Caldwell divorce attorneys

In recent years, we have been repeatedly cautioned by government leaders and renowned economists that the wealth gap and income inequality in America is only getting worse.  As part of the widening gap, some experts describe a slow disappearance of the middle class, with individuals/families who formerly fulfilled that category now moving either up or down on the wealth scale.

Ultimately, experts conclude that the “rich getting richer” is not the sole source of such inequality, but also, among other factors, that many of the blue collar jobs once relied upon by middle class families to put food on the table have disappeared.  At the same time, many households now have two fully employed parents, and, an overall demand for more affordable products by that same middle class category leads to outsourcing jobs overseas – essentially, one cause perpetuating another.

piggy bank

These issues, among others, are discussed in “Marriage Markets,” (with a link to the NY Times review) a new book by two family law professors, June Carbone and Naomi Cahn that examines why the number of marriages are on the decline, while non-married families and single parents are on the rise.  The book argues that income inequality has led to a decline in marriages, as middle class and lower income American families can no longer invest as they once did in growing a household and in futures of their children.  By correlation, it should come as no surprise that families with greater wealth more often have more stable marriages than those families with lesser wealth, can better invest in themselves and their children, and, should the marriage go south, can better finance a potential marriage dissolution.

While parties seem more willing to move on from a marriage, especially now that every State has some form of “no fault” divorce option, and while the economy has seen improvement since 2008, people still come to me on occasion contemplating whether it is more cost effective for them to remain married – even if they have to live separate and apart.  This sort of decision is troubling in that it handcuffs a couple’s ability to divorce and move on.  From a legal perspective, there is also a strong argument to be made, based on case law in New Jersey, that assets and income continue to accrue and are subject to distribution even after the separation date – especially since New Jersey really has no true legal form of separation.

Similarly, a lack of financial resources may also hinder parties from properly addressing all issues in a divorce, especially as to children.  The cost of attorneys, experts, and the like can be overwhelming for some and, as a result, litigants will, for example, forego the use of an expert when the need for a forensic custodial or accounting analysis may be imperative to fully and completely address a given issue.


While this blog post is less about specific law and practical tips, the primary arguments and underlying thesis of “Marriage Markets” are both interesting and relevant for the future prospects of marriage and divorce in our country.  The wealth gap continues to widen despite governmental measures taken to fend off its occurrence and has touched upon our world of family law in a way that has and will continue to impact how we practice and advocate for our clients.


Robert A. EpsteinRobert Epstein is a partner 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

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While there are few issues more controversial in New Jersey family law than that of permanent alimony, one circumstance in which courts have been relatively consistent in rendering such an award – where the circumstances may have, without such fact, merited a different result – is where the payee spouse suffers from some form of malady.  This was the situation in Waldorf v. Waldorf, a newly unpublished (not precedential) Appellate Division decision where the wife was diagnosed with lupus during the marriage and also suffered from two related autoimmune disorders that caused a deterioration of her physical condition.


Here are some of the more pertinent facts aside from her diagnosis/conditions upon which the trial court relied in awarding permanent alimony:

  • The parties were married in 1995 and had one child in 1996.  Wife filed a Complaint for Divorce in April, 2007 (less than 12 year marriage at such time).
  • Husband regularly earned a six-figure income.
  • Wife had a bachelor’s degree in history and psychology and a law degree, but never practiced law.
  • Due to her conditions, she began working part-time in 2001 and, in July 2003 stopped working altogether.
  • She applied for Social Security disability benefits (SSD) and, in 2003, the Social Security Administration deemed her totally disabled.
  • At the time of trial, Wife’s SSD payments totaled $2,044 per month, plus $1,100 per month in derivative benefits for the child.  She also received Medicare, which covered 80% of her medical costs (not including prescription drug costs).
  • In 2009, Husband was terminated from his position of employment due to a company reorganization.  He left the country in January, 2010 and went to live in Guatemala for a short time before returning to New Jersey.  He remained unemployed until mid-2010, at which point he began working for a consulting firm.
  • In March, 2011, Husband was furloughed, and he was scheduled to start a different job in the same company in July, 2011.
  • Husband was regularly behind in support payments (as Ordered by the Court) during the divorce proceeding, and was even incarcerated, as a result in November, 2010, and in early April, 2011 until the end of May, 2011.  He filed several applications to reduce his support obligation during the matter.
  • After a 15-day trial, the judge found Wife credible and Husband incredible to the point that he concluded that he was “out of touch with logic and reality,” and was “singularly motivated to hurt [Wife] both financially and non-financially.”  In its decision, the judge granted Wife sole legal and physical custody of the child and, among other forms of relief, $2,000 per week in permanent alimony through a wage garnishment.  A substantial cousnsel fee award was also rendered for the Wife, of approximately $100,000.

While the Appellate Division affirmed the award of permanent alimony, it remanded for a recalculation of the amount.  Notably, the Court quoted from Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013), a controversial decision on the issue of permanent alimony that is now before the Supreme Court of New Jersey, providing, “Although ‘[c]ourts must consider the duration of the marriage’ when fixing alimony, ‘the length of the marriage and the proper amount or duration of alimony do not correlate in any mathematical formula.'”

Pertinent to the Wife’s condition here, it also noted in quoting from other well known cases on the issue of alimony that a parties divergent circumstances “at the end of a relatively short marriage” may require the more fortunate spouse to “accept responsibility for the other’s misfortune – the fate of their shared enterprise.”  In affirming the permanent alimony award, the Appellate Division noted, “Although twelve years is not an exceptionally long marriage, plaintiff’s ailing health and inability to work created an actual economic dependency on defendant requiring him, as the more fortunate spouse, to accept responsibility for her misfortunes.”

Interestingly, the Court reversed and remanded on the quantum of alimony awarded, noting that “[Husband] was the architect of this flawed alimony award,” rather than the trial judge against whom Husband had accused of bias.  Since the trial judge had relied on one of Husband’s incomplete Case Information Statements – which lists out, among other things, a marital and individual monthly lifestyle – it did not account for taxes, medical insurance, life insurance, and the like, as well as, interestingly, the counsel fee award against him.

Since Husband represented himself during the proceeding, the Appellate Division concluded that the trial judge “should have fully questioned defendant about his expenses to reach a more realistic budget,” and that he did not find that the amount allowed Husband to reasonably maintain the marital standard of living (despite the Court affirming the trial court imputing to Husband a higher level of income than that earned at the time of trial, based on a review of his income history and conclusions of voluntary underemployment).  Ultimately, the Appellate Division concluded that the amount of the award – when compared to what it would leave Husband with each month – was inequitable.

While some readers of this post and the underlying opinion may question how a 12 year marriage can result in an award of permanent alimony, the Wife’s health condition here left her in a condition where she would never be able to support herself to any degree resembling the lifestyle lived during the marriage.  Under this fact-specific scenario, the alimony duration seems both appropriate and equitable for both parties.


Robert A. EpsteinRobert Epstein is a partner 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

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Emancipation of a college student – when does it happen?  When should it happen?  In the wake of the Rachel Canning matter, emancipation is a hot button topic in New Jersey.  Generally, the law provides that a child is emancipated when he or she is no longer within the parental “sphere of influence and responsibility.”  It is been deemed the “conclusion of the fundamental dependent relationship between parent and child.”  Well, what does that even mean?  In Rybak-Petrolle v. Rybak, a newly unpublished Appellate Division matter, the Court reversed a trial court decision emancipating the parties’ then 21-year old son.

college (courtesy of google free images)

Here are the facts that you need to know:

The parties’ entered into a settlement agreement that provided for mom to be the primary residential custodial parent for the children, and for dad to pay child support until emancipation, which was defined in the agreement as follows:

An Emancipation Event shall occur or be deemed to have occurred upon the earliest happening of any of the following:

a. The completion of five academic years of college education;

b. Marriage . . . ;

c. Permanent residence away from the residence of [plaintiff] . . . ;

d. Death;

e. Entry into the armed forces . . . ;

f. Engaging in full-time employment, during school vacations and summer periods shall not be deemed an Emancipation Event.

g. Notwithstanding anything contained in sub-paragraph (a) above, an Emancipation Event shall be deemed deferred beyond a child’s [twenty third] birthday only if and so long as he pursues college education with reasonable diligence and on a normally continuous basis.

More than 10 years after the settlement, the Passaic County Probation Division inquired as to whether the child at issue was emancipated for purposes of child support enforcement.  In response, mom submitted documents showing that child was a full-time student at Berkeley College.  Probation, however, was not satisfied with such proofs, and requested a court Order relieving it of its duties to monitor and collect child support.  At a subsequent hearing, the trial judge, after finding that child was a full-time college student, denied Probation’s emancipation request.

After further procedural activity involving Probation’s enforcement duties, another hearing occurred several months later where Probation again argued – despite the trial court’s prior Order – that it was not satisfied with mom’s proof that the son was a full-time college student.  Mom responded that child was in his sophomore year of college, and that he was originally enrolled in Seton Hall University, but did not do well.  She added that he took one semester off before transferring full-time to Berkeley College for online classes where he was maintaining a 4.0 grade point average.

When asked why child was taking online classes, mom responded that it worked better for his schedule, because he was also working 2 jobs to pay for his car insurance bill.  When asked if child was working full-time, mom responded that he was, at which point the judge declared the child emancipated, concluding that “the son was not pursuing a college education with reasonable dilligence on a normally continuous basis as required by the PSA.”

On appeal, the Appellate Division determined that a plenary hearing should have occurred to determine if the child was emancipated, since it is a fact-sensitive inquiry – specifically, “a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.”   The trial court based its ruling solely on “limited questioning” as to the son’s full-time employment while taking online classes and, as a result, a conclusion that he was not pursuing full-time education with reasonable diligence.  The trial judge made no findings as to:

  • The child’s needs and abilities;
  • How many course credits he was taking;
  • His total expenses for school;
  • How many hours he was working;
  • How much he earns;
  • Whether those earnings are sufficient to cover the costs of school and living expenses;
  • Whether there were scholarships or financial aid packages applied for and received; and
  • Other relevant factors.

The parties’ agreement also provided, as quoted above, that one defined emancipation event was the completion of 5 years of college, and that, if the child reached his 23rd birthday, emancipation would be deferred “only if and so long as he pursued college education with reasonable diligence and on a normally continuous basis.”  Based on such enforceable language, the Appellate Division noted that the trial court failed to explain why he used the agreement’s standard for continuing college after 23 when the child was only 21 at the time of the hearing, and held that a child working “while attending school cannot be the sole determinative factor in the decision to emancipate,” nor can be the fact that he took a semester off before transferring to his present school.

The lesson to be learned here is that whether a child – especially one who is simultaneously in college and working – is emancipated is a very fact specific inquiry requiring detailed analysis and consideration.  The answer is not simply in a settlement agreement, nor can it typically be isolated to one specific detail.


Robert A. EpsteinRobert 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

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In Johnson v. Commissioner of Internal Revenue, an interesting new decision from the United States Tax Court, a former husband was held unable to deduct the payments to his ex-wife as alimony because the amount of such payment was subject to a “child-related contingency.”  Specifically, the parties’ divorce settlement agreement provided that “spousal maintenance” payments to the former wife would end upon the occurrence of one of three events including “the graduation from high school of the youngest child.”  Thus, the issue became whether the payments, in the eyes of the Internal Revenue Service, were alimony or child support.

taxes (courtesy of free google images)

Section 215(a) of the Internal Revenue Code (IRC) allows a deduction to the payor for an amount equal to the alimony paid during the taxable year to the extent that it is includible in the recipient spouse’s gross income, as defined by the IRC.  Alimony is defined by the IRC as any cash payment:

1.  Received by a spouse under a divorce or separation instrument;

2.  The divorce or separation instrument does not state that the payment is neither includible in gross income nor allowable as a deduction;

3.  The payor and payee spouses are not members of the same household when the payment is made; and

4.  The payment obligation terminates at the death of the payee spouse and there is no liability to make either a cash or a property payment as a substitute for the payment after the death of the payee spouse.

The IRC provides, however, that if the payment is subject to any “contingencies involving child”, then the payment is considered payment made for the child and is not deductible by the payor.  “[Child] leaving school” is an example expressly provided in the IRC as one such form of payment – even if there is a specifically defined, separately allocated child support payment delineated in the agreement and being made by the payor.

Here, the settlement agreement not only provided for such a separate child support payment, but it also expressly stated that spousal maintenance payments would be tax deductible by the husband and taxable to the wife.  The parties abided by such language in completing their respective tax returns post-divorce.  Logically, the husband argued that the graduation date was “intended as a mere reference point for the termination of spousal support”.  The Tax Court held, however, that such intent “holds no value.”  As a result, the Tax Court concluded that the payments were really a form of child support, rather than spousal support, for the purpose of claiming the tax deduction.  Thus, the husband was not entitled to an alimony deduction.

This case is a cautionary tale for both litigants and matrimonial attorneys – do not use language like that set forth above when defining the alimony term, or else the payor spouse may suffer the same consequence as that of the husband in this matter.  Many settlement agreements often use a child’s achievement of a milestone – whether it be graduation from school, attainment of a certain age, and the like, as a termination date for alimony.  The risk of losing the tax deduction by use of such language, however, can prove disastrous.  Be safe and define the term through the use of specific dates.


Robert A. EpsteinRobert 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

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As a family lawyer, one of the questions I am most frequently asked is, “what expenses are included in the Child Support Guidelines?”  To back up a step, the New Jersey Child Support Guidelines typically apply to those parents who collectively earn a net income of up to $187,200.  For those couples making in excess of that amount, the Guidelines are supposed to still be applied, and then an additional amount is to be determined through an analysis of the factors set forth in New Jersey’s child support statute.


So what expenses, then, are included in the standard Guidelines computation?  The Rules Governing the Courts of the State of New Jersey includes a section entitled, “Considerations in the Use of Child Support Guidelines.”  One such consideration, entitled “Expenses Included in the Child Support Schedules”, provides, “The . . . support awards include the child’s share of expenses for housing, food, clothing, transportation, entertainment, unreimbursed health care up to and including $250 per child per year, and miscellaneous items.” 

The following expenses are then listed as being included in the support number:

  • Housing – Without going through every sub-expense included in this category, some notable items are the mortgage principal and interest payments, home equity loans, property taxes, insurance, repairs, maintenance, rent, domestic services, and furniture.  There are several other sub-expenses also included, down to incredibly narrow items such as cleaning and toilet tissues, lawn products, clocks, luggage, and light fixtures.  Needless to say, it is an incredibly broad category.
  • Food – This includes all food and non-alcoholic beverages purchased for home consumption or purchased away from home (i.e., restaurants, school meals, catered affairs, and even vending machines and tips).  Non-food items, including alcoholic beverages and cigarettes, are not included.
  • Clothing – This includes all children’s clothing, including school uniforms, footwear (but, somehow not including footwear for sports), diapers, repairs or alterations to clothes or footwear, storage, dry cleaning, laundry, and, interestingly, watches and jewelry.
  • Transportation – The cost of owning or leasing a motor vehicle including, but not limited to, payments towards the principal cost, lease payments, finance charges (interest), gas, motor oil, insurance, maintenance and repairs.  Related items are also included, such as public transit, parking fees, license and registration fees, towing, tolls, and auto service clubs.  Notably, this category does not include, among other things, expenses associated with a motor vehicle purchased or leased for primary use by the child subject to the child support order at issue.
  • Unreimbursed Health Care Up to and Including $250 Per Child Per Year (medical and dental) – These are generally considered ordinary medical expenses, such as non-prescription drugs, co-pays or health care services, equipment or products.  The cost of adding a child to a health insurance policy is not included.
  • Entertainment – Fees, memberships and admissions to sports, recreational, or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.  Notably, court orders and settlement agreements tend to separate out the cost for children’s activities and enrichment programs, including lessons, classes, and the like, as a separate expense from that included in the Guidelines figure.
  • Miscellaneous Items – Personal care products and services (e.g., hair, shaving, cosmetics), books and magazines, school supplies, cash contributions, personal insurance, and finance charges (except those for the mortgage and vehicle purchases).

Tuition for private schools, parochial schools or post-secondary educational institutions is expressly excluded and may, and generally are, treated as a supplemental expense.

You may be thinking to yourself that there seem to be so many expenses included in the Guidelines number, and so many others that are missing.  Your thought process would be correct, in that there are always expenses that arise beyond that set forth in the Guidelines considerations.  It is simply impossible for everything to be included, which is why I am frequently asked by clients whether he or she has to pay for a given expense incurred on a child’s behalf.  I find that the payor spouse generally wants as much detail as possible in an agreement as to what the child support covers, while the payee spouse prefers to keep the language more general and open to discussion.  Indeed, settlement agreements are typically general as well, and do not delineate each and every expense covered by the agreed upon support number, while also separating out certain “larger ticket” items.  I will blog separately on those items, and I hope, for starters, that the above provides guidance to those wondering what expenses are actually included in the Guidelines computation.


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


While the New Jersey Child Support Guidelines provides guidance on how to determine child support for multiple families, the Appellate Division in Harte v. Hand, a newly published (precedential) decision, provides a more detailed computation analysis that the Court describes as a “workable method” to achieve equity.  The Guidelines anticipate an adjustment when an payor must support more than one family and, in mandating that no family be favored over another, the Guidelines provide:

Prior child support orders must be deducted from the payor’s weekly Adjusted Gross Taxable Income because such an obligation is not available to pay other child support obligations.

In some cases, one individual may be obligated to pay child support to multiple families.  When the court adjudicates a case involving an obligor with multiple family obligations, it may be necessary to review all past orders for that individual.  If the court has jurisdiction over all matters, it may either average the orders or fashion some other equitable resolution to treat all supported children fairly under the guidelines.

dollar sign

What you need to know about the facts of the case:

  • Dad had 3 children, each of whom had a different mother.
  • Oldest son lived with Dad and his current wife.  Mom lived in Florida and did not contribute to his support.
  • Younger son lived with his mother.
  • Youngest child (a girl) lived with Dad’s former wife.
  • Dad was a concrete layer and finisher before he was seriously injured on the job, for which he received a $1.2 million settlement in 2007.  Dad claimed to have netted approximately half of that amount after paying off what he claimed were outstanding obligations.
  • When Dad was injured, he was already paying child support to the middle child and was married to the mother of his daughter.
  • After the settlement, Dad agreed to an imputation of $57,200 in annual income when recalculating child support for the middle child.  The same imputation was agreed upon between Dad and the mother of his daughter when they divorced in 2009.
  • Numerous enforcement motions occurred when Dad failed to make payment.  Dad claimed that he was unable to earn the $57,200 income level he had previously agreed to impute to himself.
  • In calculating child support for each of the 2 children at issue (since there was no dispute as to the oldest son living with Dad), the family judge calculated both support obligations using Dad’s imputed annual income of $57,200.  While the trial court completed line 2(d) – the Other Dependent Deduction – pertaining to the oldest son living with Dad, it deliberately left blank line 2(b) – Prior Child Support Orders (past relationships), as if the only other child that Dad supported was the oldest son living with him.  Since the two support obligations were being simultaneously determined, the trial court determined that it would be unfair to deem either order as the “prior” initial order because it would deduct that amount when determining support for the other child.  The Appellate Division deemed this to be in error.

The Appellate Division determined that a “prior order” adjustment should be used to achieve “parity” amongst the children of multiple families.  It did so to ensure that a “later-born” child was not penalized by reducing the payor’s available income by the prior child support obligation.  As a result, the steps used by the Court were as follows to determine support for the middle child (Child A) and the youngest child (Child B), as there was no dispute as to the other dependent deduction for the oldest child:

For Child A’s matter:

  1. Use the Guidelines to calculate support with Child A as having the “prior order” (Line 2b) and Child B as the recipient of the “second order.”
  2. Flip these positions so that Child B is considered as having the “prior order” (Line 2b) and Child A is the recipient of the “second order.”
  3. Average the results on Line 27 for each of the two calculations.  The payor will pay this averaged amount for Child A.

For Child B’s matter:

  1. Use the Guidelines to calculate support with Child B as having the “prior order” (Line 2b) and Child A as the recipient of the “second order.”
  2. Flip these positions so that Child A is considered as having the “prior order” (Line 2b) and Child B is the recipient of the “second order.”
  3. Average the results on Line 27 for each of the two calculations.  The payor will pay this averaged amount for Child B.

This formula is somewhat time consuming and reminded me of the Benisch formula for calculating support in a 50/50 shared parenting arrangement.  The Appellate Division concluded that this computation helps to ensure that “the children [are] treated fairly regardless of birth order, while not disregarding the father’s obligation to pay for all three children.”  While your head may be spinning at the thought of a situation where even more children potentially exist, the calculation would be similarly performed so as to determine an equitable payment for each child.  The analysis would also change if the parties’ respective incomes were above the Guidelines limit (combined net, after tax, income of $187,200), which would then additionally merit a consideration of the statutory child support factors and the children’s reasonable needs beyond the Guidelines analysis.


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

Oftentimes a spouse will be served with a Complaint for Divorce by the other spouse and then do nothing.  Whether it is because he or she does not want to deal with the situation, does not understand the resulting legal ramifications of “sitting on your hands”, or something else, doing nothing is almost always a bad idea.

After being served with a Complaint for Divorce, a spouse has 35 days to answer or otherwise respond.  Should he fail to do so, the filing spouse can request for default to be entered against the non-responsive spouse.  The request to enter default has to be made within 6 months of the actual default.  Where equitable distribution, alimony, child support, and other relief are sought and a default has been entered, the plaintiff is required to file and serve on the defaulting party a Notice of Proposed Final Judgment – not less than 20 days prior to a hearing date where the trial court will typically take testimony and render a final determination on such issues.  This can happen even without any involvement by the defaulting party, including even as to custody and parenting time, demonstrating how critical it is to be an active litigant in your own matter.

Can a party against whom default has been entered have the default vacated so as to protect their own interests?  While there is an avenue by which to vacate a default, there is no certainty that the request to do so will actually be granted.  The court rules require that a party seeking to vacate a default file a motion “accompanied by (1) either an answer to the complaint and Case Information Statement or a dispositive motion pursuant to R. 4:6-2, and (2) the filing fee for an answer or dispositive motion, which shall be returned if the motion to vacate the entry of default is denied.”  The court may then vacate the entry of default upon “good cause shown” – based on considerations including, but not limited to, whether the default was willful or culpable, whether vacating the default will prejudice the other party, and whether the defaulting party has a “meritorious defense.”

The defaulting husband in Lanzaro v. Lanzaro, a new unpublished (not precedential) decision from the Appellate Division, learned the hard way.  There,  the trial court denied the husband’s request to vacate default where he failed to file a written motion seeking to vacate default, nor did he provide one to the court at the final hearing.  Further, he had failed to comply with prior court orders, and failed to respond to the complaint, each of which the court found to be willful.  The husband also failed to provide a meritorious defense to the wife’s equitable distribution claims, since no proposed answer detailing such defense or sufficient evidence was provided in support of his position.  Thus, while the husband’s attorney was authorized to cross-examine the wife as to her proposed distribution of assets, the husband was neither permitted to testify or submit his own “affirmative” evidence to support his own position.  In effect, he was absented from the case.

The primary lesson to be learned – be an active litigant in your case.  Only one party needs to want a divorce in New Jersey to make it happen.  Waiting idly by and refusing to be a participant in your own litigation will not only impact the immediate proceeding, but potentially your long-term future as well.


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


Picture this – you just settled the issues of custody and parenting time with your former spouse, and now she suddenly wants to move with the kids to another state, or to the complete opposite side of New Jersey (for those living in North Jersey, the trip down to South Jersey can take far longer than driving over the border into Manhattan).  You had no idea that this was going to happen and, perhaps, your ex-spouse even played coy about her plans for where she was going to live once the case is over.  What do you do?  Are you stuck based on what you agreed to in the settlement agreement?

Custody disputes and negotiations are oftentimes the most emotionally charged aspects of a divorce matter.  Decisions as to both legal custody (major decision making impact the child’s health, safety, and general welfare), and residential custody (where the child will live), are never to be taken lightly.  During the course of a custody dispute, the issue of relocation will commonly arise so as to determine whether either parent has any plans or intentions to move with the children after the divorce to an area different from where they lived during the marriage.

Importantly, however, a custodial expert and, if the matter goes to trial, a family part judge, must first address the issue of custody and parenting time before moving onto the issue of relocation.  In fact, the Supreme Court provided in its seminal case of Baures v. Lewis that “A removal case is entirely different from an initial custody determination.  When initial custody is decided, either by judicial ruling or by settlement, the ultimate judgment is squarely dependent on what is in the child’s best interests . . . Whoever can better advance the child’s interests will be awarded the status of custodial parent.”

What, then, is the importance of the initial custody determination on relocation?  Simply put – it is very important, because the legal standard that a court will utilize to determine whether a parent should be able to relocate with the children will depend, in large part, on whether that parent is a primary residential custodian, or joint residential custodian.

Without going into great detail, a primary residential custodian’s request to relocate interstate is analyzed under a standard more favorable to that parent, where the requesting parent need only show that there is 1) a good faith reason for the move, and 2) the proposed move will not be inimical to the child’s interests.  Within that standard, a court will look at several factors to determine whether the relocation request should be granted.

Even more liberal is the court’s view towards a primary residential custodian’s request to relocate within New Jersey – intrastate – to the point that it is not even considered a “removal.”  Approval to move to another part of the State is not even required!  Rather, the relocation may constitute what is known as a “substantial change in circumstances” meriting a modification to the existing cusodial and parenting time arrangement.  If the move is inimical to the child’s best interests, the factors used to analyze an interstate relocation request come into play to determine whether a modification should occur.  By great contrast, if the parents are joint residential custodians, the request to relocate will be analyzed under the far more balanced “best interests of the child” analysis.

It should come as no surprise, as a result, that some litigants will actually seek to deceive (or fraudulently induce) their ex-spouse during the course of custody and parenting time negotiations so as to obtain the primary residential custodian designation that will then render far easier a subsequent request to relocate.  Thus, while dad is under the belief that the kids are going to be living with mom somewhere near him, or near where they lived together during the marriage, mom may secretly have other plans in mind.

Not many reported cases have dealt with this issue.  In Shea v. Shea, a 2005 decision, mom sought to relocate to another state merely 3 months after the parties resolved custody and parenting time.  Dad objected, asserting that mom had used the custody negotiations as a “subterfuge in that she planned to seek removal shortly after the divorce was entered.”  The court held that dad could attempt to prove his allegations against mom if she fulfilled her initial burden to procure the court’s consent to the interstate removal – good faith and the move not being inimical to the child’s interests.  The same process would similarly occur in the course of an intrastate relocation request.  The court provided that if a determination was made that the parent requesting relocation sought such a strategic advantage against the other parent, then the court should return the non-custodial parent to equal footing with the custodial parent and review the request for relocation under the “best interests analysis” referenced above.

Thus, while it seems like a mountain to climb after an agreement has already been reached on custody and parenting time, the parent opposing relocation under such circumstances does have the ability to protect himself and his relationship with the children by proving what the other parent has done.


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



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.


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

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.