Historic U.S. Supreme Court Ruling On Same-Sex Marriage May Be Upon Us

Same-Sex marriage became legal in New Jersey on October 21, 2013 following the decision in Garden State Equality v. Dow, N.J. 216, 314 (2013). Since that time, thousands of homosexual couples have received valid marriage licenses throughout the state. From 2013 until the present, and since the Supreme Court struck down the federal definition of marriage in the Defense of Marriage Act in United States v. Windsor, the number of states that have come to legally recognize marriage equality has doubled. Currently, 36 states and the District of Columbia allow same-sex couples to marry and over 70% of the U.S. population currently live in a state where same-sex marriage is permitted or recognized. One by one, as the states legalized same-sex marriage many Americans began to wonder when and if the United States Supreme Court would take a case or cases that could lead to a nation-wide recognition of marriage equality. Legal theorists hypothesized that the Supreme Court may take up the issue once there was a circuit split in the U.S. Court of Appeals - well that time has come. Recently, the justices of the United States Supreme Court have granted review of four (4) pending cases in which the U.S. Court of Appeals for the Sixth Circuit upheld bans of same-sex marriage and the recognition of out of state legal same-sex marriages in Ohio, Michigan, Kentucky, and Tennessee splitting with its sister circuit court. The cases are DeBoer v. Snyder; Bourke v. Beshear; Tanco v. Haslam; and Obergefell v. Hodges. The arguments will be heard before the Supreme Court sometime in April of 2015 and a decision on the cases is expected to follow in June. The high Court permits 90 minutes for attorneys to argue whether or not the 14th Amendment requires a state to recognize and or provide licenses for homosexuals to legally wed. Subsequent to the Court taking these cases, Attorney General Eric Holder announced that the United States Justice Department will file amicus briefs urging that the justices find that all individuals, gay or straight, have the right to marry. Therefore, it is very possible that gay and lesbian couples may be allowed to marry in any state in the United States by the end of the summer. If you are a gay or lesbian couple who plan on seeking a legal marriage or filing for a same-sex divorce or are simply someone who would like more information regarding the issue there are important factors that you should consider before doing so it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, equitable distribution, alimony, custody and visitation or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Same-Sex Marriage Changing Property Rights

As marriage equality spreads across the country the resulting changes in states' laws have been vast and issues regarding property rights and mortgage processes are among the changes that are taking place. Now that same-sex marriages are being recognized and codified into the laws of the individual states, policies and regulations that were initially only relevant for heterosexual couples, such as laws regarding property rights and benefits, are being made available to same-sex couples who are legally married. With regard to property rights and mortgages, before gay and lesbian marriages were recognized in a state that has accepted marriage equality, homosexual couples had to file as co-borrowers on separate applications and then submit the applications at the same time. With the changes that have been occurring, in states that recognize same-sex marriages, couples can file a joint mortgage application and all of their income, liabilities, expenses, and assets will be submitted on one application for their household. This manner of filing jointly may very well affect the status of their mortgage application and these gay and lesbian couples can now feel more assured that they are receiving the same treatment and protections that previously was only available to heterosexual couples. In addition, in the unfortunate situation where any homosexual married couple may decide to end their marriage through divorce, any and all of the real and/or personal property that they accumulate during their marriage will be considered marital assets that will be subject to equitable distribution just as it would for a heterosexual married couple who filed for a divorce. No longer do the courts need to consider issues like the 2007 case of Richard Gruber v. Scott Rixford wherein the NJ Superior Court in Passaic County and later the NJ Appellate Division reviewed substantial evidence relating to the financial contributions of the two men toward their shared residence over the course of their 10 year relationship. In fact, many LGBT couples who never had to consider the issue are now seeking pre-nuptial agreements to protect pre-marital assets, children from prior marriages or disparate earning capacities. If you are an LGBT couple and have questions concerning the property rights involved with same-sex marriage or divorce it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, dissolution, alimony, equitable distribution 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.

Same-Sex Couples In NJ Should Check Twice Prior to Relocation

There is no denying that as marriage equality and same-sex marriage is becoming legal throughout the nation, gay and lesbian couples who are divorcing need to inform themselves on the legal considerations that may impact the their divorce. Divorce proceedings are extremely arduous on all couples, but may even be more complex for gay and lesbian couples who move out of their state and who have children. For instance, although New Jersey currently recognizes marriage equality, if a couple who is legally married in New Jersey chooses to move to another state during their marriage that does not recognize same-sex marriage there could be repercussions if the couple later decides to get a divorce. Federal laws may not address all of the issues that may arise in a same-sex divorce proceedings despite the fact that gay and lesbian couples are now afforded the same federal benefits as heterosexual married couples. Therefore, if a gay married couple decides to move out of the state where they were legally married it is very important that they inform themselves about the marriage laws in their new state of residence. For instance, the couple should seek out information regarding the state's recognition of second-parent adoption or whether or not grandparents' have the right to seek custody of children. If the couple signed any agreements before their legal marriage was executed, each party may wish to re-acquaint themselves with the particulars of the agreement to ascertain whether or not any provisions will affect the divorce process, specifically regarding the continued care and custody of any minor children. It may also be important for a party to realize that they should not change any of their visiting patterns with their child simply because the other party compels them to. A court may review the consistency of parenting time and visitation when making decisions regarding child custody. No one should assume that simply because one parent may be the biological parent and the other and adoptive parent that a court will automatically award custody to the biological parent. If you are a gay or lesbian couple who plans on seeking a legal marriage or filing for a same-sex divorce it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, civil union or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

NJ Will Recognize Out of State Same-Sex Marriages

In the wake of the NJ Superior Court decision Garden State Equality v. Dow and the legal drama that ensued leading to New Jersey's recognition of same-sex marriage, many gay and lesbian couples have new questions regarding the status of same-sex marriage in this state, including the validity of out of state same-sex marriages. To assuage questions such as this, the NJ Department of Health and Human Services has released a statement to address the this specific issue. In its statement, released earlier this month, the Department of Health confirmed that NJ will recognize and honor the validity of same-sex marriages that were performed and validated in other states that previously recognized same-sex marriages. Therefore, for gay and lesbian couples who may be wondering if they will be required to get re-married in NJ in order for the state to officially recognize their marriages, the question has been answered. Same-sex couples who were legally married in other states do not have to re-marry in New Jersey for the state to recognize their legal union. On the other hand, LGBT couples who were legally joined in a civil union will have to legally "re-marry" in NJ for their marriage to be recognized by the Garden State and federal government to receive the marriage benefits from each. Unfortunately for couples joined in a NJ civil union, the Garden State Equality v. Dow decision did not provide for the automatic conversion of civil unions into marriages. As the weeks and months wane on following New Jersey's recognition of same-sex marriages, the legislature and legal communities will continued to refine and clarify how the laws of the state will evolve and adapt to include same-sex marriage recognition. As more and more same-sex couples apply for marriage licenses in the state, there is no doubt that additional questions will surface that need to be clarified and resolved as New Jersey embraces marriage equality. For more information about same-sex civil union, same-sex relationship dissolution, divorce, adoption, child custody, alimony or other Family Law matters in New Jersey visit NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Can A Second Parent See The Child After Termination Of A Same-Sex Relationship?

In New Jersey, many may wonder about what happens to the second parent in the event that same-sex couple's relationship ends. In truth, since New Jersey does not recognize marriage equality, if the couple were raising a child, this situation may cause a problem. The legal status of the non-legal or non-biological parent may be jeopardized when it comes to issues of child custody. When heterosexual couples break up, the courts will intervene to order an equitable resolution to child custody issues. Same-sex couples do not automatically have these legal protections available to them. In some instances, the courts may even find that the second parent in the dissolved gay and lesbian relationship has no rights even if he or she has spent years raising the child. In fact, courts may be inclined to award full custody to the legal/biological parent who would then have the legal authority to prevent the second parent from having any contact with the child that he or she loved as though the child were their own. The Family Court has the discretion to render decisions based upon what is within the child's best interests. Therefore, some courts may award an LGBT second parent with some visitation rights if it is found that the second parent was such an important figure in the child's life that it would be within the child's best interests to maintain a relationship with the second parent. In many cases, these second parents have served the responsibilities of being a full parent to the child and depriving contact with the child would likely result in more harm to that child than good. Further, the court may look to such factors as 1) the duration of the relationship between the same-sex parents and how long the child was a part of the second parent's life before the parties' relationship ended; 2) whether the natural parent nurtured the relationship between the child and the second parent and 3) whether the second parent assumed the duties of child rearing to an appreciable degree. In sum, the answer to the question "What happens to the relationship between the child and a second parent when a same-sex relationship ends" is not one that is easily answered. To protect their parental rights a gay or lesbian second parent should adopt. In the alternative, although providing less security for their rights a parent, they may wish to enter into a parenting time or custody agreement with the legal/biological parent to provide guidance for the courts in the event that the relationship one day dissolves. If you are involved in a custody dispute, whether in a same-sex or heterosexual relationship, it is critical that you seek advice from experienced legal counsel. For more information about civil unions, parenting time, custody and visitation, child support, same-sex relationship dissolution or other family law matters in New Jersey visit NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

The Divorce Case Management Conference

The process and procedures involved in a divorce can become quite complicated, an important component of a divorce case is the case management conference. A case management conference is held after the divorce complaint has been filed by the plaintiff with the court and the defendant has submitted a response. After these initial pleadings have been filed, the court will schedule a case management conference. The purpose of a case management conference is to bring the parties together in court to discuss the initial issues that are involved in the divorce process. During the conference, the parties will discuss the items that will be requested during the discovery process and to implement a discovery schedule. During the discovery process, the parties provide each other's attorneys with information regarding marital assets, property, debts, and income. This information will provide the court and the attorneys with the information necessary to determine the equitable distribution of such property and assets. In addition, at the conclusion of the case management conference the court will render a case management order which will set forth the discovery schedule and will include which, if any, experts may be required and when their evaluations, valuations, appraisals, and other important documentation will be due to the parties' attorneys. In New Jersey, most judges will require that the parties attend the case management conference and contribute to the preparation of the case management order. Further, the court will most likely order that the parties engage in parenting mediation and other measures to provide the parties with an opportunity to settle or resolve many of the impending issues that will surface in the impending divorce proceedings. Ultimately, the case management conference is an important first step in the divorce process that will attempt to set the path for the process and help the parties by providing the resources necessary to resolve as many of the property, child custody, child support, parenting time, and other issues as efficiently and quickly as possible. If you are considering a divorce or civil union dissolution it is critical that you have experienced legal counsel at your side to guide you through the legal process. For more information on Divorce, Custody & Visitation, Child Support, Alimony/Spousal Support, Mediation, Dissolution, Parenting Time or other Family Law matters in New Jersey visit NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Not Ready For Divorce? Try A Separation Agreement

If you are not quite ready for a divorce, maybe you should first try a separation agreement. A couple contemplating divorce in New Jersey may want to take some time apart from each other to re-evaluate their feelings or weigh the future implications that a divorce may have on their lives. Divorce proceedings can become extremely complicated and difficult processes. While a conflict situation may seem to be headed in the direction of a divorce, it is very common that a couple may not be quite ready to make the life-changing, and potentially expensive decision to begin the divorce proceedings, on impulse. For people in this situation, there is an option. A legal separation can be bound by a separation agreement. Separation agreements afford couples who are contemplating a divorce with the opportunity to suspend, but not completely end their marriage. Therefore, the couple can take the time that they need to decide what is best for them in the future and how they will move forward. One of the primary benefits of a separation agreement is that it can function much like a contract or a pre- or post-nuptial agreement in that it can provide legal protections for each of the parties while they seek options such a marriage counseling, mediation or other attempts to reach a mutual reconciliation. The separation agreement is a document that both parties willingly and voluntarily enter into that can detail how particular issues between them are handled during the course of their separation period. Issues that can be addressed in a separation agreement include important life issues and considerations such as child custody and visitation rights, alimony and spousal support considerations, child support obligations, living arrangements, parenting time, and almost any other pending area of conflict between the parties. If the parties eventually decide to divorce, the separation agreement can act as a stepping stone or framework for the structuring of the impending divorce and the equitable distribution of assets. On the other hand, if the parents decide that after their separation period they want to try to reconcile, they can receive solace from the fact that while they were legally separated their interests and assets were legally protected. If you and your spouse or civil union partner wish to try reconciling your issues by way of temporary separation before tossing away the time you have together and the memories that go along with it, you should consult with an experienced family law attorney regarding a separation agreement to protect your rights and interests during any trial separations. For more information about Divorce, Custody & Visitation, Child Support, Alimony/Spousal Support, Mediation, Dissolution, Parting Time, Mediation or other Family Law matters in New Jersey visit www.NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Same-Sex Marriage Debate in New Jersey Rages On

The debate on the same-sex marriage continues to rage on in the state of New Jersey in lieu of recent developments in the New Jersey judicial system. Last year, the New Jersey State Legislature passed a Marriage Equality law that would have allowed same-sex couples to marry in the states, but at that time, Governor Chris Christie vetoed the bill and temporarily ended the debate. On Friday September 27, 2013, New Jersey Superior Court judge Mary Jacobson ruled that same-sex couples in New Jersey must be allowed to get married, beginning on October 21, 2013. According to Judge Jacobson, gay and lesbian couples are being denied equal rights under the law and therefore must be allowed the right to marry just like heterosexual couples. If the state were to issue marriage licenses to same sex couples on October 21st, they would have all of the same state and federal benefits that heterosexual couples enjoy. Many marriage equality supporters from around the state joined together in celebration of Judge Jacobson's ruling, but does her ruling truly end the debate? The answer is, no. Governor Christie has stated that he will appeal Judge Jacobson's decision. Typically, the Appellate Division would first have to hear a challenged case, but in this instance state lawmakers and the governor have asked the New Jersey Supreme Court to consider the matter, circumventing the Appellate Division. On October 2, 2013, Governor Christie asked the judiciary to delay the enforcement of Judge Jacobson's order until the appeal can be decided by the Supreme Court. Judge Jacobson's ruling is the first of its kind since the United States Supreme Court released its ruling that the federal government cannot deny federal benefits to married same-sex couples. Judge Jacobson based her opinion in part on that United States Supreme Court decision. It is still too early to predict how Judge Jacobson's ruling will impact marriage equality in the state of New Jersey. Ultimately, this latest development proves that the debate over same-sex marriage in this state is still a hot topic and is far from over. With the legislature, the judiciary, and the governor all weighing in heavily on the debate over the past few years, the only certainty with regard to issues of same-sex marriage in New Jersey is that people throughout the state feel very passionately about the issue. Whether the legal status of same-sex marriage changes soon or not, has yet to be decided. If you are seeking to enter into or dissolve a civil union, there are ways to protect yourself and your partner under the existing laws by entering into contractual agreements where the law falls short of offering you protections offered to heterosexual married couples. For those in the LBGT community who are in long-term relationships and cohabitating, it is important to consult with experienced legal counsel regarding the steps you should take to protect your present and future interests under NJ Law. For more information on same-sex civil union, dissolution, divorce, custody, visitation, child support or other family law matters in New Jersey visit www.NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Pre-Marital Agreements Require More Consideration in New Jersey

Pre-nuptial agreements are becoming more and more popular in New Jersey, but these pre-marital agreements now require more consideration than before. Recently, the New Jersey Uniform Premarital and Pre-Civil Union Agreement Act was revised in such a way that makes it harder than before to break that agreement even with changed circumstances. A pre-marital or pre-civil union agreement acts as a contract between two people to determine the distribution of property and assets in the event that the union dissolves. When these agreements are being established and executed, parties usually do not consider that the dissolution of their relationship is a realistic possibility and draft the agreement on emotions rather than on practicality. Parties may fail to consider situations that may require an agreement to revised after it has been executed - such as a serious illness, disability, or the inability to work. These situations may leave one party in a greater need of support than the other. Recently, Governor Chris Christie signed amendments to the law that make it more difficult for a party to revise a pre-nuptial or pre-civil union agreement. The new amendments to the law specify that a New Jersey court can only alter or revise an agreement if the party wishing to revise the agreement can prove that it was unconscionable at the time it was executed. For instance, such an agreement would be considered unconscionable if a party entered into the agreement without full knowledge of the other parties' property, assets, or debts and without voluntarily waiving his or her rights to such knowledge. A court would be likely to modify an agreement that was signed under these circumstances. On the other hand, New Jersey courts will no longer void or modify agreements based on happenstance or changed circumstances that occur after the agreements have been executed. Ultimately, for a pre-nuptial or pre-civil union agreement to remain effective certain factors must be successfully satisfied. The agreements must be willingly and voluntarily executed by the parties and must be memorialized in writing. Next, all parties to the agreement must disclose all of his or her fiduciary liabilities and assets in order to ensure that the agreement is not unconscionable at execution. Then, the parties must have the execution of the agreement notarized. Since pre-nuptial and pre-civil union agreements are becoming more popular as family dynamics and family constitutions are changing in the Garden State, any person who may be considering instituting such an agreement before they get married or enter into a civil union must educate themselves on the changing legal status of such agreements and how the validity of such agreements may or may not be challenged after execution. If you are considering entering into a marriage or civil union and wish to protect children of a first marriage, there is great disparity in the income or new worth between you and your intended, you should consult with an experienced family law attorney to learn your rights and liabilities in the event things do not last. For more information regarding Pre-nuptial, Pre Civil Union agreements, alimony, equitable distribution 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.

Divorce And The Fight Over Beloved Pets

Fighting over a beloved pet in a divorce, dissolution, or separation can be one of the most difficult and heart-wrenching aspects of the entire process. People fight over a great deal of property, but few items are as vigorously contested as who will possess the loving family pet. Historically, New Jersey courts would treat pets similar to that of personal property and preferred to refrain from making determinations that directed to whom the pet would live with. In 2009, the New Jersey Appellate Division in Houseman v. Dare, re-visited this issue. In Houseman, a Gloucester county Family Division trial judge awarded a litigant $1,500 in compensation for a dog that that opposing party kept in violation of an oral separation agreement that claimed otherwise. At the trial court level, the judge ruled that monetary damages were sufficient to remedy the issue, but the Appellate Division disagreed and expanded that decision to include specific performance of the term of the agreement as an additional potential remedy for situations like this. The Appellate Division's ruling essentially re-classifies the status of pets in the eyes of the law. In his opinion, the Appellate Division judge compared pets to a family heirloom, in which money alone, could not take the place of the love and sentimental value that people feel towards their cats, dogs and other animal friends. He found that "the remedy of specific performance can be invoked to address a breach of an enforceable agreement when money damages are not adequate to protect the expectation interest of the injured party and an order requiring performance of the contract will not result in inequity to the offending party." The judge goes on to specify that specific performance is recognized as an appropriate remedy when an agreement concerns possessions of property that induce a "strong sentimental attachment," because money damages cannot compensate the injured party for the "special subjective benefits he or she derives from possession." Ultimately, the Appellate Division's ruling compels future courts to view pets as property of a higher value in divorce, dissolution, and separation proceedings. Further, because pets should be viewed as property akin to sentimental family heirlooms, specific performance is viable remedy for a breach of contract in which one party does not honor a promise to give the other party possession of a pet in a divorce, dissolution, or separation agreement. The ruling in Houseman v. Dare should provide some comfort for people who anticipate that the custody of their beloved pet will be an issue in the dissolution of their relationship. If you are considering divorce or civil union dissolution and have pets you would like to keep, you should consult an experienced family law attorney to protect your rights. For more information on divorce, dissolution separation or other family Law matters in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Unequal Rights For Civil Union Couples- No Irreconcilable Differences Grounds For Dissolution

It may come as quite a surprise to some that irreconcilable differences is not a ground for civil union dissolution in the state of New Jersey. This means that same sex couples who wish to dissolve their civil union must file under one of the statutory grounds for divorce. According to N.J.S.A. 2A:34-2.1 (2012) the only grounds that gay or lesbian couples seeking to dissolve their civil union can file under are the following: 1) voluntary sexual intercourse between a person who is in a civil union and a person other than the person's partner in a civil union; 2) willful and continued desertion for a period of 12 or more consecutive months; 3) extreme cruelty, which is defined as including any physical or mental cruelty that endangers the safety or health of the plaintiff; 4) separation, provided that the partners in a civil union couple have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; 5) voluntarily induced addiction or habituation to any narcotic drug; 6) institutionalization for mental illness for a period of 24 or more consecutive months subsequent to the establishment of the civil union; or 7) imprisonment of the defendant for 18 or more consecutive months after the establishment of the civil union. The aforementioned grounds are analogous to the grounds that can be filed for married couples who wish to end their marriage, except for the fact that irreconcilable differences is clearly not an option for couples in a civil union. This dramatically effects the dissolution process for same sex couples. Many married couples willingly choose to file for divorce under the ground of irreconcilable differences because it is a much more expedited process as neither party will bear the burden of having to prove the truth of one of the aforementioned grounds - which also leads to a much more emotionally-charged and contested process. Couples in civil unions do not have that luxury and therefore will have to prove the truth of one of the other grounds in order to dissolve the civil union which will complicated the process dramatically. This compels the party who wishes to dissolve the civil union to choose from those enumerated statutory grounds. For instance, if a party chooses to file for dissolution based on extreme cruelty, that party will have to present the court with evidence that he or she was mentally and/or physically abused by the other party. This may prompt the other party to defend him or herself thus igniting emotions and complicating and lengthening the duration of the litigation. Although gay couples may not have equal rights when it comes to marriage in NJ, they still face the same issues when a relationship ends including child custody, child support, alimony, equitable distribution and more. If you are considering or facing dissolution of your civil union you should consult an experienced civil union attorney to protect your rights and help you navigate the process. For more information regarding same-sex civil union dissolution,custody, alimony, divorce or other family faw 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.

How Much Would Alimony Reform In NJ Change Family Law?

Currently, there are two proposed bills before the New Jersey State Legislature regarding alimony reform that may transform divorce procedures in the state for years to come. The two proposed laws are S2750 and A3909 and, if passed, they will create guidelines for judges to follow when ordering alimony payments based on the duration of the marriage and would also eliminate permanent alimony awards altogether. The issue of the longevity of alimony has been debated in this state for decades. Many practitioners, law makers, and residents hold steadfast beliefs as to whether or not the current state of alimony should be reformed in New Jersey. The sociological perspective that supports the notion that alimony should be reformed in this state is based upon the notion that the need for permanent alimony no longer exists because most households consist of two working spouses who, in the event of the dissolution of the marriage, are capable of supporting themselves independently. Traditionally, permanent alimony existed to ensure that spouses (historically women), who remained home during the marriage to support the family in ways that did not earn money, were not left in financial ruin. Typically, these spouses either never entered the workforce or remained isolated from the workforce for so long that they found it extremely difficult to find suitable occupations because they lacked the skills that employers deemed necessary for employment. On the other hand, the alternative perspective is that there still remains large disparities in the earning potential between spouses. In the event of a divorce, one spouse usually still has a harder time financially supporting him or herself. In addition, one spouse usually serves as the parent of primary residence for their children, if the marriage spawned children, which creates additional financial hardships for that spouse. Therefore, the debate over alimony reform continues to rage on. The alimony reform bill which went before the Senate Judiciary Committee in May of 2013 places limits on the longevity of alimony based upon the duration of the marriage. The bill also provides courts with the option to make alimony awards "in the interests of justice" which means that it would still be possible for a court considering the totality of the circumstances surrounding a marriage to make an alimony award which would persist for and indefinite length of time, as justice requires. Therefore, the proposed law, although seemingly changes the landscape of alimony in New Jersey, would still leave the door open for courts to order long-term alimony awards if the particular situation required them to do so. If you are considering a divorce or modification of alimony you should consult an experienced family law attorney to learn what you may expect and obtain what you deserve. For more information regarding alimony, child support, civil union dissolution, divorce, equitable distribution, custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Failure to Make Mortgage Payments Decreases Equitable Distribution

Equitable distribution is how the parties' assets are divided in a divorce. Often one of the parties' largest assets is their marital residence. Frequently, a payor spouse or partner will be left with the alternative of paying the mortgage on the marital residence where the other party now resides or paying for their own residence when there are insufficient funds for both. When a party is ordered by the Court in a Pendente Lite Order, Final Judgment of divorce after a trial or agrees under the terms of a property settlement agreement to pay the mortgage on the marital residence and fails to do so, that party's share of the proceeds from the eventual sale of the marital home may be reduced equitably to permit the other spouse or partner to receive what they would have received had the payments been made. In the recent case of Debra Freeman v. William Freeman, Sr., the defendant was to buy the plaintiff's share of the residence or the residence was to be sold. William failed to buy out the plaintiff and also failed to make the mortgage payments due. Although Debra did not make an appropriate accounting of proceeds from the eventual sale of the residence and the court determined she was remiss for same. Although Debra's accounting indicated she walked out of the closing with approximately $12,000, the trial judge determined the parties should have received a combined $42, 422.34 in proceeds and ordered the plaintiff to pay William $21,211.17, representing one-half of the proceeds they should have received from the sale. Debra appealed and the NJ Appellate Court referred to the decision in F.G. v. MacDonell, 150 N.J. 550, 564 (1997) to support the finding that Debra, as the party responsible for the sale of the residence, was under a "duty to exercise reasonable skill and care" in the transaction. As a result of her breach of duty, William was entitled to an award remedying the situation as it pertained to him. However, the New Jersey Appellate Division also held that the Superior Court Judge should have considered the impact of the defendant's failure to make the mortgage payments as required. The Appellate Division remanded the matter to the NJ Superior Court to allow the trial judge to factor the defendant's failure to pay the mortgage into the award to him of $21,211.17 and reduce the award equitably. If you are considering or facing a divorce, it is imperative that you have an experienced family law attorney review your matter in order to ensure you are protected from unforeseen pitfalls which may result in the event of a change in the economy, a bitter former spouse or partner or other circumstances. For more information about divorce, dissolution, child support, alimony, equitable distribution, civil union or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

New Jersey Palimony Agreements Must Be In Writing

According to a recent New Jersey Appellate Division decision, palimony agreements must be memorialized in writing if they are to be legally enforceable and the law requiring such is to be retroactively applied. The term "palimony" refers to the support that two unmarried people, who have lived together, promise to pay to each other upon the dissolution of their relationship. The status and availability of palimony throughout the United States varies dramatically from state to state. Some states will enforce palimony agreements other states will not. Further, of the states that do recognize the validity of palimony agreements, the rules that govern their enforcement are not uniformly applied across the states. Traditionally, in New Jersey palimony agreements could be either oral or written agreements to be legally enforceable. The 1979 case, Kozlowski v. Kozlowski, was the foundational precedent for these cases and had remained good law for decades. In 2010, the New Jersey legislature passed a law, N.J.S.A. 25:1-5, effectively amending the Statute of Frauds, which then mandated that palimony agreements be memorialized in writing. This shift in the law may have been caused by a shift in social culture. Over the last two decades, more and more couples have engaged in long term relationships that do not result in a marriage or civil union. Since the relationship dynamics have changed so much in our society, it may have proven difficult for a court to enforce an oral agreement for relationship configurations that appeared to be ever-changing. Therefore, it seemed natural for the law to mandate that palimony agreements be written as a means to minimize confusion and ambiguity over relationship statuses. On February 4, 2013, the Appellate Division rendered a decision in Maeker v. Ross that considered the issue of whether N.J.S.A. 25:1-5 could be applied to palimony agreements that were instituted before 2010. In Maeker, the litigants were engaged in a 10-year long relationship, in which the male partner supported the female. Their relationship ended in 2011 and Ms. Maeker sued Mr. Ross for palimony. The couple did not have a written agreement. N.J.S.A. 25:1-5, was codified in 2010 and required that palimony agreements be in writing in order to be enforceable. The trial court found that based upon the length of the relationship, the lawsuit could proceed. The Appellate Court disagreed and reversed the prior court's opinion, essentially holding that all palimony agreements must be in writing and that the law should be applied retroactively. The decision has been appealed to the New Jersey Supreme Court. For more information about palimony, divorce, civil union dissolution, alimony, child support, custody 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.

Relocating a Child Out of New Jersey Without Consent of the Other Parent

In child custody disputes, removing a child from the state of New Jersey to another state without a court order or consent of the other parent may subject you to sanctions and even kidnapping charges. According to N.J.S.A. 9:2-2, if a custodial parent wishes to relocate his or her child to another state, that parent must obtain the permission of the child’s non-custodial parent or must obtain a court order granting permission to remove the child over the non-custodial parent’s objection. The public policy behind the statute ensures that the non-custodial parent’s rights with regard to maintaining a relationship with his or her child are not infringed. The first question that a court must consider is the type of custody arrangement that exists. If the parents have a joint or true shared custody arrangement, then upon an application for change of custody, the court must make a best interests determination as set forth in N.J.S.A. 9:2-4(c). Alternatively, if custody is far from equal, with one parent having only the typical every other weekend and one overnight per week arrangement, then the court must apply a two-prong test set forth by the Supreme Court of New Jersey in Baures v. Lewis, 167 N.J. 91 (2001). First, the custodial parent must prove that the move is being considered in good faith and not simply to deprive the non-custodial parent of a relationship with the child. Second, the parent must prove that the relocation will not adversely affect the child. The Court in Baures listed twelve factors to be considered in determining whether the custodial parent has satisfied the two-prong test. The Baures factors include: • The reasons for the move; • Reasons for opposition by the other parent; • Parties' past dealings in regard to parenting; • Whether the child will receive equal educational, health and recreational opportunities in the new location; • Any special needs or talents of the child; • Whether a reasonable visitation schedule can be arranged to permit the continued relationship between the child and the non-custodial parent; • The likelihood that the custodial parent will foster the relationship between the child and non-custodial parent; • The effect of the move on extended family relationships in the present and new location; • The child's preference if of age and intellect to make an informed choice; • The child's scholastic performance and year of matriculation; • Whether the non-custodial parent is able to move to the new location; • Any other factor the Court may wish to consider. Relocation of a child to another state will have serious and lasting effects on the child's life and relationships, including the relationship with the other parent. If you are considering relocating with a child to a state other than New Jersey, or opposing such a relocation, you should consult with an experienced family law attorney to learn your rights and options. For more information about child custody, parenting time, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Consequences of Setting Support Outside the NJ Child Support Guidelines

The payor spouse or partner must exercise caution when setting initial child support outside the NJ Child Support Guidelines ("Guidelines"). In the event the payor later seeks modification of child support based on changed circumstances, the court may find the Guidelines to be inapplicable to any modification sought. Unless there is a provision in the parties' property settlement agreement which specifies that the Guidelines are to be applied in the event of modification, they are likely not to be applied and any modification may also be set outside their framework. Unlike in a standard case in which changed circumstances are proven, modification is warranted and a new child support amount will be established within the Guidelines, there is another hurdle. The parties, or at least the party seeking the modification, will face the legal argument of whether there is now good reason to apply the Guidelines or whether the child support amount should remain outside their scope. In the case of Perri v. Salandra, the plaintiff conceded that the defendant suffered a drastic reduction in income and agreed child support should be modified. The NJ Superior Court held that the party sought to set support outside the Guidelines initially and included no provision in their property settlement agreement calling for application of the Guidelines in the event of modification therefore the Guidelines would not be applied to the modification. The New Jersey Appellate Court affirmed the decision of the Superior Court. If you are seeking a divorce or modification of support, you should consult with an experienced family law attorney to protect your rights and weigh the merits of your case. Although parties often prepare their own settlement agreements, they must be sure to understand that the other party may seek to change the terms of the agreement in the future and how those changes may be applied to their agreement as written. For more information about divorce, civil union dissolution, child support, alimony, equitable distribution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post-Judgment Modifications Require Due Diligence By Judges In NJ

Motions for post-judgment modification require a judge to make findings of fact similar to those made in the underlying cause of action. When submitting motions for post-judgment modification, the substance and amount of proof of a litigant's position makes the difference in whether a motion will be considered by the court and also what the court's finding will be. In a recent case, Olt v. Olt, a defendant was able to prove changed circumstances as is required for the court to consider his motion for modification of child support. However, the defendant was dissatisfied with the result obtained when the judge granted his motion. Defendant worked within the home health care industry and could not find similar employment. The judge made no findings of fact related to the defendant's documentation regarding other employment the defendant may have attempted to obtain and imputed income based on what the judge seemed to believe was defendant's voluntary unemployment. Additionally, the judge considered work related child care costs to the plaintiff in making the decision regarding the child support amount. The cost of $9,000 was utilized by the court for plaintiff's work related child care cost amount in the calculations but no findings of fact were made by the judge as to the reason for the $9,000 figure. Much as the litigants are required to submit adequate proof, the judge is required to make adequate findings of fact. In this case, where the reasoning behind the decision of the judge as to certain facts was not sufficiently established by the record, the NJ Appellate Division granted the Defendant's appeal and remanded the decision to the NJ Superior Court for the judge to reconsider the findings. If you are contemplating a motion for post-judgment modification or defending against a motion for modification, you should seek experienced legal counsel to make sure you obtain the relief you are entitled to. For more information on divorce, dissolution, child support, alimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alimony Modification Sought By Private Business Owner

In a motion to modify alimony, the party bringing the motion must demonstrate a clear case of changed circumstances before the court will entertain the motion. A prima facie (obvious on its face) showing of changed circumstances is required before the court will order discovery or in any way further the matter. In a case where the parties enter into a settlement agreement, change can be even more difficult to explain because, unlike when a judge binds one to the decision of the court, those entering into negotiated agreements had the opportunity to consider their own circumstances and negotiate what they believe to be a fair bargain. In Trammell v. Trammell, the parties arrived at an agreement but the plaintiff later fell on hard times when his business slowed considerably to the point of a Chapter 11 bankruptcy filing. Plaintiff was the sole member and shareholder of the business and had take substantial loans from the business prior to filing bankruptcy. Alimony went into substantial arrears, an insurance policy the plaintiff agreed to give the defendant was cancelled for non-payment and the court issued a warrant for plaintiff's arrest. Plaintiff filed a motion to terminate alimony, forgive alimony arrears and terminate the requirement that he maintain the insurance policy for defendant's benefit. The NJ Superior Court Judge hearing the matter denied the motion on the basis that plaintiff's imputed income at the time the parties entered into their settlement agreement was $66,000 per year and, even if not through his own business, the plaintiff was still able to work and earn a similar amount. The judge reviewed the prior year's tax return and decided the reduction to $60,500 per year from $66,000 per year was not a great and lasting change in circumstances that the plaintiff could no longer afford to pay alimony and support himself therefore requiring modification of the parties matrimonial settlement agreement (MSA). If you are filing or challenging a motion to modify a support obligation, you should consult an experienced family law attorney immediately to protect your rights. For more information on alimony, child support, post-judgment modification, dissolution 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.

Emancipation Is Presumption At Age 18

Emancipation of a minor is triggered by age or certain events. In 2012, a father made a motion to emancipate his 2 daughters, modify support accordingly and terminate his alimony obligation. The daughters turned 18 in 2002 and 2008 respectively. The NJ Appellate Court decided that the fact the daughters remained dependant after the age of 18 did not provide a reasonable basis to deny the father's motion without any further review. At a minimum, if either or both were to remain unemancipated but over 18 and not attending college while living at home the child support would need to be recalculated. In Ortiz v. Ortiz, the father was the parent of alternate residence and the mother was awarded primary custody of the children in 2002. The father had been living in California and was now on disability, the older daughter had married in 2004 but continued in college until 2008 and the younger daughter was attending college. The father clearly met the burden of showing changed circumstances based on the children's ages, marriage, his disability since the divorce and the younger child's entry into college. Clearly the older daughter was no longer within the "sphere of influence" of her parents and marriage is one of the reasons the legislature considers grounds for emancipation. As to the other child, upon reaching 18 there is a presumption of emancipation which shifts the burden to the other parent to show an ongoing need for support thereafter. Full-time attendance of post-secondary education is a basis for continuing support after the age of 18 and in some cases parents will also be required to pay for college. The academic record of the child is a factor the court will consider as well as the parents' agreement to support the child during post-secondary education contained if one accompanies the judgment of divorce. The mother offered no proof of the older daughter's need for continued support. She presented proof of the younger daughter's attendance at college but nothing showing the cost thereof. At a minimum, the father was entitled to further discovery from the plaintiff mother as well as a recalculation of child support in regard to the older child based on the factors in N.J.S.A. 2A:34-23(a), pertaining to child support, or the child support guidelines if the younger daughter continues to reside at home while attending college. If you are seeking or opposing emancipation, modification of child support or custody you should contact an experienced family law attorney immediately to protect your rights. For more information on emancipation, child support, custody, alimony, dissolution, divorce or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Which State Has Jurisdiction in Post-Judgment Matters?

A New Jersey resident mother and a California resident father were involved in a motion to enforce litigant's rights regarding a New York divorce in Spierto v. Spierto. The mother sought, within the New Jersey courts, to enforce the terms of the parties New York divorce requiring the father to contribute to the son's college costs. Both the mother and son lived in New Jersey but the father was a resident of California. Because the divorce took place in New York, not New Jersey, the father petitioned the court for a dismissal of the motion based on the fact he was a CA resident and never was a NJ resident and therefore he claimed NJ had no jurisdiction over him. The NJ trial court concluded that through the father's contacts with NJ through his relationship with the wife and son, NJ had jurisdiction over the father. The trial judge also determined that NY no longer had continuing jurisdiction over the matter based on the fact that neither of the parties nor the child continued to reside in NY. Although the NJ Appellate Division did not reverse the findings regarding jurisdiction over the matter being within the NJ court, the court did remand the matter to the trial judge for specific findings as to the nature, time and extent of the father's contacts with NJ, including parenting time in order to determine whether NJ had jurisdiction over the father. If you are facing or considering a post-judgment motion, you should consult an experienced family law attorney to protect your rights. For more information on divorce, dissolution, litigant's rights, child support, alimony or other family law matters in NJ, visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney in legal matters.