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Mistake Of Party Does Not Prejudice Child's Right To Child Support

In an appeal of a decision setting the retroactive date for child support, Plaintiff, Jacqueline Kelly, sought to establish child support as of the date set forth in the parties' Property Settlement Agreement (PSA), which was the date that Plaintiff and the child vacated the marital residence. The New Jersey Superior Court, Family Part, Camden County established a retroactive date for payment of child support by Defendant, Vincent Kelly, among other relief. In September 2012, the parties were divorced and the terms of their PSA were incorporated into the final judgment of divorce. Child support was to begin at the time the parties moved to separate residences and the Plaintiff assumed the role of parent of primary residence. Upon vacating the marital residence in December 2012, the Plaintiff failed to complete certain required forms in order to allow the court to establish child support. In August 2013, the Plaintiff filed a motion to enforce the provisions of the PSA pertaining to child support. Relying on N.J.S.A. 2A:17-56.23a, the trial judge established child support retroactive to August 2013 when the Plaintiff filed her motion. The Plaintiff filed a motion for reconsideration which was denied. The Plaintiff appealed in Kelly v. Kelly. The Defendant claimed that (1) the Plaintiff's failure to complete requisite forms delayed the establishment of child support; (2) the Plaintiff sat on her rights by waiting to file the motion; and (3) N.J.S.A. 2A:17-56.23a does not provide for establishment of retroactive child support beyond the date the Plaintiff's motion was filed. The N.J. Appellate Division held that N.J.S.A. 2A:17-56.23a applied to retroactive modification of an established child support order per Kakstys v. Stevens, 442 N.J. Super. 501 (Ch. Div. 2015) and Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995) rather than the establishment of an initial support order as Kelly v. Kelly required. Further, the N.J. Appellate Division held that the Plaintiff's failure to act does not serve to deprive the child of the right to support which was negotiated to begin at the time the parties moved to separate residences. The Appellate Division restated the principal that child support is the right of the child, not the custodial parent. Gottlib v. Gottlib, 399 N.J. Super. 295 (App. Div. 2008). The Appellate Division reversed as to the matter of the retroactive date of child support and directed that child support be established as of the date the Plaintiff and child vacated the marital residence. The decisions made in divorce, by either the parties or the court in the event of trial, are long lasting and have significant consequences to both parties' and their children. If you are seeking child support or a modification of your present child support order, it is critical that you discuss your situation with an experienced divorce attorney before taking action. For more information about child support, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alimony Modification Denied For Lack Of Changed Circumstances

Jill Bier was seeking an increase in the monthly alimony of $25,000 she was receiving from her former husband Robert Bier. Ms. Bier appealed the denial of her application for upward modification of alimony payments by Robert Bier. The couple's final judgment of divorce, which occurred in 2003, made it clear that Jill Bier's monthly medical expenses would increase. The New Jersey Superior Court, Somerset County, Family Part judge hearing the motion for reconsideration noted the substantial discrepancy between Jill Bier's Case Information Statement (CIS), indicating $17,194 monthly in medical expenses and the certification she submitted in support of her motion which indicated $6,000 per month in medical expenses. Jill Bier provided no documentation of her claimed expenses, her condition or any change therein since the divorce. The judge found Jill Bier's credibility to be questionable in light of conflicting claims of being nearly bed ridden yet purchasing a Mercedes E550 and incurring commuting expenses of $5,500 monthly. In Bier v. Bier, the New Jersey Appellate Division determined that no as there was no prima facie showing of changed circumstances, as required under Lepis v. Lepis, 83 N.J. 139 (1980), no evidentiary hearing was required. The Appellate Division followed Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006) in holding that the decision to modify an alimony obligation based on claims of changed circumstances rests with the family part judge. Finding no reason to disturb the decision, the N.J. Appellate Division affirmed the decision of the trial judge. If you are facing divorce, alimony can have lasting and substantial consequences upon your future whether you are the obligee or the obligor. It is imperative that you obtain an experienced divorce attorney for your divorce or motion for modification in order to ensure that your rights are protected. For more information about divorce, alimony, child support and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Final Restraining Order (FRO) Cannot Be Granted Without Factual Findings

L.S. sought a final restraining order against J.P. under the Protection of Domestic Violence Act (N.J.S.A. 2C:25-17 to -34). L.S. and J.P. were both married to others but had an affair with each other for approximately 1 year before their spouses became aware. L.S. attempted to terminate the relationship in approximately May 2013 and J.P. continued to contact her. L.S. sought a final restraining order (FRO) against J.P. The FRO was granted in the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County. In L.S. v. J.P., J.P. appealed focusing on the court's finding that he had committed the act of harassment (N.J.S.A. 2C:33-4). J.P. maintained that the relationship continued, in a pattern of arguments and reconciliations, up until the time L.S. filed the charges against him. The court below focused only on the messages from L.S. to J.P. did not make findings regarding messages J.P sent to L.S. The court below made no findings about the credibility of the parties. Most importantly for J.P., the court failed to make the required finding that J.P. intended to harass or annoy L.S. In Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006), the court set forth a two step inquiry. First it must be established by the Plaintiff that a predicate act of domestic violence occurred against a person protected by the act. Thereafter, it must be determined that a restraining order is necessary to protect the victim from immediate danger or further abuse. The Appellate Division reversed and remanded for factual findings supporting the decision. If you are charged with domestic violence or you are seeking a final restraining order against an abuser, there are specific burdens of proof for both parties in proving or disproving the charges making it critical that you obtain experienced criminal defense counsel to represent you in such matters. For more information regarding domestic violence, restraining orders, assault, battery and other criminal law issues in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Twins From Different Fathers - Who Pays Child Support?

In Passaic County Superior Court, Judge Sohail Mohammed decided, after hearing testimony from the mother, T.M., and experts, that A.S. was responsible for the payment of child support only for the child he fathered. T.M. gave birth to twins and sought assistance from the Passaic County Board of Social Services. In making her application, T.M. indicated she was in a relationship with A.S. and identified him as the father. The Passaic County Board of Social Services filed an application to establish the paternity of A.S. Paternity testing was ordered. At trial, the Judge heard expert testimony from the director of the Identity Testing Division of Laboratory Corp. of America that the twins were fathered by two different men during the same cycle. Judge Mohammed also heard the testimony of T.M. that she had sexual intercourse with another man within one week of having sexual intercourse with A.S. The court ruled that A.S. would pay child support for only the child he fathered. Child support, once established, continues until the child is emancipated. Barring exceptional circumstances, child support usually continues for a minimum of 18 years and can continue until a child completes graduate school in some cases. If you are seeking child support or a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney before taking action. Also, if you do not believe you are the father of a child for which you are being asked to pay support, it is critical you consult an experienced family law attorney to learn your rights. For more information about child support, custody, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Custody and Parenting Time Conditioned on Reunification Therapy

William Iozia filed a motion for parenting time after failing to see his children for almost 2 years. Kelly Krzeckowski, the mother, entered into a consent order with Iozia calling for a custody and parenting time evaluation for both parents, reunification therapy for the father and the parties 2 children, and the possibility of a substance abuse evaluation for the father. The consent order also called for the parties to share the cost of the custody and parenting time evaluator equally. Iozia sought supervised parenting time until the evaluations could be completed and successfully completed the required substance abuse evaluation to obtain the supervised parenting time but Krzeckowski claimed the substance abuse evaluation was limited. Additionally, no reunification therapy had occurred and the parties, upon return to court, received an order reserving custody issues until reunification therapy was completed and ordering the father to pay for reunification therapy costs. After attempting reunification therapy for some time and changing therapists at the request of the mother, the situation broke down. The father sought a plan for supervised parenting to be followed by unsupervised daytime parenting and ultimately unsupervised overnights every other weekend. The mother requested another substance abuse evaluation of the father. The parties were instead ordered to comply with the prior order for reunification therapy and the father was ordered to undergo a drug screening at the mother's expense. The court denied both parties' counsel fees requests but included that, should either party fail to comply with the order, the non-compliant party would be responsible for the other party's counsel fees. Krzeckowski appealed the denial of her counsel fee request and, in Iozia v. Krzeckowski, the N.J. Appellate Division upheld the decision of the court below denying counsel fees finding that the original order failed to spell out certain details relating to reunification therapy costs which could have resulted in delay without fault of either party. Child custody 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 establish custody, or for a post-judgment modification of your current child custody arrangement, it is critical that you consult with an experienced family law attorney before moving forward. For more information about child custody, post-judgment modification, parenting time, 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.

Alimony Motion Dismissed For Discovery Violations

Null v. Null involved an alimony matter on appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County. The parties married in 1978, had two children in 1982 and 1984 respectively, and were divorce in 2005. They entered into a negotiated property settlement agreement (PSA) at the time of divorce including permanent alimony from the Defendant to the Plaintiff in the amount of $6,000 per month based on his annual income of $175,000 with a formula for calculating increases and caps in alimony as Defendant's income fluctuated. In 2007, the Defendant unilaterally reduced his alimony payment to $5,000 monthly. Thereafter, a series of motions were filed resulting in the establishment of arrearages and discovery orders which the Defendant continuously ignored with the result of sanctions in the form of counsel fees to the Plaintiff, Lynn Null. The Defendant, William Null appealed portions of the family part order dismissing with prejudice his motion to terminate alimony, or reduce his obligation; vacating orders granting a plenary hearing and appointing a forensic accountant; ordering him to resume alimony payments, including arrears and counsel fees to Plaintiff; and denying his motion for reconsideration. Defendant cited abuse of discretion by the judge in the dismissal of his motion with prejudice. Plaintiff cross-appealed for a recalculation of the alimony arrearage. Although the "absolute sanction" of dismissal is to be utilized sparingly under Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499 (1995). The N.J. Appellate Division looked to Zaccardi v. Becker, 88 N.J. 245 (1982) which held that discovery rules are designed to facilitate and provide uniformity to litigation. Additionally, under Summit Tr. Co. v. Baxt, 333 N.J. Super. 439, 450 (App. Div.), cert. denied, 165 N.J. 678 (2000), courts have the authority to impose sanctions for violations that fly in the face of the rules. Rule 4:23-5 and Rule 4:23-2 permit dismissal with prejudice only after permitting a party opportunity to remedy the discovery violations. Casinelli v. Manglapus, 181 N.J. 354, 365 (2004) defined that the court must assess the "willfulness of the violation, the ability of [the party] to produce [discovery]," prejudice to the party not in violation and the length of time before trial. The Appellate Division reviewed the fact that in cases where a party persistently violated discovery obligations they found dismissal with prejudice to be appropriate. They found that the motion judge still did not know the Defendant's actual earnings after years of ongoing litigation and that the Defendant's actions were deliberately designed to cause that result. In light of the Defendant's willful and repeated violations, the N.J. Appellate Division affirmed the dismissal with prejudice. If you are facing divorce, alimony can have lasting and substantial consequences upon your future whether you are the obligee or the obligor. It is imperative that you obtain an experienced divorce attorney for your divorce or motion for modification in order to ensure that your rights are protected. For more information about divorce, alimony, child support and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Support Based On Imputed Income Raises Suspicions of Appellate Panel

A post-judgment order decreasing child support was entered in the Superior Court of New Jersey, Chancery Division, Essex County, without a plenary hearing to dissatisfaction of both parties in Tuman v. Tuman. The order imputed income to the defendant, Michael Tuman, decreasing his child support payment to the plaintiff and requiring the defendant to pay plaintiff, Monica Tuman, a portion of what were found to be extraordinary child-related expenses. Monica Tuman appealed and Michael Tuman cross-appealed resulting in a remand of the matter for a plenary hearing on the disputed issues in the case. At the time of their divorce, the parties entered into a Property Settlement Agreement (PSA) wherein both waived alimony and equitable distribution but the defendant, then reporting $40,000 in income from his small business, was required to pay $550 per week in child support, a substantial deviation from the Child Support Guidelines figure, to the plaintiff as well as 75% of the children’s unreimbursed medical expenses. Later, the plaintiff sought additional payment from Michael Tuman for Hebrew school, synagogue dues, day camp and other similar expenses. The matter required a plenary hearing to determine the scope of extracurricular activities contemplated in the child support payment established. The court held that the defendant was liable for payment of 1/3 of the expenses based on an income of $130,000 at that time. The court specifically avoided a “changed circumstances” analysis because neither party was actually seeking a modification in child support, only a contribution for additional expenses. Later, in the matter at hand, the plaintiff sought contribution from the defendant for their daughter’s activities, including driving lessons, car payments and college preparation costs, as well as an increase in child support due to a decrease in the defendant’s visitation and the defendant sought to reduce child support to a level within the Child Support Guidelines based on the failure of his business and a current income of $25,000 per year. hild Support Based On In its decision to remand the matter for a plenary hearing, the N.J. Appellate Division found that the judge’s questioning of the pro se plaintiff at length during an evidentiary hearing did not provide her adequate opportunity to prepare. The judge decreased child support to $404 per week but offered no logical reasoning as to why for the Appellate Division to opine on although the imputation of income is considered an “extremely fact-sensitive endeavor”. Caplan v. Caplan, 364 N.J. Super. 68, 88 (App. Div. 2003), aff’d, 182 N.J. 250 (2005). The appellate panel also found that it was inappropriate to determine certain extracurricular expenses were over and above the Child Support Guidelines without a plenary hearing. Decisions of the parties or the court in divorce matters have long-lasting implications for the parties and their children. If you anticipate that it may be beneficial to you to seek a post-judgment modification of a Court Order regarding a 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 modification, child support, 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.

Modify Your Alimony Obligation Before Retirement

In Mueller v. Mueller, a judge interpreted the legislative intent of modifications to N.J.S.A. 2A:34-23 to allow for pre-retirement anticipatory alimony modification. Ocean County Superior Court Judge Lawrence Jones held that the legislative intent was to allow for modification or termination of alimony obligations in the event that retirement is to occur in the near future and a detailed plan for actual retirement exists. Judge Jones found that there is a benefit in allowing a party contemplating retirement to understand fully what their actual alimony obligation will be prior to fully exiting the workforce. The judge set forth no specific time limits but suggested a 12 to 18 month timeframe for such motions. Judge Jones determined that Gordon Mueller's retirement, planned for 5 years following the post-judgment motion hearing, was too uncertain to warrant a reduction at the present time. If you are considering retirement but have an existing alimony obligation you now have an opportunity to determine what type of obligation you will face after retirement and whether you will be able to live the lifestyle you wish during retirement. For more information about post-judgment modification of alimony, child support, parenting time and other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

High Net-Worth Divorce Leads To Successive Post-Judgment Motions

In a high net-worth divorce, Robin Baskin, the defendant, filed a motion to enforce litigant's rights seeking child support and alimony arrears as well as medical expenses for the children. The parties entered into a negotiated property settlement agreement (PSA) at the time of their divorce which provided, among other relief, alimony to the defendant in the amount of $17,000 per month for 78 months and child support in the amount of $3,300 per month for the parties' 3 children until such time as the children were emancipated. The children often changed residence between the parties and 2 of the parties children had great difficulties in school, which the Plaintiff cited as being due to family conflict, and were enrolled in alternate educational settings at costs of up to $80,000 annually. The Superior Court of New Jersey, Chancery Division, Family Part, Morris County ordered the plaintiff to satisfy all child support and alimony arrears as well as reimburse the defendant for the children's medical expenses but allowed the plaintiff a $20,000 credit for the plaintiff's expenses resulting from the children's difficult circumstances. The Honorable Thomas J. Critchley also awarded the defendant $12,000 in counsel fees associated with her motion. In Baskin v. Baskin, the NJ Appellate Division upheld the denial of the plaintiff's request for a retroactive modification in child support, which is barred by N.J.S.A. 2A:17-56.23(a), to the date that the children returned to his residence rather than the date of the filing of his cross-motion. Ohlhoff v. Ohlhoff, 246 N.J. Super. 1 (App. Div. 1991). The Appellate Division did determine that child support should be modified to reflect the change in custody wherein the plaintiff became the parent of primary residence and found the credit awarded by the motion judge to be unsupported by reasons as required under Heinl v. Heinl, 287 N.J. Super. 337 (App. Div. 1996). Without reasons set forth fully on the record, the Appellate Division has no basis on which to conduct a review. Finally, with regard to the defendant's counsel fees, N.J.C.R. 5:3-5(c) permits attorney fees in matters of child custody, support and motions to enforce litigant's rights. The motion judge determined that, as there were no substantial changes made in his decision, the plaintiff's motions were in bad faith but made no specific findings with regard to counsel fees. The N.J. Appellate Division found that the plaintiff was reasonable in seeking relief and vacated the counsel fee award to the defendant. The decisions made in divorce, by either the parties or the court in the event of trial, are long lasting and have significant consequences to both parties' and their children. When considering a modification, timing is crucial as you cannot obtain modification retroactively beyond the date of your application. If you have significant income or assets and are considering divorce or seeking a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney. For more information about child support, custody, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Proving Cohabitation Without Access To Necessary Evidence

Using Facebook posts by his ex-wife’s significant other to support his claims, Steven Robitzski claimed cohabitation of his ex-wife with another as a reason for reduction in his alimony obligation under the 2014 revisions to the alimony statute, N.J.S.A. 2A:34-23. Robitzski sought additional discovery from the plaintiff with regard to her finances and the court held that the defendant failed to make a prima facie showing of cohabitation that would be required prior to their compelling discovery from Lorraine Robitzski. The property settlement agreement (PSA) which the parties agreed to at the time of their divorce contemplated alimony of $2,500 monthly from husband to wife and contemplated certain circumstances, including the wife’s future cohabitation, as a reason for termination of alimony. Cohabitation, as defined in Gayet v. Gayet, 92 N.J. 149 (1983), and Konzelman v. Konzelman, 158 N.J. 185 (1999), contemplates a marriage-like relationship including “stability, permanency and mutual interdependence.” The plaintiff denied that she cohabitated with her significant other claiming he spends approximately 100 nights per year at her residence and that they maintain separate finances and residences. The plaintiff provided the defendant with bank accounts showing she paid her own bills for 2013 and 2014 without deposits from unknown sources. The judge found the Facebook postings to be inadmissible and of limited probative value in any event. The judge did however order the significant other to provide certain certification with regard to his living arrangements and finances as well as ordering the plaintiff ex-wife to provide proof of her own expenses and how they are met. On appeal, in Robitzski v. Robitzski, there was consideration of Konzelman with regard to whether the cohabitation criteria existing at the time of the divorce or the amended criteria would apply. In 2014, N.J.S.A. 2A:34-23 was modified to reflect the following criteria for a court to use when assessing whether cohabitation exists: (1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities; (2) Sharing or joint responsibilities for living expenses; (3) Recognition of the relationship in the couple's social and family circle; (4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship; (5) Sharing household chores; (6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of [N.J.S.A.] 25:1-5; and (7) All other relevant evidence. Also to be considered is the duration of the relationship. The 2014 amendments include a provision indicating they are effective from 2014 and do not modify prior agreements or orders. The N.J. Appellate Division looked to Landers v. Landers, ___ N.J. Super. ___ (App. Div. 2016) and Spangenberg v. Kolakowski, 442 N.J. Super. 529 (App. Div. 2015) with regard to whether the 2014 amendments would be applied retroactively. The Appellate Division determined that it no matter which version of the statue was applied, the defendant failed to make a prima facie case for cohabitation and opined that even if the trial judge had allowed the Facebook postings regarding vacations and events the parties enjoyed together, there would not be a prima facie showing of cohabitation. The decision of the trial court was affirmed. In light of changes to the laws governing alimony and cohabitation, it is critical 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 based upon your ex-spouse's cohabitation with another person or for any other reason 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, child support, 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.

As Man's Salary Plummets, Alimony Reduction is Awarded

William Bischoff sought to reduce his alimony obligation and terminate his obligation to maintain a life insurance policy for the benefit of his ex-wife, Diane Bischoff, or, in the alternative, to reduce the amount of insurance he was required to maintain. The result of the post-judgment motion was that Bischoff’s alimony obligation was reduced based on significantly changed financial circumstances, although the life insurance policy was kept in place in light of the judge’s finding that it was part of equitable distribution, rather than alimony, and that a change in William Bischoff’s circumstances did not justify a modification of equitable distribution decided long ago. However, Diane Bischoff was required to contribute more to the policy’s premium. In 2006, when the parties divorced, William Bischoff was making approximately $900,000 per year and their Property Settlement Agreement called for alimony in the amount of $153,900 on the first $600,000 of his earnings and one-third of the next $650,000. In 2009 a woman with whom William Bischoff had become romantically involved was arrested for insider trading and William Bischoff was later terminated from his employment. In 2012, the parties consented to a post-judgment modification of the alimony obligation to $2,500 per month with Plaintiff’s income imputed at $125,000 annually and Defendant’s at $20,000 annually. When Plaintiff’s income continued to fall, the within motion for reduction in alimony and termination of insurance was filed. In Bischoff v. Bischoff, the N.J. Appellate Division affirmed the decision of the court below on appeal finding no abuse of discretion on the part of the trial judge and lack of merit in Plaintiff’s claims on appeal. In light of recent changes in the way alimony is determined, 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 based upon a significant reduction in your income or for any other reason 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, 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.

Will Your Spouse Pay Your Divorce Costs?

Friedrich v. Friedrich was a post-judgment divorce action, wherein Defendant wife’s attorney sought counsel fees against the Plaintiff for outstanding legal fees over and above the $20,000 in counsel fees the Plaintiff had been ordered to pay pendente lite. In spite of substantial disparity in the parties’ incomes, the court held that pursuant to all factors to be considered under N.J.C.R. 5:3-5(c), an additional counsel fee award was not warranted. Pursuant to Rule 5:3-5(c), the court has discretion to award counsel fees to either party in a family law action, both pendente lite and upon Final Judgment if the court finds the award to be in the interest of justice. Specifically, Rule 5:3-5(c) includes fees for “any claim for divorce, dissolution of civil union, termination of domestic partnership, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of agreements between spouses, domestic partners, or civil union partners and claims relating to family type matters.” The criteria for an award of attorney’s fees include the legal services performed, or likely to be performed, and the financial circumstances of each party. In setting the amount of any award, Rule 5:3-5(c) directs the trial judge to consider: “(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.” In addition, the court has discretion to direct one or both parties to liquidate assets in order to pay counsel fees. In affirming the denial of counsel fees to the Defendant, the N.J. Appellate Division held that the trial judge gave proper review to the factors set forth and found that the Plaintiff was not able to contribute to the Defendant’s attorney’s fees. A major consideration in any divorce is the impact on one’s financial future. Although the financial issues of divorce are not to be taken lightly, if you are miserable and feel that the only thing standing between you and your happiness is the ability to finance your divorce, you should speak with an experienced divorce attorney about the possibility of receiving some of your counsel fees from your spouse. For more information about divorce, child custody, parenting time, post-judgment issues and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Equitable Distribution Under MOU Affected By Bad Faith

In Justich v. Justich, a post-judgment equitable distribution challenge, the defendant, Robert Justich, sought the full 50% he had bargained for under the negotiated memorandum of understanding (MOU) incorporated into his divorce judgment. Under the agreement, Robert and Diana Justich were to share the carrying costs of the marital residence until it could be sold and then each would receive 50% of the sale proceeds. However, the defendant failed to pay the carrying costs of the marital home leading up to the sale. The defendant claimed to have paid the costs, but the court questioned the assertions. As a result of an ongoing pattern of bad faith on the part of the defendant, the NJ Superior Court judge determined that the defendant was entitled to only 43% of the proceeds from the sale of the marital residence. The NJ Appellate Division affirmed the decision of the court below. If you are considering or seeking a divorce, it is critical that you have a full understanding of the impact it will have on your living situation, parenting time, finances and even your future lifestyle before you make any decisions. If you are contemplating divorce or are divorced and seeking post-judgment relief, you should consult with an experienced family law attorney immediately. For more information about equitable distribution, divorce, alimony, memorandum of understanding or other family law issues visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post-Judgment Divorce Decision To Call Step-Parent "Mom" Or "Dad" Belongs To Child

In B.S. v. T.S., Superior Court Judge Lawrence Jones ruled that, in a post-judgment divorce matter, the decision whether to call a step-parent "mom" or "dad" rests solely with the child. B.S. and T.S. were divorced with a judgment calling for joint legal custody of their son, Daniel, and both parents actively participated in their child's life. B.S. ultimately began sharing a residence with his fiancee', Lori and Daniel developed a emotional bond such that Daniel opted, without encouragement, to begin calling Lori "mom". Daniel and T.S. maintained a strong bond as well which was not impacted by Daniel's interactions with Lori. In hearing the motion by T.S. to prevent Daniel from calling Lori "mom", Judge Jones noted that children of divorce often have few rights but one of those rights is certainly the choice of what to call a step-parent. In his ruling, Judge Jones did include that, in cases where the biological parent remains an active participant in the child's life, the biological parent shall always be responsible for decisions regarding the child's upbringing and that the step-parent's marriage to a child's biological parent does not, without more, confer parental rights on the step-parent. For more information regarding post-judgment modification, parental rights, custody, child support, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post Divorce Challenge To Alimony And Child Support Findings

In Wicker v. Wicker, James Wicker challenged the method in which his alimony and child support obligation was calculated. Specifically, Wicker challenges the court's determination of his monthly expenses and income in arriving at his available funds from which child support for the parties' 3 daughters may be paid. Wicker contended to the NJ Appellate Division that the court did not adequately consider his expenses in commuting from Virginia to New Jersey every other weekend in order to exercise his parenting time and failed to properly include his rental expenses and was inequitable in creating the need for him to remain employed in Washington, D.C. which necessitated the retention of two separate residences. Tara and James Wicker entered into a voluntary and negotiate, but not complete, property settlement agreement (PSA) leaving some remaining issues for the court to decide. From 1996, the date of the parties' marriage, until 2010, the defendant earned under $100,000. In 2010, the defendant secured an income of approximately $190,000 per year leading up to the parties' divorce in 2013. Two of the parties' 3 daughters had significant medical issues and Tara Wicker was the primary caretaker. An employability expert determined that Tara Wicker's long-term absence from the job market and need to care for the children limited her earning capacity to $35,000 per year. Both parties challenged the figures which should be used in determining income. There was also substantial question as to how the defendant arrived at his monthly expenses, including his claim of $9,000 monthly in pendente lite support. The NJ Appellate Division began the analysis with Cesare v. Cesare, 154 N.J. 394 (1998), which dictates that decisions of the court below will remain undisturbed if supported by the weight of credible evidence and law, and Gnall v. Gnall, 222 N.J. 414 (2015), dictating that decisions of the court below will be disturbed if the court below abused its discretion or the findings are not consistent with the credible evidence and legal principles. The Appellate Division reasoned that N.J.S.A. 2A:34-23(b) empowers judges with the authority to fashion individual solutions best suited to meet the needs of both parties. Randazzo v. Randazzo, 184 N.J. 101 (2005). In affirming the decision of the court below, the court found that the trial judge gave full review to the facts, including the defendant's income and expenses, and the findings were supported by the weight of credible evidence under the guiding principles of law. A divorce will likely have a considerable impact on your life, including determinations about support, custody and parenting that affect where and how you and your family will live. If you are considering divorce or modification of a prior judgment, you should first consult with an experienced family law attorney to determine the likely outcome. For more information about divorce, alimony, child support, relocation with a child and other family law matters visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Divorce Follows Rape Conviction

In Watley v. Watley, Louis Watley appealed the court's decision in a divorce case centered largely on witness credibility. In 1998, Louis Watley, then age 55, married a 19 year-old woman he met in the Philippines. In question was whether the young woman was advised before the marriage that Louis Watley was under indictment for rape and facing jail. After the parties were married for 2 years and had a child together, the defendant was sentenced to 10 years in prison for rape. Upon his release the plaintiff, then 35 years old, file for divorce. After evaluating the credibility of both parties, the trial judge found that the plaintiff had not been apprised of Watley's indictment nor had the plaintiff signed any prenuptial agreement, as the defendant contested, which would bar her from acquisition of assets under the divorce judgment. The NJ Appellate Division affirmed. If you entered into marriage under fraud or duress, as long as you can prove fraud or duress existed, the court will likely take equitable action to protect your rights in addition to granting the divorce you seek. For more information about divorce, annulment, alimony, equitable distribution or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Divorce Complaint Dismissed For Lack Of Jurisdiction

Although divorce can seem like a simple proceeding at first, not only can problems arise between the parties but also in bringing the case itself. In Appelbaum v. Huff, the court granted a motion to dismiss the divorce claim on the basis that the plaintiff was not a bona fide resident of New Jersey for the statutorily required one year immediately preceding the filing of the divorce complaint. In order to the courts of NJ to have what is called subject matter jurisdiction over an individual, said individual must have been a resident for the statutory one year period. Subject matter jurisdiction is not waivable and can be raised at any time during a matter. This is but one example of the pitfalls that can cause substantial delay or even dismissal of your case. There are a multitude of similar court rules which are hard to know without substantial experience in such matters. In the event you are considering divorce, it is always important to seek the advice of an experienced family law attorney before filing an action in court. For more information about divorce, child custody, child support, alimony or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.