Same-Sex Marriage Changing Property Rights

As marriage equality spreads across the country the resulting changes in states' laws have been vast and issues regarding property rights and mortgage processes are among the changes that are taking place. Now that same-sex marriages are being recognized and codified into the laws of the individual states, policies and regulations that were initially only relevant for heterosexual couples, such as laws regarding property rights and benefits, are being made available to same-sex couples who are legally married. With regard to property rights and mortgages, before gay and lesbian marriages were recognized in a state that has accepted marriage equality, homosexual couples had to file as co-borrowers on separate applications and then submit the applications at the same time. With the changes that have been occurring, in states that recognize same-sex marriages, couples can file a joint mortgage application and all of their income, liabilities, expenses, and assets will be submitted on one application for their household. This manner of filing jointly may very well affect the status of their mortgage application and these gay and lesbian couples can now feel more assured that they are receiving the same treatment and protections that previously was only available to heterosexual couples. In addition, in the unfortunate situation where any homosexual married couple may decide to end their marriage through divorce, any and all of the real and/or personal property that they accumulate during their marriage will be considered marital assets that will be subject to equitable distribution just as it would for a heterosexual married couple who filed for a divorce. No longer do the courts need to consider issues like the 2007 case of Richard Gruber v. Scott Rixford wherein the NJ Superior Court in Passaic County and later the NJ Appellate Division reviewed substantial evidence relating to the financial contributions of the two men toward their shared residence over the course of their 10 year relationship. In fact, many LGBT couples who never had to consider the issue are now seeking pre-nuptial agreements to protect pre-marital assets, children from prior marriages or disparate earning capacities. If you are an LGBT couple and have questions concerning the property rights involved with same-sex marriage or divorce it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, dissolution, alimony, equitable distribution 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.

Appellate Court Reversed Post-Judgment Modification to Divorce

In Antonoff v. Antonoff, the Appellate Court ruled on a post-judgment modification case where the Plaintiff appealed from an amended Final Divorce Judgment involving alimony, child support, and equitable distribution, and a court order sanctioning him and denying his motion for reconsideration. The parties in this case were married in 1987 and there were three children born of the marriage. For the majority of their marriage, the Plaintiff, Roy Antonoff, owned and operated a heating, ventilation, and air-conditioning installation company. The Defendant, Sandra Antonoff, was a stay at home mother who returned to work as a medical biller in 2008 because the Plaintiff's business lost its book of business. During the years of 2009 and 2010, the Plaintiff secured work at his brother's air-conditioning company earning substantially less than he had when he was operating his own business. In 2012, the Family Court judge entered a Final Judgment of Divorce, imputed the Plaintiff's income under Rule 5:6A of the New Jersey Child Support Guidelines to $67,910, and awarded the Defendant: $788 a month in alimony, $4,200 from the sale of the parties' car, and $6,587.45 in attorney's fees. Subsequently, the judge denied the Plaintiff's motion for reconsideration of the divorce judgment and one year later amended the judgment to reduce his child support obligation from $192 to $168 to be paid bi-weekly. The Plaintiff appealed, arguing that the Family Court judge failed to consider his pro-se post-trial summation, erred in denying his motion for reconsideration, abused her discretion by awarding the Defendant counsel fees as a sanction against him, wrongly imputed his income, miscalculated his alimony amount, and inequitably distributed the parties' cars. The New Jersey Appellate Court reversed and remanded the lower court's decision. First, the Appellate Court found that the Family Court judge erred by failing to consider the Plaintiff's written summation and ordered that the lower court do so on remand. Next, the court found that the Family Court correctly determined that the Plaintiff was voluntarily unemployed and subsequently had to impute the Plaintiff's income. In its holding, the Appellate Court stated that "family courts are presumed to possess special expertise in matters such as the calculation of support obligations" and therefore their determinations are entitled to a high degree of deference. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, the court found that the Family Court judge incorrectly imputed the Plaintiff's income because she did not "realistically appraise plaintiff's ability to earn income by considering plaintiff's job opportunities and his experience. . . ." In addition, the Appellate Division held that certain changes needed to be made to the way the lower court equitably distributed the parties vehicles. According to the court, pursuant to N.J.S.A. 2A:34-23.1, the trial court must consider factors such as the duration of the marriage, the income or property the parties brought to the marriage, and their economic circumstances at the time of the division and that the Family Court judge made findings that were unsupported by adequate evidence in the record. Finally, the Appellate court vacated the order sanctioning the Plaintiff and set aside the award of counsel fees without prejudice. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment, alimony award, or child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, alimony, child support, equitable distribution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Child Support Case Appealed Because Judge Did Not Articulate Decision

Recently, a New Jersey case regarding the post judgment modification of a child support order was reversed because the Family Court Judge did not properly articulate his decision consistent with court rules. In Lombard v. Lombard, a Family Court judge addressed issues concerning the ongoing child support, child support arrears, and college contributions for the Plaintiff and Defendant's two children. The Defendant, William Lombard originally filed a notice of motion to modify his child support obligation and to vacate his arrearage. The Plaintiff, Bridget Lombard, who represented herself in this case, submitted a cross motion seeking the enforcement of the child support order. In September 2012, the Family Court held a hearing to address the aforementioned issues. The hearing was neither a plenary hearing or a hearing that allowed for oral argument. The judge issued an order based upon his consideration of the facts and relevant law dating back to September 10, 2012, which was memorialized in his two page decision on this matter. On appeal, the Appellate Court vacated the Family Court judge's decision. A forty page transcript of the Family Court proceeding revealed that the judge stated that he "would like to avoid a hearing for a couple of reasons. Number one, [he] [didn't] want to do it. Number two, it [would] cost [the parties] time and money." Next, the judge administered the oath to the Plaintiff and asked her questions about her Case Information Statement (CIS), pursuant to Rule 5:5-2. Upon hearing her response, the judge recalculated her monthly expenses. The judge then determined that the Defendant had been overpaying his child support payments "for some time," and vacated $2,000 worth of arrears, but did not articulate how he arrived at this decision, which he was required to do pursuant to N.J.S.A. 2A:17-56.23a, which bars retroactive modification of child support in most cases. The Appellate Division vacated the Family Court's decision holding that Rule 1:7-4(a) requires that a court "find the facts and state its conclusions of law . . . on every motion decided by a written order hat is appealable as of right." This rule was not satisfied by the Family Court judge in this case because the Appellate Court could not figure out how the Family Court judge arrived at his decision. Further, the court held that where multiple submissions by the parties agreed on virtually none of the facts, a plenary hearing is required. See Segal v. Lynch, 211 N.J. 230, 264-65 (2012). Disputes regarding child support can be of the most important in family law because child support money is critical for the welfare of the children of divorced parents. If you are involved in a child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child support, post judgment modification, alimony, divorce, 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.

Special Considerations For Same-Sex Divorce

The state of New Jersey has recognized marriage equality since October of 2013 and now that same-sex marriage is legal in the Garden State many people may begin to wonder what considerations need to be realized regarding same-sex divorce. One of the first things that a gay or lesbian couple must consider is if they entered into a civil union prior to their marriage how the civil union, which is a legal agreement, may affect them if they decide to divorce. Based upon the new N.J. Department of Health policies, same-sex couples who were previously joined in a domestic partnership or civil union do not need to dissolve these partnerships as a prerequisite to marrying in this state - provided that the spouses who were joined in either of these two legal relationships are marrying each other and not someone new. Ultimately, because the legal marriage does not function to dissolve the prior domestic partnership or civil union, the gay couple remain in two distinct legally valid unions - the marriage and the civil union or domestic partnership. If the relationship sours and the couple decides to obtain a divorce, they must remember that both the legal marriage and the other legal partnership must both be terminated. Each legal union brings certain rights, entitlements, and responsibilities to the relationship and therefore terminating only the marriage does not release a party from the obligations that flowed through the prior civil union or domestic partnership and vice versa. Therefore, LGBT couples who are planning to apply for a marriage license should take the time to discuss whether or not they should address the issue of their civil union prior, during, or after their marriage as there may be consequences that result from either allowing the legal partnership to remain in affect or by dissolving it. If you are a homosexual couple and have questions regarding what legalities you should be aware of regarding your same-sex marriage or divorce it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, alimony, equitable distribution 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.

Appellate Court Clarifies Standard For Emancipation In Post-Judgment Modification Case

In Disesso v. Disesso, the Appellate Court decided a case where the Plaintiff , Tina Disesso, appealed from a post-judgment order issued upon the Defendant, Nicholas Disesso's, cross motion to modify his alimony obligation and emancipate the ex-couple's son and daughter. The Family Court judge ordered that the parties' son be emancipated, modified the child support to reflect the son's emancipation, imputed income at the minimum wage to the Plaintiff and reduced the Defendant's alimony obligation. The parties in this case were married in 1982 and had two children, a son born in 1987 and a daughter born in 1990. They were divorced in 2004 and had a property settlement agreement incorporated into their Final Judgment of Divorce that addressed the issues of alimony, child support, and the emancipation of their children. The agreement provided for permanent alimony and child support. The Defendant agreed to pay $4,000 a month in alimony and $268 a week in child support. Due to their son's special needs, the property settlement agreement incorporated into the parties' divorce judgment included a special standard regarding their son's emancipation. The standard provided that the son would be emancipated "only when he [was] able to live independently and work full-time to support himself." In May of 2012, during court proceedings brought by the Defendant to enforce a court order to emancipate the son, the Family Court found that the parties' son was operating a business as of 2011. The court found that the son was "running a business, and he was capable at that point in time of moving beyond the sphere of influence of his parents." Pursuant to this finding, the court emancipated the son retroactively to be effective as of November 1, 2011. The Appellate Court reversed and vacated this provision of the order. According to the court, the standard for emancipation that the parties agreed to, which was focused on their son's capacity for independent living and self-support, was consistent with the overall legal standard for emancipation which states that emancipation occurs when: "the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, the child is no longer entitled to support." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997). The court holds that in this case the son's age and ability to operate a business for a time was "arguably adequate" to warrant further inquiry and that the terms of the agreement addressing the son's special needs and his continued receipt of social benefits called his capacity for independent living into question. The Appellate Court remanded the case back to the lower court to re-address the facts material to emancipation. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment or if you have questions regarding the legal standard for emancipation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, emancipation, divorce, alimony, child support, 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.

Happy St. Patrick's Day

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Same-Sex Couples In NJ Should Check Twice Prior to Relocation

There is no denying that as marriage equality and same-sex marriage is becoming legal throughout the nation, gay and lesbian couples who are divorcing need to inform themselves on the legal considerations that may impact the their divorce. Divorce proceedings are extremely arduous on all couples, but may even be more complex for gay and lesbian couples who move out of their state and who have children. For instance, although New Jersey currently recognizes marriage equality, if a couple who is legally married in New Jersey chooses to move to another state during their marriage that does not recognize same-sex marriage there could be repercussions if the couple later decides to get a divorce. Federal laws may not address all of the issues that may arise in a same-sex divorce proceedings despite the fact that gay and lesbian couples are now afforded the same federal benefits as heterosexual married couples. Therefore, if a gay married couple decides to move out of the state where they were legally married it is very important that they inform themselves about the marriage laws in their new state of residence. For instance, the couple should seek out information regarding the state's recognition of second-parent adoption or whether or not grandparents' have the right to seek custody of children. If the couple signed any agreements before their legal marriage was executed, each party may wish to re-acquaint themselves with the particulars of the agreement to ascertain whether or not any provisions will affect the divorce process, specifically regarding the continued care and custody of any minor children. It may also be important for a party to realize that they should not change any of their visiting patterns with their child simply because the other party compels them to. A court may review the consistency of parenting time and visitation when making decisions regarding child custody. No one should assume that simply because one parent may be the biological parent and the other and adoptive parent that a court will automatically award custody to the biological parent. If you are a gay or lesbian couple who plans on seeking a legal marriage or filing for a same-sex divorce it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, civil union or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Court Holds That Father Must Pay Law School Expenses in Post-Judgment Case

In Rossi v. Livingston, the New Jersey Appellate Court recently affirmed a lower Family Court's decision to enforce a divorce settlement in a post-judgment matter involving a requirement that a party pay for half of his child's law school expenses. In this post-judgment matrimonial matter, a father appealed from an order issued by a Family Court requiring that he pay for half of his daughter's law school expenses. In his appeal, the father argued that he should not have been required to do so because certain conditions which were established as part of his divorce judgment were not satisfied and therefore his obligation to pay for the school expenses were never triggered. Further, he argued that because his relationship with his daughter had soured following the divorce, there has been changed circumstances that relieved him of his obligation to pay for her law school education. The parent-parties in this case were married from 1983 until 2009. They have two children who were emancipated at the time of their divorce. With the help of their attorneys, the parties, agreed to a negotiated divorce settlement which was incorporated into their Final Judgment of Divorce. The agreement specified that neither party had to pay alimony or child support because both children were declared to be emancipated, but specifically stated that if the daughter did decide to go to law school either party could bring an application to the court to declare her un-emancipated. Further, the agreement stated with particularity that notwithstanding her emancipation status, the parties agreed that they shall each pay 50% of the law school expenses after scholarships and grants. In 2012, the daughter was accepted into law school and informed her father of her decision and reminded him that pursuant to the terms of the agreement which was incorporated into his divorce judgment, he was obligated to contribute 50% of the cost because she did not receive any scholarships or grants. The father responded by saying that he could not afford the cost of the law school that she had chosen, but would contribute $7,500 towards a cheaper law school. In late 2012, the mother hired an attorney who wrote a letter to the father directing him to pay for half of the law school expenses pursuant to the agreement that he signed. Subsequently, the mother filed a post-judgment motion with the Family Court to enforce the terms of the agreement. The Family Court judge held that the father was obligated to contribute his agreed upon financial obligation toward his daughter's law school expenses because "New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." J.B. v. W.B., 215 N.J. 1, 5 (2011). In addition, the court found that the mother and child did not materially breach the underlying agreement by taking 10 days instead of 5 days to notify the father about her decision, because the extra time was used to appeal the law school's decision to not award the daughter any financial aid. The Appellate Division affirmed the lower court's decision citing that "Where a settlement agreement is used to define the terms of a divorce, the agreement should be 'entitled to considerable weight with respect to [its] validity and enforceability' in equity, provided [it is] fair and just. Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006). If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment, alimony award, or child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, spousal support, child support, 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.

NJ Court Does Not Have Jurisdiction In Ex-Giant's Child Support Modification Case

New Jersey Superior Court Judge, the Honorable Sohail Mohammed, J.S.C., ruled that New Jersey courts did not have jurisdiction to rule on ex-New York Giants player Ahmad Bradshaw's child support modification case. The controlling law is the Uniform Interstate Family Support Act (UIFSA). All states have enacted some version of the UIFSA to make sure that different states will enforce the court support orders that were issued in states other than their own. Judge Mohammed ruled that because both parents, as well as the child, no longer live in New Jersey, the state lacked jurisdiction under the UIFSA to modify the child support order. Bradshaw was a running back with the New York Giants from 2007 until 2013. At the conclusion of last football season he was released from his contract and he joined the Indianapolis Colts and moved to Virginia. In 2010, Bradshaw's then girlfriend, Margot Patrice Johnson, gave birth to the child at issue in this case. Johnson and the child never lived in New Jersey and she and Bradshaw were never married. In 2011, Johnson sought child support from Bradshaw and filed in New Jersey because, at the time, Bradshaw was living in the state. Subsequently, Johnson moved to modify the order to increase Bradshaw's child support obligation but Bradshaw asked that the motion be dismissed because he was no longer living in New Jersey and therefore New Jersey courts did not have jurisdiction over the matter. Johnson claimed that New Jersey still did have jurisdiction under the UIFSA. Judge Mohammed ruled that New Jersey lacked jurisdiction under the UIFSA because the original child support order was a temporary pendente lite order and since all parties had left the state before a final order was issued and discovery propounded, New Jersey lost jurisdiction over the case. Due to the specific facts of this case, it was a case of first impression for New Jersey courts, and it may serve to affect athletes and other litigants who frequently move into and out of the state for years to come. Disputes regarding child support can be of the most important in family law because child support money is so incredibly critical for the welfare of the children of divorced or separated parents. If you are involved in a child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child support, alimony, divorce, 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.

Same-Sex Couples May Invoke Marital Privilege in Federal Court Proceedings

In its recent memorandum regarding changes to federal law concerning the recognition of same-sex marriage, the United States Department of Justice indicated that same-sex spouses will now be able to invoke marital privileges in both federal civil and criminal cases. The rights now extended to gay and lesbian married couples will affect both the confidential communication between spouses as well as testimonial communications. The confidential communications privilege protects all of the substance and contents of the confidential communications made between spouses during the duration of their marriage. The testimonial privilege, under certain circumstances, protects a spouse from being compelled to testify against his or her spouse in court proceedings. Prior to the new federal policy, only heterosexual couples could assert these privileges. According to the Department of Justice memo, for the purposes of asserting the aforementioned privileges, it will consider a marriage to be legally valid if the same-sex marriage was conducted and is recognized in a jurisdiction that recognizes marriage equality. It is very important to note that these privileges will not be extended to homosexual couples who are currently joined only in a domestic partnership or civil union. As more and more states begin to recognize marriage equality across the nation, many state and federal laws are quickly adapting to accommodate the rapid social and legal changes that follow. It is very important to remain informed and up to date on these rapidly changing developments that will continue to have an important impact on the state and federal laws throughout America. If you are a gay or lesbian couple who plans on seeking a legal marriage or filing for a same-sex divorce it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, alimony, child support, custody, visitation, civil union, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Party's Non-Appearance at Divorce Hearing Impacts Equitable Distribution

In Clementi v. Clementi, the a New Jersey Superior Court addressed the issue of how a Defendant's failure to appear at a default divorce hearing impacted the Plaintiff's burden of proof concerning the couples' equitable distribution process. The parties were married in 1973 and remained married for almost forty years. Their marriage did not yield any children. The parties' main source of employment for the majority of their marriage was a jointly operated store. In 2013, the Plaintiff filed for a divorce from the Defendant based upon irreconcilable differences and sought alimony and the equitable distribution of their marital assets and debts. The Defendant was properly served with the Plaintiff's Complaint for Divorce but he failed to file a response to the pleading within the time period required by the NJ Court Rules. In June of 2013, the Plaintiff filed a motion with the Family Court requesting that a default divorce judgment be entered against the Defendant. The Defendant failed to file a motion to vacate the default and continued to be a non-participant in the divorce proceedings. In July of 2013, the Plaintiff served the Defendant with a Notice of Proposed Final Judgment and her Case Information Statement, as required by N.J.C.R. 5:5-10. A default divorce hearing was held in August of 2013 and the Defendant failed to appear. The Court held that when a Defendant fails to appear and participate in a divorce proceeding, a Plaintiff is not automatically entitled to a default judgment that awards all of the requests made to the court for equitable distribution. In this situation, the Plaintiff has a persistent obligation to persuade the court, by a preponderance of the evidence, that the requests for equitable distribution are fair and equitable based upon the facts. Further, the court found that a Defendant's failure to offer an objection to the Plaintiff's requested equitable distribution in a notice of final judgment is not always the same as an express written consent to those terms and requests. Therefore, the lack of response cannot be the only basis that the court uses to determine whether the Plaintiff's proposed equitable distribution is fair. Finally, the court decided that the value of a marital debt or asset, relative to the remaining marital estate is a significant factor in determining whether a non-participating party loses all interest in a particular asset. The equitable distribution of assets and debts can dramatically affect the lifestyle of each party following the divorce. The process becomes more difficult if one party fails to participate. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, divorce, spousal support 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.