Oral Palimony Agreements Enforceable If Made Before 2010

Last week, in the case of Maeker v. Ross, the New Jersey Supreme Court held that any oral agreements or promises to provide lifetime financial support to a non-married long term paramour prior to the year 2010 may give rise to an action for palimony. In 2010, the New Jersey legislature changed the law to amend the statute of frauds, N.J.S.A. 25:1-5(h), which prohibited the enforcement of oral palimony agreements. The law directs that "a promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination" must be in writing, signed by the parties and with the advice of independent counsel. In the aforementioned case, the Supreme Court of New Jersey had to render a decision as to whether or not the statue applies retroactively to palimony agreements made before the statute was amended. In Maeker, William Ross moved to rely on the language of N.J.S.A. 25:1-5(h) to dismiss Beverly Maeker's action to compel the enforcement of an oral palimony agreement between the parties. The parties' relationship lasted for thirteen (13) years and although they never married, they lived together for the vast majority of that time. During the duration of their relationship, Ross paid for all of Maeker's living expenses and made many promises that he would continue to take care of her. Based upon these promises, Maeker left her 20-year career in architectural glass. In 2011, Ross dissolved the parties' relationship and ceased his financial support of Maeker. Subsequently, Maeker filed a Complaint to enforce the parties' oral palimony agreement. Ross argued that because the agreement was never reduced to writing or signed by the parties, the statute of frauds prevented the agreement from being enforceable in court. The trial court denied Ross's motion to dismiss, but the Appellate Division reversed the decision of the lower court holding that the statute of frauds prevented Maeker's claim from being successful. This month, the New Jersey Supreme Court held that the 2010 amendment to the statute of frauds was not designed to make oral palimony agreements created before 2010 unenforceable because the state legislature understands that the court system does not retroactively apply statutes and because there was no discernible legislative intent that the amendment was to be applied retroactively, therefore the Court declined to apply the statute in this case. Written agreements are an important way to protect your security and assets in the event that a relationship dissolves. Due to the potentially complex nature of such agreements, if you would like to enforce or establish a palimony agreement to protect your rights it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about palimony agreements, prenuptial agreements, divorce, alimony, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.

Collaborative Law Act Directs NJ Toward Mediation

Most recently, the headlines have been cluttered with news about New Jersey alimony reform, but on September 10, 2014 Governor Christie also signed the New Jersey Family Collaborative Law Act into law which allows parties to engage a process very similar to mediation. Collaborative law is a derivation of mediation and/or other alternative dispute resolutions where a lawyer is hired to assist a client in solving family issues in a non-adversarial manner without utilizing the court system. In these types of situations the goal of both parties is to reach a resolution to their family law problems without resorting to litigation. Participants must enter into a collaborative law participation agreement which must be signed by the parties, include the parties' intention to resolve their issues using the collaborative law method, mention the confidentiality of the communications and evidence involved, establish the scope of the dispute, and detail how everything will begin and end. The agreement must also contain the identity of the collaborative lawyer representing the parties and define/limit that lawyer's role in the process. The process is concluded when there is a signed settlement agreement or a formal termination of the process. A party may terminate the process if and when: 1) giving notice in a record that the process has ended, with or without cause; 2) if and when a party files a document without the agreement of all parties; 3) if either party obtains or becomes subject to a temporary or final restraining order; 4) an action being initiated asking a tribunal issue a form of emergency relief to protect the health, safety, welfare, or interests of a party; 5) firing their collaborative law attorney; 6) a party does not provide all of the necessary information to properly resolves a dispute; or 7) the collaborative law attorney ceases further representation of a party. Utilizing alternative dispute resolution methods such as collaborative law or mediation can provide parties with a cost saving and emotionally softer approach to revolving their family law issues while avoiding the complex and expensive route of litigation. Collaborative law can be very powerful in theory but it requires that both parties act with reason and possess the motivation to resolve issues voluntarily and with good intentions. If you are thinking about filing for divorce or utilizing collaborative law, mediation, or any other alternative dispute resolution method during your divorce proceeding it is advisable that consult with an attorney who has experience in his area of the law. For more information about mediation, divorce, uncontested 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.

NJ Alimony Reform

On September 10, 2014, after three (3) years of political and legislative back and forth, New Jersey Governor Chris Christie signed into law an alimony reform a bill that went into immediate effect and alters the state's existing alimony law, N.J.S.A. 2A:34-23. The new law creates durational limits and enumerates particular factors that concern the modification process and termination of alimony. It is important to note that the new reform law does not apply to alimony awards that have already been established and will only affect alimony awards proactively. Specifically, the law "shall not be construed either to modify the duration or alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: 1) a final judgment of divorce or dissolution; 2) a final order that has concluded post-judgment litigation; or 3) any enforceable written agreement between the parties." Therefore, the new law will only apply to divorces that are currently in proceedings and all future divorces. The law will also apply to all future applications for the modification of alimony obligations based upon changed circumstances. First, the most significant alteration to the current laws regarding alimony is that the term "permanent alimony" has been replaced by "open durational alimony." From now on, for any marriage which lasted less than twenty (20) years, the total duration of alimony shall not exceed the length of the marriage, except for situations of "exceptional circumstances." Some of these circumstances include: the ages of the parties at the time of the marriage and at the time of the alimony award; the degree and duration of dependency of one party on the other party during the marriage; whether a spouse has a chronic illness; whether a spouse has given up a career or a career opportunity or otherwise supported the career of the other spouse; and others. This change to the law garnered additional support following the 2013 decision of Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013), which a marriage of fifteen (15) years was considered a long term marriage warranting permanent alimony. The new law effectively erases the legal import of that decision because it directs that a marriage of less than twenty (20) years is not a "permanent" alimony situation. Next, the court is required to consider how long interim or pendente lite support was paid during the proceedings in determining a final alimony award. This may deter a payee spouse from causing delays in divorce proceedings as a means of continuing to receive interim monthly support because he or she believes it will not have an impact on the final alimony obligation. With respect to retirement age, "full retirement age" is now defined as the age at "which a person is eligible to receive full retirement benefits" from Social Security. The new alimony reform law contains other more complex changes to the ways in which alimony will be awarded in the future. If you anticipate that you will be filing for divorce or may want to petition the court for a post-judgment modification of your alimony it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification, divorce, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com or click here to e-mail us. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Post-Judgment Attorney Fees Awarded

In Lind v. Lind, the Defendant Thomas Lind appealed from a 2012 Family Court post-judgment order stemming from his divorce that directed him to indemnify the Plaintiff, Marita Lind, for legal fees that she incurred to reach a settlement regarding their marital residence and because she was forced to file enforcement Motions. The Appellate Court affirmed the decision of the Family Division. The Plaintiff and Defendant were married on January 4, 1992. They were divorced in 2010 and their final divorce judgment contained partial judgment orders that pertained to specific issues in the case. One in particular, pertained to the disposition of the couple's marital residence through equitable distribution. The parties, at first, financed the home through a mortgage held by Chase Bank and later took out an additional mortgage through Wilmington Trust Company (WTC). In 2005, M&T Bank extended the couple a line of credit, secured by the second mortgage, to them for $107,800. After the parties separated in 2009, the trial court ordered the Defendant who was living in the home, to maintain all recurring costs pending the sale of the residence. The Defendant defaulted on the loan payments and M&T accelerated the sum due on the line of credit. Pursuant to the parties' equitable distribution negotiations and agreement the sale of the home was to be divided equally among them. In 2011, M&T filed a complaint against the Plaintiff and Defendant to recover the money due for the line of credit. Soon thereafter, the Defendant filed for bankruptcy and therefore the M&T and foreclosure actions were stayed for him. The Plaintiff actively defended the actions with her counsel. In 2012, the Plaintiff settled with M&T at a legal cost to her of $15,000 that she borrowed from her sick father. Plaintiff then filed Motions with the court seeking indemnification from the Defendant for the $15,000 she expended to reach a settlement with M&T as well as for attorney's fees she incurred to enforce prior orders issued against him. The trial court ordered the Defendant to repay the Plaintiff for a portion of the Plaintiff's counsel fees involved in reaching the settlement with M&T and for the Court Order Enforcement Motions because her attorney's efforts protected his interests in regard to the settlement and his dismissal of the court orders necessitated her filing of the Motions. The Defendant appealed from this decision. In its holding the Appellate Division found that "an allowance for counsel fees is permitted to any party accorded relief following the filing of a motion in aid of litigant's rights, R. 1:10-3, or to any party in a divorce action, R. 5:3-5(c)." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). In this case, the Appellate Court found that an award of counsel fees to the Plaintiff was proper because the Defendant repeatedly failed to comply with court orders and because the fees were reasonably incurred in efforts to secure the Defendant's compliance with the orders mandating him to pay for the expenses involved with the marital home. The Appellate Division also agreed with the lower court that the Plaintiff should be partially indemnified for the legal costs she incurred to settle with M&T because the Defendant received a benefit from the efforts. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, attorney's fees, alimony, child support, equitable distribution, divorce, uncontested divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Wife's Failure to Cooperate With Parenting Time Results In Transfer Of Custody To Father

In the recent Appellate Division case, I.O. v. M.C., the Defendant M.C. appealed from a 2013 Family Court Order that transferred legal and residential custody of her son Mark, to his father, the Plaintiff, and temporarily restricted her parenting time to one hour of supervised parenting time a week because she failed to cooperate with prior Court Orders. The Appellate Division affirmed the decision of the Family Court. The parties in this case were never legally married. After dating the Plaintiff for a couple of years, the Defendant gave birth to Mark in 2003. The Plaintiff contends that from the moment of Mark's birth he and the Defendant have engaged in routine disagreements about his role in Mark's life. The Plaintiff claims that the Defendant always believed that he should not participate in Mark's life and therefore she attempted to control every aspect of the child's life by herself. In 2005, the Plaintiff made an application to the court to determine custody and child support because the Defendant would not allow him any parenting time. Subsequently, the parties entered into a consent order that included a parenting time schedule and an agreement to attend family counseling. The Plaintiff alleged that the Defendant disregarded the agreement soon thereafter. Due to this, the Family Court appointed Marcy Pasternak, Psy.D. to be a parenting coordinator in the case. In 2006, the Plaintiff filed a Motion to enforce the parenting time order and require the Defendant to attend parenting sessions with Dr. Pasternak. Years of unsuccessful efforts by more than one Family Court judge to maintain residential custody with the Defendant while allowing the Plaintiff to successfully co-parent ensued. The Defendant signed many Consent Orders that directed that she would cooperate in co-parenting with the Plaintiff, but she failed to follow through with anything. In 2013, based upon an application by the Plaintiff, a Family Court judge found that the Plaintiff had proved a change in circumstances that were detrimental to Mark's best interests. The judge analyzed the applicable factors of N.J.S.A. 9:2-4 in arriving at his decision to transfer custody to the Plaintiff. The current appeal followed. On appeal, the Defendant argued that the Family Court judge erred in transferring sole custody to the Plaintiff because he based his opinion on erroneous facts that she refused to co-parent. According to the Appellate Court, a party who seeks modification of a judgment or order regarding custody or visitation "must meet the burden of showing changed circumstances and that the agreement is [no longer] in the best interests of the child." Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003). This issue of such a modification is two-fold and sequential. Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009). The party who seeks modification of a custody arrangement must "first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts." Faucett, 411 N.J. Super. at 127. The trier of fact also must consider the factors found in N.J.S.A. 9:2-4. The Appellate Court affirmed the decision of the lower court citing that the goal is to "assure [the Plaintiff] frequent and continuing contact with both parents." N.J.S.A. 9:2-4. Nevertheless, that goal can only be achieved if both parents understand that the other has a fundamental right to the care of their child and the Defendant has consistently ignored orders of the court that allow the Plaintiff access to the parties' child. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Equitable Distribution Impacts Alimony Calculation

In the recent Appellate Division case, Overbay v. Overbay, the Defendant Mary Ellen Overbay appealed from a 2013 Family Court Order that reduced her alimony award and the amount of life insurance that her ex-husband, the Plaintiff Bruce Overbay, must maintain for her benefit as part of the process of equitable distribution. The parties in this case were divorced in 2002 following a thirty-one year marriage. All three (3) of their children were emancipated at the time of their divorce. The Plaintiff is currently seventy years old and the Defendant is sixty-seven. At the time of their divorce, the Plaintiff was working for ExxonMobil earning $132,000 per year. The Defendant was not in good health at the time of the divorce and was teaching two classes at Seton Hall University and earned $12,000 a year. Given her significant medical problems, the judge found that her "future employability [was] uncertain." The court ordered equitable distribution and determined that the Plaintiff should pay to the Defendant $3,000 a month in alimony. Both parties appealed and the Appellate Court affirmed on all issues regarding equitable distribution but remanded for a re-calculation of alimony. Following a hearing, the Family Court judge ordered the Plaintiff to pay $3,750 a month in alimony and again the parties appealed. Again, the Appellate Court reversed the lower court's decision and reinstituted the Defendant's monthly budget to reflect $8,000, according to Rule 2:10-5. The Appellate Court then remanded back to the Family Court to modify the alimony award consistent with its ruling. Shortly thereafter, the Plaintiff filed a Motion for a downward modification of his alimony obligation based upon a reduction in his salary. The judge found that the Plaintiff had "proven a substantial and permanent change in circumstances based upon a change in employment at a reduced salary" and that the Defendant had a "decrease in the amount of alimony needed due to an increase in her income." In 2013, the Plaintiff's alimony obligation was reduced to $1050 a month and reduced the amount of life insurance that the Plaintiff had to maintain to $150,000. This appeal followed. The Appellate Court found that in determining an award of alimony, N.J.S.A. 2A:34-23(b) directs that a court should consider a set of statutorily defined factors to determine the obligation amount. The goal of an alimony award is to help the supported spouse to achieve a reasonably comparable lifestyle to what was enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). A judge may modify alimony based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). "In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999). However, this is only one factor that is considered and other factors such as personal assets and capacity to earn should also be considered. The Appellate Division then re-calculated the Plaintiff's alimony obligation retroactively to compensate for the slow decline in his salary and ordered that from 2013 forward he pay $2,000 a month in alimony and have to pay arrearage amounts pursuant to an established schedule. The equitable distribution of assets and alimony are of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts or alimony it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony contested divorce, uncontested divorce, spousal support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Court Denies Husband Alimony Reduction Based On Pre And Post Marital Lifestyles

In the recent Appellate Division case, Katchisin v. Katchisin, the Defendant Thomas Katchisin, appealed from a denial of his post-judgment application to terminate or modify his alimony obligation to his ex-wife. In his appeal, the Defendant argued that he successfully demonstrated a change in circumstances based upon the Plaintiff's increased income and disability status to warrant a modification of his alimony. The Appellate Court affirmed the decision of the Family Court based upon the pre and post divorce marital lifestyles of the parties. The parties in this case were married for twenty-eight (28) years and divorced in 2002. Their final divorce judgment incorporated a property settlement agreement (PSA) in which the Defendant agreed to pay to the Plaintiff $11,500 per year ($221 per week) in permanent alimony with the provision that "alimony shall terminate upon the death or either the plaintiff or the defendant [or] remarriage of the plaintiff, and may be reconsidered if the plaintiff cohabits with anyone per New Jersey case la at the time of such cohabitation." In 2013, the Defendant filed an application with the court to terminate or reduce his alimony obligation due to changed circumstances resulting from his becoming 100% disabled after his retirement. At oral argument, the Defendant argued that his increased disability status, his retirement, and his decreased earnings represented a substantial change in circumstances warranting the termination or reduction of his alimony obligation. The Plaintiff argued that the Defendant's income had actually increased and his income had become untaxed. The Family Court denied the Defendant's Motion and noted that he did not present any evidence of his increased disability. In its holding, the Appellate Court found that "the purpose of alimony is to maintain the parties' pre-separation standard of living." Steneken v. Steneken, N.J. 290, 298-99 (2005). The court may award alimony " as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. The award is always "subject to review or modification by our courts based upon a showing of changed circumstances." Miller v. Miller, 160 N.J. 408, 419 (1999). In affirming the Family Courts denial of the Defendant's Motion, the Appellate Division held that the lower court correctly addressed the modification issue by considering the Plaintiff's standard of living at the time of the divorce, and comparing it to her standard of living today. The Family Court correctly determined that while the Defendant was, at present, living above the marital lifestyle, the Plaintiff could not achieve the prior marital lifestyle without the benefit of the original alimony award. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation or any other court mandated legal obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification, divorce, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Post-Judgment Modification of Child Support And College Expenses

In the recent NJ Appellate Division case, Johnson v. Johnson, the Plaintiff, David Johnson, appealed from a Family Court's post-judgment Court Order concerning issues regarding his child support and college expenses obligations. The Appellate Division remanded the case back to the lower court for a reconsideration and for additional findings of fact and law. In this case, the parties obtained a legal divorce in 1994 after five (5) years of marriage. The Plaintiff is 53 years old and the Defendant, Patricia Johnson, is 59 years old. The parties' children, Warren and Nancy, born in 1992 and 1989 respectively, are college aged. The Plaintiff remarried after his divorce and had two (2) additional children with her, one born in 2001 and another in 2005. The Plaintiff lives in South Carolina, where he works at two (2) retailers. The Defendant is an accountant with county government and remains in New Jersey where she has primary residential custody of the parties' children. In 2011, the Plaintiff sought to reduce his child support obligation because he began to make less money. At that time, he was paying $180 a week in child support. Also at that time, he requested information regarding his children's college attendance. Both children were supposedly attending college. The Defendant submitted a cross motion for continued child support and for the Plaintiff to contribute to the children's college expenses. The court reduced the Plaintiff's child support obligation to $139 a week and used the NJ Child Support Guidelines to calculate the amount. The court noted that when the Plaintiff and Defendant divorced the Plaintiff was the breadwinner of the family and then the circumstances changed when the Defendant became employed and earned more than the Plaintiff. In addition, the Family Court directed that the Plaintiff pay 38% of the children's college costs. Following an appeal at that time, the Appellate Court reversed the decision and remanded the case back for reconsideration requiring the court to apply the statutory child support factors found in N.J.S.A. 2A:34-23(a). The Family Court lowered the child support to $100 per week and ordered the Plaintiff to pay 40% of the children's college expenses. In its opinion on these issues, the Family Court's decision recited the statutory factors found in N.J.S.A. 2A:34-23(a) and also the factors to determine a claim for college contribution set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). The Plaintiff appealed from this decision. In its holding the Appellate Court found that the trial court must make findings of fact and state its conclusions of law, according to Court Rule 1:7-4(a); N.J. Div. Youth & Family Servs v. M.C., 201 N.J. 328, 342-43 (2010). A motion judge must address the standards set forth in our statutes and cases to support a discretionary decision. Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). According to this standard, the Appellate Court once again remanded this case to the Family Court to make the appropriate findings, as the trial court simply recited the relevant statutory factors without explaining its conclusions of law. Child support cases are among the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a post-judgment modification of your current child support obligation or to seek any other relief pertaining to your divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child support, post-judgment modification, parenting time, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Denial Of Petition To Relocate Child Out Of United States Is Appealed

In a recent Appellate Division child relocation case, Gertseva v. Stamper, the Plaintiff, Lidia Gertseva appealed from part of a Family Court Order from 2012 that prohibited either party from removing their daughter from the United States without the express consent of the other party or a Court Order permitting such a removal. The Appellate Division affirmed the decision of the lower court. The parties in this matter obtained a divorce in 2008. During their marriage, the Plaintiff gave birth to a daughter who was eight years old at the time of this litigation. In 2008, the Family Court granted the Plaintiff's Motion which sought permission to relocate with the parties' daughter to Russia and specified that the Plaintiff and the Defendant, James R. Stamper, would share joint legal custody over the child, New Jersey would retain jurisdiction over the child, and the that the Plaintiff would have to follow the parenting time schedule established in the Court Order. The Plaintiff and her daughter relocated to Russia for about one year before returning to the United States to live in Virginia. In 2012, the Plaintiff filed another Motion seeking to modify the Court ordered parenting time schedule and to name her as the custodian of her daughter's passport. In the judge's Order it was specified that the Plaintiff could take the child to Russia for the Christmas holiday and that the child's passport "shall be provided upon request for travel when necessary to the parting travelling" with their daughter. Finally, the judge included that neither the Plaintiff nor the Defendant is allowed to remove the child from the United States without the written consent of the other parent or by Order of the court. The Plaintiff appealed from this decision. According to the Appellate Division, "More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children." Parish v. Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010). In its holding, the Appellate Court found that upon its review of the record, the Family Court judge did not exceed or abuse his parens patriae authority to act in the best interest of the child. The record reflected that there were recurrent disputes between the parties about their daughter's travel out of the country and her absence from school. The Family Court judge's Order reflected his concern with this, in that he narrowed the time the daughter could be out of the country and ordered when she would return to school. The Appellate Court noted that since the Plaintiff had returned to America for an extended duration of time and because she no longer resided in Russia, it found that there was no reason to revisit the issue of child relocation either by consent or by application to the court. If the Plaintiff desired to relocate to relocate with the child to Russia in the future, the Family Court would be capable of rendering a decision on the facts as they exist at that time. Disputes regarding child relocation can be of the most important in family law because of the substantial impact that decisions regarding these issues will have upon the lives of the parties and their children. If you are involved in a child relocation dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child relocation, child support, post judgment modification, divorce, or other family law matters in New Jersey visit Darlingfirm.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.

Custody And Parenting Time Dispute Mediation Compelled

In the recent Appellate Division case, Piscopo v. Piscopo, a father petitioned the Family Court to stop his ex-wife from relocating with their children and to compel her to honor their mutually agreed upon Consent Order to resolve issues of custody and parenting time through mediation before going to the courts. The Plaintiff, Brian Piscopo, appealed from a 2013 Family Court Order that denied his request to restrain the Defendant, Michelle Piscopo, from: 1) moving to Holmdel, New Jersey with the parties' children, and 2) the modification of the parties' custody and parenting time arrangement. The Appellate Division affirmed the decision of the Family Court. The parties in this case were married in 2007 and subsequently had two (2) children together. Upon the filing of the divorce complaint the parties participated in custody mediation which was successful. In 2012, the parties entered into a Consent Agreement which seemingly solved all issues with regard to custody and parenting time. According to the Consent Order, the parties agreed to share joint legal custody of their two (2) children with the Defendant as the parent of primary residence and the Plaintiff as the parent of alternate residence. Further, the Order specified that the parties would continue to work out a mutually agreeable parenting time schedule that was consistent with their daily lives but that Plaintiff would have parenting time every other weekend and over nights every Monday and Thursday. Finally, the Order included a term that the parties agreed that if a dispute over parenting time were to arise they shall first attempt to solve the issue through communication with each other, their attorneys, and/or through mediation before litigating the matter. In late 2013, the Defendant decided to move to Holmdel, New Jersey and the Plaintiff objected and filed an application with the court to prevent the move. The Plaintiff argued that pursuant to the Consent Order he enjoyed nearly equal parenting time with the Defendant and if she were to move to Holmdel he would not be able to continue his shared parenting time. The Family Court judge compelled the parties to first attempt to solve the issue outside of court, as per their agreement and directed them to attend mediation. The Plaintiff appealed. The Appellate Division found that the parties' Consent Order, which was incorporated into their Final Divorce Judgment and Property Settlement Agreement, expressly provided for dispute resolution, including mediation, before either party resorts to litigation. Further, marital settlement agreements and their like are "favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006); Weishaus, Weishaus, 180 N.J. 131, 143-44 (2004). In this case, the Appellate Court found that the Family Court judge was correct to enforce to parties' mutually agreed upon dispute resolution agreement, as mediation has proven to be successful in the past for parties with similar disputes. Finally, the Appellate Court added that "should mediation prove unsuccessful, nothing in the trial court's order precludes either party from promptly returning to court to adjudicate their dispute." Child custody and child relocation cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for to modify your custody arrangement or to deal with your child relocation issue it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about custody and visitation, child relocation, parenting time, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and is in no way is intended to replace the advice of an attorney.

Wife Must Pay Ex-Husband's Counsel Fees After Filing Frivolous Post-Judgment Motions

n the recent Appellate Division case, Doll v. Doll, the Plaintiff, Deborah Doll, appealed from a 2012 Family Court Order that compelled her to pay $1,809.50 to her ex-husband, Defendant Peter Doll, due to the expenses he incurred in opposing post-judgment Motions that she filed frivolously. The Appellate Division affirmed the decision of the Family Court. The parties in this case were marred in 1994 in the state of Florida and had one child, a son, together. Subsequently, they got divorced in 1997. In 2000, the Defendant was awarded residential custody of the parties' son after a lengthy custody and child support battle that began in 1996. At that time, the Plaintiff was ordered to pay child support to the Defendant for the benefit of their son. In 2004, it had been established that Florida retained jurisdiction over New Jersey concerning all issues regarding visitation and custody. Even though New Jersey did not have jurisdiction over the child support and custody issues of the case, the Plaintiff continued to file Motions for relief in New Jersey. In 2008, the Plaintiff filed a Motion in New Jersey to re-establish jurisdiction within the state from Florida, a Family Court judge noted that the Plaintiff's Motion was frivolous and if she continued to ignore the prior Court Orders the court will impose sanctions upon her to deter her conduct pursuant to Rule 1:4-8 3(c). Notwithstanding the fact that New Jersey court declined to hear her Motions on three (3) prior occasions for lack of jurisdiction, the Plaintiff filed a Motion in New Jersey again in 2012 to stay the enforcement of a Child Support Order. The Defendant filed a Cross Motion for counsel fees and sanctions. The judge granted the Defendant's Motion and the Plaintiff appealed from this decision. The Appellate Division affirmed the Family Court's decision, holding that the Family Court judge appropriately cited Rule 4:42-9(a)(1), N.J.S.A. 2A:34-23, and all of the relevant case law to allow for the award of counsel fees in Family Court cases. The Appellate Court held that there was no support in the court record for the Plaintiff's argument that the Family Court judge abused her discretion in her decision. If you anticipate that you may want to petition the court for a post-judgment modification of your parenting time, custody arrangement, or child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, parenting time, child support, custody and visitation, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.