Posted on May 27, 2010 by Sandra C. Fava

ALIMONY LESSONS -1) MAKE SURE YOUR CIS IS ACCURATE, AND 2) REHAB ALIMONY CAN BE TURNED INTO PERMANENT ALIMONY

I tell virtually every client I work with that the Case Information Statement which must be completed by anyone going through the formal divorce process in NJ is one of the most important documents to be completed - arguably, the most important document.

The recent unpublished decision of Raesky v. Brody, A-6148-08T1, decided May 26, 2010, reinforces my mantra.  When completing a Case Information Statement it is important to be honest (it's a document signed under oath with the risk of penalty for perjury), realistic, and thorough.  The budget, assets and liabilities listed on this document will assist a judge in determining the issues of spousal support and the division of assets.  These statements are the maps which judges follow to lead them to a final determination of these issues.

By over inflating  your budget, you give the other side the ability to poke holes at your credibility.  Sometimes the thinking that the higher my budget the more money I can get may backfire, as it appears to have done for Ms. Brody.  Also, in the case where the budget is artificially low, the payor spouse's credibility will be questioned.  If it is the payee spouse with an inaccurately low budget, they run the risk of receiving inadequate support and thus they're unable to meet their needs let alone maintain even a semblance of the marital standard of living.

While this is part of the lesson learned in Raesky, this case is noteworthy for another reason.  Here, where the parties had negotiated and entered into a settlement agreement in which the husband paid a greater sum of alimony than he would have otherwise been required to pay but agreed to do so because there was an end date specified and where the court found the wife's testimony about the marital lifestyle along with her Case Information Statement incredible, the court still modified the parties' agreement and turned the rehabilitative alimony obligation into a permanent alimony obligation because of the wife's disability.  One wonders whether alimony would have been extended if it was deemed limited duration alimony initially as opposed to rehabilitative alimony has limited duration alimony is not to be extended absent extraordinary circumstances.

In coming to its decision the court specifically noted that the wife was not found credible but that as a court of equity, the principles of equity dictated the outcome achieved.  Notably, the wife was awarded an amount far less than what husband had originally been paying.  In reaching that number, the court relied upon the husband's Case Information Statement and found his testimony regarding the marital lifestyle to be credible.

Lesson to be learned- while filling out the Case Information Statement can be confusing, burdensome, frustrating, time consuming- whatever your description, practitioners and litigants alike must pay close attention to the information being provided.
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Posted on April 9, 2010 by Eric S. Solotoff

A TYPICAL BUT UNFORTUNATE PARENTING TIME DISPUTE

Today's Daily Record has a story of a parenting time dispute that happens all too often. The story, written by Peggy Wright, tells a of a visitation/parenting time fight because a father wanted his 10-year old daughter to attend his birthday party instead of participating as a flower girl in her godmother's wedding. 

In ruling that the child should be permitted to participate in the wedding, the judge said that she believed the  girl should have the experience of wearing a special dress and shoes and eating the cake and hearing wedding music.  The article further states:

"A birthday party happens every year. A wedding is once-in-a-lifetime," Whipple said.  Saying she didn't mean to diminish the importance of a child celebrating a birthday with a parent, Whipple nonetheless said the wedding experience — and accompanying her bridesmaid mother down the aisle — would be unforgettable for a little girl. Addressing Miller directly, the judge asked: "Do you really want to say 'no dress, no cake, no wedding, no bridesmaid, no band? You have to go to my birthday party.' Do you really want to take that away from her?"

Though in one respect, the father had a right to be upset because the wedding was taking place during his scheduled parenting time, this is a typical example of divorce or divorced couples failing to be flexible and having a tug of war with their children, to the detriment of their children.  A simply remedy may have been to trade weekends or otherwise provide for make up parenting time.  Moreover, it was unclear from the story, but depending on how much notice the father had of this wedding, perhaps his birthday party (which was not on his actual birthday) could have been scheduled for a different do so that there was no conflict.  On the other hand, if the mother did not give the father adequate notice, as is often the case in these situations, then she too could have been responsible for this dispute.

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Posted on February 7, 2010 by Eric S. Solotoff

THE SUPER BOWL AND DOMESTIC VIOLENCE?

Every year at about this time, you hear a supposed "fact" that Super Bowl Sunday is the biggest day of the year for domestic violence.  I even saw something on this this week on either Twitter or some news service.  I figured that I was use this blog to pass along a public service announcement about this scourge to give a heads up to potential victims.

Funny thing is that when I went to research this, I found several articles suggesting that this was really urban legend.  No less than Snopes, the debunker of all rumors and urban legends says that this "fact" is simply not true.

I am not trying to make light of this or domestic violence in any way but what is true?  Well, what is true is that the use/abuse of alcohol often plays a role in domestic violence.  Common experience tells us that there is a lot of drinking when watching the Super Bowl.  In fact, people who don't typically watch football may attend a Super Bowl party where alcohol is being served.  One need only watch the glut of Super Bowl beer commercials to see the almost overwhelming role of alcohol in Super Bowl culture. 

That all said, while their may not be a societal rise of domestic violence on Super Bowl Sundays, victims and potential victims need not simply accept domestic violence and should do what they need to to protect themselves, call the police and/or avail themselves of all domestic violence resources in there area. 

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Posted on December 10, 2009 by Eric S. Solotoff

I DON'T HAVE TO PAY FOR MY KID'S GRADUATE SCHOOL, DO I?

New Jersey is one of the few states in the country that still requires divorced parents to pay for their children's higher educations.  The term "divorced parents" is highlighted because married parents do not have the same obligation to pay for their children's college education if they choose not to do so.  This distinction has lead some to argue that New Jersey's laws are unconstitutional.  That is the topic for another day.

That said, the answer to the questions posed in the title of this post is maybe.  That is, parents of divorced children may not only have to contribute to their children's college educations, but graduate school as well.

That was one of the topics of an unreported (non-precedential) case decided by the Appellate Division on December 10, 2009.  Specifically, in the case of Mulcahey v. Melici, the Appellate Division affirmed the trial court's decision not to emancipate the parties' child who had graduated from college, require the payment of child support to continue and requiring the payment of graduate school expenses.

The issue regarding contribution to graduate school became moot but the appeal followed anyway.  The Appellate Division noted that:

As to the continuation of her education, the judge concluded that the daughter demonstrated "the aptitude and motivation for graduate school study." He also concluded that the parties were able to contribute, although that determination was rendered moot by the daughter's securing financial assistance.

Though not mentioned in this case, if one or both parents have graduate degrees, that is a factor that could suggest the payment of graduate school for the children if the financial ability to pay was present.  On the other hand, I have actually heard a judge, now retired, rule from the bench that he believed that he owed his children a college education, and anything beyond that was on them, when denying one parent's application to compel the other to pay for law school for the parties' child. 

The bottom line is that graduation from college may not be the proverbial "light at the end of the tunnel" ending a divorced parent's support obligation.
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Posted on November 30, 2009 by Sandra C. Fava

New Jersey - Is New Domestic Violence Legislation on the Way?

The recent act of domestic violence by singer Chris Brown on his very famous girlfriend, Rihanna, has brought new attention to the fact that domestic violence is not a socio-economic problem limited to the lower class.  Unfortunately, I often see the ugly side of relationships and not surprisingly domestic violence is an issue I also deal with.   New Jersey is attempting to help protect victims of domestic violence by protecting  the victims essentially from themselves. 

A new law that is pending in the New Jersey Senate would require that if a victim of domestic violence desired to dissolve or modify a final restraining order, a court would be required to make a finding and a record.  Assembly, No. 746, State of New Jersey, 213 Legislature.  Anyone who has been following the Chris Brown/Rihanna saga will tell you that within days of the incident where Chris Brown physically assaulted Rihanna, they were back together as a couple. (They have since split.) Unfortunately this is often the case.  Sometimes, it takes victims of domestic violence years to escape the cycle of abuse.

In New Jersey  a victim of domestic violence can apply for a temporary restraining order at a county courthouse or at a police station by applying to a municipal judge.  Once a temporary restraining order is issued either a hearing is held where it becomes final or it is dismissed.  (The temporary restraining order can also be resolved through negotiations amongst the parties if there is an active divorce or other family court action pending - however, the resolution will not have the same protections and enforcement rights that a domestic violence restraining order does.) 

If the temporary restraining order becomes final, but the parties later reconcile and desire to modify or dissolve the final restraining order, the new law would require the parties to return to court.  In court a judge would create a record to make sure that the victim was not making the request under duress or coercion.  The new law would also require that the victim be aware of the consequences of modifying or dissolving the order.   Finally - and probably most importantly - the new law would allow a victim of domestic violence to reinstate a final restraining order even if there is no additional act of domestic violence.  This means that if parties to a domestic violence final restraining order dissolved the order and reconciled the relationship, the victim could reinstate the final restraining order at any time - even if there were no additional acts of domestic violence.
 

If this bill is passed, what happens in those instances where an individual is falsifying an act of domestic violence in order to get an advantage in the divorce action or to have the other party removed from the residence?  Unfortunately, there are instances where the Prevention Against Domestic Violence Act is abused by individuals who falsify claims of domestic violence for just these reasons.  It would appear that in a case where the claims have been falsified, under this new proposed legislature, the other party could essentially be held hostage by the threat of returning to court and imposing restraints.  It seems to me that the legislature may need to add more  protections to ensure the law is not abused.
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