NJ Family Legal Blog | New Jersey Divorce & Family Lawyers

If The Intent Is to Leave the Door Open to Extend the Term of Alimony, Say It Explicity or Beware the Consequences

By Eric S. Solotoff on June 18, 2013 Posted in Alimony, Modification

How often are you in negotiation of the final points of a divorce agreement and you come to a sticky point where neither side is either willing to give nor or they willing to try the case. What do you do? If it is a present issue, you really have to bite the bullet and find a way to work it out. But what if it is a future issue? What you should do is specifically frame the issue, frame what the positions are (if possible), state what will be addressed by the court at that time and also state what legal standard is going to apply. If you are going to be applying the law at that time, you should say that. If you are going to be doing away with some thresholds or pre-requisites, say that. If you are going to be disregarding provisions of a statute that might preclude the relief that you are agreeing to address in the future, you should say that too.

A glaring example of that last point was on display in the case of Jones v. Jones, an unreported (non-precedential) Appellate Division decision released on June 17, 2013. In this case, the denial of the ex-wife’s motion to extend limited duration alimony was affirmed by the Appellate Division.

At the time of the parties’ divorce, the parties agree that the alimony would be for 9 years but that the Wife could make a Lepis or Crews application at the end of 9 years? What does that mean? What was really intended? Reference to a Lepis application is seemingly a “change of circumstances” application. A Crews application would suggest some kind of motion related to marital lifestyle. But prior to 9 years, could she not make such application? Prior to that, was the husband precluded from seeking a reduction based upon changed circumstances? Did the parties really mean that she could seek to extend alimony after 9 years without meeting the unusual circumstances standard in the alimony statute (which provides that generally, limited duration alimony cannot be extended absent a showing of unusual circumstances.) Exceptional circumstances does not appear to be either changed circumstances nor anything having to do with the ability to pay the marital lifestyle. Again, what was the true intent here.

Some indication of what could have happened is that, in support of her motion, the wife sought to convert the alimony to permanent alimony because it was a long marriage. Aha. Maybe at the time of the divorce, they couldn’t agree if it was permanent or not and punted it down the road? Who knows? That argument, however, is an odd argument to make now given the language in the statute and the agreement. She also argued change of circumstances, though that argument was also rejected.

The Wife filed a motion for reconsideration supported with a Certification by her divorce attorney who certified that permanent alimony was a contentious issue, that trial was fast approaching and they entered a deal that would allow her to come back if she didn’t ever get the employment or training that would allow her to support herself in the manner enjoyed during the marriage. Of course, the Husband’s divorce attorneys said the opposite and in addition, that the disputed language was superfluous because it did not give her anything more than the law would give her. That is really not plausible, because why include it plus, the law would not say when she could make a Lepis or Crews motion. In any event, the motion for reconsideration was denied too – and this part of the argument was rejected, not becaues it was a disputed issue of fact, but because she could have but did not raise it in her initial motion. The appellate division further noted that there was an integration clause in the agreement, essentially that here were no side agreements not contained in the agreement and that the plain meaning of the language was clear and thus, there was no need for a hearing on what the intent was.

What is the take away here? If the intent is really to preserve something more than is provided by the law, make sure the agreement clearly spells this out or risk a result like the one in this case.

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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.

FATHER’S DAY AND THE INCREASING ROLE OF DAD AS CARETAKER

By Robert A. Epstein on June 17, 2013 Posted in Custody

With an increase in the number of working moms, stay-at-home dads, and more parents seeking a greater “work/life” balance, it is no surprise that the traditional parenting roles to which we have become accustomed continue to evolve. This sentiment was echoed in a cover story featured in yesterday’s Father’s Day edition of the New Jersey Star Ledger, which focused on dads taking on a greater role in child rearing.

The story notes how, for many fathers in their 20s and 30s, being an involved parent is a part of their identity. Certainly this contrasts with past norms, where a father’s identity centered largely, if not entirely, on his ability to financially support the family. Now, as the article conveys, much of what dads do around the house is based, in large part, to how much mom is working and earning – i.e., the more moms work and earn, the more dads do at home. I could not help but agree with the story’s conclusion that everyone is exhausted at day’s end, as each parent’s attention is just spread out differently between different tasks, whether it be more work at the office or more work at home.

From a family law perspective, the article had me thinking about how traditional custody arrangements and parenting time plans are also evolving with the changing parenting roles. The New Jersey legislature generally favors a greater role in the child’s life by both parents, and some experts talk about how a more shared parenting arrangement may be in a child’s best interests as the child gets older. This is, however, always dependent on a given set of circumstances, as every custody and parenting situation comes with its own unique set of facts upon which such decisions are made.

Seemingly less common now is the mom as primary custodian, or at least dad seeks to have more parenting time than just the traditional “every other weekend and mid-week dinner” set-up, commensurate with his increased parenting role in the home. A court or custody expert will consider many factors in making decisions or recommendations with respect to custody and parenting time, perhaps the most important of which addresses how the parents divide the primary caretaking roles including, but not limited to, feeding, bathing and grooming the child, taking care of the child when she is sick, bathing the child and putting her to bed, doing homework with her, buying and cleaning the child’s clothing, attending school conferences, and fostering the child’s participation in enrichment and extracurricular activities.

As the article provides, more dads are taking on a greater amount of such caretaking responsibilities. Depending on a given set of facts, it may make sense, by correlation, that the custody and parenting time arrangements also evolve. Ultimately, a court is going to review and analyze the complete set of facts and circumstances at issue before determining what is in the child’s best interests as to custody and parenting time.

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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.

If You Want the Other Parent to Pay for College, Don’t Wait Until Graduation to Seek Contribution

By Eric S. Solotoff on June 12, 2013 Posted in Child Support, College

So you are divorced and your child is going off to college. What is the best way to get the other parent to contribute, whether there is an agreement that says he should or the agreement says that the issue shall abide the event. Should you A) consult prior to college and keep the other parent in the loop and then make a motion if you cannot agree before the child goes off ot college; B) make a unilateral decision then file your motion; or C) wait until the child graduates and when the other parent makes a motion for emancipation, hit him with a cross motion asking him to pay his share of a six figure college bill? Obviously, A is the preferred method, B is a worse method and C is a method that may risk you not getting re-paid.

As we learned from the Supreme Court a few years ago in Gac v. Gac, a former husband was not required to contribute toward his child’s college education expenses, because neither his ex- wife nor his child requested financial assistance from him until after he sought to terminate child support and the child had graduated from college. The Coourt found that their failure to make such request at time that would have enabled the father to participate in child’s educational decision as well as to plan for his own financial future weighed heavily against ordering him to contribute to the child’s educational expenses after her education was completed.

As the philosopher George Satayana said, those who cannot learn from history are doomed to repeat it. That is what happened in the unreported (non-precedential) case of Fletcher v. Euston decided on June 11, 2013. The facts of this case are similar to Gac and the worst case noted above. However, the parties’ divorce agreement did provide that the parties would share the cost of college based upon their financial ability at the time. In response to the Husband’s motion for emancipation, the ctrial court ordered him to reimburse the former wife over $111,000. The Husband appealed. Continue Reading

A CHILD’S RELIGIOUS UPBRINGING – CHOOSE, BUT CHOOSE WISELY

By Robert A. Epstein on June 12, 2013 Posted in Custody

Religion is always a delicate subject, whether being discussed between family or friends, in politics or at the dinner table, and the like. This especially holds true in the area of family law. Decisions regarding a child’s religious upbringing including, but not limited to, the choice of religion, exposing the child to a different religion, converting to a different religion, or raising a child with any religious background at all, can prove to be hotly contested matters involving the children where courts require that conflict to the child be minimized.

Generally, the law in New Jersey provides that the designated Parent of Primary Residence – defined as the parent who provides a residence for the child more than 50% of the overnights on an annual basis (or, if sharing is equal, providing the residence for the child while the child is attending school) has the right to determine the child’s religious upbringing and education. The other parent, known as the Parent of Alternate Residence, may expose the child to, but may not educate the child in, a different religion.

Education versus exposure is a nuance with a difference, where a family part judge may be charged with having to determine into which category a particular religious-based activity falls. For instance, I had a case a few years ago where Mom was the Parent of Primary Residence and was raising and educating the child in the Catholic religion. Dad, who was not concerned with religion during the marriage, started taking the child to Muslim-based services after the divorce. Mom argued that the sevices constituted a form of religious education, while Dad countered that the child would largely stay in a separate playroom during services. Ultimately, the court concluded that Dad was trying to educate the child in the Muslim religion, and he was precluded from further doing so.

That brings me to the Appellate Division’s recently unpublished (not precedential) decision in Phillips v. Emerson, which, at first glance, seems to run contrary to the law I describe above. A closer examination, however, reveals that the Appellate Division was more seemingly concerned with the trial court’s parens patriae duty to protect the child, and how the trial court reached its decision without taking testimony or interviewing the child at issue, than with the trial court’s actual substantive decision.

GRANDPARENT VISITATION STANDARD AFFIRMED BY APPELLATE COURT

By Sandra C. Fava on May 20, 2013 Posted in Grandparent visitation

An interesting part of the practice of family law are the rare issues; the one that may not walk through the door every day. Grandparent visitation cases oftentimes fit into this category. They nearly always prove interesting, regardless of whether you represent the grandparent(s) or the parent(s), and they can quickly become complex and difficult (both emotionally and legally).

The NJ Appellate Court issued an unpublished decision in the matter of L.A.B. v. B.L.P. and C.J.B. affirming and reminding both litigants and practitioners of the standard utilized by courts when asked to make a determination of whether or not a grandparent has a legal right to visitation with a grandchild if the parents so oppose the request. Unlike contested custody matters between two parents where the standard the court must use is “best interest of the child”, our Supreme Court has determined that in the cases of grandparent visitation, it is the grandparent who must prove, by a preponderance of the evidence, that not having visitation with him/her/them would cause harm to the health or welfare of the child. Not having the visitation would cause significant harm to the child, which the court must prevent as is its job as parens patraie.

The statute that governs grandparent visitation is known as the Grandparents and Siblings Visitation Statute N.J.S.A. 9:2-7.1. It requires that grandparents who seek visitation plead and show the potential for particularized harm to the child resulting from the lack of grandparent visitation. The spirit of the statute was further clarified in the precedential NJ Supreme Court decision of Moriarty v. Bradt, 177 NJ 84 (2003). Simply pointing out the flaws of the child’s biological parent(s) is not enough. The harm to the child must be directly caused by the lack of grandparent visitation and can be remedied by having the grandparent visitation. The harm must also be to the child and not to the grandparent. The example illustrated in Moriarty, where the court found grandparent visitation appropriate, where the expert opined that visitation was needed “to protect the children from the harm that would befall them if they were alienated from their grandparents,….which would cause the children to believe essentially that half of them, that their mother’s half is evil, is damaged, is bad, and that this would cause self-esteem problems.” This was a particularized, specific harm that would befall the children if the grandparents were not allowed visitation. There was a special need for continued contact. A close and loving relationship with a grandchild is not enough. Neither is the loss of future memories.

DEBUNKING NEW JERSEY’S FAMILY LAW MYTHS

By Robert A. Epstein on May 14, 2013 Posted in Divorce

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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Alimony and Living Together for Love

By Apple Sulit-Peralejo on May 9, 2013 Posted in Alimony

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.

Divorce in Your Sixties – Is Permanent Alimony the Right Result?

By Eric S. Solotoff on April 26, 2013 Posted in Alimony

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?

Pennsylvania Ends the Use of Parent Coordinators

By Eric S. Solotoff on April 26, 2013 Posted in Custody, Practice Issues, Visitation/Parenting Time

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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Just Because An Adult Child Lives at Home, Does Not Mean Child Support Continues

By Erin Baer on April 15, 2013 Posted in Child Support, College, Custody, Divorce, Interspousal Agreements, Modification

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.”