Divorce And The Fight Over Beloved Pets

Fighting over a beloved pet in a divorce, dissolution, or separation can be one of the most difficult and heart-wrenching aspects of the entire process. People fight over a great deal of property, but few items are as vigorously contested as who will possess the loving family pet. Historically, New Jersey courts would treat pets similar to that of personal property and preferred to refrain from making determinations that directed to whom the pet would live with. In 2009, the New Jersey Appellate Division in Houseman v. Dare, re-visited this issue. In Houseman, a Gloucester county Family Division trial judge awarded a litigant $1,500 in compensation for a dog that that opposing party kept in violation of an oral separation agreement that claimed otherwise. At the trial court level, the judge ruled that monetary damages were sufficient to remedy the issue, but the Appellate Division disagreed and expanded that decision to include specific performance of the term of the agreement as an additional potential remedy for situations like this. The Appellate Division's ruling essentially re-classifies the status of pets in the eyes of the law. In his opinion, the Appellate Division judge compared pets to a family heirloom, in which money alone, could not take the place of the love and sentimental value that people feel towards their cats, dogs and other animal friends. He found that "the remedy of specific performance can be invoked to address a breach of an enforceable agreement when money damages are not adequate to protect the expectation interest of the injured party and an order requiring performance of the contract will not result in inequity to the offending party." The judge goes on to specify that specific performance is recognized as an appropriate remedy when an agreement concerns possessions of property that induce a "strong sentimental attachment," because money damages cannot compensate the injured party for the "special subjective benefits he or she derives from possession." Ultimately, the Appellate Division's ruling compels future courts to view pets as property of a higher value in divorce, dissolution, and separation proceedings. Further, because pets should be viewed as property akin to sentimental family heirlooms, specific performance is viable remedy for a breach of contract in which one party does not honor a promise to give the other party possession of a pet in a divorce, dissolution, or separation agreement. The ruling in Houseman v. Dare should provide some comfort for people who anticipate that the custody of their beloved pet will be an issue in the dissolution of their relationship. If you are considering divorce or civil union dissolution and have pets you would like to keep, you should consult an experienced family law attorney to protect your rights. For more information on divorce, dissolution separation 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.

Emancipation And Child Support

Emancipation status will affect child support payments. If and when a child becomes legally emancipated can affect a parent's child support obligation. New Jersey is widely considered to be one of the most difficult states in which emancipations are granted. The reason for this is because although turning the age of eighteen is a major factor in the consideration of emancipation, it is not solely determinative. Determining when a child is legally emancipated from his or he parents is important for many social considerations, but it is an extremely integral element in a parent's child support calculation because the child's emancipation status can be the life event that ends a parent's obligation to continue to pay child support. New Jersey statutory law does not expressly define the elements of emancipation and therefore case law and the courts serve as the main guidance to determine a person's emancipation status. This is also why defining emancipation in New Jersey can become a difficult and case-specific endeavor. The NJ Appellate Division in Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997) held that with regard to emancipation, the determination is very fact sensitive and requires a court to consider "whether a child has moved beyond the sphere of influence and responsibility exercised by a parent and therefore maintains an independent status of his or her own ." This holding reveals that in many instances a child may not be legally emancipated until well after they turn eighteen years of age. If a child cannot "maintain a independent status of his or her own" because he or she is enrolled in a college or other educational program, the child is not or cannot obtain gainful employment, or there are considerable other factors that preclude a child from achieving independent status, they may not be emancipated at eighteen. The practical effect of this is that a parent's obligation to pay child support may persist for many years beyond the child's eighteen birthday. If a child chooses to enroll in a full-time college program, a parent's child support obligation may extend to that child's graduation from college, which could be at twenty-two or twenty-three years of age. The events that will most likely lead to a child's legal emancipation include: marriage of the child, the child's graduation from college or similar educational pursuit, the child gaining full-time employment after reaching the age of eighteen, the child joining the military, or if the child graduates high school and chooses not to matriculate to college. Recent case law indicates that once a child reaches the age of majority, eighteen years, he or she may voluntarily waive the right to support and seek emancipation from his or her parents even if a court would find otherwise. For more information regarding emancipation, child support, child custody, divorce, civil union dissolution, alimony 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.

Unequal Rights For Civil Union Couples- No Irreconcilable Differences Grounds For Dissolution

It may come as quite a surprise to some that irreconcilable differences is not a ground for civil union dissolution in the state of New Jersey. This means that same sex couples who wish to dissolve their civil union must file under one of the statutory grounds for divorce. According to N.J.S.A. 2A:34-2.1 (2012) the only grounds that gay or lesbian couples seeking to dissolve their civil union can file under are the following: 1) voluntary sexual intercourse between a person who is in a civil union and a person other than the person's partner in a civil union; 2) willful and continued desertion for a period of 12 or more consecutive months; 3) extreme cruelty, which is defined as including any physical or mental cruelty that endangers the safety or health of the plaintiff; 4) separation, provided that the partners in a civil union couple have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; 5) voluntarily induced addiction or habituation to any narcotic drug; 6) institutionalization for mental illness for a period of 24 or more consecutive months subsequent to the establishment of the civil union; or 7) imprisonment of the defendant for 18 or more consecutive months after the establishment of the civil union. The aforementioned grounds are analogous to the grounds that can be filed for married couples who wish to end their marriage, except for the fact that irreconcilable differences is clearly not an option for couples in a civil union. This dramatically effects the dissolution process for same sex couples. Many married couples willingly choose to file for divorce under the ground of irreconcilable differences because it is a much more expedited process as neither party will bear the burden of having to prove the truth of one of the aforementioned grounds - which also leads to a much more emotionally-charged and contested process. Couples in civil unions do not have that luxury and therefore will have to prove the truth of one of the other grounds in order to dissolve the civil union which will complicated the process dramatically. This compels the party who wishes to dissolve the civil union to choose from those enumerated statutory grounds. For instance, if a party chooses to file for dissolution based on extreme cruelty, that party will have to present the court with evidence that he or she was mentally and/or physically abused by the other party. This may prompt the other party to defend him or herself thus igniting emotions and complicating and lengthening the duration of the litigation. Although gay couples may not have equal rights when it comes to marriage in NJ, they still face the same issues when a relationship ends including child custody, child support, alimony, equitable distribution and more. If you are considering or facing dissolution of your civil union you should consult an experienced civil union attorney to protect your rights and help you navigate the process. For more information regarding same-sex civil union dissolution,custody, alimony, divorce or other family faw 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.

How Much Would Alimony Reform In NJ Change Family Law?

Currently, there are two proposed bills before the New Jersey State Legislature regarding alimony reform that may transform divorce procedures in the state for years to come. The two proposed laws are S2750 and A3909 and, if passed, they will create guidelines for judges to follow when ordering alimony payments based on the duration of the marriage and would also eliminate permanent alimony awards altogether. The issue of the longevity of alimony has been debated in this state for decades. Many practitioners, law makers, and residents hold steadfast beliefs as to whether or not the current state of alimony should be reformed in New Jersey. The sociological perspective that supports the notion that alimony should be reformed in this state is based upon the notion that the need for permanent alimony no longer exists because most households consist of two working spouses who, in the event of the dissolution of the marriage, are capable of supporting themselves independently. Traditionally, permanent alimony existed to ensure that spouses (historically women), who remained home during the marriage to support the family in ways that did not earn money, were not left in financial ruin. Typically, these spouses either never entered the workforce or remained isolated from the workforce for so long that they found it extremely difficult to find suitable occupations because they lacked the skills that employers deemed necessary for employment. On the other hand, the alternative perspective is that there still remains large disparities in the earning potential between spouses. In the event of a divorce, one spouse usually still has a harder time financially supporting him or herself. In addition, one spouse usually serves as the parent of primary residence for their children, if the marriage spawned children, which creates additional financial hardships for that spouse. Therefore, the debate over alimony reform continues to rage on. The alimony reform bill which went before the Senate Judiciary Committee in May of 2013 places limits on the longevity of alimony based upon the duration of the marriage. The bill also provides courts with the option to make alimony awards "in the interests of justice" which means that it would still be possible for a court considering the totality of the circumstances surrounding a marriage to make an alimony award which would persist for and indefinite length of time, as justice requires. Therefore, the proposed law, although seemingly changes the landscape of alimony in New Jersey, would still leave the door open for courts to order long-term alimony awards if the particular situation required them to do so. If you are considering a divorce or modification of alimony you should consult an experienced family law attorney to learn what you may expect and obtain what you deserve. For more information regarding alimony, child support, civil union dissolution, divorce, equitable distribution, custody 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.

Prenuptial Agreement Reform in New Jersey

There have been recent reforms to the laws governing prenuptial agreements in New Jersey. The purpose of a prenuptial agreement is to legally memorialize the parties' intentions and rights regarding all or certain aspects of the marriage or civil union before either takes place in an attempt to avoid litigation should the marriage or civil union dissolve. In most states throughout this country, prenuptial agreements are strictly enforced provided that procedural and disclosure requirements are followed. In New Jersey, courts will neglect to enforce prenuptial agreements if the aforementioned procedural safeguards are not followed, just like in most other states. However, New Jersey courts provide parties with an additional means to avoid the enforcement of such agreements. The courts will not enforce prenuptial agreements that are considered to be unconscionable, both when the agreements are initially executed and also at the time that the parties want them to be enforced - typically at the time of a divorce or dissolution. The affect that this has on the validity of a "prenup" can be profound. The language in the law that allows for a party to avoid the enforcement of the terms of an agreement due to unconscionability essentially provides a party with an avenue to allow the terms of the agreement to be litigated in the courts, which is contrary to the entire purpose of the prenuptial agreement. If a party desires to prevent the enforcement of the terms of the agreement at the time of dissolution, he or she only has to claim that the agreement is or was unconscionable and the court may delay the enforcement of the agreement until the disputed terms are litigated. As of June 27, 2013, the New Jersey Legislature amended R.S.37:2-38, the law that governs prenuptial agreements, to remove the language that provides parties with the ability to claim unconscionability at the time of enforcement. Therefore, as long as the agreement was not unconscionable at the time of its execution, parties were provided with full disclosure of information, and all other procedural safeguards were followed at the time of execution - the courts should strictly enforce the agreement upon dissolution. Ultimately, the removal of this language in the law functions to strengthen the enforceability of pre-marital and pre-civil union agreements. This amendment will govern all prenuptial agreements executed on or after the effective date of the amendment. If you are entering into a second marriage and want to protect your children, you have a high net worth, are seeking to protect a business interest or have any other reason to protect your assets when entering into a marriage it is critical that you consult an attorney experienced in prenuptial agreements. For more information regarding pre-nups, alimony, palimony, child support, equitable distribution or other family law issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Failure to Make Mortgage Payments Decreases Equitable Distribution

Equitable distribution is how the parties' assets are divided in a divorce. Often one of the parties' largest assets is their marital residence. Frequently, a payor spouse or partner will be left with the alternative of paying the mortgage on the marital residence where the other party now resides or paying for their own residence when there are insufficient funds for both. When a party is ordered by the Court in a Pendente Lite Order, Final Judgment of divorce after a trial or agrees under the terms of a property settlement agreement to pay the mortgage on the marital residence and fails to do so, that party's share of the proceeds from the eventual sale of the marital home may be reduced equitably to permit the other spouse or partner to receive what they would have received had the payments been made. In the recent case of Debra Freeman v. William Freeman, Sr., the defendant was to buy the plaintiff's share of the residence or the residence was to be sold. William failed to buy out the plaintiff and also failed to make the mortgage payments due. Although Debra did not make an appropriate accounting of proceeds from the eventual sale of the residence and the court determined she was remiss for same. Although Debra's accounting indicated she walked out of the closing with approximately $12,000, the trial judge determined the parties should have received a combined $42, 422.34 in proceeds and ordered the plaintiff to pay William $21,211.17, representing one-half of the proceeds they should have received from the sale. Debra appealed and the NJ Appellate Court referred to the decision in F.G. v. MacDonell, 150 N.J. 550, 564 (1997) to support the finding that Debra, as the party responsible for the sale of the residence, was under a "duty to exercise reasonable skill and care" in the transaction. As a result of her breach of duty, William was entitled to an award remedying the situation as it pertained to him. However, the New Jersey Appellate Division also held that the Superior Court Judge should have considered the impact of the defendant's failure to make the mortgage payments as required. The Appellate Division remanded the matter to the NJ Superior Court to allow the trial judge to factor the defendant's failure to pay the mortgage into the award to him of $21,211.17 and reduce the award equitably. If you are considering or facing a divorce, it is imperative that you have an experienced family law attorney review your matter in order to ensure you are protected from unforeseen pitfalls which may result in the event of a change in the economy, a bitter former spouse or partner or other circumstances. For more information about divorce, dissolution, child support, alimony, equitable distribution, civil union 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.

New Jersey Palimony Agreements Must Be In Writing

According to a recent New Jersey Appellate Division decision, palimony agreements must be memorialized in writing if they are to be legally enforceable and the law requiring such is to be retroactively applied. The term "palimony" refers to the support that two unmarried people, who have lived together, promise to pay to each other upon the dissolution of their relationship. The status and availability of palimony throughout the United States varies dramatically from state to state. Some states will enforce palimony agreements other states will not. Further, of the states that do recognize the validity of palimony agreements, the rules that govern their enforcement are not uniformly applied across the states. Traditionally, in New Jersey palimony agreements could be either oral or written agreements to be legally enforceable. The 1979 case, Kozlowski v. Kozlowski, was the foundational precedent for these cases and had remained good law for decades. In 2010, the New Jersey legislature passed a law, N.J.S.A. 25:1-5, effectively amending the Statute of Frauds, which then mandated that palimony agreements be memorialized in writing. This shift in the law may have been caused by a shift in social culture. Over the last two decades, more and more couples have engaged in long term relationships that do not result in a marriage or civil union. Since the relationship dynamics have changed so much in our society, it may have proven difficult for a court to enforce an oral agreement for relationship configurations that appeared to be ever-changing. Therefore, it seemed natural for the law to mandate that palimony agreements be written as a means to minimize confusion and ambiguity over relationship statuses. On February 4, 2013, the Appellate Division rendered a decision in Maeker v. Ross that considered the issue of whether N.J.S.A. 25:1-5 could be applied to palimony agreements that were instituted before 2010. In Maeker, the litigants were engaged in a 10-year long relationship, in which the male partner supported the female. Their relationship ended in 2011 and Ms. Maeker sued Mr. Ross for palimony. The couple did not have a written agreement. N.J.S.A. 25:1-5, was codified in 2010 and required that palimony agreements be in writing in order to be enforceable. The trial court found that based upon the length of the relationship, the lawsuit could proceed. The Appellate Court disagreed and reversed the prior court's opinion, essentially holding that all palimony agreements must be in writing and that the law should be applied retroactively. The decision has been appealed to the New Jersey Supreme Court. For more information about palimony, divorce, civil union dissolution, alimony, child support, custody 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.

Relocating a Child Out of New Jersey Without Consent of the Other Parent

In child custody disputes, removing a child from the state of New Jersey to another state without a court order or consent of the other parent may subject you to sanctions and even kidnapping charges. According to N.J.S.A. 9:2-2, if a custodial parent wishes to relocate his or her child to another state, that parent must obtain the permission of the child’s non-custodial parent or must obtain a court order granting permission to remove the child over the non-custodial parent’s objection. The public policy behind the statute ensures that the non-custodial parent’s rights with regard to maintaining a relationship with his or her child are not infringed. The first question that a court must consider is the type of custody arrangement that exists. If the parents have a joint or true shared custody arrangement, then upon an application for change of custody, the court must make a best interests determination as set forth in N.J.S.A. 9:2-4(c). Alternatively, if custody is far from equal, with one parent having only the typical every other weekend and one overnight per week arrangement, then the court must apply a two-prong test set forth by the Supreme Court of New Jersey in Baures v. Lewis, 167 N.J. 91 (2001). First, the custodial parent must prove that the move is being considered in good faith and not simply to deprive the non-custodial parent of a relationship with the child. Second, the parent must prove that the relocation will not adversely affect the child. The Court in Baures listed twelve factors to be considered in determining whether the custodial parent has satisfied the two-prong test. The Baures factors include: • The reasons for the move; • Reasons for opposition by the other parent; • Parties' past dealings in regard to parenting; • Whether the child will receive equal educational, health and recreational opportunities in the new location; • Any special needs or talents of the child; • Whether a reasonable visitation schedule can be arranged to permit the continued relationship between the child and the non-custodial parent; • The likelihood that the custodial parent will foster the relationship between the child and non-custodial parent; • The effect of the move on extended family relationships in the present and new location; • The child's preference if of age and intellect to make an informed choice; • The child's scholastic performance and year of matriculation; • Whether the non-custodial parent is able to move to the new location; • Any other factor the Court may wish to consider. Relocation of a child to another state will have serious and lasting effects on the child's life and relationships, including the relationship with the other parent. If you are considering relocating with a child to a state other than New Jersey, or opposing such a relocation, you should consult with an experienced family law attorney to learn your rights and options. For more information about child custody, parenting time, 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.

Consequences of Setting Support Outside the NJ Child Support Guidelines

The payor spouse or partner must exercise caution when setting initial child support outside the NJ Child Support Guidelines ("Guidelines"). In the event the payor later seeks modification of child support based on changed circumstances, the court may find the Guidelines to be inapplicable to any modification sought. Unless there is a provision in the parties' property settlement agreement which specifies that the Guidelines are to be applied in the event of modification, they are likely not to be applied and any modification may also be set outside their framework. Unlike in a standard case in which changed circumstances are proven, modification is warranted and a new child support amount will be established within the Guidelines, there is another hurdle. The parties, or at least the party seeking the modification, will face the legal argument of whether there is now good reason to apply the Guidelines or whether the child support amount should remain outside their scope. In the case of Perri v. Salandra, the plaintiff conceded that the defendant suffered a drastic reduction in income and agreed child support should be modified. The NJ Superior Court held that the party sought to set support outside the Guidelines initially and included no provision in their property settlement agreement calling for application of the Guidelines in the event of modification therefore the Guidelines would not be applied to the modification. The New Jersey Appellate Court affirmed the decision of the Superior Court. If you are seeking a divorce or modification of support, you should consult with an experienced family law attorney to protect your rights and weigh the merits of your case. Although parties often prepare their own settlement agreements, they must be sure to understand that the other party may seek to change the terms of the agreement in the future and how those changes may be applied to their agreement as written. For more information about divorce, civil union dissolution, child support, alimony, equitable distribution 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.

Divorce Does Not Always Result In What You Expect

In a divorce case in which the Husband,a contractor with the ability to receive his income in cash, the Judge found him to be untruthful about his earnings and the defendant Husband was ordered to pay the wife $500 per week in alimony and an additional $217 per week in child support for 2 children as well as the wife's counsel fees of $15,782.45. The parties were married for 19 years and the Morris County Superior Court Judge hearing the matter found it to be a permanent alimony case. In Gentile v. Gentile, the husband appealed the decision on the basis that the wife should have been imputed income in excess of $21,000 and permanent alimony should not have been awarded. Throughout the last 5 years of the marriage the husband earned an average of $90,000 per year but cited the economic downturn as a reason for lack of work around the time of the parties' divorce. The wife worked only part-time and sporadically during the marriage. The judge found both underemployed and imputed income of $100,000 to the husband and $20,800 to the wife. The judge specifically found the husband was intentionally underemployed at the end of the marriage to avoid child support and alimony obligations. The husband reported expenses of $3,405 per month, including rent to his brother, and the judge decided the husband's expenses were actually $2,000 per month. The court relied on the husband to show the wife could not earn more than $20,800 per year, rather than relying on the wife to show that was all she could earn. The judge used the factors in N.J.S.A. 2A:34-23(b) in determining that alimony should be permanent. The only asset for equitable distribution was the husband's annuity worth $106,733. Once the Judge divided the annuity in half and ordered the Husband to pay tax preparation fees, his share of the children's dental expenses, the Wife's share of a tax refund for 2 years, reimbursement to Wife for money he withdrew from the annuity, child support arrears and the Wife's counsel fees the Husband received nothing from his own annuity. The New Jersey Appellate Division affirmed. If you are considering a divorce, it is important to understand what is involved and the likely outcome in your matter. You should always consult with an experienced family law attorney when considering divorce to ensure you know your options and your rights are protected. For more information about alimony, child support, custody, visitation, post-judgment modification or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.