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

The Supreme Court, who issued a rather limited decision, instead relied upon the reasons expressed in the Appellate decision. Crespo v. Crespo, 408 N.J. Super. 25 (App. Div. 2009). In that decision, Judge Fisher addresses each of defendant’s arguments, finding that none of defendant’s constitutional rights have been violated. Judge Fisher’s decision found no merit in any of Mr. Crespo’s arguments. Although Judge Fisher did acknowledge that in certain circumstances a party may seek leave of the Court to obtain discovery prior to a final restraining order hearing. Depos v. Depos, 307 N.J. Super. 396, 400, 704 A.2d 1049 (Ch.Div.1997).

What is most interesting about Crespo v. Crespo is that the New Jersey Supreme Court did not have to grant certification from the Appellate Division – meaning the New Jersey Supreme Court did not have to hear the appeal. Yet, the New Jersey Supreme Court chose to hear the appeal and then simply affirmed Judge Fisher’s decision. This sends a clear message to domestic violence litigants and attorneys representing those individuals.  

You can read more about this case by reading our other blog entries, here or here.

The mother brought the child to the US without the father's consent.  Father filed suit in Texas asking the court to grant the return of the child to Chile pursuant to the Hague Convention.  The Texas court denied the return of the child to Chile finding that the removal did not breach the father's "rights to custody" under the Hague Convention as was argued.  The father appealed and in September 2009, the Fifth Circuit affirmed, holding that only the custodial parent can invoke the Hague Convention to get the child returned.

Father petitioned to the US Supreme Court who will hear oral argument on Tuesday, January 12, 2010.  Amici curaie briefs have been filed.  The Domestic Violence and Civil Protection Order Clinic at the University of Cincinnati College of Law contends that looking at the best interests of the child requires a finding for Mrs. Abbott.  Another group of organizations working in the field of domestic violence are concerned that the treatment of these ne exeat orders could allow many primary caretakers to use such orders as a tool to maintain control over their former partners.

The State of California urges the Supreme Court to construe ne exeat orders as conferring custody rights to a technically non-custodial parent.  California further argues that when certain legal principles are applied (comity & reciprocity) return of the child is the right answer.

It will be interesting to see how our nation's Supreme Court views this issue.  We will provide an update once the decision is rendered.

Some believe that nearly any attorney can draft a prenuptial agreement, but the true test is – will it be enforceable if challenged?? That is why it is so important to be familiar with New Jersey’s laws for prenuptial agreements. N.J.S.A. 37:2-31 to 37:2-41. In New Jersey a premarital agreement will not be enforceable if the party seeking to set aside the agreement proves that they executed the agreement involuntarily or the agreement was unconscionable at the time enforcement was sought. A prenuptial agreement will also not be enforced if prior to the execution of the agreement a party:  (1) was not provided full and fair disclosure of the earnings, property and financial obligations of the other party; (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; (3) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or (4) did not consult with independent legal counsel or did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

There are many ways that a prenuptial agreement can be found unenforceable. That is why it is so important to consult an attorney and to be clear about what are your goals and the assets you wish to protect. Unfortunately, by the time clients get to me it is too late to advise them about a prenuptial agreement. However, if planning to remarry, and there are assets to be protected, consider a prenuptial agreement – it can save time and headache in the long run. 

To read previous blog entries on this topic, click here and here.

Divorcing couples will often use an arbitrator in lieu of the Courts because it tends to be quicker and more efficient. Arbitration also provides the parties with the freedom to choose the person who will be deciding their case; can eliminate the necessity of multiple court appearances; and can address sensitive issues, such as unreported income – which couples would not want to make public.

Once a couple decides to use an arbitrator, the arbitrator acts similarly to a judge, deciding the issues of the case. The arbitrator will conduct a hearing (or trial) to decide the key issues and issue a decision. Once the arbitrator issues a decision the couple will go back to Court where a judge will enter the arbitrator’s decision and enter an Order divorcing the couple.

Arbitration can be expensive as you must pay the arbitrator, who is either an attorney or retired judge for his or her time. If arbitration is a consideration for you, its important that you factor in the cost of this process. Just as with anything, there are pros and cons to utilizing an arbitrator. 

Law enforcement officers have a reputation of protecting one another, no doubt a result of working a dangerous job where they depend on one another for their safety. This type of camaraderie can no doubt foster a public perception that law enforcement officers would be biased during the course of an investigation of one of their own.

The model policy not only addresses remedial steps, but also preventative steps that law enforcement agencies can take to detect and prevent domestic violence, including: background investigations for new employees that would screen out candidates with histories of domestic violence or sexual assault; psychological examinations of all candidates for law enforcement positions and regular annual training on domestic violence issues and the impact of domestic violence within police departments; and supervisors would be trained on how to recognize early warning signs of domestic violence behavior such as excessive or increased use of force on the job, deteriorating work performance, or alcohol/drug abuse.

The new model policy also details incident response protocols, reporting and documentation protocols and recommends that any allegations of domestic violence offenses by high-ranking law enforcement officers - police chiefs or police directors -- be referred to prosecutor’s offices for oversight. While these responses are helpful to law enforcement officers, the new model policy is important if an attorney is involved in the representation of a party where one of the parties is a law enforcement officer. The integrity of a police report at trial or a hearing will be measured by the testimony of the police officer and the protocols that were taken during the investigation. If protocols were followed, under this new policy the police report could be given greater weight and bolster the testimony. If protocols were not followed, the police report and testimony could be found less credible.

When filing an application to recalculate or terminate a support obligation, it is the burden of the party requesting the change to first prove to the court that the circumstances have changed significantly from the time of the original support obligation Order, that a review is necessary and fair. If the party requesting the change can show changed circumstances, the court can review the support obligations. For child support, the same standard would apply as that which was used originally. The income of the parties (including if alimony is paid), age of the children, and amount of overnight parenting time with the non-custodial parent, are the most common considerations. In cases where applicable, judges will look at other items such as social security or disability benefits, rental income, child care expenses, extraordinary medical expenses, etc.  There is case law, however, that says passage of time can constitute a change of circumstances for child support purposes. 

As for a modification of alimony or spousal support, the court must again consider the circumstances considered at the time of divorce- the age and health of the parties, the length of the marriage, the income of the parties, the assets received by way of equitable distribution, the dependent spouse's needs, the other spouse's ability to pay, and the ability of the dependent spouse to contribute to their own needs. A court is only obligated to follow a settlement agreement to the extent that it is fair.

In an application brought by the payor or supporting spouse for a downward modification or termination of alimony, an issue central to the court's evaluation is the supporting spouse's ability to pay. In order to reach that issue, it is the burden of the supporting spouse to provide the court with sufficient credible evidence as in: an updated Case Information Statement (i.e. detailed financial statement form), pay stubs, tax returns, W-2's, resume, job search, and anything else that can verify the change in their income and its effect on their ability to pay at the current rate.

Finally, the Appellate Division has given some guidance in the recently published matter of Gonzalez-Posse v. Ricciardulli, A-6446-06T3, decided November 9, 2009. In this matter, after 10 years of marriage and 3 children, wife filed for divorce. Both parties were natives of Argentina who were residing in the U.S. on a work visa obtained by the husband, who at the time was working for a large law firm in New York. At the time of the divorce, he was employed by Direct TV Latin America. The last year for his visa arose and Direct TV filed the paperwork to extend the visa. However, in the midst of the divorce's finalization, husband was laid off by Direct TV and they rescinded the application for the extension on his visa. He was given the choice to return to Argentina on his own or be deported.

In the Property Settlement Agreement executed by the parties, support was calculated based upon husband's then income of $150,000 and wife's then income of approximately $21,000. Alimony was agreed upon for a 5 year limited period of time.

Upon his return to Argentina, husband obtained employment in a law firm. With the exchange rate, his income converted to approximately $26,000 U.S. dollars per year. He filed an application to recalculate his child support obligation and terminate his alimony obligation. His ex-wife opposed his application. The trial judge reduced the child support obligation. As for alimony, the judge reduced the weekly sum to be paid but converted the limited duration of 5 years to an obligation of 17 years. Both parties appealed from that Order.

On appeal, the Court found that the recalculation of husband's child support was correct. As for the lower court's ruling on husband's alimony obligation, the Court reversed and remanded to the trial court finding that it was error to extend the term of the alimony obligation and stating that the lower court failed to consider the inconsistencies in wife's income and her ability to contribute to her own financial support.

These applications are very fact sensitive and require attention to detail and a presentation of all the facts to the court so that the judge is not left with any question as to the validity of a paying spouse's change in circumstances.