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When it comes to custody issues incident to a divorce case, they have always been dealt with in New Jersey’s Chancery Division, Family Part.  Unfortunately, if a parent doesn’t comply with a Court Order there are generally no serious consequences.

Recently, a frustrated father has tried something new.  He has sued his ex-wife for negligence and intentional infliction of emotional distress in the Law Division due to her alleged alienation of their children‘s affection.  In Law Division cases, you may seek damages for either negligent or intentional actions, and in this case, the father is requesting compensation and punitive damages for the psychological distress associated with his damaged relationship with his children. 

The parties had originally lived in Toronto, Canada as common law husband and wife and had two children.  In 2001, the parties separated and in 2006 the wife moved to Morris County, New Jersey.  She apparently changed her phone number, blocked emails from the children’s father and cut off all contact between the children and their father.

As a result, the father filed suit in the family court in Morris County to resume visitation.  After 14 months of litigation, he filed a suit for damages in the Law Division.

There is no legal precedent for bringing this type of action in New Jersey and it remains to be seen whether a new marital tort will be created in New Jersey for alienation of children’s affection or whether his suit will be dismissed, leaving the father to pursue his rights in Family Court.

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In a recent ruling by the Appellate Division, in In the Matter of Rogiers, a parent who failed to support his child during her lifetime was entitled to a share in that child’s estate upon the child’s death.  According to New Jersey’s Probate Code, the intestate laws (which provide for the disposition of a decedent’s estate in the event there is no Will) allow parents to inherit from their child’s estate.

In the Rogiers’ case, the child was born severely handicapped as a result of a cervical cord injury at birth.  The mother filed a medical malpractice action against the hospital and won a $12.6 million dollar judgment.  The father had never supported his daughter during her lifetime. 

When the child died at age 22, the father sought to share in his daughter’s estate.  The child’s mother argued that he was never a real parent to her since he did not support her in any way.  The mother also made a claim for retroactive child support against the father. 

The Appellate Division in this case affirmed the Lower Court’s Decision that the father was entitled to one half of his daughter’s estate since the plain language of the Probate Code does not condition a parent’s right to take from a child’s estate on that parent having contributed to the child’s support.  With regard to the claim for retroactive child support, the Appellate Division found that such claims may be asserted; however, in this case, the trust that was established for the child from the medical malpractice action adequately provided for her needs and therefore no retroactive child support was awarded.

Currently, there are two bills pending in the New Jersey Legislature which would eliminate the right of a parent who abandons or intentionally fails to provide support during their child’s lifetime to inherit from that child’s estate.   

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In order to determine child support in any divorce case, we are compelled to use the Child Support Guidelines promulgated by the Rules Governing the Courts of the State of New Jersey.  Under these Guidelines, we must determine the income of both parents in order to calculate the appropriate amount of child support.

    Income is not just earned income.  For purposes of using the Guidelines, gross income also includes tips, commissions, interest, dividends, bonuses, royalties, gains derived from dealings in property, rents, annuities, distributions from government and private retirement plans, including Social Security, Veterans Administration, Railroad Retirement Board, deferred compensation, Keoughs and IRAs.

    The list goes on and on and it is easy to see that any type of income will be included in the calculation.  From this income, certain deductions are taken such as federal, state and Social Security taxes.  But, how do we handle the other deductions from income such as retirement contributions?

    In a recent case, the question became whether contributions to the father’s voluntary 401(k) plan, as well as any income generated by that plan should be considered as income for purposes of child support.  The Court broke down the contributions into those made by the employer for the benefit of the Defendant/Father and those made by the Defendant/Father voluntarily to his own plan.  Arguably, an employer’s contribution to a 401(k) plan could be considered income for child support purposes because the contribution is compensation for services.  In addition, the increase in the plan corpus could constitute both “an interest in a trust” and “gains derived from dealings in property,” two categories of income defined by the Child Support Guidelines.

    Yet, the Guidelines limit gross income to “all earned and unearned income that is recurring or will increase the income available to the recipient over an extended period of time.  When determining whether an income source should be included in the Child Support Guidelines’ calculation, the Court should consider if it would have been available to pay expenses related to the child if the family would have remained in tact.”

    It was noted by the Court that once money was deposited into a 401(k) plan, those funds may not be removed without substantial penalties and taxes.  In addition to the tax required to be paid, an early distribution is subject to an additional tax of 10% of the amount distributed.  Therefore, the Court determined that it should not consider either the employer’s contribution to the 401(k) plan or the increase of the Plan corpus’ income, explaining that “requiring the income that is generated through the sheltered program to become part of a child support award would punish the father for investing wisely to secure a stable retirement . . . .”

    It was noted that assets in a 401(k) plan only become available, even to an intact family, in the event of extreme financial distress.  Therefore, income from that asset would not have been available within the meaning of the Guidelines.  Because of the heavy tax burden imposed on early withdrawal, a withdraw would be an unlikely occurrence.  Therefore, it is not income available to the Defendant over an extended period of time for the payment of child support.

    The Court also noted that the philosophy of the Child Support Guidelines is to allow the children “to share in the current income of both parents” and to prevent them from becoming “the economic victims of divorce.”  Children of divorce should be afforded the same opportunities available to children of intact families with parents of similar financial means.  Since the Guidelines were never intended to allow children of divorced parents a greater share of combined parental income than would have been available for them had there been no divorce, it was held that neither the contributions made by an employer to a 401(k), nor the increase in value of the plan due to employer contributions, should be looked at as income for purposes of child support. 

    However, any monies voluntarily contributed to an employee’s 401(k) plan by the employee will be considered income for child support purposes since it is a voluntary contribution made by a parent.  The choice to place money into a retirement fund does not absolve a parent of his obligation to utilize that income for his children.                                          

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In the recent New Jersey Supreme Court case of Pacifico v. Pacifico, the contract doctrine of contra proferentem was discussed.  This doctrine provides that when a contract term is ambiguous, a court must adopt the meaning that is most favorable to the nondrafting party.

In this particular case, the parties (husband and wife) had entered into a Property Settlement Agreement dealing the issues in their divorce case.  With regard to the marital home, it was agreed that the parties would continue to own the marital home as joint tenants until it was sold at any one of certain triggering events.  The wife was to have the first option to buy out the husband's interest and the husband was to have the second option.  If neither party wished to purchase the other party's interest in the home, it would be sold.

When the younger son became emancipated, the wife offered to buy the husband's share of the home at the value determined in 1996 - the date of the Property Settlement Agreement.  The husband's position was that the value should be set at the current fair market value.

The trial court held that the wife had the right to purchase the husband's interest at the current fair market value.  The Appellate Division reversed and held that the Property Settlement Agreement was ambiguous because it did not specify the date on which the property should be valued for buyout purposes.  The Court stated that  any ambiguity  should be construed in the wife's favor since the husband's attorney drafted the Property Settlement Agreement.

The Supreme Court disagreed holding that the doctrine of contra proferentum should not have been applied here, where both parties attorneys were involved in different drafts of the agreement and where there was no unequal bargaining power between the parties.  

The case was remanded back to the trial court for a determination of the parties' intent and credibility.

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The quick answer to this question is “not necessarily.”

The purpose of alimony is to maintain the dependent spouse at the standard of living he/she had become accustomed to during the marriage.  By law, alimony automatically terminates at the death of the payor, the death of the payee or the remarriage of the supported spouse.  It will also terminate upon reaching the number of years specified in the Court Order or Agreement in the case of limited duration alimony or rehabilitative alimony.

In all other cases, alimony will continue until modified by Court Order.  In order to obtain modification, the requesting party must show that there has been a substantial change in circumstances since the original alimony obligation.  Retirement is an obvious change in circumstances, but that does not end the inquiry.

In the case of Dilger v. Dilger, a former husband elected to take an early retirement at the age of 62 stating that it constituted a change in circumstances sufficient to warrant a termination of his alimony obligation.  The Dilger Court held that in assessing whether the early retirement constituted a change of circumstances, it would have to inquire as to whether the retirement was in good faith in light of all of the surrounding circumstances and whether it was reasonable for the supporting former spouse to elect early retirement.     

In the similar case of Deegan v. Deegan, the payor Husband was just short of 62 years of age when he decided to retire. His union had offered an attractive pension option and work was slow.  He perceived a real possibility of being laid off, and the physical nature of his work was becoming increasingly difficult with age.  It was held that even in a case in which the retiring spouse has been shown to have acted in good faith and has advanced entirely rational reasons for his actions, the trial judge will be required to decide one pivotal issue:   “Whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse.  Only if that answer is affirmative, should the retirement be viewed as a legitimate change in circumstances warranting modification of a pre-existing support obligation.”  
   
In the case of Silvan v. Sylvan, the Appellate Division held that under appropriate circumstances, retirement at the age of 65 may constitute a sufficient change of circumstances to warrant a modification of alimony.  The Appellate Court sent the case back to the trial court for a hearing to consider the following factors:  the age gap between the parties; whether the agreement addressed the issue of future retirement; whether the retirement was voluntary or mandatory; whether the retirement was earlier than might have been anticipated at the time of the agreement; the financial impact of retirement on both parties; the motivation which led to the retirement; the degree of control retained by the parties over the disbursement of the retirement incomes; and whether either spouse had transferred assets to others, thus reducing the amount available to meet his or her financial needs and obligations.  
  
It was specifically stated in the Silvan case that “we do not hold that one who voluntarily retires is automatically entitled to a reduction in alimony.  Rather, we conclude only that a party who retires in good faith at age 65 is entitled to a hearing on whether there is such a resultant change in circumstances that the alimony obligation should be modified.”     

In the recent case of Bosch v. Alles-Bosch, the Plaintiff/Husband moved for a termination of alimony when he retired as a pilot from the United States Air Force Reserve at the age of 55.  The parties’ Property Settlement Agreement acknowledged that the Plaintiff’s present employment would require him to retire in or about January of 2006 (when he was 55).  The agreement went on to state that this representation was being made without prejudice to the position of the Defendant/Wife relative to the issue of alimony.  After retirement, the Husband did not obtain further employment and intended to train and lease horses which would generate minimal income.  The Court held that Plaintiff’s retirement from the Reserves represented a changed circumstance; however, it did not represent grounds for the Plaintiff’s complete retirement from gainful employment.  Although the parties’ agreement acknowledged that retirement from the Reserves would occur in January of 2006, it did not include the Defendant/Wife’s consent to the termination of alimony.  Further, there was no evidence in the record to suggest that the Defendant/Husband was unemployable in any other field.  It was noted that although many civil service employees retire at 55, they then obtain non-civil service employment, and continue to contribute to Social Security, working until age 65 or more, so additional retirement funds are available.  
   
From a review of case law, retirement, even at the age of 65 does not guarantee a total termination of alimony.  There may be a modification of alimony at that time; however, each case revolves around its own particular set of facts and the Court must weigh all of the relevant factors in determining whether there should be modification and/or termination.  In order to avoid this type of hearing upon retirement, it is crucial to deal with the issue of retirement in your Property Settlement Agreement.

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Most Property Settlement Agreements entered into between divorcing parties deal with the issue of emancipation of a child, which is the cut off date for a parent’s child support obligation. Intertwined with this issue is college or secondary education and each parent’s responsibility toward this obligation.

In New Jersey, there is no set age for emancipation. Many people seem to think that a child is emancipated when he/she reaches the age of majority which is 18, but in most cases this is not true.
The Superior Court of New Jersey has stated that “When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated.”

Since the issue of whether a child is emancipated is fact sensitive, it is essential that your Property Settlement Agreement have a definition of emancipation so there is no question when child support obligations stop. Property Settlement Agreements traditionally list the following as emancipation events:

1. Reaching the age of 18 years or the completion of post-secondary education (college), whichever occurs last.
2. Marriage of the child.
3. Permanent residence away from the parent’s residence, except that residence at boarding school, camp or college shall not be deemed a residence away from the parents.
4. Death of the child.
5. Entry of the child into the armed forces.
6. A child obtaining full time employment after attainment of the age of 18 years, except that a child engaging in full time employment during vacation or summer periods while attending high school, college or other post-secondary education on a full time basis, shall not be deemed full time employment.

Issues arise, even with a definition of emancipation such as this, when a child works full time and goes to school full time. In a recent case, a father filed a motion to emancipate his son and terminate his child support obligation. The mother opposed the motion and filed a cross-motion requesting that the father be required to contribute toward their son’s college education expenses. The parties’ Property Settlement Agreement provided that the father pay child support for the minor child until he was emancipated, which was defined by the parties as set forth above. The parties’ Property Settlement Agreement also stated that if the child was a full time matriculated student enrolled in a minimum of 10 credits per semester, the parties would proportionally share the educational costs after financial aid, scholarships and tuition assistance.

In this case, the son worked at an office full time during the day and went to college in the evening taking 12 credits per semester.  Although the Property Settlement Agreement did not address full time employment while going to school full time, the Lower Court continued child support and compelled the father to pay toward his son’s college education expenses.

On appeal, the Appellate Division agreed with many of the father’s arguments and found that he was entitled to (1) confirmation as to the number of credits his son was taking at college, as well as his future college plans, (2) disclosure and documentation of his son’s income and savings in order to ascertain whether his son contributed toward household expenses or paid his own expenses, (3) the financial status of both parents and (4) whether scholarships or other financial aid was available. The Appellate Division determined that a plenary hearing was necessary in order for the Lower Court to determine the issues of emancipation, child support obligations and each parent’s responsibility toward college expenses. It is clear from this case that even an attempt to define an emancipation event in a Property Settlement Agreement is not always successful and parties to a divorce action should pay particular attention to the wording of any agreement entered into in order to state with specificity the parties’ intent by covering all conceivable bases.

Issues which may come up in post-judgement divorce cases may be (1) the parents’ obligation to pay for graduate school (2) the parents’ obligation to continue child support and college education for a period of more than four years, (3) whether child support continues if a child takes a leave of absence or other break from school before resuming his/her studies and (4) whether child support continues if the child is ill (physically or emotionally), and therefore cannot attend college.

Dealing with these issues at the time a Property Settlement Agreement is entered may save an inordinate amount of time and money in the future.

Technorati Tags: New Jersey : Emancipation

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In a move that was watched closely around the country, the New Jersey Legislature approved the formation of civil unions for same sex couples in response to the state Supreme Court's directive delivered in the Lewis v. Harris decison. The Legislation is now awaiting the signature of Governor Corzine who in the past has expressed his intention to sign the civil union bill. Although same-sex relationships will not called marriages, partners are now afforded all of the rights, responsibilities and obligatons associated with a marriage.

Technorati Tags: New Jersey : Civil Union : Same-Sex Marriage : Lewis v. Harris : Gay Marriage

 

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Your son or daughter is divorced or deceased. You do not get along with his/her former spouse, and that spouse is refusing to allow you to see your grandchildren. So what do you do?

New Jersey has statute which provides for grandparent visitation. The statute is as follows:

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an Order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the Court shall consider the following factors:

(1) The relationship between the child and the applicant;
(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the timesharing arrangements which exist between parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker of the child. N.J.S.A. 9:2-7.1

While this statute allows a grandparent to apply to the Court and request visitation rights, the Statute does not make the visitation automatic. Until recently, the grandparent had to prove to the Court that they met the above factors and visitation with his/her grandchild was in the best interest of the child.
That burden of proof has been recently changed by case law. In the case of Moriarty v Bradt, 177 N.J. 84 (2003), the Court held that New Jersey’s Grandparent Visitation Statute was constitutional, however, it held that before visitation can be ordered over the objection of the child’s parent, a Court must find that an actual harm will result to the child’s health or welfare without such visitation.
In other words, if a grandparent successfully meets the factors set forth in the statute, visitation will only be order if the grandparent can additionally prove that without the visitation, there will be harm to the grandchild.

Why is this burden so difficult?

This burden is a tough burden to overcome because visitation with a child, against the child’s fit parent’s wishes, interferes with the fit parent’s fundamental liberty interest protected by the due process close of the Fourteenth Amendment of the United States Constitution. Moriarty, 177 N.J. at 101.

In other words, a fit parent’s right to raise their child as they see fit is a Constitutionally protected right. Therefore, if an otherwise fit parent does not believe that visitation with a child’s grandparents are in the child’s best interest, the Court will not interfere with the fit parent’s wishes, unless the grandparent can prove that the grandchild will be harmed without the visitation.

 If you are seeking to make a grandparent visitation application, I suggest that you discuss with your attorney the facts of your case and the success rate of overcoming this strong burden.

Technorati Tags: New Jersey : Divorce : Grandparent Visitation

 

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Until recently, it was impossible to get a divorce in New Jersey without at least one party appearing before a Judge and requesting the divorce. However, despite the new procedure many attorneys still proceed with the standard default divorce procedure.

The new procedure is slightly more complex than the standard default divorce. In a “default” divorce, one spouse would file the complaint and serve the complaint on the other spouse. If the second spouse did not respond to the complaint within the appropriate statutory time limit, the filing spouse could request that the court schedule a hearing and enter a divorce judgment by default.

The “on the papers” process as modified starts off the same way. One party files the complaint, and after the appropriate statutory waiting period has elapsed, the filing party requests that the court enter a default judgment. A default hearing is scheduled. However, because the parties have executed a property settlement agreement, they are able to get a divorce without ever appearing in Court.
The parties must forward to the Court, prior to the default hearing the following documentation:

1. Verified Complaint
2. Proof of service of defendant
3. In adultery cases, notice to correspondent and proof of service, which shall include that the correspondent has not moved to intervene or otherwise respond to the notice.
4. Request for default and proof that such default was served on the defendant
5. Affidavit of non military service
6. Affidavit of Insurance
7. Plaintiff’s sworn statement in support of request of judgment (see below)
8. An original and two copies of the Proposed Final Judgment of Divorce,
indicating that the matter was heard on the papers submitted and that the court made no finding on the merits
9. Child support guidelines worksheet, and if a deviation from the guidelines, a statement of reasons for the deviation
10. Written statement required by the probation department
11. A stamped, addressed return envelope

Appropriate proofs must be submitted to establish the plaintiff’s right to the relief requested. Unless the following are contained in the complaint, such a request should be in the form of a sworn statement (affidavit or certification), captioned “Certification in Support of the Request for Judgment” (or a similar title), and should:

1. Include a statement identifying all prior and pending proceedings in this or any other jurisdiction. The statement must indicate the caption, docket number and a brief indication of the status. If there are no other proceedings, the statement must certify that there are no other pending matters between the parties.
2. Certify that neither party is on public assistance, or if so, the nature of the assistance being received, the amount of the assistance for plaintiff and children, if any.
3. If incorporation of a PSA is requested, state the agreement was entered into voluntarily and freely and without coercion; that it resolves all the issues between the parties; that plaintiff considers it to be fair and equitable under all the circumstances; that plaintiff waives a right to trial and that plaintiff is satisfied with the legal services provided, if any, and a request to incorporate the Agreement into the Final Judgment of Divorce.
4. In cases where permanent alimony is a relief requested, or where the PSA contains a provision for permanent alimony, include a “Marital Lifestyle Statement” consistent with Crews v. Crews, 164 NJ 11 (2000), and a CIS which is less than one year old.
5. State that plaintiff is aware that s/he is waiving the right to have the judge decide these issues.
If Plaintiff requests the continuation of prior final orders, the complaint or certification must:
1. include copies of the orders.
2. identify the orders in the body of the certification.
3. confirm there is no other property or debt to be distributed.
4. confirm that there are no other outstanding issues between the parties.
5. confirm that plaintiff is aware that s/he is waiving the right to have the judge decide these issues.
6. recite that plaintiff understands that all prior orders not specifically referenced in the Final Judgment will be vacated upon the entering of the final judgment; except that no Restraining Order entered under the Prevention of Domestic Violence Act shall be vacated by the entry of a Judgment of Divorce.
7. state whether or not either party seeks to continue a restraining order previously entered under the Prevention of Domestic Violence Act.

If either spouse is requesting a name change, the complaint or certification must confirm that the party qualifies for a name change and is not changing their name to avoid creditors or criminal prosecution.

Once the staff has confirmed that all the above is included in the file, the file will be forwarded to a Judge to enter the Final Judgment of Divorce.

Technorati Tags: New Jersey : Divorce

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Platt v. Platt

In the recent decision of Platt v. Platt, the Appellate court endorsed the practice of "income averaging" for purposes of determining a self-employed divorce litigant's income in order to calculate alimony and child support. In Platt, the court was confronted with a husband/father who was self-employed and solely responsible for setting his income level. The Court took note of the fact that his income inexplicably decreased in the two years immediately preceding the divorce filing even though the company remained profitable. Attempting to create a fair support obligation, the court felt that averaging his income for the past five years was warranted. This decision underscores the courts desire to create support awards that are based on the actual marital lifestyle as opposed to focusing only on recent earnings. Particularly when child support is involved, such an approach is necessary so that the children of the marriage continue to benefit from the economic successes of their parents. The Platt decision also reinforces the statutory criteria relevant to determining alimony and child support obligations; particularly the standard of living established during the marriage, the earning capacities of the parties, and the history of financial contributions to the marriage made by either party.

Technorati Tags: New Jersey : Divorce

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