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.

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.

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.

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.

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.   

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. 

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. 

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.      

Once the party filing the Motion for modification of alimony due to cohabitation gives the Court enough proof that a third party and the supported party are living together in a relatively permanent household as a family unit, the burden of proof shifts to the supported party (the receiver of alimony) to show that there is no economic interdependence between that party and the third party (cohabitant). 
   

In a recent case, the party who was paying alimony gave proof to the court that his ex-Wife was living with her boyfriend with whom she had had a relationship for many years.  He included a private investigator’s report showing that the third party stayed overnight at his ex-Wife’s home on many occasions, the third party had installed a business telephone, computer line and fax machine in the basement of the ex-Wife’s home.  He used a UPS mail box nearby as his only address in dealing with banks, utility companies, the motor vehicle commission and the Internal Revenue Service.  He used the laundry facilities at the ex-Wife’s address and had a closet in her home containing his belongings.  He also assisted with grocery shopping and dog walking and was present on holidays and birthdays throughout the years.
   

Proofs such as the above supplied by the paying spouse meets his burden of proof to show cohabitation.  The burden of proof would then shift to the supported spouse to show that there is no economic interdependence between her and her boyfriend.      

In regard to alimony, the Courts have held that the pivotal issue is whether the advantage to the retiring spouse substantially outweighs the disadvantage to the receiving spouse.  For instance, a situation where the obligor is retiring due to health concerns where the effect of the termination of the alimony would be minimal to the receiving spouse favors the payor.  However, if the obligor simply does not want to work, and the termination of alimony would substantially effect the receiving spouse, a Court would be less likely to grant the application to modify alimony.  In determining this issue, New Jersey Courts have set forth a number of factors that the deciding Court should consider, including:

• the ages of the parties
• the health of the parties
• the motivation which led to the decision to retire
• the timing of the retirement
• whether the retirement was mandatory or voluntary
• the financial impact of the retirement upon the financial positions of the     parties
• the expectations of the parties   

The right to receive alimony belongs to the receiving spouse.  Therefore, that spouse may agree to the retirement and effectively waive their right to support.  However, the right to receive child support belongs to the child, and may not be waived by the receiving spouse.  Therefore, when an obligor seeks a modification of child support due to voluntary retirement, the Court must determine whether the modification is in the best interests of the child.  The Court must again weigh the advantages to the retiring parent and disadvantages to the child.  Specifically, the Court must consider similar factors, as set forth above, such as the retiring parent’s age, health, finances, assets, and reason for retiring.  The Court must also consider the impact of the reduced support on the child, such as the child’s needs, age, health, assets, and standard of living.  Finally, the Court must determine the fairness of the decision, taking into account the obligor’s motivation for retirement, good faith, and voluntariness of the retirement. 

Specifically, the biological father of the child in question was arrested twenty seven times, incarcerated on several occasions, and treated for substance abuse and mental health issues off and on for twenty eight years. When the child was five years old, she told the mother that her biological father had sexually molested her. The Division of Youth and Family Services (DYFS) conducted an investigation and concluded that the father probably sexually molested the child one time. Although the father was arrested and charged with sexual assault and endangering the welfare of the child, the State dismissed the indictment and DYFS closed its case. A year later, the parents were divorced, and the mother obtained a final restraining order against the father, which prohibited the father from contacting her or any members of her family, including the child.

Two years later, the child’s maternal grandfather applied to the Court to adopt the child to provide [the child] with emotional, financial and physical stability. In support of his application, the grandfather emphasized that the biological father had accumulated arrears of $11,516.08. The Mother consented to this adoption and filed an application to the Court requesting that the Court terminate the biological father’s parental rights. The application was accompanied by a certification describing the abuse that she and the child endured from the birth father. The biological father filed an opposition to the adoption complaint.

The Court granted the biological father’s application for summary judgment, holding that a grandfather should not be allowed to be co-parent with his daughter when the biological father survives. The Court elaborated that, absent a showing of abuse or neglect, a private party is not permitted to terminate a parent’s parental rights. The only other way to terminate the parental rights of a biological parent is for the parent to voluntarily surrender their rights or if the Court finds that the parent has not fulfilled their parental duties and that adoption in the child’s best interest.

The Court further provided that the legislature did not intend for persons outside of marriage or a partnership to adopt children together. Courts have allowed step-parents or a partner in a same sex relationship to adopt when it is in the best interest of the child. Here, the applicant was the biological mother’s father. While forty eight other states allow same sex adoption, no other state has allowed a grandparent to become a co-parent with their own child by adopting their grandchild. Thus, the Court declined to consider this application.

The New Jersey law does afford grandparents a right of visitation with their grandchildren over the biological parent’s objection, provided that the grandparent provides that the child is harmed by not visiting with them. New Jersey also allows grandparents to adopt their grandchildren over the biological parent’s objection when both parent’s parental rights have been terminated.

Recently, an adult married couple, ages fifty and fifty three, applied to the New Jersey Superior Court to adopt a fifty-two year old woman that lived with the couple for ten years. The couple stated that they wanted to formalize their familial relationship with the woman and were not seeking to adopt the woman for inheritance purposes.

Having no case law addressing this issue, the New Jersey Court looked to our neighboring states of New York and Delaware for guidance. Both of these jurisdictions have ruled on the issue of whether a parent-child relationship is prerequisite for adult adoption. However, these jurisdictions have reached opposing conclusions.

The New York Court faced this issue when a fifty-seven year old male sought to adopt his fifty year old homosexual partner. The Court held that "where the relationship between the adult parties is utterly incompatible with the creation of a parent-child relationship, an adoption should not be granted by the Court." In other words, the New York Court found that a party seeking to adopt another adult must prove that a parent-child relationship exists between the parties.

However, a Delaware Court was faced with the same issue, where a sixty-six year old male sought to adopt his fifty-one year old homosexual partner. The Delaware Court held that a parent-child relationship is not a condition to adult adoption. The Court distinguished their decision from the New York decision in that the Delaware statute governing adult adoption did not require an examination into the best interests of the adoptee.

Like New York, the New Jersey Statute governing adult adoption requires the Court to perform an inquiry into the best interests of the adoptee. As a result, the New Jersey Court interpreted this best interest requirement to require the parties to at least establish that there existed a parent-child relationship, especially since the age-requirement was not met.

This recent case gives us an answer that adults seeking to adult other adults must prove a parent-child relationship exists between the adopter and adoptee, especially if the ten-year age requirement is not satisfied.

“in which people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each other’s needs, financial, emotional, physical, and social, as best as they are able.  And each couple defines its way of life and each partner’s expected contribution to it in its own way.  Whatever other consideration may be involved, the entry into such a relationship and then conducting oneself in accordance with its unique character is consideration in full measure.”