Thursday, June 7, 2018
Assembly Bill 1551 would serve to amend the New Jersey support statute, N.J.S. 2A:34-23 insofar as it would make a social security disability determination inadmissible in the calculation of a party’s alimony or child support receipt or obligation. The Bill, introduced by Morris County Assemblyman Michael Patrick Carroll, would affect actions in which earning capacity was in question due to a disability claim by a party in an action for child support or alimony. In making a determination of earning capacity, “a record or oral testimony on a determination of a federal social security disability benefit award or the receipt of past or on-going social security benefits shall be inadmissible for purposes of establishing the cause, or the extent or duration of the party’s disability in its impact on the earning capacity of that party.” The Bill would require genuine medical records and testimony of treating physicians in order to prove a party’s earnign capacity as it relates to need or ability to pay alimony or child support. Further, the Bill would provide for reasonable costs and attorney fees for the production of proofs by a party victorious in proving a disability limiting earning capacity and costs to a party successfully refuting the other party’s disability claim. The basis for the Bill is the lack of a meaningful adversarial process in the determination of whether an individual is afflicted with a disability in the confines of a social security administration hearing. The language in the bill would add a layer of proof serving to protect the interests of the other party in a family law matter whose interests were not represented in the social security disability matter. If you are considering divorce or post-judgment modification of alimony, you should consult an experienced divorce attorney to protect your rights. This blog is for informational purposes and not intended to replace the advice on an attorney. If you wish to consult with a divorce attorney, please visit DarlingFirm.com to learn more about our services and how to contact us.
Wednesday, February 7, 2018
In Alisa Forman v. Mark Forman, the parties agreed to 5 years of alimony which could not be terminated for any reason other than the death of the obligee. The parties were divorced in June 2012 and the Wife remarried in August 2013. The Husband discontinued alimony in September 2013 and the Wife filed to enforce the alimony obligation. The case was originally heard in the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County wherein the court directed the Husband to comply with the terms of the parties’ negotiated marital settlement agreement (MSA) and continue paying alimony. The Husband appealed and the New Jersey Appellate Division considered the fact that the parties’ went to great pains, in their MSA, to spell out very specific and limited reasons for termination of alimony but also considered the legal framework in existence at the time of the writing of the MSA. The Appellate Division looked to interpretive principles cited in Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241 (App. Div. 2003) including Judge Learned Hand’s expression that “there is no surer way to misread a document than to read it literally...” and that parties to a contract formed in New Jersey are presumed to have selected New Jersey Law as their framework. The Appellate Division then looked to the laws of New Jersey pertaining to alimony, the parties use of very specific terms and the possible interpretations and determined that the matter should be remanded to the trial court for a plenary hearing to determine the parties’ intent at the time the MSA was prepared with regard to the automatic alimony termination statute N.J.S.A. 2A:34-25. This blog is for informational purposes and not intended to replace the advice of an attorney. If you wish to consult with one a divorce attorney, you may visit DarlingFirm.com to learn more about our services or how to contact us.
Friday, March 17, 2017
Child Support laws in New Jersey changed effective February 1, 2017. Included among the changes was the presumption of emancipation at the age of 23. In light of then upcoming changes in the child support laws, a New Jersey Superior Court judge struggled, in December, with whether a non-custodial father should be required to pay for his child’s graduate education. In J.C. v. A.C., Ocean County Superior Court Judge Lawrence Jones considered whether A.S., the father of A.A.C. and K.C. , should be required to pay for the graduate education of A.A.C. Although the N.J. Supreme Court, in Newburgh v. Arrigo, 88 N.J. 529 (1982), set forth the obligation for divorce parents to help pay for their child’s education, graduate school was not addressed in Newburgh. The parties’ settlement agreement, entered into at the time of their divorce, included that they would share equally the cost of their children’s college education but included no provision for graduate school. The Judge reasoned that, with her bachelor’s degree in accounting, A.C.C. could support herself while pursuing her master’s degree, as many others do. He determined that the intent of the legislature in revising the statute was to limit the obligations of noncustodial parents unless there was a showing of extraordinary circumstances. Although application could be made, the judge did not find that it must be granted. If you are seeking or disputing contributions toward your child’s education or other support, there are multiple factors which must be considered and it is within your best interests to consult with an experienced divorce attorney prior to taking action. For more information regarding child support, divorce, post-judgment modifications or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.
Wednesday, March 8, 2017
In the high income divorce of Jennifer Maynard and Chad Michna, the parties disputed child support. The parties each had a prior marriage and in each marriage a child with special needs was born. One child was born of the marriage and the parties’ relationship ended approximately 4 months thereafter. Maynard filed a Divorce Complaint seeking sole residential custody and legal custody, child support and payment of the child’s expenses. During their divorce hearing, the parties reached an agreement with regard to custody and parenting time. The plaintiff was a medical sales representative with a base salary, commission, and bonus. She also had investment income from outside business affiliations, rental property and child support. The plaintiff included her prior son’s expenses, as well as mortgage and costs of her investment properties, as expenses on her Case Information Statement. She also included the costs of a nanny at is employed 12 hours each day, and weekends. During cross-examination, plaintiff provided more accurate versions of her expenses. Michna was a director of government accounts with a base salary, commissions and a company stock appreciation rights plan and passive interest income. The defendant showed approximately $2,500 per month in expenses related to his son from a prior marriage. Michna sought to have the time period for income calculations to extend back to 2009 when he earned substantially less and Maynard made substantially more. Additionally, as the parties’ maintained a long-distance relationship during most of their marriage, Michna indicated that Maynard’s lifestyle was attributable to her family’s wealth and he could neither afford nor match such a lifestyle. The trial judge’s written opinion included income calculations from 2010 through 2012 and included child support differing from the Guidelines amount. Michna appealed and Maynard cross-appealed in Maynard v. Michna. The Appellate Division first looked to Pascale v. Pascale, 140 N.J. 583 (1995) for the basic premise that child support is to ensure the child’s basic needs are met. Pursuant to N.J.S.A. 9:2-3 and Caplan v. Caplan, 182 N.J. 250 (2005), child support is paid by the non-residential parent to assist the residential parent in raising the child with the economic means he or she would have been raised had the family remained intact. Child support may not be waived by a parent as it is the right of the child. Pascale, 140 N.J. at 591. Under Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012) and N.J.C.R. 5:6A, the Guidelines are to be followed in establishing child support. Under Harte v. Hand, 438 N.J. Super. 545 (Ch. Div. 2014), if an award in line with the Guidelines would cause injustice, the trial judge could use discretion to modify the award. Reviewing the facts of the case through binding precedent, the N.J. Appellate Division remanded the matter for recalculation of the parties’ incomes and a clear statement on the record as to whether the Guidelines were utilized, why the child support award differed from the Guidelines including adjustments to account for the fact that Maynard included her child from another marriage in the expenses utilized to calculate child support for the parties’ child and the deduction of non-work related child care. If your earnings, or those of your spouse, include commissions, bonus, expense accounts, profit sharing or other items which are irregular, it may make a substantial difference in what you pay or receive at the conclusion of your divorce. It is imperative that you consult an experienced divorce attorney to discuss your rights and obligations prior to filing for divorce. For more information about divorce, child support, alimony, property distribution or other family law matters visit DarlingFirm.com.
Friday, February 24, 2017
In this divorce matter involving a small business, Avraham Arbely appealed the decision of the judge as to imputation of income to Arbely, thereby increasing his alimony payment, bias by trial judges and other matters. Lea Brandspiegel-Arbely and Avraham Arbely were married in 1989, 2 children were born of the marriage and a final judgement of divorce was entered in 2013 with economic issues reserved for trial which began in November 2013. During the trial of Brandspiegel-Arbely v. Arbely, the plaintiff’s expert, Martin Abo, a certified public accountant (CPA) provided testimony indicating that the defendant’s proofs with regard to income from his business were designed to frustrate the CPA’s efforts at ascertaining the defendant’s actual income and that the defendant apparently underreported a significant amount of cash sales to the IRS. Arbely, who chose to represent himself rather than hire an attorney, challenged the figures and methods of Abo but provided no countervailing evidence. Following trial, the judge found Abo to be credible and further found that Arbely sold the business after the divorce complaint was filed in order to divest himself of his “cash cow” prior to equitable distribution and drew a negative inference against Arbely for refusing to provide Abo with adequate information and found Arbely to be less than credible when testifying. Plaintiff was awarded alimony of $23,000 per year for 14 years based on defendant’s imputed income of $95,000 per year. Plaintiff was also awarded the marital residence, and investment and business properties. The NJ Appellate Division looked to Stenken v. Stenken, 183 N.J. 290 (2005) with regard to the established principle that alimony is designed to assist the supported spouse in enjoying a standard of living after the marriage which is reasonably comparable to that enjoyed during the marriage. Additionally, the Appellate judges looked to Tannen v. Tannen, 416 N.J. Super. 248 (App. Div. 2010) which reaffirmed the long held principle providing for imputation of income in the process of establishing an alimony award. Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015) was used by the Appellate Division in support of the premise that imputation of income is discretionary wherein the trial court must consider the party’s actual earning capacity. Finding no basis to disturb the trial judge’s findings with regard to expert credibility, the N.J. Appellate Division upheld the decision of the court below with regard to alimony, imputed income and all other issues. If you are considering filing for divorce and own a business, or portion thereof, you are facing considerations outside the scope of a typical divorce. Depending upon their own ownership interest in the business, your spouse may fight to obtain increased alimony or funds by disputing the net worth of your business, annual profits and your personal income. Not only can the valuations be tedious and expensive but the results of the court’s findings can have permanent and financially devastating consequences. It is critical that you obtain an experienced divorce attorney familiar with small business divorces. For more information about small business divorce, alimony, child custody, equitable distribution and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.
Wednesday, February 1, 2017
In a child custody matter, a report issued in a Custody Neutral Assessment (C.N.A.) was not admissible as substantive evidence but was admissible for the limited purpose of the impressions of the assessor and statements and conduct of the parties during the assessment. Manuel Serrano and Gregoria Urbano were divorcing after a marriage of only 2 years and the issue of custody of their child was contested. They could not afford a forensic psychologist to perform a comprehensive evaluation and render a report as to custody but did participate in a C.N.A. with a clinical social worker. The C.N.A. included meetings with each party individually and a report of the evaluator’s impressions and observations during the process. Thereafter, the matter proceeded to trial. In the trial of Serrano v. Urbano, the judge held that: (1) A C.N.A. is not, and therefore cannot be substituted for, a forensic custody evaluation; (2) Unless a forensic evaluation is undertaken, an expert opinion cannot be rendered as to the issue of custody from a forensic psychological standpoint; (3) The testimony and report of the evaluator may have limited admissibility for the purpose of determining the best interests of the child; and (4) The evaluator may offer testimony with regard to statements or actions of the parties during the assessment and the evaluator’s impressions thereof as long as said information is relevant. If you are contemplating divorce and child custody or parenting time is likely to be an issue, it is critical that you consult with an experienced family law attorney in order to learn your rights and the likely outcome of your matter before making any decisions. Child custody determinations can be painstaking for the parties and the court and are not easily modified without consent of both parties or a considerable change in circumstances that is obvious to the court. For more information about custody, parenting time, divorce, alimony or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.
Monday, January 9, 2017
The NJ Superior Court addressed mid-week overnight parenting time with a non-custodial parent when there were allegations that the children’s performance in school was being hampered by the arrangement in M.C. v. P.C. The court held that the best interests of the child include the child’s educational interests. The court reasoned that when there is sufficient evidence to conclude that overnight midweek parenting time must be eliminated in furtherance of the child’s education, parenting time will be modified. There is an obligation for parents, held the court, to oversee the child’s performance of schoolwork and class preparation. The court also noted that when the parent of alternate residence lives a substantial distance from the parent of primary residence, travel time may also be reason for caution in establishing midweek overnight parenting time during the school year. When establishing custody, the best interests of your children are always paramount. It is critical that you seek an experienced family law attorney who will assist you in setting up a plan that works best for your family’s needs in order to ensure that during what can be a very difficult time for any child, they have continuity and support to the fullest extent possible. For more information about custody and parenting time, divorce, child support and other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.