Post Judgment Salary Jump for Wife

K.S. v D.J.S. is a post-judgment family matter. In November 2012, the parties divorced with a Marital Settlement Agreement (MSA). The Defendant acknowledged that after twenty-one years of marriage, the Plaintiff would need financial support and agreed to pay the amount of $3,400 monthly as support for the Plaintiff. The Defendant also agreed to pay one-third of any additional income over and above $139,000 to Plaintiff, to a maximum of $12,000 annually. The parties left the MSA open to modification by agreement of the parties or as permitted under the laws of the state of New Jersey. Plaintiff filed a motion to enforce litigant’s rights when the Defendant failed to comply with the terms of the MSA and the Plaintiff cross-moved for a reduction in alimony based upon “materially changed circumstances” which included the Plaintiff’s significantly changed earning capacity wherein she was making well over $100,000 and also more than Defendant made after his alimony was taken out of his income. The Defendant blamed the arrearages on the fact that his earning potential with his law firm had decreased and he was unable to meet his financial obligations without an alimony reduction. The court found nothing warranting a downward modification in alimony from the documents submitted by the Defendant. The court refused to grant the alimony modification and ordered the Defendant to pay all sums outstanding to Plaintiff. On appeal, the court found that the Defendant was a partner in the same law firm he had been with at the time of the divorce and his base salary had increased. The appellate division cited Lepis v. Lepis, 83 N.J. 139 (1980) and its progeny which dictate that alimony is based largely on the parties’ standard of living during the marriage and the fact that alimony modification may occur, under the factors of N.J.S.A. 2A:34-23, upon the demonstration of “changed circumstances.” The appellate division further cited to Crews v. Crews, 164 N.J. 11 (2000) regarding the changed circumstances significantly impairing the ability of the supporting spouse to maintain a reasonably comparable standard of living during the marriage and Stamberg v. Stamberg, 302 N.J. Super. 35 (App. Div. 1997) which sets forth the consideration of the significant improvement in the supported spouse’s economic situation. The appellate division also found that the court below made no findings as to the Plaintiff’s improved earning capacity and remanded for findings as to the Plaintiff’s independent financial circumstances. If you are considering filing a post-judgment motion, or your former spouse has done so, you should consult with an experienced family law attorney to learn your rights. For more information about divorce, alimony or post-judgment motions, visit DarlingFirm.com or, to schedule a consultation, call us now at 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.

PDAs And Living Together Does Not Show Cohabitation

In Wood v. Wood, Alan Wood sought to terminate his alimony obligation to Wendy Wood, pursuant to the terms of their property settlement agreement (PSA), based on her cohabitation with another man. The parties were married from 1993 until 2016 and two daughters were born of the marriage. Under the terms of the PSA, the Defendant, Alan Wood, was to pay the Plaintiff alimony of $525 weekly for a term of 10 years following the date of the parties’ divorce but could be modified or terminated, pursuant to N.J.S.A. 2A:34-25, in the event that the wife cohabited. The Defendant hired a private investigator to confirm that the Plaintiff was cohabiting with her boyfriend, K.C. The private investigator claimed that the boyfriend was at the Plaintiff’s residence 14 out of 15 non-consecutive dates at varying times of the day. Additionally, K.C.’s name was associated with both the marital residence, foreclosed upon following the parties’ divorce, and the Plaintiff’s current residence. K.C. used the Plaintiff’s address on his driver’s license and voter registration. On the various visits, K.C. was observed using keys to the residence, keys to the locked mailbox and kissing the Plaintiff. The private investigator opined the K.C. and the Plaintiff were permanently cohabiting together in a romantic relationship. In addition to a cross-motion, Plaintiff responded that K.C. was a roommate necessitated by her multiple disabilities which prevented her from working and for which she had not yet received any disability benefits. Plaintiff indicated that she could not qualify for a rental on her own as she did not have sufficient income. Plaintiff testified that she and K.C. each paid for their own expenses including groceries, rent and utilities and that they had separate rooms and baths. To further her position, the Plaintiff testified that, when she had brain surgery, her family and friends cared for her, not K.C., and that she and K.C. did not socialize together. Plaintiff also offered certifications from family members, a copy of the condominium lease and a letter from her doctor corroborating her position. The Defendant offered the private investigator’s report of K.C. and Plaintiff kissing, K.C. accompanying Plaintiff to Robert Wood Johnson Hospital and the fact that the parties’ children have advised him of the longtime romantic relationship between K.C. and Plaintiff and the fact that, as long ago as his final walk through at the marital residence preceding foreclosure, the Defendant observed men’s clothing that did not belong to him comingled with the Plaintiff’s clothing. Defendant further contended that the Plaintiff and K.C. were in fact co-lessees per the evidence Plaintiff provided. Plaintiff’s response was to deny kissing K.C., admit he drove her to the hospital on a single occasion, deny the presence of men’s clothing with her own and to acknowledge that she did rent a room to K.C. in the marital residence, prior to foreclosure thereupon, in order to obtain money for utility payments. The judge below denied Defendant’s motion finding that, absent a prima facie showing of changed circumstances, the court could order further discovery under Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 164 N.J. 11 (2000) but, absent a prima facie showing of changed circumstances, it was inappropriate for the court to order additional discovery of a parties’ financial status. The judge included that a finding of cohabitation required a finding that the cohabitation include the kind of mutual support and intimacy commonly associated with a marital relationship, pursuant to Konzelman v. Konzelman, 158 N.J. 185, (1999), and concluded that the proof offered by the Defendant was not enough to substantiate such a belief. Defendant appealed arguing that the Plaintiff’s living with someone else was enough that he should have opportunity to obtain her basic financial information and also argued that genuine issues of material fact existed. The N.J. Appellate Division affirmed based on the record below and also cited to Gayet v. Gayet, 92 N.J. 149 (1983) and Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div, 1998) collectively holding that a prima facie case of cohabitation in a relationship equivalent to that of a marriage is required in order to obtain mutual discovery and only after such prime facie showing is made will the dependent spouse be required to defend the continuing need for alimony. If you are seeking to stop paying alimony based on cohabitation or to defend your alimony when cohabitation has been falsely alleged, call The Darling Law Firm, LLC now at 973-584-6200. For more information about alimony, cohabitation, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

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.

Child Support Modification Denied

In Markey v. Melazzo, the Defendant appealed from a 2013 Family Court Order that denied his Motion to terminate his child support obligation and force a recalculation of his arrearage. The Appellate Division affirmed the ruling of the Family Court. In 1995, the Plaintiff and Defendant had a son together but never married. In 2005, a Court Order directed the Defendant to pay $129 a week in child support. In 2012, the Defendant was injured at work and has since claimed that he is unable to work because he is disabled. Later that year, a hearing officer denied the Defendant's Motion for modification of support, without prejudice, because the Defendant failed to provide proof of his income or the validity of his disability. In 2013, the Defendant filed the application which was the subject of this appeal, wherein he sought the termination of his child support and the elimination of his arrears. The Defendant claimed that the Plaintiff has not permitted him to visit with the child and has changed the child's last name without his consent. In 2013, the Family Court denied the Defendant's Motion because the Defendant failed to provide a valid basis for relief. The Defendant appealed. According to the Appellate Division, child support is necessary to ensure that parents provide for the basic needs of their children. Pascale v. Pascale, 140 N.J. 583, 590, 660 A.2d 485 (1995). A party who seeks modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting such an adjustment. Lepis v. Lepis, 83 N.J. 139, 157, 416 A.2d 45 (1980). The decision must be made in accordance with the N.J. Child Support Guidelines when applicable. Caplan v. Caplan, 182 N.J. 250, 266, 864 A.2d 1108 (2005); Terry v. Terry, 270 N.J. Super. 105, 121, 636 A.2d 579 (App. Div. 1994). In this case, the Defendant sought the termination of his child support obligation and the elimination of his arrears dating back to 2002 when the child's name was changed, arguing that the name change was a de facto termination of his parental rights, yet the Defendant cites no authority of his position. According to the Appellate Court, the Family Court correctly determined that the Defendant's parental rights were never terminated and thus found no basis for vacating the Defendant's arrears. With respect to the Defendant's claim of disability, he did not submit any medical information. Therefore, the Appellate Division affirmed the decision of the Family Court. 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.

Child Support Award Affirmed In Deference To Trial Court

Kummarapurugo v. Thota, is a post-judgment matrimonial action wherein the Plaintiff appealed from a Family Court Order, issued in 2014 that recalculated his child support obligation to $272 per week, arguing that the court was mistaken in its calculation. The Family Court is afforded substantial discretion to determine child support awards and other support obligations. Foust v. Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001). A child support order is always "subject to review and modification on a showing of changed circumstances." Lepis v. Lepis, 83 N.J. 139, 146 (1980). "If consistent with the law, such an award will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice." Foust, supra, 340 N.J. Super. at 315-16. "When reviewing decisions granting or denying applications to modify child support, we examine whether, given the facts, the trial judge abused his or her discretion." J.B. v. W.B., 215 N.J. 305, 325-26 (2013). The Plaintiff argued that the Family Court's determination of his child support obligation was unfair as modified because the court failed to consider the appropriate child support guidelines factors. The Defendant claimed that the judge made sufficient findings of fact to justify the support award. The Appellate Court agreed with the Defendant and affirmed the decision of the Family Court. In this case, the Appellate Court found that although the Family Court judge's findings were not a "paradigm of the findings required by N.J.C.R. 1:7-4," the facts on the record were sufficient to support the child support award. Further, the Family Court judge appropriately addressed the recalculation of child support through the application of the statutory factors. If you believe that a post-judgment modification to your child support 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, child relocation, child custody, 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 if 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.

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.

Equitable Distribution By Property Settlement Agreement Not Modified By Court

Kurbel v. Kurbel, is a New Jersey Appellate Division case coming out of Sussex County, in which the Defendant appealed from 2013 Family Court Order that modified the parties' property settlement agreement (PSA) in a post-judgment action following their divorce regarding provisions that concerned his alimony and equitable distribution obligations. The Plaintiff filed for divorce from the Defendant in 2001 after 31 years of marriage and subsequently began to cohabitate with her boyfriend. The parties' divorce was finalized in a final divorce judgment in 2002 which incorporated a PSA. The PSA included a provision requiring the Defendant to pay to the Plaintiff "limited duration alimony" from 2002 until 2023 for the ten (10) months a year that the Defendant worked as a teacher. The payments began at $150 per month and were to increase by increments of $25 over twenty-one (21) years until the payments were $650 per month by 2023. In 2010, the Defendant filed a Motion seeking to terminate his alimony obligation based upon changed circumstances because he claimed he was forced to retire from his job due to a physical disability. The Defendant also argued that the Plaintiff's salary had more than doubled since the divorce and that she was cohabitating with her boyfriend which eliminated her need for alimony. In 2013, the court granted the Defendant's Motion to terminate his alimony payments. However, the Family Court also determined that the termination of the alimony created a windfall to the Defendant and noted that if the PSA had been equitably negotiated, the Plaintiff would have received more than three times the amount she was scheduled to receive under the full payout of the payment schedules according to the PSA. Therefore, the court ordered that the Defendant's equitable distribution payments be doubled until 2023 and that he was to pay $2500 towards the Plaintiff's counsel fees. The Defendant appealed from this decision citing that it was unfair to modify the PSA and award counsel fees in the Plaintiff's favor. The Appellate Court agreed with the Defendant. According to the Appellate Court, applications for relief from equitable distribution provisions found in PSAs are subject to review under Rule 4:50-1. Miller v. Miller, 160 N.J. 408, 418 (1999). Further, in matrimonial actions, PSAs, which are "essentially consensual and voluntary in character[,]" are "entitled to considerable weight with respect to their validity and enforceability," if they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); See also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Court should rarely modify or set aside a PSA "absent clean and convincing evidence of fraud or other compelling circumstances." N.H. v. H.H., 418 N.J. Super. 262, 280 (App. Div. 2011); Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.) certif. denied, 180 N.J. 354 (2004). In this case, both parties were represented by attorneys during the negotiation and execution of the PSA and both had ample time to review and understand its provisions. Therefore, the Family Court mistakenly exercised its discretion in modifying the equitable distribution payment schedule in the PSA. Property Settlement Agreements (PSA) are very common today. If you have questions regarding how an agreement should be drafted to best protect your interests with regard to alimony, equitable distribution, or any other disputed issue it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony, post-judgment modification, parenting time 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

Court Considers Application To Terminate Permanent Alimony

Pretlow v. Pretlow, involved a party's application for the post-judgment modification of his permanent alimony obligation based upon his retirement. Following a trial conducted in 1998, the parties in this case were divorced pursuant to a judgment that directed that the Plaintiff pay his ex-wife, the Defendant, $100 per week in permanent alimony. Subsequently, the Plaintiff petitioned the Family Court to terminate his alimony obligation based upon changed circumstances because he claimed that he was forced into an early retirement by an illness that significantly increased his out-of-pocket medical expenses. The Family Court, after evaluating the moving papers and after hearing oral argument, denied the Plaintiff request to terminate his alimony obligation because there was a dispute as to whether or not the Plaintiff's retirement, at age 55, was voluntary or involuntary. The Family Court judge noted that the Plaintiff had made a "strong argument . . . that his retirement was involuntary" which included evidence of a decrease in his income and increase in his medical bills, yet the judge recognized that the law required an evidentiary hearing to test the Plaintiff's assertions and to allow the Defendant to respond to the Plaintiff's argument with a discussion of her own circumstances. Interestingly, the judge did not order such a hearing because he felt that doing so was not the correct course of action because it would have cost the parties "two years['] worth of alimony just arguing whether alimony should be continued or not." The Plaintiff appealed from this judgment. According to the Appellate Division, although the Family Court judge may have been correct in his assertion regarding the time and expense that holding the evidentiary hearing would have placed upon the parties, it held that there was no doubt that if the Plaintiff's assertions were true he would be entitled to the relief that he requested either in whole or in part. The Plaintiff should be not be burdened for the rest of his life with what may no longer be an equitable alimony obligation because of the disproportionate financial consequences that would result from proceeding in accordance with Lepis v. Lepis, 83 N.J. 139 (1980) and the cases that followed it. See also Stamberg v. Stamberg, 302 N.J. Super. 35, 42-44 (App. Div. 1997). Therefore, the Appellate Court reversed and remanded the case back to the Family Court to hold an evidentiary hearing on the issue. Further, the Appellate Court added that merely because an evidentiary hearing is required does not necessarily mean that the parties are to be destined to a lengthy or expensive proceeding and that the court could proceed in a brief and expeditious manner to remain sensitive to the financial circumstances of the parties. 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 major financial burden or benefit to you depending upon whether you are the payor or payee of the alimony obligation. 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.

Court Denies Man's Request To Lower Alimony For Temporary Change in Circumstances

In the recent Appellate Division case, Lax v. Lax, a post-judgment matrimonial matter, the Plaintiff, David Lax, appealed from a 2013 Family Court Order that denied his Motion to reduce his alimony obligation. The Appellate Division affirmed the decision of the lower court. The parties in this case were married in 1986 and obtained a legal divorce in 2008. Their final divorce judgment incorporated a Property Settlement Agreement (PSA) in which the Plaintiff agreed to pay the Defendant permanent alimony in the amount of $7,000 per month. In 2011, the Plaintiff filed an application with the court to modify his spousal support obligation. A series of Cross-Motions followed that resulted in a plenary hearing in which the Plaintiff sought to prove changed circumstances based upon a change in his financial situation and the Defendant's co-habitation with another person. The judge determined that no co-habitation existed but that the Plaintiff had proven a change in circumstances warranting a modification of his obligation. Subsequently, the Plaintiff's alimony obligation was reduced to $2,000 a month. Following this ruling, the Defendant filed a Motion for reconsideration and the Plaintiff once again filed for another downward modification of his obligation. This time the court denied his request for another modification and he appealed. The Appellate Court held that its review of the Family Court's decision is limited stating that "Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion." Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Further, it stated that "Courts have consistently rejected requests for modification based on circumstances which are only temporary." Lepis v. Lepis, 83 N.J. 139, 145-46 (1980). In this case, the Plaintiff filed his second Motion for another downward modification of his spousal support obligation only three (3) months after the previous order modifying his obligation was issued. The Family Court properly found that there was no evidence in the record to prove that the Plaintiff's financial situation was anything other than temporary. The Appellate Division agreed with the decision of the Family Court and for the aforementioned reasons affirmed the lower court's denial of the Plaintiff's request. 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, divorce, child support, equitable distribution, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Court Modifies Child Support And Custody Based on Father's Mental Instability

In the recent Appellate Division case, Cowie v. Cowie, the Plaintiff, in a post-judgment matrimonial matter, appealed from a 2013 court order denying her Motion to reconsider and modify the Defendant's child support obligation retroactively after his custody was diminished due to mental illness. The Appellate Court reversed the decision of the Family Court and remanded the case back to that court for reconsideration. The parties in this case were married in 1999 and the marriage bore two (2) children, a son born in 2001 and another son born in 2003. In 2011, the parties obtained a divorce and entered into a property settlement agreement (PSA) on the same date. The PSA specified that the parties were to share joint legal and residential custody of their children and were to share equal parenting time. Child support was calculated using the NJ Child Support Guidelines based upon the shared parenting worksheet. Subsequently, the Defendant began to suffer from mental health problems and in 2012 the Plaintiff sought temporary sole legal and residential custody of their children as well as a suspension of the Defendant's parenting time. Shortly thereafter, the Family Court granted the Plaintiff's request for temporary sole legal and residential custody of the parties' children and established supervised visitation with the Defendant without over nights. In 2013, the Plaintiff submitted a Motion for a modification of the Defendant's child support obligation because the custody arrangement had been drastically modified. The judge denied her request because the arrangement was deemed to be "temporary." The Plaintiff appealed from this decision. The Appellate Division found that the Plaintiff's application to modify the Defendant's child support was governed by well-settled legal principles. Specifically, a party seeking to modify a child support obligation has the burden of presenting a prima facie case of change circumstances. Lepis v. Lepis, 83 N.J.139, 157-59 (1980); Innes v. Innes, 117 N.J. 496, 504 (1990); N.J.S.A. 2A:34-23. The Appellate Division held that in this case there has been a changed circumstance in the parties' parenting time and that the change in custody was due to the Defendant's incapacity and lack of ability to provide adequate care for his children. Although the modification to the original custody arrangement was deemed to be "temporary," there was no contemplation in the record as to the duration of the Defendant's incapacity. Although courts can reject requests for modification based upon temporary changed circumstances, there is no bright line rule to measure changed circumstances and therefore any determination is left to the discretion of the court. In this case, there has been a "reasonable" time period of the changed circumstance and the children should not be denied appropriate support to meet their needs. Therefore, the Appellate Division reversed the decision of the lower court and remanded the case back to the court for an Order consistent with its decision. 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 post-judgment modification, parenting time, child support, 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.

Family Court Custody Decision Reversed For Abuse Of Discretion

In a recent Appellate Division case, Gladish v. Servis, the court reversed the decision of the Family Court regarding the issuance of a custody and parenting time Order because it found that the lower court judge abused her discretion. The parties in this case were never married and have a daughter who was born in 2012. One month after her birth, the Plaintiff filed a Complaint seeking joint legal custody and primary physical custody of the infant. At a hearing date held in early 2013, both parties were represented by attorneys. At that time, mediation was attempted and failed and by the end of the hearing the Plaintiff's attorney requested and was granted the right to withdraw from the case due to a breakdown in the attorney/client relationship. Before the hearing was concluded the judge inquired about the details of an interim parenting time arrangement to be utilized until the next court date. The court allowed the Defendant's attorney to read onto the record a custody and parenting time proposed order that she had prepared in advance of the hearing with the Defendant's proposed arrangement. The arrangement specified that both parties would share joint legal and physical custody and granted the Defendant overnight parenting time from Tuesday until Thursday during each week and on alternate weekends from Friday until Monday morning. Next, the judge engaged the parties in an effort to establish a negotiated resolution with regard to the matter and advised the Plaintiff on the "Tender Years Doctrine" which has yielded to both parents having equal access to the child. The Plaintiff continued to express concerns over aspects of the proposed parenting time arrangement, specifically the mid-week overnight visitation and the weekend overnights lasting until Monday morning. The judge dismissed these concerns and when the Plaintiff tried to express her concern about the parties' ability to communicate with each other, the Judge stopped her and stated: "I don't want to hear this. We're moving forward." Then, at the end of the hearing the judge asked the Plaintiff if she agreed with everything that had transpired to which she responded that she only agreed on a temporary basis until the next court date. Both parties signed a consent order and it was filed with the court. The Plaintiff hired a new attorney immediately following the hearing who moved to vacate the existing court order and to establish a child support order. The Defendant opposed the motion. After hearing oral argument in May of 2013 regarding the motions, the court denied the Plaintiff's Motion to Vacate. The court did not find any basis to grant the requested relief under Rule 4:50-1 based upon the Defendant's argument that there has not been a change in circumstances pursuant to the holding in Lepis v. Lepis, 83 N.J. 139 (1980). The court did order that the parties participate "by consent" to determine child support obligations pursuant to the New Jersey Child Support Guidelines. The Plaintiff appealed. The Appellate Court reversed and remanded the decision of the lower court. In its holding the Appellate Court noted that the "Family Court possesses broad equitable powers to accomplish substantial justice," Finger v. Zenn, N.J. Super. 438, 446 (App. Div. 2000), but the court cannot defer to a Family Court's decision in which the court abused its discretion. According to the Appellate Division, the Family Court judge involved herself in the parties' negotiations and chose positions advanced by the Defendant, despite the Plaintiff's expression of confusion and objections. In the end, the court found that the Plaintiff reluctantly accepted the custody and parenting time arrangement but only as a temporary resolution and not a permanent one - as the Plaintiff had the right and opportunity to retain new legal counsel to advise her. Therefore, the Appellate Court reversed and remanded the case back to the Family Court for further proceedings to establish a permanent custody and parenting time arrangement. 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 modify 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, divorce, alimony, 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.

Burden of Proof for Alimony Modification

Lepis v. Lepis was decided by the NJ Supreme Court in 1980 and set the standard those seeking alimony modification must meet prior to the court ordering discovery, financial disclosure and a plenary hearing. According to Lepis, the moving party must make a prima facie case of changed circumstances which have "substantially impaired the ability of the movant to support themselves." If the movant meets the burden of proving changed circumstances, the Judge then must consider the factors set forth in New Jersey Statute 2A:34-23 which include the financial circumstances, education levels, child rearing obligations, physical and mental health and vocational opportunities of both parties as well as any other factors the court deems fitting. Also, the court considers the marital standard of living and whether the parties can maintain reasonably similar circumstances. In Fintland v. Fintland, a recent case, the plaintiff appealed from the order of a Bergen County Superior Court Judge granting the defendant's motion for a reduction in alimony. The NJ Appellate Division found that the Superior Court Judge ignored Lepis and N.J.S.A. 2A:34-23 in making her findings and remanded the matter for appropriate consideration. If you are filing of facing a motion to modify alimony or child support, you should consult an experienced family law attorney immediately in order to protect your rights. There are many ways in which such motions may be proven or disputed and it is critical you understand the burdens you face. For more information about divorce, civil union dissolution, custody, visitation or other family law matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.