Post-Judgment Alimony Modification Remanded To Determine Income

Kaller v. Gogan, is a case out of the NJ Superior Court, Family Part, Morris County regarding Defendant's alimony obligation based upon the exchange of post-judgment modification Motions between the parties. On remand, the Family Court reduced the Defendant's alimony obligation to $164 a week. In previous proceedings, the Family Court reduced the Defendant's alimony obligation from $364 a week to $175 and then upon remand it was determined that the amount should be reduced again to $164 a week with $10 of that going towards an arrears. The net effect of this was to put the parties in equipoise with each party netting $368 per week based upon the Plaintiff's earnings of $12,000 and the Defendant's earnings of $32,000 per year. In the initial appeal the Appellate Court noted that it understood ". . . what the judge was attempting to do, [which was] to award plaintiff sufficient alimony so that each [party] 'will net $368 per week based upon Defendant's earnings of $32,000 per year'." On the second appeal, the Appellate Court was unable to understand from the testimony at the plenary hearing and the documents in the record how the Family Court judge arrived at the Plaintiff's salary of $12,000 per year. On appeal from a Motion for Reconsideration, the Defendant asserted that the court erred in making conclusions regarding the Plaintiff's salary and although the Defendant accepted the court's finding that his gross income was $32,000, he rejected that the Plaintiff's gross income, excluding alimony, was only $12,000. The Defendant believed that the Plaintiff's actual income was $21,112 based upon her reported average gross weekly income of $406 dollars for 52 weeks. According to the Appellate Court, if it could have determined the Plaintiff's earnings for the years in question from the record, it would have exercised original jurisdiction and set the amount of alimony itself in order to have brought the matter to a close. Rule 2:10-5; Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004). Unfortunately, the record simply did not provide the court with enough information to do so. Therefore, the Appellate Court again remanded the case back to the Family Court so that the judge could explain the basis for how he determined the Plaintiff's salary. The Appellate Court ordered that this be done within 45-days. Being that the laws governing the issues involving alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification , 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.

Man's End-Of-Life Situation Did Not Give Rise To Alimony Termination

Rizzolo v. Jones is a New Jersey Appellate Division case in which the Plaintiff appealed from a Family Court denial of his post-judgment Motion to modify or terminate his alimony obligation to the Defendant due to his severely ill health. The Appellate Court reversed the decision of the Family Court. Whether or not an alimony award can be modified is "based upon a claim of changed circumstances . . . . " Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Such determinations will not be overturned "unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004). The parties in this case were married in 1982, were separated in 1989, and divorced in 2006. The Plaintiff was 58 years old and the Defendant was 38 years old when they got married. The judge who heard their divorce trial concluded that the Plaintiff, who was "in remarkably good health" at 84, had worked as an attorney for 50 years and was entitled to retire. Although the parties had not lived together for many years at the time of their divorce, the Plaintiff had continued to support the Defendant. The judge concluded that based upon this fact that the parties had a long term marriage and the Defendant was entitled to permanent alimony. The judge awarded the Defendant $300 a week in alimony. The Plaintiff was 89 years old and in ill health when he submitted a Motion to the court to terminate his alimony obligation. He was suffering from prostate cancer, renal failure, and a bone infection at the time. The Family Court found that the Plaintiff had established a prima facie case of changed circumstances and ordered discovery. Miller v. Miller, 160 N.J. 408, 420 (1999). Relying on Miller, Donnelly v. Donnelly, 405 N.J. Super 117, 130-31 (App. Div. 2009), and Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991), all which stand for the proposition that a supporting spouse cannot choose to remain in a position of diminished earning capacity and ignore the obligations of support to one's family, the court found that the Plaintiff did not do enough to meet his alimony obligation because he was a veteran entitled to veteran's benefits and he could have entered himself into a VA facility to address his health needs instead of paying for a relative to care for him at home. The Plaintiff appealed. The Appellate Court agreed with the Plaintiff's argument that no evidence was presented by the Defendant that a bed was ready and available at the VA facility or that the quality of care at the facility compared in any way to the care he was already receiving. The court held that it was not aware of any published cases suggesting that the Plaintiff should have prepared to justify his choice to remain at home receiving end-of-life care instead of entering into a VA facility so that he could maintain his alimony obligation. Further, the analysis in the Miller, Donnelly, and Aronson cases do not deal with end-of-life care questions as was pivotal in this case. Therefore, the decision to modify alimony turns on what is equitable and fair upon consideration of all circumstances of both parties. Lepis v. Lepis, 83 N.J. 139, 158 (1980). Therefore, the court reversed the decision of the Family Court. This being the case, the court held that the Family Court, on remand, may conclude that it is equitable to require the Plaintiff to enter a VA facility against his will to ensure that he meets his alimony obligation until his death. Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992). Being that the laws governing the issues involving alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , 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.

Denial Of Husband's Alimony Modification Reversed

In Galante v. Galante, the Defendant appealed from a court order that denied his Motion for a modification of his alimony obligation. The New Jersey Appellate Court reversed the decision of the Family Court and remanded the case back for reconsideration. The parties executed a marital settlement agreement (MSA) in 2011 upon getting divorced. According to the MSA, with regard to equitable distribution, the Plaintiff was to receive the parties' marital residence, the 401k account from one of the Defendant's businesses, and the parties' 2010 tax refund. The Defendant received the parties' 2009 tax refund, and his 50% interest in three businesses that were acquired during the marriage. Further, the MSA provided for a two-step alimony payment schedule because the Defendant was unable to pay off the mortgage that was securing their former marital home. Before the marital home was sold, the Defendant was to pay all of the house expenses and $400 a week in alimony to the Plaintiff. Once the home was sold, he was to pay $1,500 a week in alimony to the Plaintiff. In 2013, the Defendant filed a Motion with the court to modify his alimony obligation, amongst other things. He claimed that his financial circumstances had dramatically declined which resulted in a significant change in circumstances, which justified the modification of the MSA. Specifically, he noted that his businesses had permanently lost their client base after the economic collapse of 2008 and his annual earnings dropped from $400,000 a year to $130,000 constituting a significant change in circumstances. The Family Court denied his application citing that he had failed to establish a prima facie showing of changed circumstances because he failed to provide the court with documentation that proved his claims. The Defendant filed a Motion for reconsideration in which he included his tax returns. The court denied this Motion as well holding that the Defendant was simply trying to cure his deficient documentation with information that was readily available to him when he filed his first Motion. The Defendant appealed. On Appeal the Defendant claimed that he established a prima facie case for a change in circumstances according to Lepis v. Lepis, 83 N.J. 139 (1980). According to the Appellate Court, alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. To win on such an application, a showing of "changed circumstances" is required. Weishaus v. Weishaus, 180 N.J. 131, 140-41 (2004). The Appellate Court found that in this case the Defendant did not make broad generalizations and bare assertions that his businesses were suffering, but rather, he provided specific details about his businesses failures and his efforts to rectify his situation. Thus, at the very least, the Defendant presented a prima facie case of changed circumstances and if the Plaintiff materially disputed the Defendant's claims, a plenary hearing should have been held to consider those facts, which was not done. Therefore, the decision of the Family Court was reversed. If you believe that a post-judgment modification to your alimony obligation may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, equitable distribution, divorce, 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 if an attorney.

Child Support And College Expenses Calculated Based on Imputation of Income To Mother

In Haymaker v. Haymaker, the Plaintiff appealed from a post-judgment Court Order that required her to contribute to her daughter's college expenses and set a child support obligation and amount of arrears. The Appellate Court reversed and remanded the decision of the Family Court. The Plaintiff and Defendant were married and two (2) children were born to them. The parties were divorced in 1996. The parties' second child, C.H. was attending Syracuse University since August 2012. From the parties' divorce until 2011, C.H. lived primarily with the Plaintiff. In 2011, the Defendant submitted an application to the court for a change in custody which was granted and an order issued allowing C.H. to live in the primary custody of the Defendant. The Motion was initiated based upon a "four-year financial plan" which was established between the Defendant and C.H. to free the Defendant from his child support obligation and to permit his contribution to C.H.'s college expenses. The change in custody negatively impacted C.H.'s relationship with the Plaintiff. In 2012, the Defendant filed another Motion which sought a Court Order to determine his proportionate share of his daughter's college contribution for the support needs that were not covered by her attendance at college. Subsequent to this, the court issued an Order directing that the Plaintiff pay $125 per week in child support starting in July of 2012. The Plaintiff then filed a Motion for reconsideration which was denied. The Plaintiff appealed the decision and a subsequent decision affixing her child support that was heard during the pendency of the appeal. According to the Appellate Court, the Family Court has "substantial discretion" in deciding issues of contribution to college expenses. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012); Pascale v. Pascale, 140 N.J. 583, 594-95 (1995). An award will not be disturbed unless is it manifestly unreasonable or arbitrary. In Newburgh v. Arrigo, 88 N.J. 529 (1982), the New Jersey Supreme Court provided a framework for evaluating parental contribution toward a child's post-secondary education. A Family Court judge has an obligation under Newburgh and N.J.S.A. 2A:34-23(a) to consider all of the factors contained in that decision when making a contribution award. Further, it is well established that a child over the age of 18 who is enrolled in a full-time educational program requires continued support. Gac v. Gac, 186 N.J. 535, 542 (2006). In this case, the Appellate Court did not take issue with the Family Court judge's analysis of the Newburgh factors in reaching his decision, rather, the court disagreed with the judge's factual findings relative to his consideration of a student loan and other unreimbursed costs in the calculus of his determination. The court also found that the Family judge's imputation of income to the Plaintiff was incorrect. Therefore, the case was reversed and remanded back to the Family Court for a re-calculation of these figures. If you believe that a post-judgment modification to your child support or college expense contribution obligation may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, divorce, child custody, 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 if an attorney.

Alimony Terminates On Date Cohabitation Begins Absent Proof Of Delay In Economic Benefit

Schlumpf v. Schlumpf, is a New Jersey Appellate Division case in which the Defendant appealed from two (2) post-judgment Family Court Orders filed in 2013 regarding his alimony obligation following the Plaintiff's admitted cohabitation with her significant other. The Defendant claims that the date terminating his alimony obligation should be adjusted by four (4) months (earlier), to when the Plaintiff admitted her cohabitation. The Plaintiff argued that when she began cohabitating with her significant other she did not, at first, receive an economic benefit from the arrangement and therefore the Order terminating the Defendant's obligation at a certain date should not be modified. According to the Appellate Division, its review of the termination of alimony was "limited to whether the court made findings inconsistent with the evidence or unsupported by the record, or erred as a matter of law." Reese v. Weis, 430 N.J. Super. 552, 572 (App. Div. 2013). A Motion requesting the modification of an "alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). Typically, alimony can be altered based upon a changed circumstance which rests with the discretion of a Family Court Judge. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App Div. 2006). A type of changed circumstance would be the cohabitation of a spouse. Gayet v. Gayet, 92 N.J. 149 (1983). The parties in this case expressly acknowledged in their Marital Settlement Agreement (MSA) that such an event would constitute a changed circumstance which would warrant the modification of the Defendant's alimony obligation. Beyond cohabitation, there must be proof that a cohabitating spouse is receiving some form of economic benefit from the cohabitation. Reese, supra, 430 N.J. Super. at 557-8, 576. A spouse's proof of cohabitation establishes a rebuttable presumption of changed circumstances that once established shifts the burden of proof to the dependant spouse. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998). In this case, the Appellate Division found that there was no evidence to support the Family Court judge's selection of a particular date for the termination of the Defendant's alimony based only on the Plaintiff's suggested date. A review of the record, indicated to the Appellate Court that the Plaintiff failed to rebut the presumption that she began to get an economic benefit from cohabitating when she moved into her boyfriend's house. Therefore, the court concluded that it was an abuse of the court's discretion to fix the termination date at the date agreed to by the Plaintiff instead of terminating alimony when the Plaintiff and her children relocated to the residence of her boyfriend. The laws governing alimony have recently been changed, making it very important that you seek out the advice of an attorney to protect your rights an entitlements. If you are seeking post-judgment modification of your alimony obligation based upon your ex-spouse's cohabitation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , 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.

No Custody Change Absent Changed Circumstances

In B.T. v. T.T., a case that was appealed from Union County, the Defendant appealed from a 2013 Family Court Order that denied her application to gain custody of the parties' daughter. The New Jersey Appellate Division affirmed the Order pertaining to the custody issue. According to the Appellate Division, a party "seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Borys v. Boyrs, 76 N.J. 103, 115-16 (1978). A party seeking such a modification bears the burden of proof. Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div.) certif. denied, 192 N.J. 73 (2007). In the case on appeal, the parties' daughter was born in January of 2006 and was removed from the Defendant's custody in 2011 following an armed home invasion of the apartment that she shared with her boyfriend. The child began living with the Plaintiff, her father, in Pennsylvania at the time. In March of 2011, the Family Court issued an Order continuing the Plaintiff's temporary custody of the child. In 2012, the court held a two-day hearing regarding the custody of the parties' child on the application of the Defendant to regain custody. The court subsequently denied the Defendant's Motion and continued the custody of the child with the Plaintiff and gave the Defendant visitation on alternate weekends. In 2012, the Defendant made allegations that the Plaintiff was not properly attending to the child's medical and dental needs, allegations that the Plaintiff refuted. In 2013, a Family Court judge noted that he was in receipt of a report from the DCP&P that investigated the allegations against the Plaintiff and found all to be unfounded. The report also indicated that the Defendant's allegations against the Plaintiff date back to 2007 and all "have been deemed repetitive and . . . unfounded." The Family Court judge carefully reviewed the entire record and found no evidence to support the Defendant's different allegations against the Plaintiff and also finding that she failed "to make a showing of substantial change in circumstances." Therefore, denying her request for a change in custody. For the same reasoning, the Appellate Division affirmed the Family Court's decision to deny the Defendant's request. 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, mediation, 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.

Remand Of Post-Judgment Child Custody Issue For Due Process

S.W. v. W.B., is a New Jersey Appellate Division case that was decided in 2015 in which the Defendant appealed a prior Court Order that denied his Motion for Reconsideration regarding post-judgment divorce and child custody Orders that pertained to reimbursement obligations for extra-curricular activity expenses for his children. In reviewing a Motion for Reconsideration, a court must determine if the trial court abused its discretion in rendering the decision that is disputed. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002). "Reconsideration should be used only for those cases . . . where either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Id. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A Motion for Reconsideration should only be granted under very narrow circumstances. In this case, the Appellate Division agreed with the Defendant that the Family Court mistakenly viewed part of the Defendant's Motion as a Motion for Reconsideration, when it should have treated the Motion as one to vacate the prior Court Order on due process grounds and the court should have considered the merits of his argument before denying his Motion. The Plaintiff and Defendant were married in 1998 and two (2) daughters were born during the marriage. In 2009, the parties decided to divorce and their final divorce judgment incorporated a property settlement agreement (PSA). Apparently, the parties agreed to equal shared parenting time. There has been multiple post divorce disputes with regard to the sharing of the children's extra-curricular activity expenses. The agreement provided that the Defendant was to pay 48% and the Plaintiff 52% of the costs associated with the activities. Further, the agreement particularly states that "The parties shall discuss the cost of any activity and only agreed upon activities shall be so divided. Neither party shall enroll the children into an activity without discussing same and obtaining agreement from the other party." Since 2009, the litigants have come to court with disputes regarding this provision on multiple occasions. With regard to the latest exchange of Motions between the parties, the Defendant filed his Motion for Reconsideration 20 days after his receipt of the Court Order he was objecting to because he claimed that he was not properly served with previous pleadings. . . ." The Defendant filed an appeal in 2013 and referenced a number of prior Court Orders that he was dissatisfied with. For the reasons previously mentioned the Appellate Division remanded the case back to the Family Court to make determination on the issues of the case. If you believe a post-judgment modification of your child custody arrangement or obligations may be beneficial, it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification , divorce, alimony, child custody, 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.

Court Refuses To Terminate Alimony Due To Job Loss

In the 2015 case, Lodge v. Lodge, the Plaintiff appealed from a Court Order issued in 2012 that denied his Motion to terminate alimony but instead reduced his support obligation after he lost his job and became disabled. The court's reasoning was based primarily upon the fact that the Defendant, the Plaintiff's ex-wife, did not have any other income other than her alimony. In New Jersey, whether or not a party's alimony obligation should be terminated, reduced, or modified in any way is based upon a claim and showing of changed circumstances. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App Div. 2006). A Family Court judge is empowered with the ability to determine whether a change in circumstance has occurred based upon the individual facts of each case. Id. In this case, the Plaintiff argued that his circumstances had changed because he was laid off from his job and could not find another one, therefore his alimony obligation to his ex-wife should be terminated. Further, he added that since he was laid off he had become physically disabled. The Plaintiff also was receiving eighty (80) weeks of severance from his former employer. In 2011, he filed a Motion to terminate his alimony obligation based upon these changed circumstances. The Family Court recognized the Plaintiff's financial difficulties but because the Defendant did not have any income beyond her alimony, in the interests of equity, the court temporarily reduced the Plaintiff's obligation to a progressively decreasing amount beginning in 2012 and ending with $81 a week to be effective in 2014. This determination was based upon the factors set forth in N.J.S.A. 2A:34-23(b) and the fact that the parties would be receiving Social Security benefits. On Appeal, the Plaintiff argued that the Family Court's reluctance to terminate his alimony obligation was inequitable. The Appellate Court affirmed the decision of the Family Court holding that the judge's decision was supported by sufficient credible evidence and did not constitute an abuse of the court's discretion. Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013); Cesare v. Cesare, 154 N.J. 394, 412 (1998); Lepis v. Lepis, 83 N.J. 139 (1980). Although the laws regarding duration of alimony have recently been changed, many people will still be required to pay or receive spousal support for many years. This can be a substantial financial burden or benefit to you depending upon your circumstances. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , 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.

Alimony Modification Denied For Lack Of Changed Circumstances

In the case of Monico v. Monico, the Plaintiff appealed from a 2014 Family Court Order that denied his Motion to modify his alimony obligation based upon changed circumstances. The New Jersey Appellate Court affirmed the decision of the Family Court. Each "and every motion to modify an alimony obligation 'rests upon its own particular footing'" and the Appellate Court "must give due recognition to the wide discretion" that is given to trial judges who adjudicate these matters. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006); Martindell v. Martindell, 21 N.J. 341, 355 (1956). Ultimately, this standard conveys that a trial judge's findings in regard to alimony should not be vacated unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence. Gnall v. Gnall, 432 N.J. Super. 129, 148 (App. Div. 2013). Court Orders concerning alimony "may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Therefore, alimony obligations are "always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146 (1980). The law regarding what constitutes a change of circumstances is well established. Examples of changed circumstances that may warrant support modifications include an increase or decrease in the paying spouse's income or disability or illness which arises after the divorce judgment is issued. In this case, the Plaintiff argued that the Family Court judge who denied his request to modify his alimony amount was mistaken in considering his 2012 tax return instead of his projected earnings for 2013, when determining if a change in circumstances had existed. The judge noted how the Plaintiff's income had increased since signing his property settlement agreement (the parties were divorced in 2007) based upon multiple sources of income. According to the Appellate Division, as the Plaintiff's 2013 financial information from his primary business, a towing company that he owned, had not been finalized it discerned no reason to disturb the Family Court's ruling to deny the Plaintiff's request based upon insufficient evidence of changed financial circumstances. Being that the laws governing the issues involving alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , 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.

Cohabitation Under New Alimony Changes

On September 10, 2014, following years of legal and legislative debate, the laws regarding alimony were amended in the state of New Jersey. N.J.S.A. 2A:34-23. Although the lion's share of the attention was directed at the changes to the durational aspect of alimony, there were considerable changes made that affect the modification of an existing or future alimony obligation in the event of an ex-spouse's retirement or cohabitation. An issue may arise regarding what law to apply when an existing property settlement agreement (PSA) provides that the issue of cohabitation be decided using the established case law. The language in a PSA is most commonly bargained for and negotiated amongst the parties and if it contravenes the status of the law such language could preclude the application of the amended alimony statute. To determine whether spousal support should be modified based upon cohabitation the case of Konzelman v. Konzelman, 158 N.J. 185, 202 (1999) and Gayet v. Gayet, 92 N.J. 149, 155 (1983) are most often cited and define cohabitation as an intimate, close, and enduring relationship that requires more than simply a common residence. An evaluation must look to whether or not two people were in a long term romantic relationship, shared finances, shared living expenses, and held themselves out to friends and families as a romantic couple. The amended statute's definition of cohabitation is similar but not as clearly defined. Most significant, the law requires that a trial judge consider the length of the relationship and address prior inconsistencies in the law. Being that the language of the statute is not as detailed as the case law, a question arises as to the status of the economic-based standard that was established in the Gayet case for modifying support in the event of cohabitation (whether the third-party cohabitant contributes to the dependent spouse's support or whether the third party cohabitant resides in the dependent spouse's home without contributing anything toward the expenses). A question remains as to whether or not this economic benefit test is part of the current law. The Gayet case and the cases that followed it clearly established that modification during cohabitation may mean more than simply the termination of the support obligation. Reese v. Weis, 430 N.J. Super. 552, 572-73 (2013). If there is no longer an economic benefit test, any modification that is not a suspension or termination to support is unnecessary. The new alimony statute directs that "alimony may be suspended or terminated if the payee cohabitates with another person." N.J.S.A. 2A:34-23. Further, the statute does not explicitly provide what facts would be necessary to warrant a suspension of support in contrast to a termination. These issues are all fact based issues that are most often decided at the discretion of the trier of fact, which is the court in these cases. Therefore, the interpretation of the new statute will be developed through future case law created by Family Court judges adjudicating these issues and remain unclear at the present time. Recent changes have been made to alimony laws making it very important that you seek the advice of an attorney to protect your rights and entitlements. If you are considering a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, child support, post-judgment modification , 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.

Court Refuses To Modify Child Support Until Documents Were Reviewed

In Siegel v. Siegel, the Plaintiff appealed from a New Jersey Family Court Order that denied her Motion to obtain particular additional discovery from the Defendant regarding his financial status and that denied her application to re-evaluate his child support obligation until the court had the opportunity to review his financial documents. The Plaintiff and Defendant were marred in 1990 and divorced following a five (5) day trial in 2004. They had two (2) children, a daughter 1996 and a son in 1999. The parties' divorce judgment awarded residential custody of the children to the Plaintiff, with the Defendant having visitation rights. The Defendant was ordered to pay $400 a week in child support as well as 80% of their son's schooling expenses, and summer camp. In 2012, the Plaintiff filed a Motion that demanded an increase in child support and requested that the Defendant produce current income information and an updated Case Information Statement (CIS). In June of that year, the Family Court increased the Defendant's obligation to $546 per week. In 2013, the Plaintiff filed another Motion requesting, among other things, that the Defendant be required to "produce the last three years of income statements, bonus income information" and " all documentation that prove[d] justification for the expenses [were] in question on his newest 2012 CIS." The court issued an Order requiring that the Defendant, within thirty (30) days, produce the financial documents regarding his income that were requested but denied her request for all documentation justifying the expenses in the Defendant's 2012 CIS, on the grounds that such information was not relevant to the issues before the court. The court also denied her request that the Defendant's child support be modified until the court could review the aforementioned documents that it did order the Defendant to produce. The Plaintiff appealed. According to the Appellate Division, in the 2013 Court Order in question, the Family Court denied without prejudice, the Plaintiff's Motion to modify child support until the court could review the documents that it ordered the Defendant to produce. "Thus the order appealed from lacked the attributes of a final order." Leonard & Butler, P.C. v. Harris, 279 N.J. Super. 659, 662 n.1 (App Div), certif. denied 141 N.J. 98 (1995). Since the denial without prejudice was an interlocutory order, Plaintiff's appeal of that denial without prejudice must be dismissed. According to the court, it is well established that, "with very few exceptions, only an order that finally adjudicates all issues as to all parties is a final order and that an interlocutory appeal is permitted only by leave of our appellate courts." Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008) (citing Rule 2:2-3). As the court noted in Christensen v. Christensen, 376 N.J. Super. 20, 23-24 (App. Div. 2005), a trial order requiring parties to provide additional information to enable the court in a later order to make a final decision on the appropriate level of child support is "interlocutory" because the court "had not yet entered a final order concerning child support. Therefore, this part of the Plaintiff's appeal was dismissed. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about 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 is intended to replace the advice of an attorney.

Default Divorce Vacated On Appeal

In Block v. Block, a NJ Appellate Division case, the Defendant argued that the Family Court judge who adjudicated his divorce wrongly entered a judgment of divorce by default against him and erred in refusing to vacate the judgment. The Appellate Division agreed and reversed the decision of the Family Court. The Plaintiff filed a Complaint for Divorce in 2013 and according to the Defendant he and his wife engaged in negotiations to resolve the matter without the assistance of counsel as a means to save money. In April of that year, the Defendant suffered a heart attack and subsequently in May of 2013 requested that the Plaintiff provide consent to extend his time to file an Answer to her divorce Complaint, and although the Plaintiff stated that she would provide the information to her attorneys at the time (again as a means to save money), it stands to reason that she did not. The Defendant prepared and e-mailed a stipulation to the Plaintiff extending the time to file a responsive pleading which was provided to the Family Court in this case. The Defendant also provided the court with information that showed that he and the Plaintiff took additional steps to negotiate a settlement. Next, the Defendant claimed that even though he and the Plaintiff agreed to negotiate rather than proceed through attorneys, the Plaintiff's attorney applied for a default judgment against him without advance warning. On the hearing date scheduled for the default, the Defendant appeared pro se and argued his case to obtain the opportunity to file an Answer rather than suffer a default judgment. The judge found that the Defendant did not comply with the Court Rules and entered the default judgment. The Defendant then moved for relief pursuant to Rule 4:50 to vacate the default judgment that was issued against him, and in his Motion papers he outlined his sudden illness, the agreement between he and the Plaintiff to circumvent litigation through negotiation, his transmittal of a stipulation to extend his time to file an Answer, and his attempts to file an Answer once learning that the Plaintiff's attorney filed for default without warning him. The judge denied his Motion to vacate the default judgment for the same reasons she entered the default against him. The Defendant appealed from this decision arguing that the judge did not view his Motion to vacate with the liberality that is required by Rule 4:50 and Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1964). The Appellate Division agreed with the Defendant and reversed the decision of the Family Court holding that the Court Rules were designed to promote the efficient administration of justice and disposition of cases on their merits and not on procedural niceties. Rule 1:1-2. As the New Jersey Supreme Court has noted the Court Rules "should not in themselves be the source of any extensive litigation; they should be subordinated to their true role, i.e., simply a means to the end of obtaining just and expeditious determinations between the parties on the ultimate merits." Handelman v. Handelman, 17 N.J. 1, 10 (1954); Ragusa v. Lau, 119 N.J. 276, 283-84 (1990); Stone v. Old Bridge Twp., 111 N.J. 110, 125 (1988). According to the Appellate Division, the Family Court judge's decision did not reveal any of the liberality required by the Court Rules. If you anticipate that you are to be engaged in a contested or uncontested divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, uncontested divorce, post-judgment modification, alimony, 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.