Posted on August 4, 2009 by Eric S. Solotoff

15 YEAR MARRIAGE NETS PERMANENT & REHABILITATION ALIMONY - BUT REMAND ON IMPUTATION OF INCOME TO WIFE

In an interesting unreported decision released on August 3, 2009 entitled Mathias v. Mathias, a wife was granted both permanent and rehabilitation alimony after a 15 year marriage. 

In this case, the husband was a state trooper.  The wife had cared for the children, by agreement, though she had worked on and off as a cosmetologist.  She was attending college seeking to be a registered nurse at the time of trial.

The trial judge imputed two income figures to the wife.  One as to what she was earning at the time and what she could earn in the future as a nurse.  The matter was reversed and remanded for further consideration as to both.  For the current income, there was a finding that the wife was underemployed yet the Court used her current income.  For the future, the statistics from the department of labor as to what a registered nurse could earn were used. 

The Appellate Division stated:

However, Danielle has not held a full time job since the children were born. She has never worked as an RN, has no experience in the health care field, and has no specific prospective employers. There was no evidence that the yearly income imputed by the trial judge was an appropriate rate for an inexperienced, recently licensed RN in New Jersey. In short, although the judge used the appropriate source for imputing income, he did not take other significant, relevant
factors into consideration.

The wife unsuccessfully appealed her request to impute more income to the husband than he was currently earning but which was consistent with prior history. Interestingly, a consideration in not imputing more income for overtime to the husband was his desire to spend more time with the children, which the Appellate Division deemed relevant and appropriate.
 

Of more significance to me, but a fact that was not appealed is that the wife was awarded permanent alimony after a 15 year marriage.  15 years has, of late, been deemed a mid term marriage and there has been some debate as to whether permanent alimony was merited in a 1 year marriage.  This case may be one that can be used to convince a judge who is on the fence.

 
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Posted on April 28, 2008 by Sandra C. Fava

Immigration and Support: Beware of the Affidavit of Support

In a reported decision, the Appellate Division has recently decided to extend a sponsor's duty of support to a sponsored immigrant based upon the provisions set forth in Section 213A of the Immigration and Nationality Act and more specifically form I-864EZ.  When a sponsoring party signs a form I-846EZ, he or she agrees to provide the sponsored party/immigrant with "any support necessary" to maintain him or her at  an annual rate of "not less than 125 percent" of the federal poverty line until a triggering termination event occurs.  Interestingly enough, divorce is not a triggering termination event.
 
In the matter of Naik v. Naik, an Indian couple was married in India via an arranged marriage.  The husband, just a few days after the marriage, left India to return to NJ.  The wife remained in India for 15 months, then joined her husband in Englewood, NJ.  As part of the process to get his wife to NJ, the husband signed a form I-846EZ wherein he agreed to provide her with the support necessary and not less than 125% of the federal poverty line.  After arriving in NJ, the parties resided together as husband and wife, although the husband claims the marriage was never consummated.  Some three months after her arrival, they began sleeping in separate rooms and eventually the wife moved out. 
 
The husband filed for divorce.  The wife filed a motion for pendente lite support and received $200 per week .  The matter went to trial where both parties were represented by counsel. At trial, the judge denied the wife's request for alimony, equitably distributed the value of the car the parties' owned, their only asset, and denied both parties' request for counsel fees.  The wife filed a motion for reconsideration, claiming that among other things, the judge erred in failing to award her alimony because the form I-846EZ signed by the husband placed an affirmative duty of support upon him.  This argument was not raised at trial by the wife.  The court denied the motion for reconsideration and the wife appealed.
 
The Appellate Division affirmed the lower court's ruling as to equitable distribution and the denial of counsel fees, however the Court remanded the issue of support back down to the trial court to determine to what extent, if any, the wife would be entitled to immigrant support under the form I-846EZ.  Before remanding the issue to the lower court, the Appellate Division found that the form I-846EZ is enforceable in NJ courts when the obligation the form creates is against a resident of NJ or is for the benefit of a resident of NJ.  It also concluded that the sponsored immigrant's own income, assets and other sources of support can reduce the immigration support obligation of the sponsor.  Further, if the sponsor and sponsored immigrant are married, the court must include alimony, child support and the equitable distribution of income producing assets in its calculation of the sponsored immigrant's available resources.
 
Form I-846EZ is a legally enforceable contract "against the sponsor by the sponsored alien" and that an action to enforce the contract can be brought "against the sponsor in any appropriate court".  Moreover, the Court found that the sponsor is not automatically required to support the sponsored immigrant at 125 percent of the federal poverty guidelines for the appropriate family unit size.  Rather, the sponsor's obligation is to pay any deficiency needed to reach the 125 percent level once the sponsored immigrant's own income, assets and other sources of support are accounted for.
 
Sponsoring an immigrant to come to this country could also include an obligation of support based upon the sponsored immigrant's need and whether or not he or she can stay above 125 percent of the federal poverty line.  Divorce alone is not a termination of this obligation and no matter the duration of the marriage, a sponsor's financial obligation in the form of immigrant support is based upon the contractual obligations created by the signature of the form I-846EZ.
The lesson to learn from this case is that people should take care when completing forms with a specific purpose in mind because of the unintended consequences that may be lurking. 
For a full copy of the opinion, click here
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