Child Support Obligations Upon Change of Custody

In the recent case of Wong, Jr. v. Wong, the Appellate Court, in its unpublished opinion, reversed the trial court's order obligating the Plaintiff-father to continue to pay child support to the Defendant-mother and denial of request for child support from Defendant-mother after the granting of a change of custody whereby the parties' son began living with the father. The trial court had ruled that a prior consent order between the parties whereby the Plaintiff-father waived his right to seek modification of his child support obligation for any reason and Defendant-mother waived her right to receive any further alimony prevented Plaintiff-father from seeking a subsequent termination of his child support obligation and a request for child support from Defendant-mother. The parties agreed to the terms in the consent order after plaintiff-father fell behind on his support payments due to a loss of employment. The Appellate Court cited to Lepis v. Lepis, 83 NJ 139 (1980) and the holding in Morris v. Morris, 263 N.J. Super. 237(App. Div. 1993) to support its finding that although a waiver to any future modification of support may be enforceable for specific limited reasons, the court can change an agreement if it finds equity requires it. It further found that the language of the parties' consent order does not indicate that when it was negotiated the parties considered the possibility of a transfer of custody which is a change of circumstances that warrants a look into the financial circumstances of the parties and a running of the child support guidelines worksheet. Therefore, it was appropriate to remand the matter to the trial court. Plaintiff-father did not challenge the denial of his application for child support from defendant-mother in his appeal but only the denial of his request to terminate his child support obligation. The Appellate Court held that on remand the trial court must consider the needs of the child, the parties' consent order, and the financial circumstances of the parties prior to determining whether or not Plaintiff-father should be permitted to waive child support from Defendant-mother. If you are owed or paying child support, have experienced a change of circumstances which may allow for a modification of child support, of if you have been served papers regarding a child support issue then you should consult with an experienced family law attorney to protect your rights. For more information about child support, child custody, divorce, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Effect of Dissipation of Assets on Equitable Distribution

Marriage is considered a joint enterprise and equitable distribution is the means by which the court or the parties, by way of agreement, divide the marital assets in a manner fairly reflecting the circumstances by which assets and debt were accrued during the term of the marriage. When a party, without knowledge of the other, dissipates marital assets, it is possible that the court will award a greater portion of remaining assets to the non-dissipating party to compensate for the unknown dissipation. Marriage is a joint enterprise wherein both parties are free to spend as they choose, however, in the case of dissolution the matter of equitable distribution often calls into question reasonable versus elaborate spending by either or both parties. In Kothari v. Kothari, 255 N.J. Super 500 (App. Div. 1992) one party spent extravagantly upon themselves and the court found that equitable distribution required contemplation of such spending. The Kothari court found certain factors needed to be weighed in deciding equitable distribution including whether spending was proximate to separation and thereby intended to reduce assets available for equitable distribution. Whether the spending was typical throughout the marriage or only occurred at the end of the marriage and whether both parties benefited from the expenditures were also considerations. Finally, the Kothari court found the amount of and need for the expenditure must be considered. In the more recent matter of Wolfson v. Wolfson, the New Jersey Appellate Division considered the matter of a husband's withdrawal from the parties' home equity line of credit in the amount of $200,000 for investments he made without his wife's knowledge and ultimately lost. The Wolfson court reaffirmed the notion that the parties joint contribution to both acquisition and dissipation were to be considered and granted the wife one-half of the amount dissipated by husband in equitable distribution. In Siegel v. Siegel, 578 A.2d 1269 (App.Div. 1990), the court addressed the consideration of gambling losses by the husband and their affect on equitable distribution. If you are contemplating divorce and you or your spouse or partner have substantially dissipated marital assets for the benefit of only one party or without the other's knowledge, you should consult with an experienced divorce attorney immediately to protect your rights. For more information about equitable distribution, alimony, child support, divorce, dissolution of civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Can Distance From Public Facility Be Inferred In Criminal Matter?

In drug distribution cases, penalties increase substantially if the matter takes place within 1,000 feet of a school zone or within 500 feet of a public park, public housing, museum or other public place. In the case of State v. Stevens, the NJ Supreme Court heard oral argument as to whether the jury could infer that a defendant arrested with 54 baggies of heroin on his person when arrested at Martin Luther King Drive and Stegman Street in Jersey City had been within 500 feet of a public park when the actual distance measured from the park to the location of arrest was 520 feet. Hudson County Superior Court Judge Fred Theemling, Jr. denied defendant's motion for post-conviction relief based on failure of defendant's trial counsel to determine and present evidence of the actual distance. Judge Theemling denied the motion without conducting a hearing based on his assessment that the jury could have inferred the defendant had been within 500 feet of the park prior to the sale of the controlled dangerous substance (CDS) based on other evidence offered at the trial. The NJ Appellate Division affirmed with Judges Christine Miniman and Jack Sabatino deciding proof of actual distance from the park was not required and circumstantial inferences by jurors are permitted. The day after the NJ Supreme Court heard oral argument on the case, it was dismissed as being improvidently granted. This is unlikely the last this issue will be heard by the courts. During oral argument, the notion was raised that similar hearings are being denied routinely and defendants are being deprived of their rights. State v. Lewis, 866 A.2d 643 (2005), is the precedential decision on the matter in NJ. In Lewis, the court considered whether, although the defendant accepted money within 500 feet of a park but the cocaine was in another location more than 500 feet from the park, there was possession within the park for the purpose of increasing the level of offense charged. The N.J. Appellate Division found that defendant exercised control over the drugs at all times while he was within 500 feet of the park and constructive possession within the park existed for purposes of increasing the offense charged from third degree to second degree possession with intent to distribute. It is always the prosecution's burden to prove the elements of a crime charged. If you are charged with drug distribution or possession with intent to distribute you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession of CDS, theft, burglary, assault, domestic violence or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Domestic Violence And Living Together After Divorce Is Filed

Domestic violence can sometimes occur at the end of a marriage when parties continue to share a residence while tensions are very high over custody of the children and division of property. In one such matter, while a 25 year marriage of which 2 children were born was ending in divorce, the parties continued to reside together in martial residence. The parties maintained separate bedrooms but this did not provide adequate distance to prevent frequent interaction and the continuation of tension between them. At some point an altercation occurred and both parties were granted temporary restraining orders (TROs) against the other party. Each party then sought a final restraining order (FRO) against the other. Each party entered into the bedroom of the other during the event and both parties sustained physical injuries. Both parties also and provided ample testimony, including the testimony of the parties' son, in regard to the events and issues. Although the just found Plaintiff's testimony not to be credible, neither party was granted a FRO. The judge found that, in spite of the testimony and proof of injuries, there was no proof of harassment or assault of the level needed to give rise to protection afforded by a FRO. A final restraining order can impact your ability to see your children, prevent you from returning to your residence, deprive you of your right to own weapons, impact your job or ability to obtain employment and holds a social stigma. If you are facing or levying domestic violence charges, you should consult with an experienced domestic violence attorney. For more information regarding domestic violence, assault, divorce or dissolution, custody, parenting time and visitation, adoption or other criminal or family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

No Right To Detain Suspects Away From Premises While Executing Warrant

In the execution of a warrant, police knowingly allowed suspects to leave the apartment and travel approximately one mile prior to stopping the vehicle and returning the occupants to the apartment where the police search team was already at work and found a gun and drugs. The police then arrested the men and discovered that a key located during a patdown search at the motor vehicle stop unlocked the apartment door. Defendant moved to suppress statements to the police made during the motor vehicle stop and the apartment key itself. The district court denied the motion indicating the motor vehicle stop and return to the apartment was justified as a detention incident to the execution of a search warrant under Michigan v. Summers. The United States Supreme Court reviewed the matter of Bailey v. United States and read Summers as allowing detention of the occupants of the premises during a valid search without particularized suspicion as to the involvement of the occupant in potential criminal activity. The court found three interests of law enforcement justifying the detention including 1) officer safety, 2) preventing interference with the search or destruction of evidence and 3) preventing those who may be guilty from fleeing. Upon considering the distance of the defendants from the apartment the US Supreme Court held that the arrest approximately a mile away "involved an additional level of intrusiveness" detention beyond the immediate vicinity of the premises is invalid. Motions to suppress evidence are difficult but possible if the appropriate facts exist and may result in the dismissal of the prosecution's case against you. If you are charged with a crime in New Jersey, you should immediately hire an experienced criminal attorney who will review the facts of the case and determine how to best help you to defeat the charges against you. For more information on illegal searches, motions to suppress or other criminal matters including drug (CDS), gun, assault, domestic violence, burglary, theft, shoplifting and DUI/DWI in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Alimony May Terminate If Cohabitant Provides Gifts and Luxuries Of Economic Benefit

Recently in Reiss v. Weis, the Appellate Court affirmed a trial court's terminating alimony when it was established the dependent spouse was cohabiting and had intertwined finances with her live-in lover. The ex-wife received economic benefit to her standard of living from the cohabitant providing for significant enhancements other than just actual financial assistance. She openly cohabited for ten years before her ex-husband filed a motion requesting the Court terminate his alimony obligation. The Appellate Court cited to the New Jersey Supreme Court's holdings in Crews that Spousal support allows the dependent spouse to be kept at a standard of living similar to the standard during the marriage which cannot be maintained without support and to Gayet where the Supreme Court held that Cohabitation is a changed circumstance which requires review of the economic consequences of the relationship and its impact on the alimony obligation to determine if support should be reduced or terminated. In Konzelman, the Supreme Court held that the cohabitants must be in a relationship akin to marriage so that not only do they resided together but they have the obligations and the perks that a married couple have. In this matter the Appellate Court held that evaluating if a dependent spouse receives a benefit from cohabitation is a fact-sensitive process and must be determined case by case. The dependent spouse argued that she utilized her alimony and child support to contribute to her own share of the household and monthly living expenses. However, the record showed she could not explain why her and the live-in lover contributed equally to the expenses when they had different sized families. The live-in lover also provided car and health insurance coverage as well as vehicles for her and her children. The Appellate Court found that the trial court cited to sufficient evidence to show that the cohabitant overpaid his share of the household and living expenses as well as provided lifestyle enhancements which included luxurious vacations, expensive activities such as boating, and lavish gifts which establishes the dependent spouse received a tangible economic benefit from the cohabitation to justify terminating alimony. If you are interested in modifying or terminating an alimony obligation to a former spouse or partner or someone has filed to modify your alimony or support, you should consult with an experienced family law attorney to protect your rights. For more information on alimony, cohabitation,child support, child custody, parenting time, equitable distribution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. Contributed by Tracy Luciano

When a drug dog alerted during a sniff test the officers found drugs the dog was not trained to detect the defendant sought to challenge the dog’s record in the field for false alerts. The defendant in Florida v. Harris was stopped and on 2 separate occasions and his vehicle was searched on both occasions as a result of a sniff test by the same dog. The initial search revealed ingredients used in manufacturing methamphetamines. The second search occurred while defendant was out on bail for the arrest during the first stop. The second search revealed no drugs. The United States Supreme Court heard the case and held that a defendant is entitled to challenge the evidence relating to a drug dog’s reliability. The defendant may challenge the dog’s reliability with his or her own witness, by cross-examination of testifying handler or both. Challenges may go to the dog’s training or actual field results. If you have been charged with a drug related crime in New Jersey, you should obtain experienced defense counsel immediately to insure your rights are protected any search and seizure was proper. Experienced counsel can challenged the State’s probable cause for the stop as well as any search which resulted in the prosecution’s finding of evidence. For more information on drug charges, controlled dangerous substances (CDS) in a motor vehicle or criminal law or municipal court matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Does Leaving Marital Home Before A Divorce Affect Property Rights?

Many individuals facing divorce are afraid to leave the marital home prior to the finalization of a divorce because they believe they may lose their rights to the equity in the property. While in New Jersey a party seeking a divorce may plead under the no-fault claim of irreconcilable differences, a party in a divorce has the right to plead willful desertion (abandonment) if it is continuous for a minimum of twelve months. This claim may be proven by proof that the parties ceased to cohabit as man and wife in a marriage or partners in a civil union. N.J.Stat. 2A:34-2(b). How can this affect the outcome of your divorce? In New Jersey the division of property is determined by considering fifteen specific factors plus an additional catchall factor of anything that the court may deem relevant under N.J.Stat. 2A:34-23.1. Equitable Distribution of property between spouses is not determined based upon fault of a party. Leaving one's home prior to a divorce or during a divorce for even the shortest amount of time may affect other issues such as custody. If an individual leaves the marital home and stops contributing to the monthly marital expenses such as a mortgage and home equity their share of the equity in the property may be affected. For more information equitable distribution, custody, alimony, child support, divorce, dissolution or other family law matters in New Jersey, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. Contributed by Tracy Luciano

Limited Access to Discovery for Child Pornography Defense?

The New Jersey Supreme Court is weighing whether defendant is entitled to equal opportunity to review the prosecution’s discovery in a case involving child pornography. Defendant was charged with second-degree and fourth-degree counts of child-welfare endangerment after a search pursuant to a valid warrant revealed alleged child pornography on his home computer. In State v. Scoles, the defense sought to challenge the authenticity of images the State claimed to be child pornography. When the prosecution refused to permit the defendant unfettered access to the images and only agreed to permit limited review at the Somerset County Prosecutor’s Office. Defendant filed a motion to obtain the discovery in order to obtain exact copies of the images in order that defense counsel have convenient and unlimited review at all times as the prosecution would have during their trial preparation. The Superior Court Judge denied the defendant’s motion and an interlocutory appeal was also denied. The NJ Supreme Court is now considering whether permitting defense counsel to review the images within the prosecutor’s office only, and upon 48 hours notice, adequately served defendant’s right to review discovery in an effort to prepare a defense. Lawyers for the defense, and in amicus capacity, presented arguments based on the need for unlimited access in preparation and methods to protect the information from further dissemination including limiting who may review the images and requiring that they be installed on a device without ability to transmit. The prosecution’s argument centered on the premise that the need to prevent further dissemination of the images outweighed the need for defense counsel to review the images outside the prosecutor’s office, at any hour and without notice. The prosecution argued that computers keep a record of images displayed on them and returning the hard drive would not render the computer clean or protect the subjects of the images from further dissemination of said images. If you have been charged with a crime in New Jersey, you should obtain experienced defense counsel immediately to insure your rights are protected and the prosecution is not withholding exculpatory evidence, any search and seizure was proper, the state had probable cause and other facets of the case your defense attorney may challenge. If you are facing criminal charges, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on sex-offenses, child welfare-endangerment, child pornography or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Sperm Donor Liability In Future Paternity and Child Support Actions

Plaintiff was artificially inseminated by sperm from defendant, her former partner now married to another woman. Following the birth of twins, plaintiff filed an action to establish paternity, obtain full custody and establish child support. N.J.S.A. 9:17-44(b), the statute applicable to artificial insemination in New Jersey, prevents a sperm donor from being subject to child support or paternity claims as long as a properly licensed physician performed the insemination and the parties fully and truthfully disclose all required information. Where there is no licensed physician involved or, as in this case, one or both parties give false information the sperm donor may be named the father in a paternity action and subject to child support. In the instant case, Renden v. Ale, the parties knowingly deceived the physician performing the procedure when the sperm donor stated he was not legally married to another person at the time the procedure was performed. The court determined that the physician would not have performed the procedure if the sperm donor had been truthful and this deception deprived the sperm donor of the protection of the artificial insemination statute. The court decided the case in favor of the plaintiff, naming the sperm donor as the father in the paternity action, granting full custody of the children to the mother and establishing child support to be paid from the defendant to the plaintiff. If you are seeking to establish paternity or defend against a paternity suit or wish to establish or modify child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family or juvenile law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.