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

The obligation to pay alimony to one’s former spouse is a long-standing tenet of New Jersey statutory and decisional law. From time to time, various efforts have been made to reform and, in some cases, eliminate alimony which have proven unsuccessful. A new challenge has been mounted by New Jersey Alimony Reform, an organization founded by Thomas Luesek, a biology professor at Rutgers University, who was ordered by a Union County Court to pay permanent (i.e. indefinite duration) alimony to his former wife who he claims is capable of self support and does not need alimony. 

Mr. Luesek’s organization seeks no less than the elimination of permanent alimony, a position supported by Assemblyman Sean Kean (R-Monmouth) who has introduced a bill to set up a blue ribbon panel to examine such changes and thereby “bring New Jersey into the 21st century”.

Such efforts will provoke discussion, of which this article is an example, but will likely bear little fruit. Alimony in New Jersey is based upon a myriad of statutory factors which the Court can utilize, balance or deem inapplicable in the circumstances of the case. These factors include need and ability to pay, duration of the marriage, marital standard of living, career interruption and other factors which give discretion to the Judge while imposing a set of guidelines for the Court’s instruction and application as  circumstances deem “fit, reasonable and just”  under the governing statute. 

Contrary to popular assumption, Judges are required by law to utilize these factors and cite them in their decisions,  as opposed to employing their personal  sense of what is or isn’t “fair”.  Coupled with the statutory establishment of multiple forms of alimony such as Limited Duration, Rehabilitative and Reimbursement Alimony, it is, in my, wrong to contend that the elimination of “permanent” alimony serves a legitimate legal or societal goal. This is not to say that every alimony case is decided in a manner acceptable to both parties; however, in my over 30 years of practicing matrimonial law throughout New Jersey, the overwhelming number of alimony awards (or denials) have been appropriate to the circumstances of the case. There also exists an enormous body of reported decisions which are legally precedential with respect to alimony and its variations, as a result of which New Jersey judges and lawyers are very well-informed.

I would be the first to add than an award of alimony is not the answer in every case. In fact, it may be deemed totally unwarranted as I, and other matrimonial attorneys, have learned through courtroom experience. Moreover, “permanent” (indefinite duration) alimony is always subject to modification based upon a substantial change in circumstances unless the parties specifically contract otherwise. Thus, the elimination of this type of alimony unfairly tilts the scales in favor of alimony payers and against alimony payees.

There are an increasing number of legal authors who propose a different look at alimony via the establishment of “alimony guidelines” which would determine the amount and duration of alimony awards on a uniform basis throughout all of New Jersey’s counties. Such guidelines would be rebuttable; that is, they could be demonstrated to be inapplicable in a particular case.

This dialogue should continue as uniformity of alimony awards is a legitimate topic.  In contrast, arguments favoring the elimination of one type of alimony are not so framed and, in my opinion, run counter to New Jersey’s distinguished legal history in this important area. 

 

John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory: jeory@stark-stark.com.

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In a case of first impression, a New Jersey woman can be prosecuted for identity theft for allegedly creating a fake Facebook profile for her ex-boyfriend, and posting inflammatory comments about him online, a Judge has ruled.

 

DT (full name redacted) is accused of creating the fake profile of her ex-boyfriend, a Northern New Jersey narcotics detective, where she allegedly posted comments about him to the effect that he had herpes, frequented prostitutes, was “high” all the time, as well as allegedly confessing, “I’m a sick piece of scum with a gun,” while posing as him on the fake profile.

 

This case could have wide ramifications for cyberspeech in New Jersey and other states.  At issue is a New Jersey statute which makes it illegal to impersonate someone “...for the purpose of obtaining a benefit for himself or another, or to injure or defraud another.”  DT’s attorney attempted to have the charges dismissed on the grounds that the law makes no mention of “electronic communications”.  The Judge disagreed.

 

The ruling should give considerable pause to persons contemplating similar actions, since they will now be so doing at their own risk as the law continues to develop in this area.

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A Connecticut Judge has ordered a soon-to-be ex-husband and ex-wife to exchange their Facebook and dating website passwords in connection with their pending divorce.

 

According to the husband’s divorce attorney, his client saw incriminating messages on the computer he shares with his wife at home which made him suspect there would be more evidence in her social networking accounts, including how she feels about her children and her ability to take care of them, which would be relevant in the pending divorce case. During a deposition, the husband’s attorney asked the wife for her Facebook, E-Harmony and Match.com passwords. After initially refusing, she was instructed by her lawyer to disclose them [note: questionable legal advice]. It then appears that the wife immediately texted her friend and asked the person to change the passwords and delete some messages. Upon learning of this, the husband’s attorney obtained an injunction that the wife not delete any material with the Court further ordering the attorneys to exchange passwords for both spouses so the attorneys could conduct discovery.

 

On its face, the ruling violates Facebook’s s requirement that users not turn over their passwords to anyone. However, being judicially ordered to do so in the above circumstances and despite the fact that the ruling is highly privacy-invasive, it is certainly not the last word on this subject as the law and technology will continue to interface and evolve.

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On October 25, 2011, the Appellate Division of the New Jersey Superior Court decided that the case of B. v. B. (names redacted for privacy) and recognized the significant decrease in real estate values in implementing the parties’ divorce settlement.

 

The current economic downturn had not been contemplated in the parties’ Marital Settlement Agreement which was entered into in 2007.  When one party sought to enforce the Agreement based upon 2007 values, the trial court agreed.  The Appellate Division, however, reversed that ruling and concluded that a reasonable construction of the Agreement, coupled with principles of fairness and equity, required a different result. The Court stated that although the parties’ Agreement contained no reference of the possibility of reduced fair market values for their three parcels of real estate, the Court has the inherent authority to insert such a provision even though either party had anticipated it or it had been overlooked. 

 

This is an important development since the Court specifically acknowledged that principles of fairness compelling an examination of the current real estate market, as opposed to that which existed in 2007.  In these troubling economic times it is heartening that the Court recognized that matrimonial settlements, unlike commercial contracts, are a special breed and subject to interpretation and on occasion, reconstruction, based on principles of fairness and equity.

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In a recently published Opinion, a New Jersey trial court issued two rulings of significance to divorced parents of college students. The issues in question have vexed family law attorneys for some time since cogent arguments existed on both sides.

 

The first issue is whether a Court Order which requires a college student to provide proof of attendance, credits and grades to his or her divorced parents as a condition for payment of college expenses violates the student's right to privacy under the Family Educational Rights and Privacy Act (FERPA).

 

The second and collateral issue dealt with the question of when a non-custodial parent is paying child support and/or college expenses, is the responsibility to provide that parent with the above information that of the student, the custodial parent or both?

 

In the case of VB v. VB (names of parties have been redacted) the Court was faced with these issues based on an assertion by the parties' daughter that she had FERPA privacy rights relative to her college records. At the same time, her custodial parent contended that it was only her daughter, not herself, who could be ordered to obtain the documentation and provide it to the non-custodial parent. This combination of legal claims, if successful, would leave the non-custodial parent "in the dark" as to such matters while still paying child support and college expenses.

 

In VB, the Court examined New Jersey's legal definition of emancipation which includes an analysis of whether or not a child has "moved beyond the sphere of influence" of his or her parents. The Court reasoned that if a child's custodial parent has no control of the child and cannot obtain simple verifying information regarding college attendance and performance, the child is "beyond the sphere of control" thus leading to the legal conclusion that the child is no longer unemancipated for purposes of child support and payment of college expenses.

 

As for the student's position that she had FERPA privacy rights, the Court disagreed, stating that she was not entitled to use FERPA as a shield to block her father's right to verify her collegiate status while simultaneously asserting that she was entitled to support and payment of her college expenses.

 

The Court also defined the extent of information which a college student is obligated to provide and consisting of proof of enrollment, credits, and academic performance while indicating that there may be other information in a student's file which has limited or no relevance. For example, a college student who attends counseling on campus may elect to keep such information confidential. Based on the above, the Court concluded that as long as the college student remains unemancipated, her custodial parent is obligated to provide the non custodial parent with documented verification of courses taken, the number of credits per course, and a copies of her report cards at the conclusion of each marking period. Should the student or the custodial parent fail to comply, the Court indicated that it would entertain an application to declare the student emancipated. It strongly appears that under the Court's analysis, such an application would be granted.

 

By way of caveat, the VB Opinion was issued by a trial court, as opposed to the Appellate Division or the New Jersey Supreme Court. Thus, while not mandatory for other courts to follow; since the Opinion was approved for publication (as opposed to numerous other Opinions which remain unpublished due to their lack of instructional or probative value), VB v. VB provides worthwhile findings of fact and conclusions of law for courts and family law attorneys to apply as appropriate in the circumstances of each case. As such, it represents an overdue and clarifying step in the right direction.

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In a recent opinion, a New Jersey appeals court re-emphasized the importance of reducing divorce settlements to writing. That is, however, not enough since a poorly drafted agreement is of little use to the parties or courts after the fact.
 

In my experience, the single biggest flaw in a divorce agreement is lack of specificity. For example, simply stating that a parent shall have “liberal and reasonable” parenting time is an invitation to future litigation. Likewise, a failure to explain the assumptions upon which alimony and child support are based is without excuse. Defining valuation dates or “trigger” dates are important to include.
 

The cost of litigation resulting from a poorly drafted divorce settlement agreement will greatly exceed the expense of getting it right the first time. Every divorce settlement should be in unambiguous written form, which can include attachments and in some cases “for example” clauses to clarify complex terms. Every divorce litigant should insist on specificity, just as every divorce attorney should strive for the same.

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Welcome to that time of year when thoughts turn to spring. As a baseball fan, my thoughts turn to Spring Training, while as a divorce lawyer, they turn to taxes. Why, you may ask? Well, with tax filings due April 15th, there will be no small amount of questions as to such issues as, "are my support payments taxable? Are they tax deductible? What about the assets I received or gave to my ex-spouse? Who gets to claim the children? How am I permitted to file? Can I file separately from my spouse? Should I do so?

This list is not exhaustive but provides a basis for discussion concerning the interplay of divorce and taxes which any person contemplating or going through a divorce should know, as should their attorney. So, here are some basic “rules of the road":
 

1. Alimony paid in accordance with a properly drafted divorce agreement or Court Order is deductible to the person paying it and reportable as income to the recipient. Thus, if you are receiving alimony, you must set aside a sufficient portion to pay federal and state income taxes in order not to be unpleasantly surprised come tax time.
2. Child support is "tax neutral"; non-deductible to the payer or income to the payee.
3. A capital gain exclusion of $250,000 (single) and $500,000 (married) exists for the sale of a principal residence, defined as where you lived for any two of the past five years.  If after a separation, this rule tells us that the home must be sold within three years of departure for the exclusion to apply to the departing spouse.
4. Marital status for tax filing purposes is set on the last day of the year--December 31. If you are divorced before December 31, you must file as a single taxpayer or head of household if you qualify. If you are still married on December 31, you can file jointly or separately, although the latter is not recommended since the total combined tax liability is greater than in the case of joint filing.
5. If filing separately, the first to file's election of standard or itemized deductions requires the other filer to do the same. Ouch!
6. Joint tax return = joint liability despite what your divorce agreement or Judgment says. The IRS "innocent spouse" exceptions are very limited.
7. The custodial parent is entitled to claim the children as dependency exemptions unless otherwise agreed in writing.
8. Attorneys fees related to a divorce are not generally deductible, whether your own or paid to your spouse's lawyer. Tax advice related to the divorce is deductible, as are fees paid to determine or collect alimony.
9. If a person is obligated to pay child support and alimony but pays less than the monthly amount due, payments are first applied to satisfy the child support obligation (tax neutral) before alimony; see 1. above.

These are just some of the tax issues that permeate divorce cases. Others, such as when dealing with retirement plans, stock options, investments and private businesses are more complex. While intended to be helpful, my comments are not tax advice or legal advice and since tax rules, laws and regulations change frequently and may have changed by the time you read this article, working with qualified professionals is essential.

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Matrimonial attorneys are often involved with drafting Marital Settlement Agreements which include arrangements for custody and parenting time.   We are also called upon to review Judgments of Divorce and Orders entered by various judges throughout the state concerning such matters. 

 

My experience is that the often-used term “joint custody” is misunderstood and therefore, misapplied.  The result is an unsatisfactory definition which fails to define the rights and responsibilities of the parents, leaving such issues to be resolved by costly, time-consuming and divisive litigation. 

 

So, what does “joint custody” really mean?  For example, does it have to do with parental decision-making, parenting time or both?  In parental decision-making, does the term create a distinction between major decisions and routine decisions concerning the children?  Standing alone, “joint custody” does nothing to resolve such issues, much less create a mechanism for resolution if a dispute arises.  Moreover, if called to do so, a court will often defer to the custodial parent regarding such matters, thereby leaving the other parent dissatisfied with the result. 

 

Consider the difference between the obligation of divorced parents to “confer” regarding their children, as compared to their obligation to “agree”.  Under the first scenario, a parent of primary custody is under no obligation to reach any agreement with the other parent and will proceed on the basis of what he or she believes is in the best interests of the children, thus leaving the other parent to seek legal relief by issuance of restraining order or the remedy.  Conversely, requiring parents to “agree” changes the paradigm significantly.  While two parents can still disagree, presumptions in favor of the custodial parent are substantially lessened and in some cases eliminated.

 

If “joint custody” is intended to encompass parenting time, is it any more helpful?  The answer is no since without a schedule, including weekends, holidays, school recesses and other important occasions and events, it leaves such matters “up in the air” and ripe for controversy.  A good rule is to be specific with regard to parenting schedules, to include exact times, locations, etc.

 

Thus, phrases like “liberal and reasonable parenting time”, are a recipe for trouble since the absence of detail will lead to misunderstandings, disagreements, disappointments and in some cases, a litigation to establish that which should have been fashioned in the first place.

 

Although some clients say, “don’t worry, we can work that out later”, what is the likelihood that they will be able to do so as each moves on with their lives, establishes new priorities and starts new families?  There is a saying that “the devil is in the details” but with regard to joint custody, the “devil” is the absence of details.  The losers in such cases are the children who are placed in the middle of parental disagreements while leaving their voices unheard.  The key to avoiding such problems is to recognize the importance of carefully drafted language with regard to joint legal custody (parental decision-making), residential custody and parenting schedules which will serve to avoid future problems of interpretation and enforcement.

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Tax season has arrived and with it questions as to tax treatment of children of divorcing or divorced parents. For purposes of this article let's deal with the most basic, the "dependency exemption". According to the IRS, the parent who has custody of his or her child for more than one-half the year can claim the child provided that he or she  has provided more than half of the child's support for the year in question.

In  some cases, however, the non-custodial parent can claim the child but in order to be able to do so four requirements must be met:

• First, the parents mus t be divorced or legally separated under a written agreement or lived apart continuously for the last six months of the year;
• Second, the child has received more than half his or her support from the non-custodial parent for the year;
• Third,  the child has been in the custody of either or both parents for the greater part of the year; and
• Fourth, the custodial parent releases the claim to the dependency exemption to the non-custodial parent in writing (IRS Form 8332) which must be attached to the non-custodial parent's tax return.

In many divorce cases, a non-custodial parent's right to claim the exemption is established by court order or written Marital Settlement Agreement. In divorce negotiations, this right may be a bargaining chip since the exemption is worth more to the higher income parent. Assuming the non-custodial parent receives the exemption, the next question is whether it should be annually or perennially.  It is not advisable for the custodial parent to waive the exemption for more than one year at a time and agreeing to do so each year should be tied to a provision in the Agreement or Order requiring the non-custodial parent to be current in child support for the year in question.

Since no two cases are alike, a parent going through divorce should always consult with knowledgeable matrimonial counsel to determine what is in their best interests in terms of settlement or trial.

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In a case of first impression in New Jersey, an appeals court affirmed a trial court's ruling that a paid escort qualifies as a "date”, and thus is a victim under the New Jersey Prevention of Domestic Violence Act. In J.S. v. J.F., the trial judge determined that the parties had entered into a "dating relationship" even though most of their "dates" were at the club where J.S. danced. As for the exchange of money involved, J.S. testified that J.F. was simply trying  to help her out financially, as opposed to rendering payment for professional services, an argument unsuccessfully advanced by J.F.'s counsel.
 

By way of background, J.S. sought protection under the Domestic Violence Act when she began "seeing another man" to which J.F. responded by sending her harassing and threatening text messages. The case serves as fair warning that the commonly-held definition of "dating" is being expanded to satisfy the presumed legislative intent of the Act. As we lawyers like to say, "please be guided accordingly". As others might put it, "buyer beware".

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