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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.  

New Jersey’s Relocation Statute, N.J. Stat. Ann. § 9:2-2, prohibits persons going through a divorce or divorced people from relocating outside the State of New Jersey without the consent of the other parent or an Order from the Court.

Until recently, the Courts did not restrict a divorced or divorcing parent from relocating within the State of New Jersey.   In P.P. v. N.P. (Docket No. A-1246-10T3), the Appellate Division issued a decision affirming a Trial Court Decision prohibiting the Parent of Primary Residence from Monmouth County from moving to Verona, New Jersey, which is over one hour away.

In affirming the Trial Court’s Order prohibiting the Parent of Primary Residence from moving, the Appellate Division relied upon the language of the parties’ Marital Settlement Agreement, wherein the parties agreed "not to do anything which may estrange their children from the other party."  In addition, the Trial Court found that one of the reasons the Parent of Primary Residence wanted to move to Verona was to "make it difficult for the other parent to exercise his parenting time with the child" and that she wanted to get "as far away from the other parent as she could without leaving the State."

While this case is Unreported and therefore non-precedential, it illustrates the principle that Family Courts are courts of equity and that Judges will utilize their discretion to ensure the best interests of the children are paramount.  If you are divorced or divorcing and are contemplating moving within the State of New Jersey or to a different State, it is essential to meet with an attorney that specializes in family law to review your rights and obligations.   

Corrine Cooke is a member of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Cooke.

While it is common in divorce cases for a non-custodial parent to attempt to emancipate his or her child once the child reaches the age of majority, a recent Trial Court Decision addressed the issue of emancipation where an eighteen year old asked the Court to emancipate herself against the objections of the non-custodial father.

In that case, the daughter was a mature eighteen year old who planned to attend college,   medical school, and eventually become a physician.  However, her father was using his status as “joint legal custodian” to obstruct her career plans.  Accordingly, she asked the Court to declare her “emancipated” from both parents.

The father argued against the daughter’s emancipation asserting that she was too young and still inside the “sphere of influence.” The Trial Court ultimately emancipated the daughter, relying on N.J.S.A. 9:17B-3–the New Jersey State Statute that declares a person an adult upon reaching the age of eighteen.  The Trial Court went on to outline the statutes and laws conferring rights to people upon turning eighteen years old.  These include voting rights, authority to purchase a shotgun, the right to marry, and the right to join the army.

Further, the Trial Court also relied upon the New Jersey Supreme Court case of Gac v. Gac, in reasoning that “if the over-eighteen child (now adult) does not seek the compulsory financial support of a parent, then that parent should not have any legal control over the adult child so long as that child is competent and can independently function as an adult.”  

The question of whether a child should be emancipated is a fact-sensitive determination.  Any person seeking to emancipate a child or themselves should consult with an experienced matrimonial attorney.   

Corrine Cooke is a member of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Cooke.

New Jersey Courts have held that child support payments, although payable to the custodial parent, actually belong to the child. Accordingly, a custodial parent is not permitted to waive child support from the other party in exchange for some other benefit.

In most instances, child support is calculated by the New Jersey Child Support Guidelines, which determines the appropriate amount of child support to be paid based on the number of children, the incomes of the parties, and the amount of parenting time each party has (among other factors). The Child Support Guidelines are presumed to be correct by the Courts, unless the combined net income of the parties exceeds a net income of $187,000 or a child is over the age of eighteen and resides at college. In those instances, the Guidelines do not apply, and the appropriate amount of child support is determined by applying the various factors set forth in N.J.S.A. 2A:34-23(a).

One of the most common questions asked by clients is "How long will I have to pay child support?" Child support obligations continue until a child becomes emancipated. There is a common misconception that child support obligations automatically end when a child reaches the age of 18. That is not the case.

In New Jersey, there is no set age when a child becomes emancipated. A child is emancipated when they are outside of the “sphere of influence” of their parents. Upon reaching the age of 18, there is a presumption in favor of emancipation. That presumption, however, can be rebutted by showing that the child is enrolled on a full-time basis in college or graduate school, has a disability, or is otherwise not able to care for or provide for themselves.

Although there is no set time a child becomes emancipated, emancipation traditionally occurs at the following events: when the child graduates from post-secondary education or graduate school, when the child enters the military, or upon the child’s marriage. However, it is important to note that parties are free to define their own emancipation events in their Marital Settlement Agreements, which the Court will enforce. For example, if both parties agree to emancipate the child once the child reaches the age of eighteen and the Marital Settlement Agreement incorporates that language, a Court will enforce that agreement in lieu of applying the applicable case law.

Finally, it is up to a party seeking to emancipate the child to file an appropriate motion with the Court seeking a Court Order emancipating the child. Unlike child support, the modification of which is statutorily prohibited, a Court does have the authority to emancipate a child retroactively. While the date of emancipation will terminate child support, any existing arrears at that time will not be vacated.

As always, if you believe your child should be emancipated or if you are contemplating a divorce, it is of the utmost importance that you seek the assistance of an experienced family law attorney to discuss how to best proceed.

Corrine Cooke is a member of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Cooke.

In most marriages, there is one spouse that handles the family finances, and the other spouse typically is in the dark about the family’s financial picture.This poses a problem in the event that the parties decide that their marriage is not working, and they want to get divorced. 

If you are even thinking about the possibility of getting a divorce, there are several things you can do to make your life easier when it comes time to file for divorce.  As soon as possible, you should begin gathering information on your spouse’s income, your income, monthly expenses, all of your accounts, pensions, employment benefits, and insurance.

In every case, you should begin collecting the following documents as early as possible: 

  • Both you and your spouse’s most recent Social Security Earnings Statement.
  • At least three years of both parties’ personal tax returns, W-2s, 1099s, and K-1s.
  • At least one year of bank statements for any and all bank accounts.
  • At least one year of statements for any and all brokerage accounts.
  • At least one year of credit card statements for all credit cards in either you or   your spouse’s name.
  • The most recent mortgage bill showing the current amount owed on any residence.
  • A Market Analysis on any property that may be listed for sale.
  • Recent statements for any and all employments benefits for you and your spouse, including but not limited to year end pension statements, 401(k) plans, stock options, or deferred compensation.
  • Copies of any life insurance policies and information on any other insurance policy, including policy numbers, coverage limits for health, auto and homeowner’s insurance policies. 

This information will assist you and your attorney in identifying any potential issues in formulating your strategy on your case. 

In most cases, especially when it was not your decision to divorce for one spouse had an affair, extreme emotions, such as anger, sadness, resentment, and disappointment necessarily accompany the divorce process.  If you are not already attending therapy, beginning therapy simultaneously with the divorce process can greatly assist you during this difficult time.  In addition, dealing with your emotions in therapy sessions, rather than at attorney meetings, will help you minimize your legal fees in the long run.

These are just two of the ways that you can prepare yourself to deal with issues in your divorce case.  Once you have a clear picture of your finances and have dealt with any emotions you may have about the prospect of obtaining a divorce, you will then be better prepared than most people to file for divorce.

Corrine Cooke is a member of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Ms. Cooke.

New Jersey Court Rules require that the Courts use the New Jersey Child Support Guidelines. The Court Rules further specify that the New Jersey Child Support Guidelines can only be disregarded by the Court “for good cause. “


There is a rebuttable presumption that the NJ Child Support Guidelines award is assumed to be correct. The Guideline aware can be rebutted if one party proves that certain circumstances exist that make the Guidelines-based award inappropriate.  As a practical matter, the Child Support Guidelines are used in most cases that do not involve extreme income situation (under 105% of the US Poverty Guideline or a combined net income of $187,000 per year) – unless the parties agree to a different amount.  In that case, a copy of the Child Support Guideline Worksheet must be attached to the Consent Order or Settlement Agreement, and the reason for the deviation must be noted on the worksheet.

Family law attorneys and Courts alike use software programs that determine a child support obligation based on the Child Support Guidelines.  The Child Support amount is based on both parents’ incomes, the number of children, and the amount of overnights spent with each parent.  The Guidelines consider whether either party is paying or receiving alimony, and award deductions for payments toward work-related daycare and the child’s portion of any health insurance premiums. 


The Guidelines include other considerations that are less common.  For instance, if either parent is remarried and has another child with their new spouse, that party is entitled to an “Other Dependent Deduction.” If a child receives Government benefits that are not “means-tested,” the benefit is deducted from the child support obligation.  There are additional situations that can complicate the child support calculation, such as true 50/50 parenting time schedules or “split” parenting time schedules.


It is important to note that the NJ Child Support Guidelines only apply to children who are under the age of eighteen.  If the children are over the age of eighteen and commuting to college, the Guidelines may apply (the Judge has discretion).  If the child is over the age of eighteen and resides at college, the Guidelines do not apply.


Corrine Cooke is a member of Stark & Stark’s Divorce Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Cooke.

In 1995, the New Jersey Supreme Court rejected a long-standing custom favoring a child assuming the father’s last name automatically. In Gubernat v. Deremer, the Court held that, when parents do not agree what last name their child should have, the Court must determine which name is in the best interests of the child. 140 N.J.120 (1995). This determination begins with a “strong presumption” that the name selected by the custodial parent is in the child’s best interest.


That decision was further affirmed by the New Jersey Supreme Court in 2004 in the case of Ronan v. Adely, 182 N.J. 103 (2004).  The Supreme Court affirmed the presumption in favor of the custodial parent’s choice of last name and clarified that the non-custodial parent has the burden of rebutting the presumption–i.e. showing that the name set forth by the custodial parent is not in the best interests of the child. The Court further emphasized that, in rebutting the presumption, the non-custodial parent should address the following factors in showing that the last name set forth by the custodial parent is not in the best interest of the child:

  1. the length of time the child has used one surname;
  2. the identification of the child as a member of a family;
  3. the potential and anxiety, embarrassment and discomfort the child might experience if the child has a different surname than the custodial parent; and
  4. any preference the child might express assuming the child is of sufficient age

It is important to note that both of the children in both Gubernat and Ronan were born out of wedlock, i.e. the parents of the child were never married. In an unpublished (non-precedential) decision rendered in January of this year, the Appellate Division decided the issue of whether the presumption set forth in Gubernat and Ronan applied where the parties were previously married, and the children were born during the marriage. In Emma v. Evans, after the parties’ divorce, the mother sought to change the child’s last name from the father’s last name to her last name. The Appellate Division, in that case, affirmed the best interest of the child test regardless as the child’s birth status, but rejected the presumption in favor of the parent of primary residence when children are born in wedlock. In that case, even though the mother was the custodial parent, the Appellate Division held that she was not entitled to the presumption because the child was born when the parents were still married. 

A different Appellate Division Panel issued a published (precedential) decision on March 6, 2012, addressing the same issue addressed in Emma v. Evans, but rejected the conclusion reached in Emma v. Evans that held that the presumption established by Gubernat does not apply to children that were born when the parents were married.


In Holst-Knudfen v. Mikish, the Appellate Division clarified that the Supreme Court’s Decision in Gubernat did not differentiate between children born out of wedlock and those born to married parents.  Accordingly, the Panel held that the presumption set forth in Gubernat in favor of the last name proposed by the custodial parent applies to all cases– whether or not the child is born out of wedlock or to married parents.  That Panel also clarified that, the current law states that it is the non-custodial parent’s burden to rebut that presumption by addressing the relevant factors and showing that the last name is not in the best interest of the child. 

However, the Appellate Decision in Holst-Knudfen v. Mikish found some merit in the issues that the Panel in Emma v. Evans found with the presumptions set forth in Gubernat, and essentially,  invited the Supreme Court of New Jersey to make new law.  The Panel asked the Supreme Court to differentiate between cases where the parents  have entered into a detailed settlement agreement and cases where the parents did not have a settlement agreement– despite their marital status at the time the child was born.  The Panel noted that,  even in cases where the parents were never married, they may enter  into settlement agreements outlining the parenting time, responsibilities, child support obligations, etc. – and perhaps those settlement agreements may even address which parent’s last name the child shall assume. 


The Appellate Division in Holst-Knudfen v. Mikish further suggested that if the parties have expressed a position in their settlement agreement regarding the child’s last name, then the Court should enforce that agreement.  On the other hand, if the agreement is silent with respect to the child’s surname, the Appellate Division in Holst-Knudfen v. Mikish suggested that perhaps the parties should be on neutral ground rather than proceeding with the presumption in favor of the parent of primary residence (who in many cases are women)– so as to not unfairly advantage either parent.  In the event that the Supreme Court adopts this reasoning, then cases where the  parents  have settlement agreements that are silent on the issue of the child’s last name would be determined by a straight best-interests-of the child determination. 

In lieu of these conflicting decisions issued only two short months apart, it seems that the issue of the presumption set forth in Gubernat as it applies to persons that have a negotiated settlement agreements–despite their marital status at the time of the child’s birth–may be an issue that comes before the Supreme Court of New Jersey before long. 

As always, it is important to consult with an experienced matrimonial attorney if you have any questions regarding any of these cases, or wish to enter into a settlement agreement outlining your rights and responsibilities as a parent.


Corrine Cooke is a member of Stark & Stark’s Divorce Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Cooke.

For years, January was thought by most matrimonial attorneys to be the most popular month for people to file for divorce. However, a recent Yahoo article examined data from and Westlaw that suggest that March is actually the most popular month for people to file for divorce. The article is very informative and lists several suggestions for readers who may be contemplating a divorce and what they should do to prepare.


Corrine Cooke is a member of Stark & Stark’s Divorce Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Cooke.

In a recent unpublished trial court decision, a Trial Judge granted a motion for summary judgment requiring a man to reimburse a woman for the non-refundable portions of deposits spent on wedding vendors when the defendant broke off the engagement.

In this particular case, the Defendant proposed to the Plaintiff in July of 2003, and the couple began planning a wedding schedule for September 2004. The Plaintiff entered into contracts with and paid the deposits for several wedding vendors, including the limousine, wedding gown, reception venue, photographer, entertainment, etc.

However, in September of 2003, the Defendant broke of f the engagement. While the Plaintiff was able to recoup a portion of the deposits she paid to the various vendors, she was unable to obtain the full value of all of her deposits. In total, the Plaintiff alleges that she lost a total of approximately $20,500 in non-refundable deposits as a result of the broken engagement.

Thereafter, the Plaintiff and Defendant entered into a written and notarized Agreement wherein the Defendant agreed to reimburse the Plaintiff for the sum of $15,000 toward the amount of the non-refundable deposits within two years of the date of that Agreement. Thereafter, the Plaintiff drafted an Amended Agreement adding another $5,500 to the sum that was to be repaid by the Defendant. However, the Defendant did not sign this Amended Agreement. 

When the Defendant failed to make any payments toward the non-refundable portion of the deposits for the wedding vendors, the Plaintiff filed a Motion for Summary Judgment, arguing that there was no issue of material fact that the Defendant owed her a sum of $20,500. The Defendant, of course, opposed this motion, arguing that there existed genuine issues of material facts warranting a Trial insofar as he was forced to sign the original Agreement wherein he agreed to repay the sum of $15,000, the Plaintiff indicated that she and her family would be paying for the entire wedding, and that the additional payments of $5,500 were gifts and not loans. 

The Trial Court in granted the Plaintiff’s Motion for Summary Judgment with regard to the sum of $15,000 which was the amount of the original written agreement, finding that the Defendant failed to present any evidence that he was forced to sign that agreement. The Trial Court also stated that the Defendant’s argument that the plaintiff and her family were to be responsible for the cost of the wedding created no genuine issue of material fact, insofar as such discussions, had they occurred, would have pre-dated the break off of the engagement. Thus, the Court held that the Defendant was responsible for repaying the sum of $15,000 toward the non-refundable portion of the deposits for the wedding vendors.

 However, the Trial Judge denied the Plaintiff’s motion for Summary Judgment for the additional sum of $5,500, insofar as the Amended Agreement was never signed. The denial of the Motion for Summary Judgment, however, does not mean that the Defendant was not responsible for repaying this sum.  Rather, the denial of the Motion for Summary Judgment for the additional sum simply means that there was a genuine issue of fact as to whether or not the Defendant ever agreed to repay this sum requiring a additional discovery, and perhaps, a Trial.

In short, in granting the Motion for Summary Judgment for the amount of $15,000, the Trial Court relied heavily on the fact that there was a written agreement which was signed by both parties and notarized requiring the Defendant to reimburse the Plaintiff that sum. Therefore, it is advisable to consult with an attorney before entering into any written agreement with another party, as it may very well be upheld by a Court. 

This question is very common for litigants involved in a custody or parenting time dispute. The New Jersey Court Rules specify that the Court may decide whether to conduct an interview of a child as part of a custody hearing. The request for the Court to conduct an interview may be made by a litigant. In addition, the Court may also decide to conduct an interview of a child, even if neither litigant requests an interview.

The Court rules further clarify that the decision whether to conduct an interview of a child or not rests within the sole discretion of the Family Court Judge, irrespective of the age of a child. This decision will only be disturbed if the Family Court Judge abused their discretion. 

The Court Rules require that the decision to conduct an interview shall be made before Trial. If the Court decides not to interview the child, they shall place the reasons for their decision on the record.  If the Court decides that they will interview the child, counsel for both parties shall be afforded the opportunity to submit questions for the Court’s use during that interview.  If the Court decides not to ask a question that has been submitted by either party, it shall place on the record the reason for not asking the question. A transcript must be made of each interview, and shall be provided to counsel and the parties upon request.

In a recent Unpublished Appellate Court Decision of Jannarone v. Jannorone, the Appellate Court reversed the Trial Court’s decision where the Trial Court declined to interview a 16 year old child.  In declining to interview the child, the Trial Court stated it “clearly prefers to involve the children as little as possible in these litigation issues” and “to interview her directly … will not have so significant impact on the Court as to justify the turmoil and tribulation said interviewing process may have on the child.”

The Appellate Division looked to the case of  Macknowski v. Mackowski, where  the Appellate Division previously held that the “value of a properly conducted interview” of a 16 year-old child “outweighs the possibility of harm” that could result from that interview.  317 N.J. Super. 8, 14 (App. Div. 1998). The Appellate Division also looked to a Supreme Court decision which provided that “the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion.”  N.J. Div. of Youth & Family Servs. V. E.P., 196 N.J. 88, 113 (2008). 

In the case at hand, the Appellate Division ultimately found that the child was a well-adjusted honors student, who has never been in trouble. The Appellate Division also found that there was no reason to believe that the child could not cogently express her views. The Appellate Court reversed this decision, and concluded that the Court should have interviewed the child and considered her wishes. 

Although the Court Rules state that the decision to conduct an interview of a child in a custody proceeding rests within the discretion of the Trial Judge irrespective of the child’s age, it is clear that the age and maturity level of the child are critical factors the Court should consider in deciding whether to conduct in interview of the child.