Princeton Divorce Attorneys

As many parents get ready to send their children off to college, those who are collecting child support from a non custodial parent wonder how their child support may be affected. The New Jersey Child Support Guidelines are applicable when computing child support for children who are less than 18 or more than 18 and attending high school and living at home. What, then, happens to child support when a child leaves for college? The guidelines specifically state that they should not be used to determine parental contributions for college or other post secondary education. As an exception, they may be applied when a child is living at home and commuting to college. Over the years, courts have taken an inconsistent view as to how child support should be calculated for children living away at school. In the recent, published ( precedential) case of Jacoby v. Jacoby, the NJ Appellate Division addressed this issue.

In the Jacoby case, the parties who were divorced had two children. When the oldest matriculated at college, the non-custodial father moved to reduce his child support obligation to Ms. Jacoby since the child no longer resided in his mother’s house. The trial judge granted his application, and reduced the child support by employing a formula in which the judge calculated child support for two children, and then one child. The judge then took the difference of these two sums and determined 38% of the difference and 25% of the calculated remainder   These two sums were then added and set as support.   Essentially, what the trial court did was to recognize that child support is comprised of three broad categories: fixed costs – those costs that are incurred even when child is not residing at home. An example is housing related expenses; variable costs – those costs which are incurred only when the child is with the parent ( food is an example); and controlled Costs – costs which are incurred by the primary caretaker of the child, such as clothing and entertainment. The court then presumed there was a lower amount of variable and controlled costs when the child was away at college and reduced support accordingly. 

 

When the second child matriculated, Mr. Jacoby again sought a reduction. A different judge heard the application and denied Mr. Jacoby’s request. He then appealed. Continue Reading A New case on Child Support for a College Student

Oftentimes, when a party to a divorce action is a partner in a small company or partnership, suspicion falls to the other partner or business. I am often told by my client that he or she is sure that the other partner is helping hide money or engaging in some behavior in order to lower the value of, or the income from the company. Not surprisingly, the question then arises of whether the company itself or the other partners can be brought into the divorce action. Except in rare circumstances, the answer is generally no.

The rules of court govern when a non-spouse can be joined to a divorce action. First, in order to bring in a non-spouse, the moving party must show that the company or partner is what is known as an “indispensable” party. According to Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995), “courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.” This means that a corporate party may only be joined if it would be difficult, if not impossible for the case to proceed without the addition of the corporation. This is usually not the case. Even when the company or other partners are not actual parties to the divorce action,   the Rules of Court provide ample mechanisms for litigants to obtain discovery from non-parties, see, e.g., R. 1:9-1 (issuance of subpoena to non-party for attendance of witness); Rule 1:9-2 (issuance of subpoena to non-party for production of documentary evidence); Rule 4:14-7 (issuance of subpoena to non-party to conduct discovery depositions).

The Rules are designed to make sure that all necessary information is available to the court so it can make a fair decision in the divorce. Thus, complete financial records of the company are generally available for review. The rationale behind this makes sense. If at any time it could be said that a company or business partner is an interested party due solely to the fact that one of its members is getting a divorce, it would throw the entire business world into disarray, not to mention an already over-taxed family court system.Continue Reading Concerns About the Actions of a Business Partner in Divorce

 As if it isn’t hard enough for custodial parents to collect child support arrears, the New Jersey Appellate Division just decided a case in which it was held that the United States government cannot be held responsible for damages when it fails to pay support arrears   from payments due to an obligor. 

 In the recent case of Jacobson v. United States, Steven Tetz was ordered to pay child support to Mindi Jacobson, the mother of his child.   Steven was receiving disability benefit from the Social Security Administration (SSA) and the NJ office of child support ( the NJ state agency which is in charge of collecting child support) sent a garnishment order to the SSA. Steven fell behind on his child support payments, and in March of 2008 when he dies, he had arrears of more than $76,000. However, and here’s the kicker, in December of 2007 the SSA had given him a retroactive payment of almost $60,000. Needless to say, Steven did not give any of that to Mindi or his daughter.

 

When Mindi found out, she brought an action against the government, claiming that it owed her for the amount of arrears plus interest, attorney fees and costs for its failure to properly garnish the disability. She brought the matter under the laws, both state and federal that provide that a person or an entity that is responsible for the collection and payment of child support fails to withhold payment, it may be responsible for the amount it should have withheld.Continue Reading Another blow for child support collection

 It is well-settled law in New Jersey that prior to the relocation of a child from the this state by a custodial parent on a permanent basis, the parent first must formally request leave from the Court. The court will then examine the move under the factors set forth in the seminal case Baures v. Lewis, which guides the court’s relocation inquiry. In Baures, the Court recognized three now-established legal principals:

1. The relocation standard is based upon a custodial parent’s right to seek happiness and fulfillment, which in turn, benefits the child.
2. Upon relocation, the non-custodial parent’s communication and exposure to the child must be sufficient to sustain that relationship.
3. Finally, the custodial parent must provide proof that the child would not suffer as a result of the move.

While Baures is proverbial gospel when it comes to relocation from the State of New Jersey, an interesting question arose in the Ocean County trial Court in McKinley v. Naters, which was approved for publication (binding opinion) on April 13, 2011. Namely, the McKinley case examined whether the court should grant a contested application for a temporary removal of a child to another state for “extended vacation purposes” prior to a formal relocation hearing under Baures?

The parties in McKinley were divorced on December 10, 2002. They share one child together, whom the Court referred to as H.M. At the time of the divorce, the parties agreed to share residential (physical) custody of H.M.Continue Reading Relocating with a Child and Taking an Extended Vacation: What Is the Standard?

It is well-settled law in New Jersey that child support and alimony awards are always modifiable. While there is an abundance of case law in the area of post-judgment modifications of support obligations, particularly in this economic climate, the most often cited case for modification is the seminal New Jersey case of Lepis v. Lepis, 83 N.J. 139 (1980). Indeed, the Lepis Court was the first in holding that when changed circumstances substantially impinge upon the supporting spouse’s ability to pay support at the level ordered, a modification of the support order might be necessary. The burden to prove this change in circumstances falls upon the supporting spouse when such a downward modification is sought.

A reduction in the supporting spouse’s income has long been recognized as a changed circumstance warranting a support modification, so long as it is not temporary in nature. In addition, the recent Appellate Division case of Angelastro v. Angelastro, recently solidified the notion that a support modification may be sought when the supported spouse’s economic circumstances change for the better.

In Angelastro, the parties’ property settlement agreement, executed in September of 2008, awarded the wife alimony as follows:

The [h]usband shall pay to the [w]ife[,] starting at the sale of the marital home[,] the sum of $350[] a week in [a]limony commencing for a period of six (6) years. Upon the completion of aforementioned six (6) years[,] the [h]usband’s [a]limony obligation shall reduce to that of $200[] and continue for a period of eight (8) years thereafter representing a total payment period of fourteen (14) years.

In addition, child support in the amount of $200 per week was provided for. The parties’ property settlement agreement specifically predicated the above support awards upon the wife’s imputed income of approximately $25,000.Continue Reading Changed Circumstances Is A Two Way Street, the Appellate Division Says

This blog post is written with input from Eliana T. Baer, who, along with Robert A. Epstein, was instrumental to the outcome of the below case. I thank them both for their extensive time and efforts, without which this result would not have been possible.

An important reported decision was decided by the Appellate Division concerning the distribution of post marital contribution of pensions and retirement plans. A copy of the case can be found here. While the case itself concerned a former service member’s military retirement pay, the matter has wide implications for all retirement plans which are not distributed at the time of divorce. This was a case which I had alluded to in a previous blog which can be found here, and in which we represented Thomas Barr, who had earned credits toward a military retirement during his marriage. In the case of Barr v. Barr, the parties were divorced after the husband, Thomas, had served eleven years of active duty in the Air Force. Thomas was not represented by counsel at the time of the divorce and his wife’s attorney prepared a property settlement agreement which provided that "The Wife will receive 50% of Husband’s pension benefits attributable to his 11 years in the military service only. Such benefits are to be distributed when Husband commences receiving same." After the parties divorce, Thomas went on to enroll in the reserves and during that time, accumulated enough time to entitle him to military retirement pay.

When Thomas began receiving his retired pay, he calculated what he believed he owed his former wife, Judith, and made a deduction for taxes that he had to pay. This went on for a period of time, and the parties had a disagreement and Thomas ceased paying. When Judith made an application for enforcement, Thomas realized that the amount that he had been paying was what he believed to be the incorrect amount, and in his response to her motion, asked that the amount be adjusted. Specifically, he argued, in part, that because the formula used to calculate retired pay benefits considers a military member’s rank pay at retirement as well years of service, it was possible to calculate the amount that was attributable to his rank at the time of the parties’ divorce, which would give meaning to the agreement of the parties that Judith would only be entitled to the portion attributable to his active duty. A service member receives points for each day of military service: one point for each day of active military service and two points for each day of reservist duty. Additional points accrue based on the completion of certain training, drills and funeral honors duty. The actual member’s benefit is the product of the base pay for the rank achieved at retirement and two-and one-half percent of the points representing the years of service credited.Continue Reading The Treatment of Military Pensions in New Jersey: The Appellate Division Speaks, Is the Coverture Fraction Still Viable?

 Are your expenditures for your children “average?” Be careful to make sure that all of your children’s expenses are included in child support. Most parents going through the divorce process are aware that New Jersey has guidelines to assist courts in determining support for children. But many do not know what exactly the guidelines are supposed to cover and whether their particular situation warrants a deviation. 

 Judges are required to calculate the child support guidelines in all cases. In cases where the combined net income of both parents is $187,200 or under, the amount under the guidelines will be applied. In cases in which the combined income is in excess of $187,200 net per year, the court is to use the guideline amount and then supplement that amount, based on a variety of factors. The guideline amount is a rebuttable presumption which means that the amount that is calculated is deemed to be the appropriate amount of child support unless a party can demonstrate that the amount is not. The Guidelines specifically tell us that the awards are based on an average of the percentage of income spent on children by a large number of families in a variety of socioeconomic situations.Continue Reading Making sure Child Support covers actual Needs