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.