New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

The disposition of personal property located in the former marital residence is often overlooked in settlement discussions. This issue of who gets to keep the “comfy green couch” may seem trivial when you are in the midst of spending countless hours negotiating an alimony award or a complicated custody arrangement.  However, without properly addressing this issue, it is very easy to get caught up “in the trees” and allow disagreements regarding personal property to stall further economic or custody negotiations.
 

It is even more dangerous when attorneys fail to give full treatment to the issue and put in language into a final Marital Settlement Agreement, such as; “The parties will divide up their personal property to their joint satisfaction”.  Newsflash - people who are getting divorced, will more than likely not be able to sit down at the dinner table and dibby up the good china!
 

So what do you do to avoid a post-judgment application regarding Aunt Eva’s Forman Grill that was given to your client as an engagement gift? 
 

The best tip I can offer is to begin dealing with the issue of personal property at the outset of the litigation.  I often have my clients develop a list of personal property and have them place a good faith value on said items.  The next step is to develop a roster of items that your client wishes to retain and identify what items the other spouse will more than likely request (sentimental value...etc).  Once I have reviewed the prepared list, I will then send over an initial distribution plan to the other side.  If there are valuation concerns, sending the proposed list early in the case allows plenty of time to work out a proper distribution method with opposing counsel.   
 

If the former marital residence is going to be listed for sale, it is critically important to establish a proper timetable for the parties to remove belongings from the residence so the real estate listing can move forward.  The removal of belongings is often a sensitive issue, as one spouse may not feel comfortable with the other party having access to the former residence.  To ease these concerns, work with your attorney to identify a neutral third party to be present and can take inventory of the retrieved goods when the removed spouse returns to the residence.  The involvement of an agreeable third party, along with an identified time frame/scope for the retrieval of your client’s belongings should help smooth this often turbulent process.
 

Another issue that often arises concerns the disposal of personal property that is unwanted by both parties.  While some clients would like to place their spouse’s belongings in a trash bag and place it on the curb, it is important to realize that there could be some identified value on personal goods that are no longer desired by the parties.  Have your attorney get in touch with opposing counsel and identify a list of goods that both parties wish to mutually dispose.  Consider your options, donating old clothing or furniture may produce a nice tax deduction that will benefit the parties.  Additionally, there are many disposal companies out there that will pay you cash for your “worthless items”.  This money can be split between the parties, or placed in a custodial account for your children.  If a moving company is necessary to dispose of these items, both parties will more than likely be responsible for sharing the cost of these services.
               

While the disposition of personal property may sound trivial, it is often the issue that holds up a final settlement of a case.  Work with your attorney from the outset of your case to get the issue out in the open and try your hardest to think with your head and not with your emotions.  If you follow these simple tips, dividing up the personal possessions acquired during your marriage should fall into place without the need for expense litigation.

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The payment responsibilities of a child’s unreimbursed medical expenses is often an issue that does not receive a lot of attention during divorce litigation.  However, as the cost of uncovered medical procedures have increased throughout the years, establishing each party’s financial responsibilities for these expenses is an extremely important element of reaching a final resolution of your case.

The New Jersey Child Support Guidelines mandate that the custodial parent cover the first $250 per year for each child’s unreimbursed medical expenses.  With the price of co-pays and prescriptions these days, this $250 does not go very far.  All unreimbursed medical expenses above this amount are to be paid by agreement between the parties, or through a Court Order.

The most common resolution to the issue of what each party’s responsibility is towards these medical expenses is to use an “income shares” approach.  Under this method, each party’s respected income is registered a percentage in direct connection to the total combined income of the litigant.  For example, if Wife earns $100,000 per year and Husband earns $80,000 per year, Wife would have an obligation to pay for 55% (her share of parties’ total income) of the registered unreimbursed medical expense, after the first $250 credit is properly applied.  I have found that this model is the most efficient resolution to the issue.  However, it is important to note that the “income shares” approach is not a mandated or Court ordered resolution to this issue.  It is merely a practical approach that many attorneys utilize.

When drafting a Marital Settlement Agreement or a Post-Judgment Order, parties also have the option of coming up with their own agreed upon payment method of these expenses.  I have seen many litigants agree to a 50/50 split, even when their income percentages are not truly equalized.

Being that a vast majority of litigants share the designation of joint legal custody (joint decision making rights) of their children, if you are the custodial parent and wish to receive reimbursement for the medical expenses that you covered “out of pocket”, I suggest that you develop a system to inform the other spouse of these anticipated cost.  Many litigations focus on whether or not the other party had a chance to approve a medical procedure that will incur some “out of pocket” expenditure before the non-emergency procedure commenced.  Like many other areas of a successful post-divorce relationship with the other parent, effective communication is the key to avoiding a potentially costly litigation.

As always, if you predict that the payment of unreimbursed medical expenses may be an issue in your pending or existing divorce agreement, I suggest that you consult with an experienced family law attorney to fully explore your options.

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It seems that these days, every time I turn on the news, I hear reports of massive layoffs and market downsizing.  Closer to home, many of our clients who once believed they held stable positions are now finding themselves unemployed.  While losing your job is never a pleasant event, it can be especially troublesome during your divorce litigation.  I offer the following quick tips to continue with an efficient litigation after the loss of your employment:

Full And Complete Disclosure
I understand that it may be embarrassing to inform others of your release.  However, it is critically important to disclose your complete situation to your attorney.  Your counsel will not be able to advise you of the potential impact your change of employment will have on your matter if they are not filled in to the true and accurate picture. 

What do I mean by this?  Full disclosure includes the reasons for your release, the amount and details of the severance package and any other positions/offers that may have been offered to you in lieu of your release.  If you do not feel comfortable communicating the status of your employment to your spouse, conveying accurate information to your attorney is vital for him/her to forward to opposing counsel.

Documentation...Documentation...Documentation
As you can imagine, ex-spouses are often leery of your loss of employment during a divorce litigation.  It is often viewed as a tactic to lower a current or future support payment.  In an effort to combat this presumption, it is very important that you document all of your efforts to regain employment.  Print out all job postings you have applied to, gather information relating to any job recruiters you may have been in contact with and keep a journal of professional contacts you have utilized to secure a position.  While this may seem burdensome, it will save a massive headache if a motion regarding modification/establishment of support is in your future.

Retaining An Employability Expert
With this turbulent job market, it is more difficult than ever to determine a litigant’s true earning potential.  Being that underemployment is always a “hot-button” litigation issue in family law, if you are considering taking a lower paying position due to market demand, or you are unemployed and being imputed income at a level which is no longer reasonable, it is probably in your best interest to engage the services of a vocational expert.  This expert will be able to gauge the true state of the market and provide you with a certified earnings range that is commensurate with your education and experience.  For purposes of litigation, they will produce an expert report and can be called to testify in any potential future litigation.  These experts are often worth their weight in gold because I have found that once this expert report is registered, issues regarding support often find a way of getting settled.

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Strahan v Strahan

After the Appellate Division released their decision in Strahan v Strahan, there has been much debate and discussion concerning whether or not that the days of liberal child support awards that exceed the established NJ Child Support Guideline amount have been “sacked” by Justice Parker’s opinion.

For those non-sports fans out there, Michael Strahan was a star defensive lineman for the New York Giants and subsequently, the recipient of numerous lucrative multi-million dollar contracts.  Strahan has recently retired from playing professional football and is currently employed with Fox Sports as a football analyst for their pre and post-game broadcasts.

Strahan and his wife went through a very public divorce in the Summer of 2006.  After 11 days of trial, the Superior Court determined that Strahan was to pay $235,000.00 per year in child support.  This obligation was established in addition to the alimony payments that he was ordered to supply to his ex-wife and amounted to $200,000.00 above the amount established by the New Jersey Child Support Guideline calculation.

Strahan filed an appeal on the grounds that his child support obligation was excessive.  The Appellate Division agreed that the trial court’s calculation of support was indeed excessive and remanded that the lower court reestablish a more accurate determination of support.

In New Jersey, child support obligations are calculated through an established formula that is primarily based on the gross incomes of the parents.  There are certain mitigating or accelerating factors such as health insurance contributions or day care expenses. However, the support obligation is heavily based on the income, or earning potential of the parties.

The New Jersey Child Support Guidelines only establish a support amount for parties that earn less than a yearly combined income of $187,200.  Once the Guidelines are utilized to establish a maximum amount of support, the Court has the discretion to enter an supplemental amount of child support that is commensurate with the additional financial needs of the child(ren).    

While Justice Parker’s decision contains many well-reasoned conclusions of law, I believe that there are two practical tips embedded in his decision that will help an individual that is involved in a case that calls for an “above-guideline” child support award.       

Be Meticulous In Distinguishing Expenses Between The Children And The Custodial Parent
The Appellate Division made it clear that a custodial parent cannot gain a financial benefit beyond what is merely incidental to a benefit conferred to a child through a child support award.  In clearer terms, expenses such as home improvements and lavish vacations may rise above the scope of an incidental benefit to the custodial parent and should not be fully accounted toward the “actual” support needs of the child(ren).  It is understood that a custodial parent will indeed reap the reasonable fringe benefits of a generous child support amount.  However, the Courts will often look at potentially excessive and questionable “child support” expenses forwarded by a custodial parent as a tactic to “backdoor” additional support that is traditionally categorized for alimony-type payments.  This classification from the Court, is one that you will want to avoid at all costs.   

As a practical tip, I suggest that while preparing your case for an above-guideline litigation, you take the time to clearly identify your family’s past expenses for a 36 month period.  Too many of these cases fall off- track because of improper accounting efforts. Once your total family expenses can be identified, it is imperative that you isolate and account for the true and accurate amount of expenses associated primarily with the your child(ren).  Be on the lookout for such expenses such as lessons, tutoring, activities and medical costs.  If your expenses are difficult to dissect, due to the commingling of funds (payment from various sources, such as credit cards and cash) to pay for various activities, I strongly recommend that you engage the services of a qualified forensic accountant to aid your efforts.

Once the expenses have been properly separated between the custodial parent and the child(ren), it is in your best interest to develop a separate Case Information Statement (CIS) for the child(ren).  Accounting for the proper expenses under these established categories will greatly aid your cause for coming to that appropriate level of support above the Guidelines.

Caveat - Don’t forget to attach the supporting documentation for the expenses that you represent on the CIS.  Compiling this documentation may seem burdensome, but it will save you a potential headache if your matter proceeds to trial.

Recognize A Non-Custodial Parent’s Influence On Raising The Child(ren)
While Courts do not disagree that children of high income parents are entitled to various benefits that occur with such position, Judge Parker warns that judges should avoid the pitfalls of over-indulgence when setting above-Guideline calculations.  He even went as far to quote an Oklahoma case in his decision that stated “no child, no matter how wealthy, needs to be provided with more than three ponies”.

Strahan throughout the trial provided testimony regarding his concerns of spoiling his children.  The Court was persuaded by Strahan’s argument that he did not want to provide a lifestyle of excessive privilege to his daughters.  He believed that providing $235,000 per year to his children would lead to this path.  It is clear that Strahan wanted to instill the concept of working hard for financial achievement and in turn, teaching his children the value of money.

His Wife characterized this argument by Strahan as a financially motivated tactic for lowering his support obligation.  However, after reviewing the testimony, the Court was not persuaded that his argument was insincere and made it clear that the non-custodial parent’s reasonable input regarding the activities and privilege of the child(ren) holds substantial weight in above-Guideline litigation.

When preparing for this issue in litigation, I believe it is extremely important to do your homework regarding the past activities and expenses of your children before the separation.  If a very expansive budget was enjoyed by your children during the marriage, you may run into difficulty at trial trying to convince a judge that you now wish to modify the “status quo” of the privilege afforded to your children.  However, the Appellate Division made it clear through this decision that judges at the trial level are to take harder looks into what the reasonable needs of the children really are when both parties cannot agree on establishing a negotiated above-Guideline means of support.

I strongly suggest that if you are involved in an above-Guideline matter, to further explore all relevant factors surrounding the establishment of support, you should consult with an experienced family law attorney to properly address all of the relevant issues.

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With today’s turbulent economy, the challenges associated with a divorce litigation are growing to be more complicated than ever.  I have prepared the following practical tips in an effort to aid litigants through this difficult period:

Update Your Finances
Being that the average divorce litigation spans the course of close to a full calendar year, it is important that you work with your attorney and periodically update your financial data.  Various investment accounts that had high values when the litigation commenced, may have decreased significantly due to recent market conditions.

While I know that it remains painful to open up your investment account statements these days, it is imperative that you stay informed of your investment position.  It is impractical and expensive for your attorney to piece together a comprehensive settlement proposal without a true and accurate accounting of your assets and liabilities.  Staying informed will save both time and most importantly, litigation costs.

One Household vs. Two Households
While it may not be the ideal situation, it is becoming more common for parties that are getting divorced to live under the same roof.  It is a financial reality that most couples are barely making ends meet while they are married.  For one party to move out of the former marital residence during an expensive divorce litigation creates an additional stain on the budget that may not be economically feasible during these recession-laden times.

If you are forced to reside in the same household as your soon to be ex-spouse, I recommend that you formalize an agreement regarding payment of the necessary carrying expenses of the residence.  This will save you the headache of fighting at the end of each month regarding who is responsible for the cable bill or payment for the groceries.

For accounting purposes, it might be a good idea to open up a new joint checking account that is used to solely pay your household expenses during this period.  This will ensure that both parties have a receipt of what bills were paid and the source of the deposited funds to pay such expenses can be easily recorded.

If you have children, I strongly suggest that you and your spouse work out a provisional parenting plan.  While it may seem unnecessary and burdensome to have set parenting time while residing under the same roof, it has been my experience that these type of agreements are worth their weight in gold.  Make sure to properly assign the time that each parent will spend with the children.  Therefore, if it is your designated weekend, there will be no dispute when you take the children with you for a day full of activities.  During the holiday season, having an assigned schedule for parenting and vacation is even more worthwhile.  Most importantly, having set parenting time while living together will aid your children with the difficult transition when one parent vacates the residence.   

Acceptance Of The Situation
I find that many soon-to-be divorced individuals find it particularly difficult to accept the grim financial reality that is sweeping across our nation.  Many projections of alimony awards and child support obligations may have to be significantly modified due to the economic crisis.  Salaries are getting slashed, jobs are being cut and bonuses are becoming a rare commodity.  It is important to realize that your spouse’s reduction in pay may not be his/her fault and is more than likely tied directly to the widespread financial downturn.  Remember that if you and your spouse were still married, there would be a need for implemented household and lifestyle budget cuts.  In order to save large litigation costs, it reasonable to accept the notion that your needs during your divorce litigation might have to be modified accordingly.

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Myth 2: Divorced or unmarried parents do not have a financial obligation to provide post-secondary education support to their unemancipated children.


As a family law practitioner, I often find that one of the “hot button” issues for my clients is the forced contribution to the post-secondary (college) costs of their children. New Jersey is in the minority of states that require divorced and unmarried parents to contribute to at least a portion of their children’s educational expenses. Many scholarly articles and oral arguments have been made concerning the unfairness of this requirement because married parents have no legal obligation to support their children through college. However, the notion of a divorced or unmarried parent’s contribution seems heavily embedded in our law and a change does not seem to be on the horizon. As a parent of a college-aged child, it is important that you understand the law surrounding this obligation.


Our Supreme Court, in Newburgh v. Arrigo, 88 N.J. 529 (1982) addressed this issue directly and delineated the specific criteria to be considered in determining whether parents are legally obligated to fund higher education expenses:

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 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;
12 - The relationship of the education requested to any prior training and to the overall long-range goals of the child; and
13 - Contribution made to household expenses by the current spouse of either parent [Hudson v. Hudson, 315 N.J. Super. 577 (App. Div. 1998)].

One could write volumes of articles regarding each of the above factors. However, for purposes of this forum, I will offer some practical tips when preparing for a court hearing regarding college contribution.


Get Your Financial Records In Order

As seen in factors 4 and 6, the financial resources of both parties is an important consideration. The Court will not force parents that are struggling financially to take an additional obligation that may place them at a serious risk of bankruptcy. The Court is going to want to review your previous 3-5 years worth of Tax Returns, W-2 Forms, Social Security Earning Statements, Bonus Information and Bank Records. This financial snapshot will allow the Court to determine each party’s ability to contribute to college expenses. Often times, Courts will set each parent’s financial obligation based off a respected percentage of their total combined incomes. For example, if the mother earns $100,000.00 per year and the father earns $50,000.00 per year, they would be required to contribute 66% and 33% respectively to the college tuition of their child.


Your accountant should have file copies of your previous tax returns and W-2 information. With regard to social security earning statements, you can contact the Social Security Department directly to receive this document. Make sure to allow yourself substantial time to retrieve these documents. I would suggest that you begin this process 30-45 days prior to meeting with an attorney or filing your motion Pro Se.


Do Your Homework Regarding Financial Aid Options

As evidenced in factor 10, the availability of grants, loans and scholarships is an important part to the contributing parent’s total. In my experience, judges often apply the amount of financial aid the student received “off the top” of the total college contribution amount attributed to the parents. It is important to understand the various types of loans (subsidized vs unsubsidized..etc) and the available financial aid packages available to your child. Also, make sure to fill out a complete FAFSA (Free Application For Federal Student Aid). This form will determine the student’s eligibility for state/federal grants and financial aid. Once this process is complete, you will get a clearer picture of what remaining portion of tuition will be the parents’ responsibility and you can set forward the appropriate financial strategies to satisfy this obligation.


Involve The Other Parent In The Decision-Making Process

Factor 11 deals with the child’s relationship with each parent and their responsiveness to parental guidance. Many parents learn of their children’s plans for college when they are served with a Court Motion regarding financial contribution. While this may not necessary block the moving party’s application for financial support, it certainly does not help your case when the other parent is not informed or involved in the college selection process. Even if your relationship with the other parent is strained, I recommend that you officially put him/her on notice that your child has plans to attend college. This can be accomplished by writing a letter and sending it through certified mail. At a minimum, this notice should be given to the other party when the child enters their Junior year in high school. This advance notice will give the parents plenty of time to discuss a possible agreement regarding contribution or alternately, a chance for the issue to resolved through the Court system before the child’s first tuition bill is due to the college.


In conclusion, it is very important to understand the law in New Jersey regarding each parent’s financial responsibility to support their children through college. People who leave themselves in the dark and believe that their financial obligation for their children ceases at high school graduation are placing themselves in a vulnerable position when their children attend college. If you are not married and have children that are approaching college age, it is my advice to talk to a financial planner to develop a payment strategy for this expense and consult with an experienced family law practitioner to review your legal rights.

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Myth 1: The gender of a parent is the determining factor in establishing custody of a child

    Many clients seem to believe that a judge will award them custody of their child because “a judge will never separate a daughter from her mother or separate a son from their father”.  It is a common misconception that the New Jersey Family Courts use gender as the exclusive factor when deciding which parent is awarded custody of a child.
               
    The gender of a parent is just one piece in the complicated puzzle that our Courts refer to when administering the “best interest” test.  Sex-based presumptions have eroded in favor of an inquiry focused solely on the overall “best interests” of the child.  The “best interest” analysis takes into account the child’s general safety, happiness, mental and moral welfare as well as specific statutory factors including, but not limited to: (1) the fitness of the parents; (2) the preference of the child ; (3) the custodial parent’s employment responsibilities/schedule; (4) the needs of the child; (5) the child’s educational opportunities (will the child be able to continue at their present school) and (6) the child’s extracurricular activities.

    In the not so distant past,  New Jersey Courts have used gender as a determining factor for determining custody during the first seven years of a child’s life.  Our Courts followed the historically rooted “Tender Years Doctrine”, which forwards the presumption that a mother’s custodial care is ordinarily in the best interest of the child during the developmental period.  This doctrine has now been rejected by not only our courts, but the psychological community as well.

    In the recent Appellate Division case, Schottel v Kutyba, the mother of an adolescent female argued that the father, as a male, was incapable of raising their teenaged daughter.  The Appellate Division found no merit in this argument, held that it was constitutionally inappropriate and affirmed the father’s sole custody of the daughter.

    Courts are now required to conduct very detailed hearing and make specific conclusions of law and fact as to what is the “best interest” of the child when making a custody determination.

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