of the release of the unreported (non-precedential) Appellate Division opinion in the case of Kelly v. Arato.

In this case, the parties were married in 1985 and divorced in 2004. Their agreement called for $100 per month of alimony and $3100 per month in child support. The wife remarried 6 months after the divorce and the husband immediately stopped paying alimony. Four years later, when the husband's attorney wrote to address college for the children, the wife raised the issue of the non-payment of alimony. After cross motion, the trial judge denied the husband's motion to terminate alimony as well as the wife's motion for payment of alimony arrears. Both parties appealed.

The problem in the matter appears to be in the drafting of the parties' Property Settlement Agreement (PSA). Per the PSA, alimony would continue "for the natural lives of the parties,
unless terminated by any one or more of the following" and then lists two events: repudiation or modification of the PSA by the written "mutual consent of the parties"; and defendant's death.

The wife argued that because remarriage is not included as an event that would terminate alimony the parties agreed it would continue. The husband argued that the parties did not have to expressly provide for what the Legislature commands and that the PSA's silence on that point reveals an
intention that the right to termination set forth in N.J.S.A. 2A:34-25 would apply.

The Appellate Division held:

In most instances, we would find little merit in the contention that the complete absence of any mention of remarriage in a PSA would permit a finding that the payor spouse waived the right set forth in N.J.S.A. 2A:34-25 to have alimony cease upon the supported spouse's remarriage. By way of comparison, Ehrenworth dealt with the enforceability of a PSA that stated the husband's alimony obligation would continue to be paid "regardless of whether or not the [w]ife remarries." 187 N.J. Super. at 345. Here, the PSA makes no mention of remarriage, but it does have a provision that may be plausibly read as excluding any other terminating event than those listed. By the same token, the PSA's silence on the subject of remarriage also renders plausible the contention that defendant waived the rights set forth in N.J.S.A. 2A:34-25. In short, the language of the PSA neither conclusively establishes nor conclusively negates plaintiff's remarriage as an event that would terminate alimony. As a result, the judge was mistaken insofar as she held that, as a matter of law, the PSA required a continuation of alimony in this circumstance. The dispute cannot be resolved by resort to the four corners of the PSA. It requires a consideration of the parties' actual intentions at the time of formation.

As such, the matter was remanded for a hearing.

There are a few things of interest to me. If there really was an alimony obligation, why did the wife wait 4 years to say somthing about it. On the other hand, given the fact that the alimony was $1,200 per year and the child support was $37,200 per year - a rather odd support allocation - as well as how quickly the wife remarried, one could surmise that the remarriage was contemplated and the support negoatiated accordingly.

The bottom line is that this seemingly could have been avoided had the PSA been clear about the intention - whatever it is.

One last comment - 4 years of aimony arrears total $4,800. This litigation had to cost several times that amount with more litgation to come. This seems to fail a cost benefit analysis on both sides.

RELOCATION WITH CHILDREN OUTSIDE OF NJ

sfava@foxrothschild.com (Sandra C. Fava) — Sun, 15 Nov 2009 21:23:10 -0500

I have previously blogged on the standard courts consider when asked whether a custodial parent can relocate outside of New Jersey.

In our global economy with the economic times being what they are, more and more often I hear people asking if they'll be allowed to move with their children after the divorce. Recently, the Appellate Court in New Jersey issued an unpublished decision in what appears to have been a hotly contested divorce and relocation trial. In Hryack v. Hyrack, A-1321-08T4, A-3645-08T2 (two consolidated appeals) decided October 29, 2009, the court gave its thorough analysis of the relocation issue as it pertained to this family.

The first question for a court to answer when faced with an application for relocation outside of New Jersey is whether the physical custodial relationship between the parents is one where one parent is the primary caretaker and the other the secondary caretaker. O'Connor v. O'Connor 349 NJ Super. 381, 385 (App. Div. 2002). If a court does find that the relationship between parties is one where one parent is the primary caretaker and the other the secondary caretaker, the request to relocate must be analyzed further with the standard set forth in the New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001).

Under the Baures case, the parent that wants to relocate with the children must provide evidence that shows that there is 1) a good faith reason for the move and 2) that the move will not be inimical to the children's best interest. They should also propose a visitation schedule.

In other words, the parent seeking to move with the children must prove to the court that the request to move is being made in good faith and not, for example, to spite the other parent or thwart their parenting time with the children. Also, the parent must show that moving with the children outside of NJ will not be contrary to the children's best interest.

If the parent who wishes to relocate can meet these two burdens of proof, then it becomes the other parent's responsibility to provide evidence opposing the move because its being done not in good faith or it is contrary to the children's best interest.

To assist courts, Baures provides 12 factors to serve as guide posts when assessing the issue. They are :

1. Reasons given for the move.

2. Reasons given for opposition.

3. Past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move.

4. Whether 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 continuous relationship with the child.

7. Likelihood that the custodial parent will continue to foster child's relationship with the non-custodial parent if the move is allowed.

8. The effect of the move on extended family relationships here and in the new location.

9. The child's preference.

10. Whether the child is entering his senior year in high school.

11. Whether the non-custodial parent has the ability to relocate.

12. Any other factor.

In the recently decided Appellate Division decision of Hyrack, the Court reversed and remanded to the trial court because there was not a thorough and detailed parenting plan addressing how the non-custodial parent would have sufficient time and access to the children so that his relationship with them was not impaired or injured based upon their move across country to California.

One of the lessons that Baures taught was the importance of both parties' efforts to create an alternative visitation plan that could bridge the physical separation between the noncustodial parent and the children. Ways such as email, Internet cameras, visitation during school breaks, holidays, vacations and phone contact must all be considered. What also must be considered is the cost of such a visitation plan. What the court should focus on is whether the communication and visitation is detailed and sufficient enough to maintain and nurture the connection between the noncustodial parent and children. An important consideration to be made is what the quality of the relationship will be between the children and the noncustodial parent.

Any parent seeking relocation must examine these factors carefully and set forth a detailed plan for visitation and parenting time that can be executed and that can maintain a quality in the relationship between the children and the other parent.

More on Parental Abductions

jmillner@foxrothschild.com (Jennifer Weisberg Millner) — Fri, 13 Nov 2009 08:42:56 -0500

Yesterday, my partner, Apple Sulit-Perelejo wrote about the case of Maria Jose Carrascosa, who was found guilty of eight counts of interference with custody and one count of contempt of court. Carrascosa had taken her daughter, Victoria, to Spain in 2005 while involved in a custody dispute with her ex-husband. A family court judge in August 2006 then granted sole custody of the girl to Innes and ordered Carrascosa to bring her back to New Jersey within 10 days. She failed to comply though and was arrested in November 2006 for contempt of court. She has remained in jail since then and has since been charged with the more serious, criminal offence of interference of custody. She can receive a sentence of up to ten years. Yet, as Apple pointed out, the child’s father does not have custody due to a jurisdictional dispute between the United States and Spain, and the child is with neither parent.

This case brings to mind what was truly one of the most upsetting times in my career as a family lawyer. While I have been involved in several international parental kidnapping cases, approximately ten years ago, I represented a father of a teen age son whose mother absconded with the child to South America, to a country which is not a signatory to the Hague Convention, the international treaty which deals with these types of situations. The parents had shared parenting time, and during a period during which the mother had the child, they left the country and fled to the jungles of South America. Many, many months later, after Herculean efforts by investigators, the United States and the consulates of several countries through which the mother had passed, the pair was located and returned to my client. Sadly, while in South America, the child had been mistreated by the mother, sent to the jungles to work and returned with various emotional issues. Fast forward several years later, and luckily, the teenager had completed therapy, was in college and had reunited with his family. His mother was sentenced to a prison term for her actions.

While these types of extreme actions are rare, they are real, and children are injured both emotionally, and in some cases physically. It is always difficult when faced with a situation in which your client believes that a child may be of risk to be kidnapped by the other parent. Angry parents often say things in the context of custody dispute in order to disparage the other parent. Yet in some cases, the fear is warranted, and appropriate steps must be taken in order to protect the child in question. The National Center for Missing and Exploited Children (www.missingkids.com), has resources for parents. Additionally, there are steps that parents can takew ith the assistance of their counsel in the context of their divorce or custody proceedings in order to prevent a parental abduction, or at least be prepared in the event it happens.

The biggest concern, of course, is the effect on the children are the victims of these situations. Parental abductions represent parental alienation at its worst, and the victim is always the child.

Jail Time for Mom found Guilty in Criminal Intereference with Custody Case

asperalejo@foxrothschild.com (Apple Sulit-Peralejo) — Thu, 12 Nov 2009 14:18:40 -0500

After serving almost three years in jail for failing to comply with a Family Judge’s Court Order, a Bergen County, New Jersey jury found Maria Jose Carrascosa guilty of eight counts of interference with custody and one count of contempt of Court. The guilty verdict could result in another ten years of jail time for Carrascosa.

In early 1999, Carrascosa married Peter Inness in her native country of Spain. Carrascosa had resided and worked in the United States since 1992. Inness was an American citizen. After their marriage, they returned to the United States and resided in North Jersey. On April 17, 2000, the parties’ daughter, Victoria, was born.

By early 2004, the parties had separated and shortly thereafter, Carrascosa filed for a religious annulment with the Ecclesiastic Tribunal of the Archdiocese of Valencia Spain.

In October 2004, the parties entered into a written agreement, through counsel, indicating that Inness would have parenting time with Victoria and prohibiting Victoria’s removal from the country.

In December 2004, Inness filed a divorce complaint in the State of New Jersey seeking among other things, custody of Victoria. The Complaint was served upon Carrascosa in early January 2005 and within seven days of being served, Carrascosa left for Spain with Victoria snowballing into two years of litigation in the New Jersey Family Court, New Jersey Appellate Division, Spain and the Appeals Courts of Spain.

In the New Jersey Family Court proceedings, Carrascosa was ordered on a number of occasions to return Victoria to New Jersey and at no point did she comply. Carrascosa argued that New Jersey did not have jurisdiction to handle the matter and that pursuant to an Order of the Court in Spain, Victoria was prohibited from leaving Spain until her eighteenth birthday. However, the New Jersey Court and the New Jersey Appellate Division rejected Carrascosa’s arguments. After a trial, the New Jersey Court entered one last Order requiring return of Victoria to New Jersey and granted Inness sole and residential custody of Victoria. Carrascosa appealed the Order but the Appellate Division affirmed the rulings of the Trial Court. The Order further directed that should Carrascosa fail to comply with the Order, she would be incarcerated until such time as compliance was met. Victoria was not returned to New Jersey and Carrascosa was arrested on November 13, 2006 pursuant to the Family Court Order.

Additionally, Carrascosa was charged criminally with interference of custody and indicted. As a result of her continuing refusal to return Victoria to New Jersey, Carrascosa remained in jail until commencement of the criminal trial in Bergen County on November 5, 2009. After only two hours of deliberation, the jury returned guilty verdicts on November 12, 2009 on eight counts of interference with custody and one count of contempt of Court. Carrascosa may be subject to ten years of incarceration.

Sadly, throughout this entire ordeal, Victoria has been with neither parent. Since her mother took her to Spain in January 2005 through the present time, she is being cared for by her maternal grandparents. Even more sad is that there is still no indication as to whether or when Victoria will ever be returned to her father. The motivation for Carrascosa to continue to block Victoria’s access to her father is unclear since she never testified in the Family Court custody case having plead the Fifth Amendment. Carrascosa did complete a phone interview from jail last year with a reporter from The Record. Carrascosa told the reporter that “If God chooses me to die in jail to protect my child, then I will have to do that”

What is clear from this case is that New Jersey courts do not take lightly continued defiance of Family Court Custody Orders and will prosecute statutory criminal offenses of interference of custody when warranted. What is also clear from this case is that no one ever "wins" in these types of cases - - Carrascosa will be sitting in jail, Inness is still awaiting the return of his daughter and Victoria will be with neither parent.

NEW COURT RULES TO HELP PREVENT IDENTITY THEFT

edegeorge@foxrothschild.com (Erin DeGeorge ) — Thu, 05 Nov 2009 14:51:18 -0500

So often we hear about how to prevent identity theft. Do not give out your social security number; do not give out bank account information, etc. But what do you do when you are going through a divorce, and the Court requires you to provide documents that contain your social security number and/or bank account information. The thought of one’s personal income tax returns and bank statements floating around the courthouse for all personnel to see can make anyone feel uncomfortable.

The Supreme Court of New Jersey recognized this issue and adopted R. 1:38-7. Said Rule requires that any document or pleading submitted to the Court containing confidential personal identifiers must be redacted. A confidential personal identifier is defined as a Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number, or active credit card number. In addition, in the event one of your accounts, i.e. bank account, brokerage house account, etc. is the subject of the litigation, the Court Rules provide that only the last four (4) digits of the account be disclosed if the account cannot otherwise be identified.

ANOTHER DAY, ANOTHER CELEBRITY DIVORCE

esolotoff@foxrothschild.com (Eric S. Solotoff) — Thu, 05 Nov 2009 05:22:17 -0500

Connecticut seems to be the hotbed of celebrity divorces these days.

Yesterday's news reported that model Stephanie Seymour will have to make due on $270,000 per month in temporary support while her case is pending. The news accounts report that her husband nets $1.5 million per month making this appear to be a veritable drop in the bucket.

Today's new reports that sportscaster Jim Nantz has to pay his wife $72,000 per month in permanent alimony plus $1,000 per week in child support. This is a substantial amount if his income is $3.2 million as noted in one place but not so much if his income is $7 million as reported in other places.

Aside from a look into the lives of the rich and famous, this shows another thing - that is, divorce can be a very public airing of very private matters. While perhaps it may be more noteworthy for celebrities, even much of regular people's divorce can become part of the public record. While it is not possible to completely avoid this, treating each other in a dignified and fair manner and settling issues is a way to help keep things out of the public record.

PARENTAL ALIENATION SYNDROME - IS A DSM MENTAL DIAGNOSIS ON THE WAY?

esolotoff@foxrothschild.com (Eric S. Solotoff) — Tue, 03 Nov 2009 16:47:33 -0500

We have blogged in the past about parental alienation and "Parental Alienation Syndrome." There was an excellent article in US News and World Report on line posted on October 29, 2009. To read the article, click here. To view some of our prior posts on this topic, click here and here.

The article discusses a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association. The new edition is scheduled to be published in 2012.

While there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness. On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified. The people of this view are concerned that making parental alienation a mental illness could be invoked by an abusive parent to gain visitation with a child that has good reason to oppose contact.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.

INTERESTING NEW ALIMONY REDUCTION CASE

esolotoff@foxrothschild.com (Eric S. Solotoff) — Tue, 03 Nov 2009 09:19:29 -0500

We have blogged many times about cases dealing with motions for reductions of child support and alimony. Obviously, that has been a hot topic given the economic downturn that our country has experienced over the last year or so. Another interesting unreported (non-precedential) case was released on November 2, 2009.

That case was Miele v. Miele. In this case, the parties divorced in 2005. In their Agreement, the husband's support was based upon anticipated gross income of $165,000 per year. The reason for this was because he involuntarily changed employment in 2005. In 2004 he earned more than $331,000. Because of these circumstances, the parties agreement required them to exchange W-2 and 1099 forms for 2006, 2007 2008.

The husband's post divorce income did not approach even the $165,000 level. As a result, he made a motion to reduce his alimony in 2007 which was denied. He filed another motion in 2008 which also was denied. This time, he appealed.

The Appellate Division reversed. The Appellate Court found that the parties agreement recognized that there was an involuntary reduction in income and that the $165,000 number was a projection of future income that did not come to fruition. Given that the husband had shown two, if not three straight years of income that was substantially below the anticipated gross income, he was entitled to, at the very least, entitled to a hearing.

This case is instructive because I would anticipate that many current divorces will be faced with a similar situation of someone who lost their job and their new income is speculative. The parties should attempt to include protections in the agreement that take into account that the income could go back to historical levels, as well as what should happen if it does not.

Agreement for Cutoff Date in Lieu of Filing for Divorce

lcutler@foxrothschild.com (Larry Cutler ) — Mon, 02 Nov 2009 12:45:13 -0500

As is widely known, the filing date of the complaint for divorce which actually leads to a divorce is the “cutoff date” for equitable distribution, that is, assets acquired up to that date are generally subject to equitable distribution, and assets acquired after that date are generally not. This is a general rule and cannot be taken as a total brightline test since there are no notable exceptions. Among these are: (1) assets acquired by way of gift or inheritance or intestate succession (death without a will) not from a spouse; (2) assets acquired with other assets which were either from a third party as in the first example of acquired by one party prior to the marriage. An exception to the cutoff date would be an asset acquired by one party after the cutoff date but with assets which were subject to equitable distribution. Again, these are general rules and there are always exceptions or other fact situations which render a general rule inapplicable. Obviously, it is best to consult qualified counsel since each circumstance is fact-sensitive, and the result usually turns on very specific development of the facts.

One exception to the timing of “cutoff date” rule is advantageous to the parties. Say that (for one reason or another) the parties are cooperative and want to attempt to negotiate an agreement before filing for divorce. Their hope is that they can amicable provide the other, through counsel, with sufficient documentary information upon which to adequately understand their financial circumstances and based on that understanding, negotiate an agreement, in which case, they can then file for divorce and obtain an uncontested termination of their marriage within a few weeks. Using this methodology, they can avoid certain judicial systemic entanglements.

Problem: if they were to file for divorce, as stated above, the general rule is that post-complaint asset acquisitions are not subject to being divided in the divorce process. If they try to negotiate without filing, if the negotiations should fail to bear fruit and they must thereafter file and implicate the court system in their settlement process, any assets acquired between the time that they start negotiating and the time it fails and one of the files is subject to equitable distribution.

One party may wish to avoid this problematic result. One way to accomplish is to stipulate a particular date as the agreed-upon cutoff date in the event that they might have to later file without an agreement. Needless to say, such an agreement should be in writing, and for safety sake, signed by both parties, not just their attorneys.

Thus, under this scenario, the parties would be free to continue their efforts but with the effect (relative to equitable distribution) that a complaint had been filed.

A cut off date can similarly be used to fix the end date of the marriage for alimony purposes.

CALCULATING CHILD SUPPORT OBLIGATIONS

sfava@foxrothschild.com (Sandra C. Fava) — Mon, 26 Oct 2009 21:04:47 -0500

I have heard on more than one occasion from a client that their spouse or ex-spouse isn't earning nearly as much income as he/she may be capable of earning. This statement is often made in the face of an alimony or child support calculation. What happens if this is in fact true?

During the divorce process one of the more common ways to determine how much income a spouse can earn is to have them evaluated by an employability expert. Now if you look up "employability expert" as a qualified profession or a course of study available in a college course book, I doubt that you would find it in there. Like many other things, employability experts arose out of a need in the legal profession to have an individual with the proper experience, knowledge and background meet with an individual and assess their skill set to determine what kind of employment they may be eligible to obtain. Viola- a new niche profession is born!

So what about after a divorce is finalized and an ex-spouse is either unemployed (because of the economy, the job market or they simply refuse to work) or is underemployed (earning less than they had previously earned either by choice or no fault of their own) and a support obligation exists? What does the court then rely upon when addressing the recalculation of a support award?

The Appellate Division, in the recent unpublished decision of Bakalian v. Bakalian, A-4773-07T1, decided October 21, 2009, revisited this issue. In this case, the ex-husband appealed, in part, from the trial court's Order that imputed income to him as well as objecting to the way in which the trial judge reached the imputed income number.

Imputed income- what's this? In simplest terms- imputed income is income that is ascribed to an individual as the amount of money they could be earning, if they either chose to work or chose to find employment similar to their past employment and/or earnings.

In Bakalian, where the parties were both employed in the medical field but where child support had to be recalculated because the parties' son decided to live with husband, however hehad given up his chiropractic practice after the death of the parties' 16 year old daughter because he "could not get out of bed in the morning", had to deal with the legal issues stemming from his divorce, and he had raise the parties' other child, a 17 year old son.

The trial judge used the New Jersey Department of Labor statistics (NJDOL) in coming up with a comparable salary for husband if he had in fact been working and imputed that number to him when recalculating the child support obligation.

The Appellate Court affirmed the trial judge's imputation of income and methodology used to determine the amount imputed. First, the Court noted that a trial judge's decision to impute income won't be changed unless the underlying facts to do so are either contrary or unsupported by the available evidence.

That said, the Court went on to hold that whenever a parent remains unemployed or underemployed without a good reason, imputing income allows for a fair and just determination of child support. In doing so, the potential earning capacity should be taken into consideration in the support calculation. The first part of this analysis requires a determination by the trial judge that the parent has good reason to be voluntarily unemployed. To make that decision, the judge needs to consider the employment status and earning capacity of that parent if the family had stayed together, as well as the reasons for the voluntary unemployment or underemployment.

As for the methodology used to determine the imputed income, the New Jersey Rules of Court provide guidance for this process, once a court decides that a party does not have good cause for being unemployed. These three options are listed in descending order of priority:

1). Impute income based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the NJDOL;

2). If potential earnings can't be determined, impute based on the parent's most recent wage or benefit record; or

3). If a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the NJ minimum wage ($7.15 per hour).

As you can see, courts don't simply guess a number when making these determinations. If you are going through a divorce or have an ex-spouse who you believe is voluntary unemployed or underemployed and support (either spousal or child) is an issue in your case, take the above considerations to heart.

READ MARK ASHTON'S EXCELLENT POST ON "CUSTODY EVALUATIONS"

esolotoff@foxrothschild.com (Eric S. Solotoff) — Mon, 26 Oct 2009 10:50:36 -0500

Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled, "Custody Evaluation". To read the post, click here.

I have previously blogged on this topic, as well. To review my prior post on How to Prepare for a Custody Evaluation, click here.

Though Mark is in Pennsylvania, much of what he says would apply in NJ too. However, while he says that the evaluations typically cost between $5,000 and $7,500, while that is not an uncommon "retainer" for an evaluation in New Jersey, it is rare that the costs do not exceed the retainer, and that is just for the report. It does not include fees for testimony at trial or a deposition.

However, in New Jersey, I think that typically, judge's do find the reports useful, especially if the expert is a joint or court appointed expert. That said, a judge is required to make independent fact findings and cannot simply defer to and/or abdicate judicial responsibility to the expert. There are times that you have to fight the deference to the expert. In those cases, you may need to get your own expert. Given best practices, judges do not always allow you to get a new expert if the expert is a joint expert. If it is a court appointed expert, a party has a right to get their own expert.

At Fox Rothschild, our family law group is capable of handling the most complex and/or contentious custody litigation. I have also previously blogged on the new American Psychological Association Guidelines for custody evaluations. To review that post, click here. Similarly, I have blogged on other "experts" for custody/parenting issues in high conflict divorces. To review that post, click here.

Can A Domestic Violence Restraining Order Be Dismissed?

asperalejo@foxrothschild.com (Apple Sulit-Peralejo) — Thu, 22 Oct 2009 13:12:18 -0500

At the time of a break-up of a relationship, clearly emotions are high, it is contentious and people often do or say things that they normally would not. Unfortunately, during this time period where many feel like they are on an emotional roller coaster, the tension escalates to the point where one party has filed a Complaint for Domestic Violence as a result of the actions and/or comments of the other party and the Court enters a Final Restraining Order. Once the emotional roller coaster ride stops, does the defendant have the ability to ask that the Restraining Order be dismissed? The answer is yes but the more important inquiry is whether or not such request will be granted.

In New Jersey, either party to a Domestic Violence Restraining Order may request dismissal of the Restraining Order by way of Motion filed with the Court. The New Jersey Prevention of Domestic Violence Act states that “Upon good cause shown, any final restraining order may be dissolved or modified upon application to the Family Part…” N.J.S.A. 2C:25-29d. In other words, simply asking for a dismissal-- even if you are the plaintiff or the victim-- does not automatically warrant a dismissal of the Restraining Order.

If the Defendant files the Motion to dismiss the Restraining Order, there are eleven factors for the Court to consider when determining whether or not “good cause” exists to dismiss a Restraining Order: the victim’s consent; current relationship of the parties; number of contempt convictions; use of drugs or alcohol; whether defendant is violent with others; whether the aggressor attends counseling; age and health of the aggressor; whether the victim is acting in “good faith” when opposing the dismissal; whether there are any other domestic violence restraining orders between the parties in other jurisdictions; and any other relevant considerations relevant to dismissal of the Restraining Order.

If the Plaintiff is the party making a request for dismissal, before any dismissal is entered, the Court must discern whether the plaintiff is seeking the dismissal voluntarily, without coercion or duress; if the plaintiff understands the cycle of violence that occurs in the domestic violence setting; and if the plaintiff understands the loss of protection if the Restraining Order is dismissed.

Notably, regardless of whether or not Plaintiff consents to, wants to have and does have communication with a defendant to a Restraining order, unless the Court has dismissed the Restraining Order, it remains in full force and effect.

Accordingly, depending upon the situation at the time of the entry of the Restraining Order and the underlying facts resulting in entry of the Restraining Order and the current situation, a Defendant may consider seeking dismissal of a Restraining Order. This is especially the case if the Restraining Order was entered shortly after the parties break-up, a reasonable amount of time has lapsed, and there have been no contempt proceedings. By way of example, I represented a client who had a Final Restraining Order entered against her during her divorce proceedings. The divorce proceedings were very emotionally charged especially because the husband had an affair with one of her close friends. Needless to say, my client was very upset and sometimes very confrontational during this phase. Notably, prior to and after the divorce proceedings, she was actually a very private, quiet and rational person. Once the divorce was completed and after three years since entry of the Domestic Violence Restraining Order and the emotions had long since died down, she found it increasingly difficult to have the Restraining Order in place because she and her ex-husband were very involved in their children’s school and extracurricular activities. Notably, there had never been any contempt proceedings nor any other problems between the parties since entry of the Final Judgment of Divorce and the Final Restraining Order. We therefore filed a Motion to dismiss the Restraining Order which, based upon the facts, was granted. (Readers should not misconstrue the comments in this blog as encouraging dismissal of Restraining Orders or requesting dismissals of Restraining Orders in all circumstances. There are many cases in which it would be absolutely inappropriate to dismiss a Restraining Order especially those that involve violent behavior.)

The Appellate Division recently rendered an unpublished decision indicating that upon filing a Motion to dismiss a Restraining Order if the Court finds that there are factual disputes between the parties, the Court must complete a mini-trial (“plenary hearing”) before making any determination. O.N. v. R.N. (App. Div. decided September 23, 2009). Thus, before filing such application, the defendant must make a thorough analysis with his or her attorney of the eleven factors cited above and weigh the merits of their particular dismissal request. In some cases, defendants are found to use the Motion to Dismiss as a means to harass the victim. Therefore, it is important to first complete an analysis of the factual circumstances to be relied upon in seeking a dismissal and the likelihood that the dismissal will be granted.

A "PURPOSE TO HARASS" UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT

repstein@foxrothschild.com (Robert A. Epstein) — Thu, 22 Oct 2009 05:53:39 -0500

There are numerous criminal acts addressed within the Prevention of Domestic Violence Act, which,if proven,can form the basis for the entry of a domestic violence restraining order.The crime of harassment is one. It is defined by New Jersey law as being committed when a person, "with purpose to harass another," "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy such other person." The person must have a "conscious objective" to harass the victim.

Actually proving a purpose to harass, however, can be harder than it seems. For instance, I recently tried a Final Restraining Order hearing where the husband/alleged abuser admitted to calling his wife dozens of times after she had fled the home and he had obtained a bogus temporary restraining order against her. His defense? I was just trying to "get her back because I love her." Despite the Prevention of Domestic Violence Act requiring a broad interpretation of its terms to protect victims, the trial court dissolved the wife's TRO against the husband, finding that the husband lacked a purpose to harass despite admitting to everything that she alleged. This despite an also undisputed prior history of domestic violence.

It was this oftentimes difficult "purpose" requirement that was recently addressed by the Appellate Division in R.P. v. Somerset, where the Appellate Division reversed a trial court's implementation of a Final Restraining Order because of a misinterpretation of the law. The trial court held that a specific intent to harass was not necessary in proving that harassment occurred. The Appellate Division disagreed and reversed, finding that the "purpose" is an integral part of proving a harassment claim. In its conclusion, it also found that there was no evidence of a purpose in the case at issue, especially in light of a lack of prior domestic violence by the alleged abuser. This despite the fact that the primary incident involved the alleged abuser/ex-girlfriend showing up at the ex-boyfriend's home when he arrived with his new girlfriend, pulling the new girlfriend from the car and assaulting her.

Purpose is critical. So is filling out a domestic violence complaint with as much relevant detail as possible. Any victim will surely be grilled on the contents of the complaint, especially if there is anything missing or contradictory from testimony given. Including details as to current and past incidents is of great importance. Also, considering how difficult it may be to prove harassment, it is also recommended to check off a claim for harassment on the complaint form, as well as any other claim that may be proven by your facts, such as stalking, assault, terroristic threats, etc.

QUESTIONS OF PATERNITY

sfava@foxrothschild.com (Sandra C. Fava) — Wed, 21 Oct 2009 07:24:17 -0500

We've all read the salacious gossip at the local food store news stand when popular celebrities bear children out of wedlock or famous couples battle it out in a nasty divorce and heartless allegations fly. Even in those widely publicized cases, it can be an uncomfortable and awkward situation for any parent to question the paternity of a child. I will admit that in my experience it is not a common occurrence for a parent to question the paternity of a child. That's not to say it doesn't happen. What happens when that question arises?

In NJ and many other states there's a presumption that the name listed on a birth certificate is the father of a child. There is also a presumption that a father who assumes paternity by allowing their name to be listed as the father on a birth certificate along with participating in the upbringing of the child, making financial contributions for the child and representing himself to the public as the child's father is that child's father, whether DNA says so or not. These cases are factually sensitive and depend upon a number of factors for consideration, such as:

-When paternity is questioned?

-Who is questioning paternity?

-Is there another man submitting himself as the biological father of the child?

-Does the mother know who the biological father is?

These are just a few factors to consider. Recently, the Appellate Division, in the unpublished decision of Qian v. Wang, A-1873-08T1, decided October 14, 2009 addressed this issue.

In Qian, the parties had been married for 13 years before the father questioned paternity of the parties' only child in the midst of their divorce. After DNA testing, there was no dispute that the child was not the biological child of the father. The mother testified at trial that she believed the father was the biological parent of the child until the DNA tests revealed otherwise. The trial judge found this testimony to be credible. Also at trial, the father testified that at the child's birth, he had suspicions about paternity but did nothing to pursue those suspicions.

The trial judge addressed the question of paternity in her 34 page written decision. Notably she stated in support of her decision that father should pay child support that 1) father failed to seek genetic testing immediately after the child's birth despite suspicions about paternity; 2) his conduct induced mother and the child to establish permanent residency in the U.S.; 3) he had provided all of the child's economic support since birth; 4) his conduct induced mother not to find the child's biological father; 5) there was now no realistic possibility of finding the child's biological father or obtaining support from him; and 6) father was now, after a decade, the child's psychological parent.

In affirming this portion of the decision, the Appellate Court added that father should have pursued the question of paternity at the child's birth when his suspicions arose. By waiting more than a decade, raising the child as his own, inducing mother and the child to become economically dependent on him and becoming the child's psychological parent- there was no basis to terminate his child support obligation. Because of the length of time that passed since the issue of paternity was raised, there was no realistic possibility that mother could find the child's biological father (who was believed to live in China) and/or obtain economic support from him.

Public policy of our state seeks to protect children. In furthering that policy, the state seeks to ensure that no child is left without a parent. One of the ways it does this is by making it difficult for a parent who has assumed the role of father in his actions (both financial, emotional and psychological) to financially abandon a child based upon DNA when that role has been assumed. If the question arises, be sure to address it sooner rather than later.

CUSTODY - CONSIDERING THE HOME ENVIRONMENT

repstein@foxrothschild.com (Robert A. Epstein) — Mon, 19 Oct 2009 18:27:41 -0500

The scene is not all that uncommon. Two people marry and have a child. The relationship ultimately breaks down and, for one reason or another, one parent leaves the home without the child and tries to establish a new place to live. If a custody order is entered during that time period, will a court consider the living situation of the parent who left the home in rendering a custody determination?

First and foremost, public policy in New Jersey favors relationships with both parents after separation/divorce, and that both parents share in the responsibilities in raising the child. In the eyes of the law, both parents are treated as equals. One aspect of a given situation that the court is to consider is the "stability of the home environment offered."

In Betancourt v. Spratley, the child's mother left the primary home without the child, leaving him with the father. The husband filed an application with the court for custody, which was granted because the mother testified that she was essentially homeless at the time. The court told the mother, however, to file for a custody modification based on a "significant change in circumstances" when her living situation had stabilized. She ultimately did so one month later, providing as evidence her lease and a description of her roommates, living space and neighborhood. She also provided evidence that she had resumed employment and that her employer provided for child-care planning. The court, however, denied her requested relief.

On appeal, the Appellate Division concluded that the mother should not have had to prove a significant change in circumstances. Rather, considering the tumultuous circumstances surrounding the first custody order and the close time within which the mother filed to modify the custody arrangement, the Appellate Division found that the first order was really rendered to maintain the status quo for the child. As a result, the Court ultimately held that the the mother was entitled to a review of the custody situation under the factors listed in New Jersey's custody statute (N.J.S.A. 9:2-4), and did not have to prove changed circumstances. Such a review was to include a look at how and when the mother could be in a position to demonstrate that she had achieved stability; she was to have the opportunity to mediate the situation and have her living arrangements investigated; and another proceeding was to be scheduled in the future to determine custody and parenting time issues.

The custody determination has at its heart the best interests of the child. A consideration of where the child will live is logically an important part of any custody determination made pursuant to New Jersey's custody law. It is therefore critical that the parent establish that the home is a safe and loving place for the child to live.

The mystery of the Judge's Chambers

jmillner@foxrothschild.com (Jennifer Weisberg Millner) — Wed, 14 Oct 2009 07:54:58 -0500

Last Friday, I was sitting in a courtroom, early for my case, when the judge called the two attorneys on the case before mine into his chambers. As the time passed, what interested me was the reaction of both of the clients that were left behind. Both clients were disturbed that they were left alone in the courtroom while their lawyers and the judge were “in the back.” Oftentimes, judges will ask the attorneys to come back to his or her chambers, or office, for a multitude of reasons. And I realized, that in an already stressful situation, not knowing what was going on was just another worry for the litigants.

On many occasions, the reason can be something as simple as the judge wanting to schedule something in the case and needs to look at the court calendar. For that matter, most attorneys will have more than one case in front of the same judge and they may wind up speaking about another case entirely for a brief period ( for example, “ by the way, have you been able to settle the Doe v. Doe case you were here on last week?” “ Not yet, judge, but I think we are close to a resolution.”). I was in a judge’s chambers several weeks ago, and it was nothing more than a scheduling conference as my adversary and I were trying to schedule a next day of trial. Between the two lawyers, we had five cases in front of the judge. It took quite a while to find a common day that both lawyers and the court was available!

The court may want to get a sense of what discovery it still outstanding and what a realistic time frame is for getting a case ready for trial. Other times, the judge wants to speak about an aspect of the case and ask the lawyers for their position on a legal issue, and may explore whether the issues should be the topic of further research. Priority of issues in a case may be a topic of conversation as well. Which issues are ones which will take a longer time at trial and which are not. Are there any issues in a case which may reasonably settle prior to trial? And speaking of settlement, the court may want to know how far apart the parties are to a settlement.

Some judges will become more involved than others when settlement is being discussed. Most issues have come in front of a judge before, and he or she knows that “range” a decision will be in. If one side is being completely unreasonable, the judge may be able to help the parties move towards a settlement. The judge may have some creative ideas for compromise that it wants to share with the attorneys. The court may want to give the attorneys his or her initial reaction in order to focus an argument.

My point is, there are many reasons why the judge may call the lawyers to chambers. Whatever the reason, it is not unusual for the lawyers to get into chambers, and the court’s staff has a pressing matter to speak to the court about, and the attorneys have to wait. In any event, the lawyer, should, upon coming back to the client be forthright about the topic of conversation, however mundane it may have been. It is just one of the ways an attorney should effectively communicate with the client.

Retroactive College Contribution

edegeorge@foxrothschild.com (Erin DeGeorge ) — Tue, 13 Oct 2009 14:22:32 -0500

Many couples in the midst of a divorce have very young children. As a result, the issue of funding their children’s college education is typically reserved until the child is of college age. Parties typically agree to include language in their Property Settlement Agreement wherein they will exchange income information and begin discussions regarding the child’s college expenses during the child’s junior year of high school. This makes sense because after all, no one can predict their financial future. Fast forward 15 years, the child is about to begin the process of applying to college. The parties have informal discussions, sans counsel, regarding their respective contributions. The custodial parent accepts the non-custodial parent’s contribution for a few years then decides it is just not enough. Can the custodial parent seek a retroactive contribution toward the child’s college expenses?

The Appellate Division just answered this very question in the unpublished decision of Kmetz v. Fusaro, Decided October 9, 2009, Docket No. A-5870-07T3. In Kmetz v. Fusaro, the parties divorced when their daughter was 9. Their Property Settlement Agreement includes the following clause “The parties acknowledge their desire of the child to attend college or other post graduate professional schooling consistent with the child’s ability and the parent’s financial means. Each party agrees to assist the child in such endeavor and to contribute according to their then available means after all available financial aid, scholarships and part-time and summer earnings.”

The parties’ daughter attended college immediately following high school graduation. The Father voluntarily paid $1,500 each year toward his daughter’s freshman and sophomore year college costs. In the summer between the daughter’s sophomore and junior year, the Mother asked Father to increase his contribution. Father increased said contribution to $2,000 that year. In the middle of the daughter’s junior year, Mother retained an attorney who contacted Father seeking an additional contribution toward the college expenses. Ultimately, Mother filed a motion with the trial court seeking contribution, in proportion to income, toward the daughter’s college costs for her freshman, sophomore, junior and senior years. The trial court granted Mother’s request and ordered Father to pay 68 percent of his daughter’s college costs for all four years.

The Appellate Division, relying upon Gac v. Gac, 186 N.J. 535 (2006) and Newburgh v. Arrigo, 88 N.J. 529 (1982), concluded that Father should not have to contribute toward the college costs of his daughter’s freshman, sophomore and first semester junior year. Reason being, Mother accepted Father’s voluntary contributions for the aforementioned years. Suffice it to say, if you are the custodial parent of a child on the heels of the college application process, it is essential that you discuss the funding of your child’s college education with your ex-spouse. If you are unable to reach a resolution, it is imperative that you seek the Court’s assistance prior to your child’s first day of college.

EDITOR'S NOTE: To avoid the typical complaints about lack of consultation and lack of notice, the custodial parent should also involve the non-custodial parent in the process as early in college selection process, as possible, and put the communications in writing. Perhaps the non-custodial parent should be invited to make college visits with the custodial parent and the child or otherwise, should be invited to take the child to other colleges for visits. In fact, the other parent should be solicited for schools that he/she would suggest being considered. The more that is done in this regard, the less the other side can object to and as such, the review becomes a financial one, as opposed to dealing with some of the other extraneous issues that often come up. ERIC S. SOLOTOFF