NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Over time, many myths have developed in the ever changing world of New Jersey Family Law.  The question is whether they are true, false, or somewhere in between.   In a new publication on the Fox Rothschild Family Law Practice Page, we debunk many of those myths one at a time.

The publication, entitled "Debunking New Jersey's Family Law Myths," addresses a wide range of myths including, but not limited to:

• Is alimony is determined by a formula?

• Does the "permanent" in permanent alimony really mean what it says?

• Is joint residential custody ever granted?

• Must a palimony agreement be in writing?

• Can a divorce occur if only one spouse wants to get divorced?

While family law can oftentimes be filled with many difficult questions, this should aid in gaining a better understanding of some of the basics.  Please be sure to consult with experienced family law counsel when addressing these issues and any questions you may have.

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Robert Epstein is an associate in Fox Rothschild LLP's Family Law Practice Group. Robert practices in the firm's Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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If there is cohabitation by an ex-spouse who receives alimony, the ex-spouse is at risk not only to a potential decrease in alimony but also at risk for a total termination of alimony.  On March 7, 2013, the New Jersey Appellate Division released the published decision of Reese v. Weis upholding a trial court’s termination of permanent alimony as a result of cohabitation.

As we have blogged in the past, cohabitation is considered a change of circumstances that warrants review of alimony.  New Jersey Courts have described “cohabitation” as involving an “intimate” “close and enduring” relationship “requiring more than a common residence”  whereby the “couple has undertaken duties and privileges that are commonly associated with marriage”.

Once cohabitation is established, the dependent ex-spouse has the burden of proving that he or she continues to be dependent upon the alimony being paid regardless of the cohabitation.   When a dependent ex-spouse economically benefits from the cohabitation, his or her support may be reduced or terminated.  A reduction is appropriate where the dependent ex-spouse can prove that he or she still has some need to the support taking into consideration the economic benefit received from the cohabitation. 

What triggers a reduction versus termination?  In the 46 page Reese decision, the Court concluded that the lower Court’s termination of the dependent ex-spouse’s alimony as a result of cohabitation was appropriate for the following reasons.

First and most importantly, the dependent ex-spouse did not prove a continued need for support.  The dependent ex-spouse asserted that her partner did not subsidize any of her expenses and that her expenses and those of the parties’ children were paid solely by her.  In the alternative, she argued that if the Court found that the partner was providing a financial benefit to her, such benefit did not equate to a total elimination of support.  Unfortunately for the dependent ex-spouse, during the trial, she could not articulate or provide evidence as to her actual need for continued support and how the cohabitation did not impact or only minimally impact  her financial needs. 

Second, the partner provided a direct economic benefit to the dependent ex-spouse by directly paying a significant amount towards the dependent ex-spouse and the parties’ children’s expenses (such as housing, food, clothing, transportation, etc.).

Third, the partner provided indirect economic benefits to the dependent ex-spouse including gifts and luxury vacations which enhanced the dependent ex-spouse’s lifestyle.  It was virtually impossible for the trial court to discern the household financial contributions by the dependent ex-spouse and by the partner because of their intertwined finances.

Fourth, the total years that the dependent ex-spouse and the partner resided together exceeded the term of her marriage to her ex-husband who was paying alimony and child support in excess of $235,000 per year.  In short, the partner not only provided direct and indirect economic benefits to the dependent ex-spouse but elevated her lifestyle for a period longer than the parties enjoyed their marital lifestyle.

The majority of the Reese opinion centered on the cohabitation issues.  However, the Court also noted that despite the fact that the application to terminate support was filed after there had been ten years of open cohabitation, the ex-husband was not precluded from filing the application after all those years.

The Reese decision shows that when a dependent ex-spouse chooses to reside with a partner, modification of alimony payments are not solely based upon the partner’s dollar for dollar contributions to the relationship but the enhancements to the standard of living of the dependent ex-spouse by the partner and the length of the cohabitation versus the length of the marriage to the party paying alimony also weigh into the Court’s analysis.

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Wikipedia defines grey divorce as a "term referring to the demographic trend of an increasing divorce rate for older ("grey-haired") couples in long-lasting marriages."  Now while "grey divorces" of a short or mid length marriage provide challenges for a divorce attorney, many believe that divorces of long term marriages are easy.  Just whack up the assets 50-50, agree to permanent alimony and call it a day, right?  That is not an uncommon result, but does it really make sense to do so and not consider real life anticipated events such as retirement and the receipt of Social Security, to name just two. 

Typically, when marriages are longer than 20 years, the concept of permanent alimony seems like a no brainer.  When the parties are in their sixties (or maybe even late fifties) does this make sense?  What if the parties always discussed and agreed that at age 65, the husband was going to retire and planned and lived their life accordingly?  Now, at age 61, either party seeks a divorce (I was going to say the wife - but it really doesn't matter).  Should this be a permanent alimony case? The default answer is yes but should there be more critical analysis to this? 

In this case, we can assume that all of the assets will be divided 50-50, except perhaps a business asset.  Even then, while business assets are usually disproportionately divided, for longer marriages, the non-titled spouse gets more than they would have in a shorter marriage (the fairness of this may be the subject of another post.)  In addition, it is likely that the amount of alimony afforded will not allow the payor to save substantially before the divorce and a normal retirement age in a few years hence.

If the agreement does not account for retirement, aren't the parties just buying themselves more litigation in a few years?  Should consideration be given to allowing for retirement and the termination of alimony any time after retirement age without the need to litigate?  If that is the case and someone still works full time after the agreed upon retirement age, should alimony continue? 

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Earlier this year, we blogged about  of our colleague, Aaron Weems' post on our firm's Pennsylvania Family Law Blog, which advised that any recommendations by a parent coordinator would be given a de novo review by a court.  A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

This week, Aaron posted a piece entitled New Rule: No Parent Coordinators Allowed on that blog.  Aaron advises that the Pennsylvania Supreme Court enacted a new rule that stated:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013)....

Aaron noted that this ended the quasi-judicial role of parent coordinators.  He also wondered whether this would result in increased enforcement and modification proceedings. 

As I noted when commenting on Aaron's prior post regarding the de novo review:

Isn't that was it supposed to happen in NJ? Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review. That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator. All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened, 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered. On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

As I blogged previously, New Jersey, while ending the pilot program, does not preclude the appointment of parent coordinators.  If courts defer blindly to the recommendations of parent coordinators, without thoroughly reviewing the issues, will New Jersey be next to totally bar their use? 

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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The number of college graduates living with their parents has almost doubled since 2007. Currently, over 45% of 26-year-olds live at home with their parents. The figures highlight the difficulty that many young Americans have had in establishing careers following the longest recession this country has faced since the Great Depression. Some children, although employed, simply lack the funds to move out and may remain with their parents, even well into their twenties.

As a Matrimonial Attorney, these staggering statistics present an interesting question as to a non-custodian’s obligation to continue contributing to the support of a child, though a college graduate and/or employed, is still ostensibly supported by his or her parents; at least with regard to shelter expenses.

In New Jersey, a parent is under no duty to contribute to the support of an emancipated child. In deciding whether to emancipate a child, a Court will generally examine whether the child has “moved beyond the sphere of parental influence.” 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. As mentioned above, a curious situation presents itself where the child should be self-supporting, but the economy prevents him or her from obtaining lucrative employment.

A similar, yet instructive, situation was the topic of a recent (unreported) decision by the Appellate Division in Gall v. Gall. In Gall, the parties’ son, Brian, lived at home and intended to enroll as a full time student in the future. He worked full time, paid for his personal expenses including gasoline, clothes and food outside the home. However, his earnings were insufficient to allow him to move out of his mother’s home.

The trial court declined to emancipate Brian and awarded child support pursuant to the Child Support Guidelines. In addition, the non-custodial father was required to contribute toward Brian’s college expenses. The non-custodial father appealed.

While the Appellate Division “agree[d] in theory that a full-time college student is not emancipated as there is no ‘fixed age’ for emancipation…” it further found that because Brian was employed full-time and was only a part-time student, he should have been deemed emancipated. As a result, the Court reversed the order of child support as to Brian. In doing so, the Appellate Division set forth a bright line (although non-precedential) rule of thumb: “…a child over the age of eighteen, working full-time, and attending school only part-time, absent some unusual circumstances…is emancipated even if residing with a parent because his or her employment income is alleged to be insufficient to allow the child to live independently.”

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Child support in New Jersey for parties with combined net (after tax) income of less than $187,200 per year ($3,600 per week), are supposed to be determined based upon the Child Support Guidelines.  The Guidelines are based upon economic data of what it costs to raise a child.

 That economic data has been reviewed and, as a result, there are proposed changes to the child support guidelines that may actually see the figures going down, especially for multiple children. The Supreme Court has published the proposed changes on the Court's website.

As noted in the New Jersey Law Journal, the state Supreme Court's Family Practice Committee is recommending rule revisions that would allow child-support determinations to be based on a broader and more accurate picture of family spending. Specifically, the committee urges adoption of a new award schedule that "for the first time captures spending in families over a twelve year period," from 2000 through 2011, which "encompasses prosperous years, recession years and the current slow recovery years."

For sake of reference, at the highest level, the weekly amount of child support to be apportioned between both parents based upon their percentage shares of net income is follows:

No. of Children            1          2          3              4          5          6         

Current                         $453    $606    $658    $733    $806    $877

Proposed                     $571    $589    $731    $803    $884    $973

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In a movie that I adore and one that should be required viewing for anyone contemplating marriage, Dean reluctantly says to Cindy, “You said for better or for worse. You said that. You said it. It was a promise. Now, this is my worst, okay? This is my worst. But I'm gonna get better.” Blue Valentine concludes with the heightened events that normally precede a client contacting a family law attorney for the first time. This climactic scene also represents the unspoken backstory that normally informs the still amorphous shape of the forthcoming storm known as a divorce proceeding.

Fittingly enough, one of the most scrutinized steps in the divorce process is its origin: the form and fashion of the service of the complaint. I have always been confounded by the level of anxiety associated with this step, as I imagine that anyone despondent enough to file for divorce must have previously manifested such animosity in some other form to their spouse. However, I have learned that many defendants are often too narcissistic, heedless or detached to believe that their spouse possesses the fortitude to follow through with what they previously dismissed as mere idle threats. As a result, receipt of the complaint can illicit  reactions that run the gamut from incomprehension to indignation. This spectrum is akin to the bewilderment and disconnect you experience upon seeing your souvenir  photo taken midflight during a rollercoaster ride, such that we each deal with stress in unique and unforeseen ways.

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Yesterday, I blogged on the proposed alimony reform legislation in New Jersey.  At the end of that post, I posited the following questions.  Is this really a radical change, or in many respects, does it simply codify what is often done in practice anyway? Will it really take away advocacy when circumstances so require?

Aside from removing the term "permanent alimony" and perhaps sickening reaction in causes in some people, does the proposed legislation really do more than codify the case law or what was done in practice, in many respects.  Remember, is "permanent alimony" really permanent now anyway?  Can't people seek to retire already and isn't retirement a change of circumstances?  Don't people already negotiate, when appropriate, limited duration alimony when people are divorcing close to retirement age, as opposed to buying a second litigation to occur a few years later? 

The following are some other random thoughts, in no particular order and of no particular importance. 

1)  Is "indefinite alimony" a nicer term for "permanent alimony"

2)  While certainly possible and appropriate in many circumstances under existing law for marriages of less than 20 years, permanent alimony was infrequently given in marriages less than 20 years after the limited duration alimony statute was enacted. In fact, I heard someone on a panel at the State Bar Convention last year state that 20 years was sort of a magic number ensuring permanent alimony.

3)   The concept of imputing income to someone that is unemployed or underemployed essentially  already exists in the case law and child support guidelines, and thus, really is not new.

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Picture this - two spouses in a matrimonial dispute.  The husband (or former husband) files a motion to reduce his alimony.  In support of that motion, the husband files a certification, under oath, telling his side of the story about how he lost his job, has a disability, or whatever reason it is that has caused his down income.  On the flip side, the wife files her response to the husband's motion, with a certification of her own, telling her side of the story about the husband is still living lavishly, is lying to the court, and is simply doing what he has to do to reduce his payment obligation to her.  Not surprisingly, the two versions of events could not be more diametrically opposed.

In that scene, what is the trial judge supposed to do?  Is he just supposed to take the husband's word for it that he can no longer earn what he did before and that his entire financial picture merits a reduction of his support?  Is he supposed to believe the wife's response, about how her former husband is simply just a bad guy who refuses to pay that to which he agreed or was ordered.

Generally - but, of course - not always, a trial judge is not supposed to resolve the question of credibility, or who is telling the truth, simply by reading the papers submitted by each party.  When there is a dispute of fact, the judge is supposed to then order a hearing, during which time he will take testimony from the parties and then determine who is credible/truthful.  Ordering a hearing, though, does not happen in every case, as almost every case will inevitably involve some dispute of fact, to some degree.  If the judge ordered a hearing in each instance, the family part would be even more flooded than they already are. 

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There has been an alimony reform movement that has been gaining traction throughout the country.  Some of the major concerns appear to be this issue of permanent alimony and the lack of uniformity in alimony awards, both in amount and duration, from case to case.  In the recent past, alimony laws have been reformed in Florida, Massachusetts and Maryland.  Is New Jersey next?

On March 7, 2013, A3909 was introduced in the New Jersey Assembly, which, if passed, would radically change alimony as we know it in New Jersey. 

The following are a highlight of the changes:

• All references to permanent alimony are deleted from the statute, though, as noted below, for marriages of more than 20 years, an indefinite award of alimony can be be granted

• The concept of imputing income to someone that is unemployed or underemployed, which already exists in the case law and child support guidelines, would be codified

 

• The amount of limited duration alimony should not exceed the recipient's need or 30 to 35 percent in the difference between the parties gross incomes at the time of the initial award, though a court would have the discretion to deviate.  Some reasons for deviation would be advanced age, chronic illness, unusual health circumstances, whether the payer is providing or ordered to provide health insurance to the recipient, sources and amounts of unearned income not allocated in equitable distribution, the recipient's inability to become self-supporting based upon the abuse of the payer, and others, including a catch all "any other factors that a court deems relevant and material."

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When there is a hostile relationship or a non-existent relationship between a child and a non-custodial parent, there is a possibility that the non-custodial parent may be relieved of the obligation to contribute towards college expenses.  In my prior blog, I discussed the impact of college financial support when the child won't speak with the non-custodial parent. 

After the blog was posted, many asked me whether or not a deteriorated relationship between a child and a non-custodial parent could result in the termination of the non-custodial parent's child support obligation. The answer is almost always NO the child support obligation will not be terminated even if the child refuses to have a relationship with the non-custodial parent.  (Note, however, where a custodial parent encourages such a circumstance or is the cause of the circumstance, continued custody of the custodial parent may be significantly impacted.) 

Strictly for child support purposes, if the child has not moved "beyond the sphere of influence and responsibility" of the custodial parent and has not obtained "an independent status of his or her own", the child would not be emancipated and the non-custodial parent would continue to have a duty of child support.  Under this inquiry, unless the child is a celebrity and making their own appreciable amount of income, clearly any child under the age of eighteen and/or still a high school student will have not achieved an independent status.  Therefore, if the child and non-custodial parent never see each other, never speak or the relationship is hostile, the non-custodial parent still has a duty to support that child.

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Yesterday, I blogged about the illusory "final offer", noting that most cases settle.  The reason for that is that there is a realm of reason, a range if you will, where cases with similar facts and circumstances, should resolve themselves based upon experience, statutes, case law, Guidelines, etc.  In most cases, absent wide valuation disparities, esoteric issues, bona fide custody disputes, including relocation, and/or really unique sets of facts and circumstances, the range is a relatively small one.  These are not personal injury cases where a carrier is offering $0 and the plaintiff is seeking millions. 

What do you do when you get a settlement proposal that is so out of left field that it borders on , or perhaps is, bad faith?  Do you ignore it?  Do you respond with an equally outlandish proposal in the other direction?  Or do you respond with a proposal in the realm of reason?

Maybe you don't really want to do that.  Why?  Because, as noted in my last post, you will be going to an Early Settlement Panel (ESP), mediation, and/or an Intensive Settlement Conference (ISC).  The risk of negotiating with a reasonable position vs. the other side's unreasonable position is that the impartial may suggest "splitting the difference."  Splitting the difference may be fair when both party's proposals are within the reasonable range.  It clearly is not fair when one party's proposal is outlandish.  Moreover, even if the unreasonable negotiator comes down substantially, perhaps even more than you come up (or vice versa), you will suffer the wrath of their righteous indignation because they "gave more." 

Also, I previously posted about a mediator saying that he was creating "settlement anxiety" to try and move parties to get the case settled.  While this may be fair if parties are either equally reasonable or equally unreasonable, is it fair to try to push the reasonable one when the other party is unreasonable?  I think not. 

In a case that I settled this year, the first proposal from the other side was clearly punitive and clearly bad faith.  We chose not to respond and I advised the adversary as such.  He begged us for a counter proposal.  We decided to make one that, while not bad faith, was extremely aggressive in the other direction.  What happened next?  We started negotiating within the realm of reason and the case got settled.

I am not saying that that strategy will work in every case but it worked in that one, as I suspected it might.  Negotiations can be complicated.  Great thought should be given as to the strategy to employ based upon who you are dealing with and how they are negotiating. In an advertisement in a recent  Super Lawyers publication, a firm stated that they were known for "winning" divorce cases.  That is funny since few are tried and seldom is there a clear "winner."  You don't want to let the other side "win" a negotiation because they started with an absurd position and you felt compelled to negotiate on their terms.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com .

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This is my final offer!!!  Don't you just love the ultimatum, the line in the sand, the threat of Armageddon if capitulation is not immediately at hand?  I sure do.  Is it because I love to go to trial?  Don't get me wrong, I enjoy trial but that is not the reason. 

Seldom does it mean that a reasonable counter proposal won't be considered it it doesn't materially alter the terms being discussed.  Usually it means that your are getting pretty close to a settlement so that the proclamation can alert you and your client that now may be the time to do a deal.  In a recent case that I just settled, almost comically, each side probably sent 5 "final offers." 

And why is a final offer seldom a final offer?  Because 99% of all cases settle.  Because the system is geared to promote settlement.  Because before you go to trial, you will go likely go to custody and parenting time mediation, an Early Settlement Panel (ESP), mandatory economic mediation (sometimes several sessions), and an Intensive Settlement Conference (ISC) with the judge, or many.  Often, your first trial date is not a real trial date, but rather another day to bring the parties (and perhaps experts too) in to try and cajole or finesse and strong arm a settlement.  Even on your real trial date, perhaps before and often during the breaks of a trial, the judge will encourage settlement and/or the circumstances of how the trial is going may encourage settlement. 

So keep giving us your "final offers."  Sometimes, our client will accept them.  Other times, we will make a counter offer and await your next final offer until one day, the case will be settled or tried to conclusion.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Yesterday's New York Daily News published an article indicating that 28% of wives out-earn their husbands according to an analysis of Census Bureau data by USA Today.  The article goes on to state that, despite these advances, women still lag men in the highest levels of their chosen fields

Given the reality of many women earning more than their husbands, the logical corollary is that many more women will have to pay alimony to their husbands.  Makes sense right?  As we know, the New Jersey alimony statute is gender neutral as is the case law that interprets the statute.

But how does the woman, who for the first time hears that she may have to pay alimony react to that news and how does a man's request for alimony play in the court of public opinion?  Usually, not well.  Despite the desire for gender equality and the law being gender neutral, many people still believe in the notion that only women get custody and only women get alimony.  In fact, some of my most difficult cases have been cases where the husband has made a claim for alimony.  These cases were not close calls either.  These were cases where if the parties were reversed, it was a no-brainer, slam dunk, unquestionable alimony case.   This even happens in cases where the husband was a stay at home parent. 

A frequent refrain heard in these cases, usually by the wife who doesn't want to pay or her family and friends is "what kind of man seeks alimony."  Do you ever hear similar insults when a woman is seeking alimony?  I haven't.

This news story highlights that as women continue to out earn their husband's and traditional gender roles become old news, that more and more women will be called upon to pay alimony, barbs aside.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com .

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