Category - Divorce

Understanding Post-Judgment Modifications for Child Support

What is a post-judgment modification?

A post-judgment modification is a process in which a person files a motion or application to modify a court order, such as child support, custody, or parenting time. This is typically due to a considerable change in circumstances, and the modification will only be granted if the person’s change in circumstances is substantial enough. A few examples that would be grounds for modification are significant changes in either party’s income, behavioral or criminal problems, substance addiction, change in daycare expenses, college expenses, or unanticipated medical expenses of consequence.

The successful motion or application is frequently accompanied by an affidavit or certification, including relevant exhibits, and sometimes a legal brief if the legal issue is unique or a matter of first impression before the court. The matter is then scheduled for oral argument before a Superior Court judge, at which time a decision is rendered.

Relocating With Your Children

Frequently people come in to see me who want to relocate to another state with their children. Sometimes divorced, and sometimes having reached the end of non-marital cohabitation with the other natural parent, these individuals express a number of different reasons for wanting to leave New Jersey. Among the most common reasons are: A desire to go to a sun-belt state with appreciably cheaper costs of living and better job prospects; reuniting with family members who reside in another state; and a job transfer by a new spouse.

Under New Jersey law, N.J.S.A. 9:2-2, minor children of parents divorced, separated or living apart, who are natives of New Jersey, or having resided five years within its limits, cannot be removed for residential purposes out of this jurisdiction without the consent of both parents unless the court shall otherwise order.

A New Jersey Supreme Court case, Baures v. Lewis, 167 N.J. 91 (2001), establishes that a party seeking to move out of New Jersey with his/her children bears the burden of proving that there is a good-faith reason for the proposed move, and that the proposed move will not be inimical to the children’s interests. The following factors are addressed by the court in making this decision:

(1) the reasons given for the move;

(2) the reasons given for the opposition;

(3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;

(4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here;

(5) any special needs or talents of the child;

(6) whether a parenting-time schedule and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;

(7) the likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;

(8) the effect of the move on extended family relationships here and in the new location;

(9) if the child is of age, his or her preference;

(10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;

(11) whether the non-custodial parent has the ability to relocate; and

(12) any other factor bearing on the child’s interest.

From my experience practicing in South Jersey, Chancery Division-Family Part judges in Burlington, Camden, Gloucester, Cumberland and Salem Counties will almost always let the custodial parent move to either Philadelphia or New Castle County, Delaware, if minimally sufficient reasons are set forth by the party seeking to move as long as New Jersey retains jurisdiction of the case for so long as the law allows. As far as distant locales are concerned, I have always found that the best approach is to present the judge with a host of favorable options so as to make it difficult for him/her to deny the removal application. These reasons may include: An offer by the custodial parent to permit the non-custodial parent substantially extended summer and holiday parenting time; agreement to fly the non-custodial parent to the children’s new location several times per year if financially feasible; providing the judge with comprehensive statistics about the lower cost of living in the proposed new state, including housing costs, lower taxes and the consumer prices; more favorable job prospects in the new state than those available in New Jersey if the parent seeking to move has not already been offered or accepted new employment; and offering extensive telephone, Skype or Face Time contact with the children.

In a particularly thoughtful, comprehensive opinion, Benjamin v. Benjamin, 430 N.J. Super. 301 (Ch. Div. 2012), Judge L. R. Jones held that it was not a mandatory prerequisite for relocation that the parent seeking to move had obtained a guaranteed job in the other state. The court reasoned that it was not realistic to expect an employer in another state to offer guaranteed employment to an arms-length job applicant who (a) still lives in New Jersey, (b) is in the middle of ongoing family court litigation which may last for months, and (c) cannot reasonably tell the employer whether or when he or she might be able to start work.

If the other parent objects to the relocation, and there are genuine issues of fact as to whether or not the move would be personally, socially and financial harmful to the child, generally, the court schedules the removal application for a plenary hearing. This procedure is akin to a trial where witnesses are presented, documents introduced into evidence, and the attorneys prepare post-hearing, proposed findings of fact and conclusions of law.

All in all, if the party seeking to relocate out-of-state prepares his/her application comprehensively, taking all of the factors set forth in Baures and Benjamin into consideration, there is a reasonable chance that relocation will be permitted.

BAD BEHAVIOR AND ALIMONY

Your spouse has been unfaithful to you, has been physically and/or mentally abusive, or has been involved with illegal or immoral activities, and you want to file for divorce. Is the court going to take this bad behavior into consideration when deciding whether or not you have to pay alimony? The answer is possibly, but not necessarily.

In a case entitled Mani v. Mani, 183 N.J. 70 (2005), the New Jersey Supreme Court described alimony as an economic right that arises out of the marital relationship. It is intended to provide the dependent spouse with a level of support and standard of living comparable to the quality of life that he or she enjoyed during the marriage. If bad behavior by the party who is otherwise eligible for alimony has negatively affected the economic status of the marital parties, fault may be considered in calculating alimony. But if the marital misconduct does not affect the economic status quo of the parties, generally, it is not to be considered in an award of alimony. The only exceptions to this rule are cases where the potential alimony recipient is guilty of egregious fault. In the Mani case, the New Jersey Supreme Court referred to a California statute which barred alimony payments to a dependent spouse who attempted to murder the supporting spouse. Deliberately infecting the spouse with a loathsome disease was also cited by the Mani court as an example of egregious fault. In the case of Clark v. Clark, 429 N.J. Super. 61 (App. Div. 2012), the Appellate Division of the Superior Court of New Jersey further defined “egregious fault.” This lawsuit involved a situation in which the wife conceived and carried out a long-term scheme to embezzle the cash receipts from the parties’ pharmacy business. The wife’s actions were criminal in nature and demonstrated a willful and serious violation of societal norms. This type of conduct is willfully, wrong, fraudulent and purposely intended to deprive the other spouse of the economic benefits of the marital partnership, and it may serve to lessen or abolish alimony.

In the case of Puchalsky v. Puchalsky, 2014 WL 9913174 (App. Div. 2015), an unpublished opinion, the Appellate Division affirmed the trial judge’s alimony ruling. Both husband and wife were involved in income-tax evasion and healthcare fraud in the course of running a dental practice. Since both parties were involved in illicit activities, and neither party would be able to replicate their martial lifestyle irrespective of how much or how little alimony was awarded, the appellate court let stand the trial judge’s alimony award.

As unfair as it may seem to the aggrieved party, in a no-fault state such as New Jersey, the court does not generally take into consideration your spouse’s infidelity or the behavior you had to endure during your marriage, when deciding on the amount and term of alimony. Bringing these types of behavior to the judge’s attention can be valuable, however, with respect to other decisions the court must make such as custody and parenting time, for example.

So, before concluding that you may be “off the hook” in terms of paying alimony to your spouse in light of his/her bad conduct, unless that conduct causes measurable financial harm, it likely will be a negligible factor at best in considering the amount and length of alimony to be awarded.

New Jersey Child Emancipation

“I want to sign my rights away.” “He’s gonna be 18 in June. I can stop paying child support then.”

I have often heard these and other similar comments. For the most part, however, such thoughts are wishful thinking and not reflective of current New Jersey law. But what happens if these mistaken beliefs come before the court in the form of a proposed consent order which a judge is asked to sign, or in a marital settlement agreement presented at an uncontested final divorce hearing?

First, under such circumstances, an experienced attorney will advise his/her clients that their child emancipation expectations are likely against New Jersey public policy. So, questionable child emancipation language rarely appears in attorney-drawn orders or agreements. Second, a judge will likely refuse to sign a consent order containing premature child emancipation language despite consensus between the parents. And third, should dubious emancipation language “slip through the cracks,” a subsequent judge or an appellate court will probably not enforce the questionable provisions finding them to be at odds with New Jersey public policy. It should be noted that with marital settlement agreements judges rarely, if ever, read them at an uncontested divorce hearing. Judges are simply interested in assuring that the parties have voluntarily signed the agreement without coercion; that they understand it and recognize that they are giving up their right to trial; and that they wish to settle the case according to the terms of the agreement.

Child emancipation is almost always interwoven with termination of child support payments. The guiding principle is that child support belongs to the children. The parent receiving the support holds it in constructive trust for the children. The money is to be spent on and for the children. To be sure, in a number of cases the child support monies are spent by the receiving parent on personal items that do not benefit the children. Unfortunately, the courts do not have the resources to monitor parental use of these funds. In fairness, court personnel and related state and county agencies cannot be expected to micromanage the spending habits of divorced and separated parents.

“Emancipation” is a legal concept denoting the end of the fundamental, dependent relationship between parent and child. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). It is not automatic and “... need not occur at any particular age …” Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Upon emancipation, legal and physical/residential custody rights and responsibilities are no longer vested in the parents and child support ceases.

N.J.S.A. 9:17B-3 holds that once a child reaches the age of majority, now eighteen, a parent has established “prima facie, but not conclusive, proof of emancipation.” The burden of proof then shifts to the party seeking to continue the child support obligation. Next, the court embarks on a critical evaluation of the existing circumstances—the child’s needs, interests, independent resources, family expectations, and the parties’ financial abilities, among other things. Newburgh v. Arrigo, supra, at 545.

If the child joins the armed forces, gets married, obtains employment and his/her own residence at a separate location, these are all factors indicative of emancipation.

Another consideration is the responsibility of the parents in New Jersey to provide for payment of the children’s undergraduate college education after all loans, scholarships and grants upon immediate, fulltime (twelve credit hours or more per semester) enrollment in college. This duty was originally set forth in the Newburgh case referred to above. While Newburgh does not provide detailed guidance for trial judges in how to implement its philosophy, a common convention among New Jersey Family Division judges is that students are given five years to obtain a Bachelor’s Degree. Thus, the support obligation may continue until the child is twenty-three.

This is just a brief synopsis of a few of the many issues that may arise when parents are confronted with the child emancipation question.

Representing yourself in Divorce

I see it time after time. To save divorce attorney’s fees, people go down several different paths: They pay a nominal sum of money to a commercial divorce center in exchange for a packet of forms; go to the Clerk of the Chancery Division-Family Part for divorce forms; cobble together self-drawn marital settlement agreements from internet sites; or acquire generic forms from family and friends. Actually, it is surprising how much the layperson gets right from these various sources. The problem that arises, however, is the critical nature of those several things which are omitted or poorly worded. Child custody and child support are fertile areas for mistakes in agreements drafted by laypersons. The distinctions between “legal” custody and “physical/residential” custody are often not understood and, therefore, not correctly phrased in the agreements. Parenting time is not sufficiently specific. For example, pickup and dropoff arrangements are not clarified, and extended summer parenting time and holiday visitation are either left out or imprecisely phrased.

Lack of understanding of the New Jersey Child Support Guidelines by divorce litigants often leaves them uncertain as to how much money per week should be paid for child support resulting in too little or too much being paid. Also, failure to have child support paid via wage execution through the County Probation Department Enforcement Division is not included in the agreement. The child support recipient often does not know the process to implement the wage execution.

As far as real estate division is concerned, the quitclaim deed/mortgage refinance issue is usually mishandled.

Regarding spousal support, it is not uncommon for the amount of the weekly alimony and the length of the alimony term to be inconsistent with the statutory guidelines and conventions employed by the courts and divorce attorneys.

As well, division of retirement assets is often never accomplished since laypersons generally do not understand the contributory retirement plan “rollover” process and the necessity for Qualified Domestic Relations Orders (QDROS) for defined benefit plans (pensions).

To correct the above mistakes, indeed, if that can be accomplished at all, may wind up costing more than if an attorney had been retained to handle the divorce in the first place.

The procedural remedy in New Jersey is a post-judgment motion to attempt to correct the deficiencies in the marital settlement agreement. Sometimes this is successful and sometimes not. There are two competing legal doctrines: one, basic contract law; and two, recognition that the Chancery Division-Family Part is a court of equity which seeks to provide justice to all parties. On the one hand, in interpreting a contractual provision, the goal is to ascertain the intention of the parties to the contract based on the language used, taken as an entirety. Some judges take the position that the court will not excuse performance of the agreement as written because the court is not obligated to make a better contract for the parties than they saw fit to make for themselves. The court may also rule that subsequent events which should have been foreseen by the parties when they entered into the martial settlement agreement will not make the contract unenforceable as written. See Schwartzman v. Schwartzman, 248 N.J. Super. 273, 278 (App. Div. 1991), and Schiff v. Schiff, 116 N.J. Super. 546, 561 (App. Div. 1971), certif. denied 60 N.J. 139 (1972).

On the other hand, there is a legal doctrine in New Jersey by which the law grants particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements. The rationale of the New Jersey courts is that although marital agreements are contractual in nature, contract principles do not have as great a place in the law of domestic relations as in other areas of the law. Lepis v. Lepis, 83 N.J. 139, 148 (1980); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992); Konzelman v. Konzelman, 158 N.J. 185, 194 (1999).

Chancery Division-Family Part judges, when confronted with a post-judgment motion to amend, interpret or clarify the marital settlement agreement, have a substantial degree of discretion. Only in the most extreme circumstances, such as if there is a plain misreading of the law by the Chancery Division judge, will an appellate court reverse the trial judge.

So, if you choose to represent yourself in a divorce, beware of the legal and procedural obstacles that lay ahead.

Co-Parenting and the NJ Domestic Violence Act

In 1991, the New Jersey Legislature enacted the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq. In implementing this law, the legislature was aware of the significant number of persons who have been beaten, tortured and in some cases killed by spouses, cohabitants or “significant others.” Perpetrators of domestic violence pervade all educational, social and economic backgrounds and ethnic groups. The lawmakers felt that it was necessary to pass a new statute to protect victims by providing access to emergent and long-term civil and criminal remedies and sanctions. Under the Act, one or more of the following events inflicted upon a protected person may constitute domestic violence: homicide; assault; terroristic threats; kidnapping; criminal restraint; false imprisonment; sexual assault; criminal sexual contact; lewdness; criminal mischief; burglary; criminal trespass; harassment; stalking; criminal coercion; robbery; contempt of a domestic violence order; and any other crime involving risk of death or serious bodily injury to a protected person.

In a nutshell, the procedure first involves the issuance of a temporary restraining order (TRO), generally authorized by a Municipal Court Judge based upon the local jurist’s acceptance of a factual description given by the victim (often by telephone) that embraces one or more of the 18 events described above. The TRO is served by the municipal police upon the accused and he or she is removed from the parties’ mutual residence pending disposition of the case by way of a Superior Court final restraining order (FRO) hearing, usually scheduled 10 to 14 days later. If an FRO is ultimately issued, interaction between the victim and the accused is disallowed by the court. Frequently, this includes restrictions against telephone, email and text-message communications as well as barring face-to-face communications. Occasionally, however, (and particularly if the parties have minor children) the FRO may contain a provision that contact will be permitted if there is an emergent situation involving one of the children. This emergent contact generally sanctions only one-time text-message, email or telephone contact for that very limited purpose.

After the issuance of the FRO, a common problem that arises is the practical difficulties in raising minor children in light of a court order barring any and all forms of association between the parents. Countless scenarios unfold: Predicaments surrounding parenting-time pickups and dropoffs; transporting the children to and from extracurricular activities; medical appointments; school parent-teacher meetings; communicating with the other parent about proposed vacations with the children or extended summer parenting-time arrangements. With the FRO, communications between the parents about the children are supposed to take place through third parties, most frequently the grandparents or occasionally siblings. Often this is impractical. The grandparents or siblings may not be available all the time for a host of legitimate reasons. It then becomes commonplace for the parent who is the protected party under the FRO to contact the other parent. Next, the parent against whom the FRO has been secured in response telephones, emails or text-messages the protected parent. Even if well-intentioned, this is a violation of the FRO. Even such an innocent act may lead to a criminal contempt hearing for violation of the FRO. Regretfully, there is also a less savory scenario in which the protected person purposely seeks out the restrained person to bait him/her into a form of contact violating the FRO. The salutary purpose of the Domestic Violence Act is thus being used as a sword instead of as a protective mechanism as intended by the legislature and the court.

Regardless of the motivation, failure to strictly adhere to the requirements of the FRO is a violation—a fourth-degree crime—under the New Jersey Code of Criminal Justice. Therefore, if under an FRO, a parent should always respond through a third party to avoid this problem.

After the issuance of the FRO it is not unusual for the parties to reconcile. Nonetheless, New Jersey case law holds that reconciliation between parties to a domestic violence restraining order, without application to the court to dismiss the order, does not void the order or otherwise serve as a defense to a charge of contempt for violating the order. The policy position of the New Jersey courts on this point is that an order of the court must be obeyed unless and until the court acts to change or rescind the order. In a contempt proceeding for violation of an FRO, a primary consideration is the vindication of the authority of the court. One of the rationales for the New Jersey court adopting this position notwithstanding reconciliation between the parties is that by its very definition domestic violence is a recurring pattern of behavior—repetitive conduct which is controlling in nature. Longstanding victims of domestic violence have been conditioned, sometimes unconsciously, to heavy-handed, domineering behavior often accompanied by verbal intimidation and physical abuse.

So, in the event that there is reconciliation between the parties an application should be made to the court by the party in whose favor the FRO was issued to vacate the order. In this way, true “reconciliation” may take place, unencumbered by the potential for a criminal contempt court hearing.

New Jersey Grounds for Divorce

Basically, thе “grounds” аrе јust аnоthеr legal term tо describe thе reasons whу а married individual hаs decided tо file fоr divorce. Lawyers and judges call these “grounds” the “causes of action.”

The reasons people file for divorce vary, but іt аll basically boils dоwn tо оnе point: thаt thеу аrе unhappy wіth thеіr current marriage. Ideally, а marriage shоuld make оnе feel happy аnd productive; however, if thіs is no longer the case, а divorce mіght bе thе mоst practical option fоr thе couple.

Gеttіng а divorce will require thе filing party tо state “grounds” or a “cause of action” in his/her complaint. Whеn thе court sees thаt уоur grounds fоr divorce аrе valid and you have met the state jurisdictional/residency requirements, thеn уоu аrе assured оf уоur divorce papers. In New Jersey, the most common ground for divorce is irreconcilable differences. This means that for at least six months before the filing of the divorce complaint irreconcilable differences existed between the parties; that the irreconcilable differences have continued down to the day of the divorce hearing; and that there is no reasonable prospect of reconciliation between the parties.

There are other statutory grounds for divorce such as adultery, desertion, habitual intoxication, drug addiction, imprisonment and extreme cruelty. In most instances, the type of cause of action for divorce is not an important factor in equitable distribution of the marital assets. There are certain exceptions to this rule, nonetheless. If, for example, one spouse is involved in an adulterous relationship and significant marital assets have been squandered by virtue of the adulterous relationship or transferred to the third party adulterer/adulteress this would be a dissipation of assets case and the non-adulterous spouse may be given a credit for all or a portion of the dissipated assets. Since the type of cause of action for divorce generally does not affect distribution of marital property, the overwhelming percentage of New Jersey divorces are granted under the irreconcilable differences theory.

Today, in an irreconcilable differences divorce in New Jersey, the two parties need not be living separate and apart. Sometimes, the two parties will even be living under the same roof (albeit usually in separate bedrooms) in order to avoid a dual housing expense.

Keeping Health Insurance After a Divorce in New Jersey

Federal health insurance reform did pass. But it has not fully taken effect yet, and the problem of being left without insurance after a divorce still exists in New Jersey and other states.

This article is an introduction to some of the options that a divorcing spouse has when his or her health insurance is affected by the marital breakup. For detailed advice customized to your specific circumstances, contact a New Jersey family law attorney.

EX-SPOUSE’S POLICY NO LONGER AVAILABLE

If your medical insurance was through your spouse’s policy, you need to consider your options for staying insured after a divorce. This is especially a concern for people with pre-existing conditions, who could easily be turned down by cost-conscious insurers in the private market.

If you get divorced, you cannot be on your spouse’s policy anymore. There is employment right to coverage for a very brief period of time under the federal COBRA law. You may then apply for individual healthcare insurance with the same company that insured you under COBRA, and you will not have to reapply for approval or undergo a physical examination. But COBRA premiums can be very expensive, and the COBRA exception may not be available indefinitely due to the healthcare reform law.

In New Jersey, for companies with fewer than 20 employees, it is possible that protections for divorced spouses similar to COBRA may be available. But again, those premiums are very expensive. You want to stay insured without breaking the bank.

So what do you do?

This is where the nuances of New Jersey divorce law really come into play. It’s important to understand the differences among a few different ways that your divorce can be structured.

LIMITED DIVORCE FROM BED AND BOARD

Under a judgment of limited divorce from bed and board, it may be possible to remain insured under your spouse’s policy. In New Jersey, a judgment of limited divorce from bed and board is just like a divorce, except that the marriage is not legally dissolved. Marital assets are divided like in a full divorce and issues involving children are resolved as in a plenary divorce proceeding. It is possible to file a motion at a later date to have it converted into a full divorce.

Until such a motion is filed, however, it may be possible to remain on your spouse’s insurance. This type of occurrence has become more common in recent months, perhaps due to the down economy.

Insurance companies have started to object to the practice, claiming that it is a way of circumventing divorce laws to keep someone on another party’s insurance. Although this is a legal gray area, involving the definition of an “insured” under a given policy, it is worth discussing with your family law lawyer.

OTHER OPTIONS TO MAINTAIN INSURANCE

Another option worth considering is to resolve the question of insurance as part of a separate maintenance agreement between the spouses. There is no formal dissolution of marriage, and thus no equitable division of property. But the spouse who needs insurance could receive it through a maintenance agreement that can accompany a legal separation.

A marital settlement agreement, by contrast, is premised on equitable distribution of property and allocation of debt. Here too, however, the agreement between the spouses could be structured to make sure that health insurance is covered.

Other alternatives may be possible as well. For example, one party could voluntarily dismiss a divorce complaint and remain on the other spouse’s health insurance for a certain period of time while making other insurance arrangements.

Talk these options over with a New Jersey family law attorney and decide what works best for you in your situation. Doing that will help you put your mind at rest and move forward with your life – with proper health insurance.