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

With college education costs soaring (approximately $50,000 per year for private college tuition, room, board and fees) and unemployment still hovering near 10%, the payment for a child’s college education is an issue for all families. The issue becomes even more difficult for divorced parties.

 

More often than not, divorcing parties provide for the probability that their children will incur college education expenses in the future, in their Marital Settlement Agreement. However, because that eventuality has not yet occurred, the language in the agreement is usually in general terms, such that the parties’ desire for their children to attend college, and when the time comes, they will agree to participate in the payment of said costs dependent upon their income and assets at the time. Usually, there is also language that the parties will cooperate in having their child apply for scholarships, grants and loans to help defray the costs of said education. 

 

In the best of all possible worlds, during their child’s senior year in high school, the parents and child will collaborate and reach an agreement as to which institution the child will attend and what percentage of the costs each parent will pay. Yet, that does not always happen between divorced parties, who many times refuse to discuss anything civilly after a divorce has occurred. 

 

As a result of the lack of communication, all or some of the following problems arise:

• One parent and the child choose a school without consulting the other parent;
• The other parent refuses to respond to communications from the parent and/or child requesting input;
• The child chooses a school, a contract is signed, and one of the parents has not agreed to that school;
• The child attends a college for one or more years before the paying parent requests payment from the non-paying parent.   

If a paying parent does not communicate with the other parent, or does not bring the matter to the court in a timely manner, he/she may not be able to receive the contribution contemplated. In a recent New Jersey case, a mother accepted negligible contributions from the father for the first two and a half years of their daughter’s college education (less than 7% of the total cost).  During the child’s junior year, the mother requested a greater contribution, commensurate with the father’s income – which would have been 68% of the total cost. When he did not agree, she filed a motion with the court. While the trial court ordered the father to pay for 68% of the daughter’s college education costs for all four years (less what he had already paid), the Appellate Division disagreed. That court held that the father did not have to make additional contributions toward the first two and a half years of his daughter’s education, but must pay his 68% proportionate share for the last year and a half. 
   

The Appellate Court felt that the delay in seeking contribution by the paying parent resulted in a huge accumulation of college expenses which was not anticipated by the other parent, and he did not have the funds to pay it out of his current income or assets. Once the request had been made during the daughter’s junior year to pay his proportional share, he could have then planned for those payments. 
   

The lessons to take from this case are clear: as soon as practical, the parents should communicate concerning the many issues inherent in selecting a college; a parent or child seeking contribution toward those expenses must request it before the expenses are incurred; and, if the requested parent refuses to pay his/her proportionate share, the parent seeking contribution should initiate the application to the court before the expenses are incurred.

• Email This
• Print
• Comments
• Trackbacks

One of the most common questions I hear from clients regarding alimony is “What happens when I retire?”  The answer is, “It depends.”  Retirement does not automatically terminate alimony.  If no agreement is reached between the parties at the time of retirement, the obligor must make an application to the Court close to the retirement date to reduce and/or terminate his or her alimony obligation.
 

In a recent unpublished Decision, the Appellate Division reversed a Trial Court Decision wherein the Trial Judge ordered that future retirement of the obligor would automatically terminate his alimony obligation.
 

In that case, the obligor was 46 years old at the time of Trial.  After an eight day trial, the Judge awarded permanent alimony to the Wife.  However, the Judge included a provision in the Decision that the obligor’s retirement shall be a change of circumstances in regard to permanent alimony, and alimony would automatically cease at that time.
 

The Wife appealed.  On Appeal, the Appellate Division held that prospective termination provisions are inappropriate, and this determination should be made at the time of the retirement.
 

It is worthwhile to note that this case is unpublished (i.e., non-precedential).  It is also notable that the Court did not address the issue of termination provisions that appear in Property Settlement Agreements that have been agreed upon by the parties.  The courts have typically upheld the parties’ freedom to contract between themselves.
 

If you have an alimony obligation and are contemplating alimony, you should consult with a divorce attorney as soon as possible to determine how best to proceed.
 

For a more in-depth look at alimony and retirement, please see my article entitled Does an Alimony Obligation Terminate Upon Retirement.

• Email This
• Print
• Comments
• Trackbacks

Divorce is difficult; emotionally, physically and financially.   The issues in divorce lend themselves to intense feelings, which even on a good day, can interfere with the process.  Yet, many divorce cases can be resolved in a fair and equitable manner without the need to battle it out to the bitter end through the court system. 
   

Currently, our family court system is over-burdened.  There are not enough judges to hear the thousands of new cases that are filed in our State every year.  Therefore, in order to move your case along, you may wish to consider alternatives to the litigation process, or avenues you can access to supplement the process, thereby making the system work better for you.
   

Mediation.  Mediation is a process in which two parties (with or without lawyers) meet with a third party, the facilitator or mediator, to help resolve disputes.  This meeting takes place in an informal setting, where those involved frame the issues and discuss alternatives for settlement, all with the help of the mediator.  The issues are discussed, one by one, until an agreement is reached.  The mediator does not determine the outcome; the parties do.  When all issues are resolved, the mediator drafts a Memorandum of Understanding which the parties take to their attorneys for review.  The intent of the process is to reach agreements that will be placed into a formal Interspousal Agreement signed by both parties.   
   

Arbitration.   Different from mediation, arbitration is similar to a trial; however, it is a less formal process that takes place before an arbitrator, not a judge, in a conference room as opposed to a courtroom.  Many times the arbitrator chosen by the parties is a retired judge or attorney who has expertise in the area of family law.  The arbitrator listens to the testimony of each party and their witnesses through the questioning of the attorneys.  Documentation is also presented  to bolster each party’s position.  Once each side has presented their case, the arbitrator makes a decision.  While similar to a trial, the key differences are: (1) the process is less formal and more flexible; (2) the parties choose the arbitrator, whereas you cannot choose your judge; (3) the parties, along with the arbitrator and attorneys set the schedule, so that you’re not beholden to the limited time schedule of the court; and (4) a decision will be made promptly.   
   

Collaborative Divorce.   This is a fairly new approach to divorce, wherein, the parties and their attorneys sign a Participation Agreement committing to resolve all divorce issues through negotiation and not litigation.  The attorneys assist their clients in resolving conflicts through cooperative techniques rather than adversarial strategies.  This is accomplished through a series of conferences in which the parties work together toward a negotiated settlement.  In the event the process is not successful, the attorneys must withdraw from the representation of their respective clients, and the parties must hire new counsel before proceeding with litigation.

 

Four-Way Conferences.  While the above methods are less formal than trial, an even more informal method for resolving differences is the four way conference.  This generally takes place during the litigation process, but before you are too deeply into case.  The parties and their
attorneys meet to discuss the outstanding issues in the case with a view towards solving, or at least narrowing, the issues before going to court.   

 

All issues in a divorce case can be resolved by using any of the above methods; however, both parties must agree to engage in any one of these forms of alternate dispute resolution before proceeding in this manner.

• Email This
• Print
• Comments
• Trackbacks

It has just been reported that the unemployment rate in New Jersey is approaching 10%, the highest it has been in decades.  It has also been reported that divorce filings are down in this period of recession, presumably because couples cannot afford to split up.  The same does not appear true, however, for modification motions.
 

At the time of a divorce, alimony and child support are based on the parties' incomes.  If there is a substantial change in circumstance after the initial support is set, such as the loss of employment due to no fault of your own (i.e., layoffs, plant and store closings, corporate bankruptcies), you may wish to file an application with the court, called a motion, to decrease your support obligations.
 

In any modification case, the burden of proof to establish a substantial change in circumstance is on the party seeking change.  It is not prudent to run into court on the heels of losing your job without having taken the steps necessary to prove your case.  A court must not only weigh the payor spouse's circumstances in deciding when, if, how much and for how long support obligations should be modified, it must also take into consideration the effect any modification will have on the payee spouse, including the children.
 

In seeking modification, the payor spouse must file a certification with the court setting forth the facts which would convince a court to modify support.  You must attach  proof to that certification which captures the time and effort you put into finding another job.  Copies of letters and resumes sent by email or snail mail to companies looking for employees is a start.  Most job seekers these days will post their resume on employment websites such as monster.com or careerbuilder.com, but this does not quantify the effort made.  Keeping a log of prospective employers who contact you with the date and synopsis of the conversation or copy of email responses is better proof.  Copies of rejection letters, if an employer bothers to send one, are also helpful.  The log should include dates and outcomes of interviews, any employment offers made, and reasons why an offer was not accepted.  Any hard evidence that would support the log is a must.
 

In addition, the supporting spouse should certify as to efforts made in reviewing local newspapers and trade or industry journals for employment opportunities.  Obtaining a headhunter and documenting all job leads, interviews and rejections is also suggested.  Many times the prior employer will offer laid off employees time with a counseling or other firm as part of their severance package.  All of this information must be pooled together, with supporting proof and made part of any certification accompanying a motion for modification.
 

In searching for employment, it may no longer be acceptable to apply for jobs only in your residential area, or only in your specific field.  If expanding your job search in these ways bears no fruit, then accepting a decrease in pay may be the only option available if you have been in the market for a period of time with no results.
 

If a party does accept a job with lesser pay after a diligent search, it will be much easier to deal with a motion for modification of support.  If the proofs are there as to the efforts made for a comparable job to your prior employment, and you have not been able to obtain comparable employment given the state of that industry, then the court will rely on the lesser income in modifying support, absent evidence undermining the payor spouse's proofs.
 

If, on the other hand, you have not made a zealous effort and have just accepted a job making lesser pay without proving your effort, then a court may not modify your support payments.
 

The New Jersey Appellate Division set forth factors which the trial court should  consider in a case dealing with a career change and lesser income.  These factors include: the reasons for the career change (both the reasons for leaving the prior job and the reasons for choosing the new job); disparity between prior and present earnings; efforts to find work at comparable pay; the extent to which the new career draws or builds upon education, skills and experience; the availability of work; the extent to which the new career offers opportunities for enhanced earnings in the future; age and health; and the former spouse's need for support.
 

As one can glean from the above suggestions, a motion to modify support based on job loss should not be filed quickly, even though you may want and need fast relief.  While courts are now considering motions to modify support based on job loss much more quickly than they have in the past, you must still present a compelling case.

• Email This
• Print
• Comments
• Trackbacks

In New Jersey divorce cases, all property accumulated during the marriage (whether real estate, cash, bank accounts, investment accounts, retirement plans and personal property) is subject to equitable distribution.
 

But what happens if an asset is no longer in existence or spent down by the time a Divorce Complaint is filed as a result of one spouse’s spending?
 

A Court can determine whether a spouse has dissipated marital assets and therefore should have the obligation to pay that money back.  However, a careful analysis must be conducted.
 If the spending has been used to pay marital debt or to fund vacations or for some other marital purpose, the Court will not find that dissipation has occurred.  On the other hand, if a spouse sends money to his or her family over the objection of the other spouse, or if a spouse spends money frivolously for his or her own purposes while contemplating a divorce, a court may find that dissipation has occurred.
 

The following factors should be considered when deciding the issue of dissipation:
(1) the proximity of the expenditure to the parties’ separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditure benefitted the "joint" marital enterprise or was for the benefit of one spouse to the exclusion of the other, and (4) the need for, and amount of, the expenditure.
 

While not an easy thing to prove, dissipation of marital assets is an issue to be raised in some divorce cases.

• Email This
• Print
• Comments
• Trackbacks

Perhaps one of the most valuable documents in any divorce case is a Case Information Statement (CIS).  A CIS sets forth each party’s income, assets, liabilities, the marital standard of living, and current monthly budget.  A fully completed CIS gives the Court a clear picture of that party’s financial situation, which is imperative in calculating child support and alimony.  While drafting a Case Information Statement is time consuming, it’s value should not be underestimated.
 

Pursuant to Rule 5:5-2 of the New Jersey Court Rules, a Case Information Statement must be filed by each party within twenty days after the filing of an Answer or an Appearance.  In addition, a CIS must be filed in all family actions which in there is an issue as to custody, support, alimony, or equitable distribution.  This includes pendente lite and post-judgment motions.
 

All too often, attorneys and litigants do not spend the time and effort necessary to prepare an accurate CIS.  Some do not take the time to fill out the marital budget, which is a necessary to determine the marital lifestyle in alimony cases.  In such a case, the Court may draw inaccurate conclusions and thereby make an unfavorable award.  When it comes to Case Information Statements, it is prudent to include as much information as possible for the Court to utilize in making a determination.
         

Another common mistake with Case Information Statements occurs when the monthly budgets are grossly inflated.  Especially in cases where alimony is an issue, because alimony is based on the parties’ incomes and their expenses.  Thus, the party seeking alimony may be tempted to inflate their monthly budget with the expectation of receiving an increased alimony award.  However, an unrealistic monthly budget will damage the party’s credibility with the Court, which may also lead to an unfavorable result.
 

In a recent Appellate Division Case, the Court emphasized just how important it is for the Court to have a clear picture of the parties’ financial circumstances.  In Lombardo v. Lombardo, the Husband filed a post-judgment motion to reduce and/or eliminate his alimony and child support obligations, and the Trial Court held a plenary hearing to determine whether a substantial change in circumstances had occurred since the parties’ divorce.  The Husband demonstrated that he was diagnosed with muscular dystrophy following the divorce, and as a result if his disability, his income substantially declined from the income he was earning at the time of the divorce.  However, during the plenary hearing, the Husband failed to testify regarding his expenses and assets, and did not enter his Case Information Statement into evidence.  The Court did not have information regarding his expenses, debts, and assets. 
   

Following the plenary hearing, the Trial Court denied the Husband’s application for a reduction in alimony, and the Appellate Division affirmed.  Although the Husband successfully demonstrated a reduction in his own income, he failed to demonstrate a reduction in his ability to pay because of the missing financial information, which was contained in his Case Information Statement.  Had the Husband presented testimony about his financial situation, or simply entered his completed CIS into evidence, the result of the plenary hearing may have been much different.

• Email This
• Print
• Comments
• Trackbacks

Cohabitation by the supported spouse is often raised as a reason to terminate alimony by the paying spouse.  Several decisions have been written by the Appellate Division in the past few months concerning cohabitation and how it effects alimony.  In the case of Olito v. Olito, decided in October of 2008, the parties had been divorced since 2004, and their Property Settlement Agreement stated “Wife agrees and acknowledges that Husband’s alimony obligation herein shall cease and terminate upon Wife’s remarriage or Wife’s cohabitation as per New Jersey Case law.”  In the Husband’s post-judgment motion to terminate alimony, he asserted that his ex-wife was living with a female partner.  He claimed that they had undertaken a way of life as a committed couple.  The ex-Wife admitted that she rents a house with another woman; however, she denied any relationship, intimate or otherwise, and stated that their financial arrangement was to split rent.  The Appellate Court affirmed the Lower Court’s holding that the ex-Husband did not meet his burden of proof on the cohabitation claim.  He simply stated that his ex-Wife’s present living arrangement was cohabitation under New Jersey law. 
   

The Appellate Court went into much more detail in reviewing this issue.  It cited to previous case law which defines cohabitation as:

“more than merely a common residence or a sexual relationship.  We believe the ordinary definition of ‘cohabitation,’ describing a relationship of living together ‘as man and wife,’ connotes mutual assumption of the duties and obligations associated with marriage.  To guide trial courts in applying this definition, we have formulated a list of factors to consider in determining whether a relationship constitutes cohabitation.  We emphasize however that the list is non-exhaustive, and that no one factor serves as an absolute prerequisite for cohabitation.”
 

The factors that a Court should consider are:

1.     Establishment of a common residence;
2.     Long term intimate or romantic involvement;
3.     Shared assets or common bank accounts;
4.     Joint contribution to household expenses; and
5.     Recognition of the relationship by the community.

   

In reviewing the above factors, it is clear that our courts view cohabitation as “tantamount to a marriage.” 
   

Further, in looking at whether there are changed circumstances which warrant modification of alimony in the case of cohabitation, modification would be warranted when either the cohabitant contributes to the dependent spouse’s support or lives with the dependent spouse without contributing.  In the Olito case, the Appellate Division agreed with the trial court in that the Defendant, ex-Husband, offered no evidence of either an intimate relationship or economic interdependence.  In the absence of such evidence, the ex-Husband failed to meet his burden of proof, and, therefore, the Court was right to reject the claim of cohabitation and thereby modify his alimony obligation.   

• Email This
• Print
• Comments
• Trackbacks

In divorce cases where alimony is an issue, it is not merely an issue of amount.  The length of time must also be decided. Prior to 1999, there were only two types of alimony pursuant to legislation B permanent and rehabilitative. The law was amended in September, 1999, to add limited duration alimony and reimbursement alimony. 

By statutorily allowing limited duration alimony (LDA), or alimony for a term of years, the legislature gave to the courts the authority to do what attorneys had been doing for their clients all along through negotiated agreements. This flexibility has been helpful to divorce litigants, since not all cases warrant permanent or rehabilitative alimony.   

However, what is the line of demarcation between an award of limited duration alimony and permanent alimony?  Unfortunately, there is no bright line, and the ultimate resolution will depend on the facts of each case, as well as the Judge's perspective. 

In attempting to resolve this issue, case law is instructive.  Several reported decisions by the New Jersey Appellate Division have provided some guidance in distinguishing between the two types of alimony. 

Limited duration alimony is available to a dependent spouse who made contributions to the marriage, if the marriage is of short duration.  Permanent alimony is awarded after a lengthy marriage, in recognition of prolonged economic dependence and sustained contribution to a marital enterprise.

 

While all the statutory factors in determining alimony must be considered (such as need of the party, ability to pay, health of the parties, standard of living during the marriage, etc.), the duration of the marriage is the defining distinction between whether permanent or limited duration alimony is awarded.  Yet, the question remains, what is considered a short term marriage, and what is a long term marriage?   And, what do we do about intermediate length marriages? 

While not defining what a short-term marriage is, the Appellate Division in Cox v. Cox stated that a 22 year marriage is a long term marriage, and therefore reversed the Lower Court's award of limited duration alimony. In Hughes v. Hughes, the parties were married for 10 years.  The Lower Court awarded rehabilitative alimony to the Wife (LDA was not yet statutorily authorized), placing great emphasis on the length of the marriage.  The Appellate Court disagreed that a 10 year marriage should be considered short-term stating that "By today's standards, it is not."  The Court went on to state that because the marriage was of intermediate length, the Wife should receive permanent alimony.

 

In a recent Appellate Court case, Valente v. Valente (decided in January, 2009), the parties were married for close to 12 years and had 3 children.  The Lower Court held that the Wife was entitled to permanent alimony.  The Appellate Division, however,  found that limited duration alimony was appropriate in this case, citing the fact that the marriage was of intermediate length.  The Wife's age (40), education (high school diploma), and the age of the children would allow her to obtain a job within a reasonable time.

 

The Court noted that at the end of the term, the Wife could seek permanent alimony or an extension of limited duration alimony if her earnings were insufficient to maintain her lifestyle without alimony. This holding is perplexing given that the statute on limited duration alimony specifically states that the Court may modify the amount of the LDA award, but not the length of the term,  except in unusual circumstances.  Yet, the Appellate Division seems to be saying that any circumstances which would support the fact that the Wife cannot earn an income to support her marital lifestyle would be sufficient.

 

In another recent case, the Appellate Court had before it the "unusual circumstances," which would give rise to an extension of LDA.  The parties were married for 7 years and had 2 children.  Both were lawyers.  The Husband had an active practice, and the Wife did not, because of her parenting obligations.  The parties had agreed to LDA for a term of 4 years.  After the divorce, one of the children was diagnosed with psychological disorders.

The Lower Court denied the Wife's motion for an extension or increase in alimony.   The Appellate Division, however, honed in on the heightened standard - unusual circumstances - for extending the term of LDA and agreed that the Wife had made a sufficient showing due to her son=s current mental health condition. 

Given the above, we can glean from case law that marriages between 10 and 12 years are of intermediate length, and marriages of over 20 years are considered long term marriages.  Although we do not know whether long-term starts at 13 years, or some other number, we do know that permanent alimony will be awarded in a long term marriage, and LDA will be awarded in short term marriages.  We can also draw from the Valente case, that LDA is appropriate for marriages of intermediate length, and in appropriate circumstances, it will be extended. 

• Email This
• Print
• Comments
• Trackbacks

There is a strong preference in New Jersey for parents to share joint legal custody of their children.  Joint legal custody is where the parties agree to consult with each other on major decisions affecting the welfare of the children.  One of the parents is then designated as the Parent of Primary Residence and the other is the Parent of Alternate residence.   
 

If the parties share joint legal custody of a child, their Property Settlement Agreement will usually address the issue of reimbursement of uncovered medical expenses.  The Parent of Primary Residence typically is responsible for the first $250.00 of uncovered medical expenses per child per year.  Thereafter, the Parent of Alternate Residence will be required to be responsible for a portion of the uncovered medical expenses.  However, because the parties share joint legal custody of the children, the parents are required to consult with each other regarding decisions, including medical treatment.
 

A recent New Jersey Appellate Division case addressed the issue of whether a custodial mother waived medical reimbursement for the children when she failed to consult the noncustodial father in advance of the medical treatment.  The Appellate Division held that the right to receive reimbursement of medical expenses is not subject to waiver by the custodial parent. Like child support, the right to receive reimbursement of uncovered medical expenses belongs to the children.  Thus, the noncustodial parent must still reimburse a portion of uncovered medical expenses even if they were not consulted regarding the treatment.  However, the Court did acknowledge that the noncustodial parent retains the right to question the custodial parent regarding the reasonableness of the medical expense. 
 

The Court outlined specific factors to assist them in determining the reasonableness of a medical expense.  An experienced divorce attorney can advise you how to proceed with regard to the reasonableness of medical expenses. 

• Email This
• Print
• Comments
• Trackbacks

When applying to modify alimony, a party must file a post-judgment motion with the Court along with a Certification setting forth the facts of the case and the reasons for the modification request.  The other party may then file a Reply Certification setting forth their position.  Many times there are conflicting facts in these Certifications.
   

In the recent case of Auerbach v. Auerbach, the ex-Wife lived with her boyfriend for nine years before the ex-Husband filed to terminate alimony based on cohabitation.  He also requested reimbursement of the alimony paid over the past nine years, stating that he had just learned of the relationship.
   

The ex-Wife stated that the ex-Husband knew she had been cohabitating.  She continued to live in the former marital home since the divorce.  She attended family functions with her boyfriend that the ex-Husband also attended on multiple occasions, and the home answering machine contained the names of the ex-Wife and her boyfriend.
   

Another issue raised was that the Property Settlement Agreement did not state that alimony would terminate in the event of cohabitation.  The ex-Wife argued that she had waived permanent alimony and accepted limited duration alimony, as well as other waivers in exchange for keeping a cohabitation clause out of the agreement.  The Husband denied this.
   

These issues, in addition to whether there was an economic interdependence between the cohabitating spouse and her boyfriend, cannot be resolved by a Court on conflicting certifications.  Factual determinations, as well as credibility of the parties, must be made by the Court, and the only way a Court could do this, is through a plenary hearing – which is a trial on all of these issues.      

• Email This
• Print
• Comments
• Trackbacks