Divorcing parents often ask whether a judge listen to a child’s preference in a custody dispute. The answer is maybe – it depends on many factors, including the age of the child.
Changing American Families
Changing social norms and biological advances in reproductive technology have changed the face of the family, in turn creating legal consequences and implications.
Families formed by non-traditional marriages, same-sex couples, and individuals intending to parent alone may use assisted reproductive technology. Assisted reproductive technology and adoption can help create families who may not be biologically related.
Baures v. Lewis Standard for Relocation
For just over 16 years, Baures v. Lewis was the standard in New Jersey for allowing a parent to permanently relocate out-of-state with a child against the other parent’s wishes. N.J.S.A. 9:2-2 provides that a parent seeking to relocate and remove a child from New Jersey without the other parent’s consent must show “cause.”
Pursuant to Baures v. Lewis, a parent designated as the Parent of Primary Residence (PPR) could show cause to relocate the children out of state by: 1) demonstrating a good-faith reason for the move, and 2) that the move would “not be inimical to the child’s interests.” The New Jersey Supreme Court has now abandoned that standard in favor of a best interest of the child standard.
With the upcoming Powerball jackpot being the largest in history ($1.5 billion), the issue of whether a lottery prize is subject to equitable distribution is certainly relevant, and may be a very real issue for some lucky winner(s). The answer to that inquiry is “it depends.” It depends on when the Complaint for Divorce is filed-before or after the big win.
It is a well-settled law that all assets and liabilities acquired during a marriage are subject to equitable distribution. The marriage lasts from the date of the marriage to the date the Complaint for Divorce is filed. Once the Complaint for Divorce is filed, any asset or liability acquired thereafter will not be subject to equitable distribution. In other words, the Complaint for Divorce sets the cut-off date for purposes of determining what assets are subject to equitable distribution.
If the Complaint for Divorce was filed prior to the lottery winner’s big win, the spouse of the lottery winner would be not so lucky, insofar as they would not be entitled to the winnings since it was won after the cut-off date.
If, however, the Complaint for Divorce is filed after the big lottery win, that prize is subject to equitable distribution. It is important to note that equitable distribution does not always mean that an asset is split equally—the Court must consider sixteen different factors in determining how a particular asset is divided.
Finally, the Family Court is a Court of equity, and in the event that the lottery prize is not subject to equitable distribution, there are equitable arguments that one could make for an unequal distribution of the rest of the marital assets, as well as other issues such as child support, alimony, etc. in light of the lottery winner’s prize.
Divorce can be an extremely stressful experience, but often the best way to stay calm is by preparing yourself with as much information as possible. When first setting up an initial consultation with a divorce attorney, a staff member from the attorney’s office will need to run a “conflict check” to ensure that there is no pre-existing reason that would prevent that attorney from representing you in your family law matter. If there are no conflicts, you will be contacted to set up an appointment for an initial consultation.
At an initial consultation, you should be prepared to discuss the circumstances of your case. This part of the process is simply a conversation between you and a potential attorney. You should be the one doing the majority of the talking at the initial consultation, and the attorney should be listening to you, and taking notes. The attorney will also be asking you questions to make sure they have all of the necessary information about your circumstances.
As John S. Eory, Esquire previously blogged, Governor Chris Christie signed into law changes to our alimony statute on September 10, 2014.
Prior to the new alimony statute, the law of the State of New Jersey surrounding the issue of an alimony recipient’s cohabitation was defined by our Courts. Under the previous case law, if a recipient of alimony was cohabitating with a paramour, the payor of alimony could file an application with the Court to modify or terminate their alimony obligation. Modification or termination of alimony depended on a two prong burden-shifting test, the first of which required a finding of “cohabitation” of the dependent spouse by the Court. Such a finding gave rise to the rebuttable presumption that the financial needs of the dependent spouse have been reduced. The burden of proof shifted to the dependent spouse to show that his or her economic circumstances were not improved as a result of the cohabitation. This second prong consisted of a fact-specific evaluation of the reduced financial need of the dependent spouse based upon the economic effect of his or her cohabitation. Continue Reading Recent Changes to the Alimony Statute and Cohabitation
In New Jersey, college costs and child support for an unemancipated child are generally considered as two discrete, yet related obligations imposed on parents. The duty of parental support may include responsibility for the higher education costs of unemanicipated children. In evaluating the claim for contribution toward the cost of higher education, the Court will consider the following factors:
- Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
- The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
- The amount of the contribution sought by the child for the cost of higher education;
- The ability of the parent to pay that cost;
- The relationship of the requested contribution to the kind of school or course of study sought by the child;
- The financial resources of both parents;
- The commitment to and aptitude of the child for the requested education;
- The financial resources of the child, including assets owned individually or held in custodianship or trust;
- The ability of the child to earn income during the school year or on vacation;
- The availability of financial aid in the form of college grants and loans;
- The child’s relationship to the paying parents, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
- The relationship of the education requested to any prior training and to the overall long-range goals of the child.
As with most family law issues, the determination whether a parent has an obligation to contribute to their child’s college education is fact sensitive. It is important to give this issue the appropriate thought when negotiating your Marital Settlement Agreement, even if the children are very young, since the Court will generally enforce the terms of a Marital Settlement Agreement.
A person seeking to modify their alimony obligation must prove that a substantial change in circumstances has occurred warranting a modification or termination of alimony. In certain circumstances, good faith retirement at age sixty-five may constitute a substantial change in circumstances. Once the payor has met their burden of proving that a substantial change in circumstances has occurred, a plenary hearing should be held to determine whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse.
There are a variety of factors which should be considered in analyzing whether the payor’s retirement justifies a modification or termination of alimony, including:
- The age gap between the parties;
- Whether any attention was given by the parties to the possibility of future retirement at the time of the initial alimony award;
- Whether the particular retirement was mandatory or voluntary;
- Whether the particular retirement occurred earlier than might have been anticipated at the time alimony was awarded;
- The financial impact of that retirement upon the respective financial positions of the parties;
- The motivation which led to the decision to retire;
- The degree of control retained by the parties over the disbursement of their retirement income, e.g., the ability to defer receipt of retirement income;
- Whether either spouse has transferred assets to others
If a Court finds that a primary reason the person is seeking to retire is to avoid his or her alimony obligation, it is likely that the application to modify or terminate alimony will be denied. If you have an alimony obligation and wish to retire, it is important to consult with an experienced family law attorney well in advance of your anticipated retirement date.
The Supreme Court of New Jersey recently ruled that special needs trusts for the benefit of adult disabled child(ren) instead of a child support obligation should not be rejected if it was created for the children’s best interests.
Although the decision in J.B. v.W.B. affirmed the Lower Court’s decision that a proposed special needs trust for a 25 year-old autistic son living in a group home lacked sufficient detail as to how it was in the child’s best interests, the Court provided much needed clarification as to what information is required.
In a recent family law case of Fitzgerald v. Duff (A-0177-12T4), the Appellate Division reversed a Trial Court decision to impute $100,000 to the father of the child for failure to make the requisite findings of fact and conclusions of law and make credibility findings to include a Plenary Hearing, if necessary.
In defending against a motion to reduce child support in light of a 2011 tax return showing that the payor’s income was $21,000 that year, the Plaintiff did her research. She provided printed copies of a website describing the Defendant as the owner of "Mr. Tatoo" which operated two New Jersey locations in addition to a Wilmington, Delaware, shop and advertised that a "Philly Shop [was] coming soon." The Plaintiff also attached photographs taken from Defendant’s facebook page of Defendant’s brand new boat and a 2011 Chevy Camaro. In addition, she alleged that the Defendant also had a Lincoln Navigator.
To further illustrate her point, the Plaintiff also attached pictures of his elaborate, tropical wedding, diamond engagement and wedding bands, and pictures of Defendant throwing $100 bills. Perhaps most damaging, the Plaintiff also supplied a copy of the Plaintiff’s MySpace page, which stated that the Defendant earned over $250,000 per year from a business of which he is the sole owner.
The Trial Court was persuaded by the Plaintiff’s evidence, and imputed an income of $100,000 to the Defendant, and calculated child support on that income instead of the $21,000 the Defendant claimed he earned.
Although the Trial Court was ultimately reversed for failure to make the requisite fact-finding and credibility determinations, this case illustrates the important lesson that any pictures and/or statements made on the internet, via social media or otherwise, are commonly used in litigation to discredit a party or witness. Therefore, if you are currently involved in any court proceeding or anticipate that you may become involved in litigation in the very near future, please be very careful about what you post online and on social medial sites. If you are unsure whether something may be damaging, it is advisable to err on the side of caution and refrain from posting the questionable material, or consult an attorney.