Burden of Proof for Alimony Modification

Lepis v. Lepis was decided by the NJ Supreme Court in 1980 and set the standard those seeking alimony modification must meet prior to the court ordering discovery, financial disclosure and a plenary hearing. According to Lepis, the moving party must make a prima facie case of changed circumstances which have "substantially impaired the ability of the movant to support themselves." If the movant meets the burden of proving changed circumstances, the Judge then must consider the factors set forth in New Jersey Statute 2A:34-23 which include the financial circumstances, education levels, child rearing obligations, physical and mental health and vocational opportunities of both parties as well as any other factors the court deems fitting. Also, the court considers the marital standard of living and whether the parties can maintain reasonably similar circumstances. In Fintland v. Fintland, a recent case, the plaintiff appealed from the order of a Bergen County Superior Court Judge granting the defendant's motion for a reduction in alimony. The NJ Appellate Division found that the Superior Court Judge ignored Lepis and N.J.S.A. 2A:34-23 in making her findings and remanded the matter for appropriate consideration. If you are filing of facing a motion to modify alimony or child support, you should consult an experienced family law attorney immediately in order to protect your rights. There are many ways in which such motions may be proven or disputed and it is critical you understand the burdens you face. For more information about divorce, civil union dissolution, custody, visitation or other family law matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Post-Judgment Modifications Require Due Diligence By Judges In NJ

Motions for post-judgment modification require a judge to make findings of fact similar to those made in the underlying cause of action. When submitting motions for post-judgment modification, the substance and amount of proof of a litigant's position makes the difference in whether a motion will be considered by the court and also what the court's finding will be. In a recent case, Olt v. Olt, a defendant was able to prove changed circumstances as is required for the court to consider his motion for modification of child support. However, the defendant was dissatisfied with the result obtained when the judge granted his motion. Defendant worked within the home health care industry and could not find similar employment. The judge made no findings of fact related to the defendant's documentation regarding other employment the defendant may have attempted to obtain and imputed income based on what the judge seemed to believe was defendant's voluntary unemployment. Additionally, the judge considered work related child care costs to the plaintiff in making the decision regarding the child support amount. The cost of $9,000 was utilized by the court for plaintiff's work related child care cost amount in the calculations but no findings of fact were made by the judge as to the reason for the $9,000 figure. Much as the litigants are required to submit adequate proof, the judge is required to make adequate findings of fact. In this case, where the reasoning behind the decision of the judge as to certain facts was not sufficiently established by the record, the NJ Appellate Division granted the Defendant's appeal and remanded the decision to the NJ Superior Court for the judge to reconsider the findings. If you are contemplating a motion for post-judgment modification or defending against a motion for modification, you should seek experienced legal counsel to make sure you obtain the relief you are entitled to. For more information on divorce, dissolution, child support, alimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Parental Rights for the Incarcerated

Those serving life sentences for crimes including murder may still have the right to visitation with their children. In Fusco v. Fusco, 452 A.2d 681 (1982), the NJ Appellate Division held that incarceration of a parent does not result in automatic termination of visitation between the parent and their children. In any case, it will be the best interests of the children that determine whether visitation should be terminated. Fusco was in prison for first degree murder and related charges. The mother of Fusco's child sought to prevent visitation in order to protect the child from full awareness of the brutal crime and hoped not to interfere with the seemingly healthy adjustment the child had made to not having her father in her life. The court held that a plenary hearing was required in order to establish the desirability of maintaining the relationship between parent and child; the psychological burden on the child in seeing their parent in a correctional facility; the burden on the non-incarcerated parent and; the ability to prevent the children from knowledge of the details of the offense. In a recent case, New Jersey Division of Youth and Family Services v. M.L., a father serving a life sentence in Pennsylvania faced termination of parental rights. So fundamental are a parent's rights that the NJ Appellate Court held that M.L. had to be permitted to participate in the trial by some means allowing him to cross-examine witnesses and testify on his own behalf if he wished and reversed the decision of the Warren County Superior Court Judge who terminated his rights and granted guardianship to DYFS. Although there are cases in which a parent's interaction with a child is inimical to the best interests of the child, every parent is entitled to the opportunity to parent until a finding of unfitness of the parent or the danger of either physical or mental harm to the child by the parent is determined in a fair proceeding. If you are involved in a dispute over custody or parenting time you should seek an experienced family law attorney to insure your parental rights are upheld. For more information regarding custody, parenting time, child support, alimony divorce, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alimony Modification Sought By Private Business Owner

In a motion to modify alimony, the party bringing the motion must demonstrate a clear case of changed circumstances before the court will entertain the motion. A prima facie (obvious on its face) showing of changed circumstances is required before the court will order discovery or in any way further the matter. In a case where the parties enter into a settlement agreement, change can be even more difficult to explain because, unlike when a judge binds one to the decision of the court, those entering into negotiated agreements had the opportunity to consider their own circumstances and negotiate what they believe to be a fair bargain. In Trammell v. Trammell, the parties arrived at an agreement but the plaintiff later fell on hard times when his business slowed considerably to the point of a Chapter 11 bankruptcy filing. Plaintiff was the sole member and shareholder of the business and had take substantial loans from the business prior to filing bankruptcy. Alimony went into substantial arrears, an insurance policy the plaintiff agreed to give the defendant was cancelled for non-payment and the court issued a warrant for plaintiff's arrest. Plaintiff filed a motion to terminate alimony, forgive alimony arrears and terminate the requirement that he maintain the insurance policy for defendant's benefit. The NJ Superior Court Judge hearing the matter denied the motion on the basis that plaintiff's imputed income at the time the parties entered into their settlement agreement was $66,000 per year and, even if not through his own business, the plaintiff was still able to work and earn a similar amount. The judge reviewed the prior year's tax return and decided the reduction to $60,500 per year from $66,000 per year was not a great and lasting change in circumstances that the plaintiff could no longer afford to pay alimony and support himself therefore requiring modification of the parties matrimonial settlement agreement (MSA). If you are filing or challenging a motion to modify a support obligation, you should consult an experienced family law attorney immediately to protect your rights. For more information on alimony, child support, post-judgment modification, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Emancipation Is Presumption At Age 18

Emancipation of a minor is triggered by age or certain events. In 2012, a father made a motion to emancipate his 2 daughters, modify support accordingly and terminate his alimony obligation. The daughters turned 18 in 2002 and 2008 respectively. The NJ Appellate Court decided that the fact the daughters remained dependant after the age of 18 did not provide a reasonable basis to deny the father's motion without any further review. At a minimum, if either or both were to remain unemancipated but over 18 and not attending college while living at home the child support would need to be recalculated. In Ortiz v. Ortiz, the father was the parent of alternate residence and the mother was awarded primary custody of the children in 2002. The father had been living in California and was now on disability, the older daughter had married in 2004 but continued in college until 2008 and the younger daughter was attending college. The father clearly met the burden of showing changed circumstances based on the children's ages, marriage, his disability since the divorce and the younger child's entry into college. Clearly the older daughter was no longer within the "sphere of influence" of her parents and marriage is one of the reasons the legislature considers grounds for emancipation. As to the other child, upon reaching 18 there is a presumption of emancipation which shifts the burden to the other parent to show an ongoing need for support thereafter. Full-time attendance of post-secondary education is a basis for continuing support after the age of 18 and in some cases parents will also be required to pay for college. The academic record of the child is a factor the court will consider as well as the parents' agreement to support the child during post-secondary education contained if one accompanies the judgment of divorce. The mother offered no proof of the older daughter's need for continued support. She presented proof of the younger daughter's attendance at college but nothing showing the cost thereof. At a minimum, the father was entitled to further discovery from the plaintiff mother as well as a recalculation of child support in regard to the older child based on the factors in N.J.S.A. 2A:34-23(a), pertaining to child support, or the child support guidelines if the younger daughter continues to reside at home while attending college. If you are seeking or opposing emancipation, modification of child support or custody you should contact an experienced family law attorney immediately to protect your rights. For more information on emancipation, child support, custody, alimony, dissolution, divorce or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Which State Has Jurisdiction in Post-Judgment Matters?

A New Jersey resident mother and a California resident father were involved in a motion to enforce litigant's rights regarding a New York divorce in Spierto v. Spierto. The mother sought, within the New Jersey courts, to enforce the terms of the parties New York divorce requiring the father to contribute to the son's college costs. Both the mother and son lived in New Jersey but the father was a resident of California. Because the divorce took place in New York, not New Jersey, the father petitioned the court for a dismissal of the motion based on the fact he was a CA resident and never was a NJ resident and therefore he claimed NJ had no jurisdiction over him. The NJ trial court concluded that through the father's contacts with NJ through his relationship with the wife and son, NJ had jurisdiction over the father. The trial judge also determined that NY no longer had continuing jurisdiction over the matter based on the fact that neither of the parties nor the child continued to reside in NY. Although the NJ Appellate Division did not reverse the findings regarding jurisdiction over the matter being within the NJ court, the court did remand the matter to the trial judge for specific findings as to the nature, time and extent of the father's contacts with NJ, including parenting time in order to determine whether NJ had jurisdiction over the father. If you are facing or considering a post-judgment motion, you should consult an experienced family law attorney to protect your rights. For more information on divorce, dissolution, litigant's rights, child support, alimony or other family law matters in NJ, visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney in legal matters.

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Mediation As An Alternative In Divorce or Dissolution

Many people concerned with the potential costs of a divorce and the lengthy process in the Courts are looking towards mediation as an alternative to traditional litigation. Mediation is one of the Alternative Dispute Resolution tools, another being arbitration. Mediation allows you to be in control of the legal issues you are facing, including those arising both before and after your divorce. You have several options to consider. You can choose to mediate with your spouse or partner and a neutral mediator who will help you facilitate negotiations of all issues involving your divorce or dissolution, such as custody, support and equitable distribution of the marital assets and debts to come to an amicable resolution. You can also choose to mediate with one or both parties having an attorney present in addition to the mediator. Also, you can mediate your family law matter in a 4 way settlement conference involving yourself, your spouse or partner and both of your attorneys without the additional expense of a mediator. Although there is additional cost, the benefit of a mediator is that they are able to help bring both sides together on issues where the attorney for either party may dig their heels in on a point and refuse to negotiate further. Another benefit to having a mediator is, in the event of a dispute between the parties as to what the actual terms of the agreement were, the mediator can clarify the discussion and insure both parties are sticking to the deal that was made. The mediation process can be started either before or after the filing of pleadings with the court. If the process is successful then a written mediation memorandum of understanding is executed. A written mediation memorandum can be converted into a formal property settlement agreement and attached to your Judgment of Divorce Mediation or converted to a consent order and filed with the court. Mediation may not be for everyone, and is often ineffective when there is a history of verbal and/or physical abuse between the parties. If you are thinking about divorce or dissolution or have issues that have arose after your divorce was finalized then you should consult with an experienced family law attorney to protect your rights. For more information about Mediation, the Alternative Dispute Resolution Process, divorce, dissolution, alimony, custody, child support 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.

Change of Custody Requires Change of Circumstances

In a father's motion for change of custody, the NJ Appellate Division upheld the NJ Superior Court's decision in finding that a subsequent divorce of the parent of primary residence combined with the expressed preference of the child to live with his father and the fact that the child would be changing schools as a result of the mother's divorce did not give rise to a change of circumstances warranting oral argument or a plenary hearing for change of custody. The court, in Brower v. Brower, held that the issues raised were not "substantive issues" giving rise to the need for a hearing. The child had resided with his mother since the parties' divorce in 2004. The father, parent of alternate residence, did not demonstrate that there would be any harm to the child by continuing to reside with his mother. However, the Court did appoint a parenting coordinator to resolve issues as to parenting time, finding the father should have additional parenting time with the child. Additionally, although the father claimed that the child expressed a preference that he live with his father, the judge refused to have an in camera interview with the 12 year old child at the father's request. A change of custody requires that the movant meet certain burdens of proof and, if met, the opposing party has to demonstrate either that the change is negligible or that, in spite of the change, custody is best left as it exists. If you are considering filing a motion for a change of custody or parenting time, you consult an experienced family law attorney to protect your rights. For more information on divorce, dissolution, parenting time, visitation, child support or other family law matters in New Jersey, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.