Equitable Distribution of Stock Options in Divorce

M.G. v. S.M. is a post-judgment divorce matter where the marital coverture share of a stock award vesting after the filing of the divorce complaint was sought by the Defendant. The parties married in 1998. Every August, from 2003 through 2010, the Plaintiff received a stock award from his employer which would vest in stages thereafter, beginning in 2011. On July 28, 2014, Plaintiff filed the divorce complaint. By that time, M.G. had been granted eight stock awards but only three had fully vested with the remainder to vest annually thereafter, each August. The company’s policy was reviewed and specifically stated that employees were granted stock to compensate them for long-term contributions to the company’s success and that the stock awards “represent the future right to receive shares…when a vesting requirement is satisfied.” According to the Plaintiff, the stock awards are a way for the employer to retain employees and give them reason to drive the stock higher through personal performance. Plaintiff did agree to share the vested stocks with the Defendant but maintained that any non-vested stock would vest only if he continued to perform at higher levels following the filing of the divorce complaint. The trial judge found that S.M. was entitled to one-half of all stocks awarded before or near the date of the complaint. In his opinion, the trial judge found Plaintiff to be credible and Defendant non-credible. In his written opinion, the judge went on to include that the stock awards of 2014 were based on the Plaintiff’s past performance, which was rendered during the marriage. The Plaintiff filed a motion for reconsideration with which he submitted documents from his employer spelling out the fact that post-award changes in employment status, hours, leaves, disability, and otherwise “shall” affect the employee’s rights in stock awards in support of his argument that the non-vested options did not belong, in part, to the Defendant. The motion was denied. Plaintiff appealed to the New Jersey Appellate Division. In Pascale v. Pascale, 140 N.J. 583 (1995) and Reinbold v. Reinbold, 311 N.J. Super. 460 (App. Div. 1998), the court held that options and other incentives earned during the marriage, even if distributed later, are subject to equitable distribution. The trial judge misapplied these cases to stock awards that would be earned after the marriage. In Slutsky v. Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017), the court held that “reversal is warranted when the trial court’s factual findings are ‘so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.” In Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012), the court determined that a family judge has wide discretion in the distribution of assets which are subject to equitable distribution, however, in the within case, the trial judge’s findings were not supported by credible evidence and controlling legal principles pursuant to the terms of Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009). In Pascale, the Supreme Court upheld its earlier decision from Landwehr v. Landwehr, 111 N.J. 491, 504 (1988), wherein the court held that when equitable distribution is sought for assets received post complaint, the touchstone becomes whether the asset was acquired as a result of efforts during the marriage, in which case the asset is subject to equitable distribution, or post-complaint in which case it belongs to the spouse who still must earn the asset. The N.J. Appellate Division panel determined that the trial judge was incorrect in his decision. The matter was reversed and remanded to the trial judge for findings pursuant to applicable case law and N.J.S.A. 2A:34-23.1. If you are considering divorce or have been served with divorce papers, you should consult with an experienced family law attorney in order to insure that your rights are protected. For more information about divorce, post-judgment motions, equitable distribution or other family law matters, visit DarlingFirm.com. To schedule a consultation, call us today at 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.

Party Chose to Ask Forgiveness Rather Than Permission to Relocate

In A.J. v. R.J., custody of the parties’ children was transferred to defendant upon plaintiff’s failure to comply with a prior order concerning plaintiff’s relocation with the children. The parties married in 2008, and divorced in 2013. Two children were born of the marriage. The parties divorced with a negotiated marital settlement agreement, rather than a trial, with defendant receiving parenting time every other weekend and one weeknight overnight. Plaintiff was a tenured teacher in Elizabeth and Defendant resided in Union. Post-judgment, Plaintiff remarried and had another child. Due to Plaintiff’s family growing, they moved to Mount Holly. Plaintiff failed to obtain permission, from the Defendant or the court, to move the children after the Defendant notified her that he did not wish for the children to live so far away. Upon learning of the move, the Defendant filed an order to show cause to modify the judgment as to custody and to prevent the Plaintiff’s relocation. The trial judge granted the Defendant parenting time three weekends each month. Thereafter, a plenary hearing occurred and the trial judge ordered Plaintiff to relocate within fifteen miles of Union prior to the beginning of the upcoming school year. In making his decision regarding the Plaintiff’s ability to relocate with the children, the trial judge relied upon the factors set forth in Baures v. Lewis, 167 N.J. 91 (2001). Plaintiff appealed, arguing that the judge applied the wrong standard in his determination of her ability to relocate and that he changed the terms of the partied MSA by including a fifteen-mile rule where the parties had none. With regard to the imposition of the fifteen-mile limitation, pursuant to Ridley v. Dennison, 298 N.J. Super. 373, 381 (app. Div. 1997), Rule 5:3-7 and Rule 1:10-3, the court may craft remedies or measures to facilitate enforcement in the event an order is violated. As to the Judge’s use of the Baures factors, Baures no longer applies when a court is addressing relocation; rather, the court must consider N.J.S.A. 9:2-4. As the motion judge did not apply the correct measure in sanctioning the plaintiff, the appellate division reversed and remanded. If you are planning to relocate and believe that it may affect your parenting time arrangement, or you are seeking to prevent your children's other parent from relocating, it is critical that you seek an experienced family law attorney to represent you as misapplication of law can cause disastrous results for you and your children. For more information about relocating with children, divorce, alimony, child support or other family matters, visit DarlingFirm.com. To schedule a consultation with an experienced family law attorney now, call 973-584-6200. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Pre-Marital Assets Comingled Become Joint Property

Andrew Flockhart v. Karen Flockhart was a divorce ending in a twelve day trial relating to alimony, custody, child support and equitable distribution. The parties married in 1995, had three children born in 1998, 2000 and 2004 and separated in 2012. The Plaintiff had a successful landscaping business that predated the marriage and owned his own home as well. The Defendant was employed and also helped the Plaintiff with his landscaping business prior to the birth of their first child. Thereafter, the Plaintiff stopped working until 2014 when she began working part-time. During the marriage, the Plaintiff sold his home and the parties upgraded through multiple residences and, in 1998, the Plaintiff sold his business and the parties formed an entity including property purchased with the proceeds of Plaintiff’s landscaping business in which they owned equal interests. The parties branched into other equally held businesses and real estate holding companies. Plaintiff also formed a business with his mother, in which she was a majority shareholder and to which she contributed $200,000. In 2012, the Plaintiff filed for divorce and the parties’ holdings were evaluated with valuations in the millions, although they were offset by significant outstanding mortgage balances. Plaintiff was granted sole legal custody of the sons with the Plaintiff having physical custody of the older son. The parties’ daughter was emancipated. The parties’ combined net income during the marriage exceeded $187,200 which would trigger certain child support guideline limits. Plaintiff was ordered to pay$224 weekly child support for the younger son and defendant was ordered to pay $380 per week in child support for the older son – a net weekly payment to Plaintiff from Defendant of $156 in child support. The court imputed Plaintiff income of $300,000 annually and Defendant was imputed income of $27,040 annually. Plaintiff was ordered to pay $2,500 weekly in alimony until the parties’ older son was emancipated and $1950 weekly thereafter for a total alimony period of seventeen years and five months, a duration equal to that of the marriage. In spite of the $275,000 disparity in their annual incomes, the alimony calculation left both Plaintiff and Defendant in the very similar position of falling slightly short of their post-marital monthly budgets of over $10,000 each. The court determined that the parties’ assets should be divided equally as they were amassed through joint efforts. The parties appealed as to several issues including alimony and equitable distribution. The result of the appeal was remand of the matter for a review of child support and some adjustments with regard to equitable distribution. There were no credits to the Plaintiff for the contribution of his premarital business for the growth of the marital enterprise, nor for the contribution of his premarital residence to the purchase of the successive marital residences. If you are considering divorce, it is imperative that you obtain the advice of an experienced family law attorney in order to insure that your rights are protected. For more information about divorce, alimony, child support or other family law matters, visit DarlingFirm.com or call 973-584-6200 today if you wish to consult with an experienced divorce lawyer. This blog is for informational purposes only and not intended to replace the advice of counsel.

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.

Interference With Religious Upbringing?

Michelle Dilisa and Gioacchino Dilisi divorced in 2014 with a matrimonial settlement agreement (MSA) in place. The MSA provided for the children to be raised in the Roman Catholic faith. The MSA also called for shared custody with the Plaintiff, Michelle, as parent of primary residence. At the time of the parties’ divorce, their daughters were ten and eleven years old with both having been baptized and received their first communion with the older daughter preparing for confirmation but the Defendant did bring the girls with him to a non-denominational church at that time as well. In January 2018, the Defendant sought the Plaintiff’s permission to take the girls on vacation but no response was forthcoming and Defendant was left to file a motion in that regard. Plaintiff cross-moved with twenty-one items for which she sought relief, including the preclusion of Defendant from taking the girls to a church other than a Roman Catholic Church, which the judge granted. The Defendant appealed on the grounds that his taking the children to a non-denominational church did not violate the parties’ agreement that the children would be raised in the Catholic faith. The Defendant’s argument was based on the lack of constitutionality of the motion judge’s decision. On appeal, the court determined that the custodial parent has the right to determine the religious upbringing of the children in the absence of a “contractual mandate” to the contrary pursuant to Feldman v. Feldman, 378 N.J. Super. 83, 91 (App. Div. 2005). However, the court also held that there is no preclusion for non-custodial parents taking their children to other religious services during their parenting time and such a bar would be violative of said parent’s rights. Feldman, 378 N.J. Super. at 96. A “judicial decision that compels or prohibits an act is ‘state action’ and such state action by a court cannot transgress constitutional protections.” Brown v. Szakal, 212 N.J. Super 136, 139 (Ch. Div. 1986). Therefore, if the Defendant’s choice to bring the children to a non-denominational church where he chooses to worship does not interfere with the children’s Roman Catholic upbringing, to prevent him from doing so would violate the Defendant’s religious freedom. The N.J. Appellate Division reversed. If you are considering divorce or have been served with divorce papers, call The Darling Law Firm, LLC at 973-584-6200 to insure your rights are protected. For more information about divorce, custody, alimony or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Support Modification Was Intended to Benefit Defendant

Ianniello v. Pizzo involved a motion to modify child support following a high-net worth divorce. Pizzo, remarried with another child from the second marriage, sought to increase Ianniello’s monthly child support payment to her from $10,000 to $75,000 per month when Plaintiff’s income increased. Pizzo and Ianniello were married in 2000. Two sons were born of the marriage in 2004 and 2008. In April 2011, the parties divorced with a marital settlement agreement providing for a $5.5 million equitable distribution to Pizzo from Ianniello’s stock options, $10,000 per month for six years in limited durational alimony and an additional $10,000 per month in child support. Defendant is a homemaker with no employment outside of the home. Plaintiff, also remarried, is an executive in a large corporation wherein his annual income fluctuates between $14 and $31 million annually plus benefits. Plaintiff argued that the $10,000 in monthly child support more than provided for the needs of the children and that the Defendant’s request was made just as her alimony was about to end in an effort to improve her own lifestyle, not that of the children as the expenses of a 10 and 13 year old did not amount to $900,000 annually. The court ordered Defendant to file a budget as per Walton v. Wisgil, 248 N.J. Super. 642 (App. Div. 1991). The court found Defendant’s budget to be more of a wish-list of extravagances which would mainly benefit the Defendant. Pursuant to the factors of N.J.S.A. 2A:34-23(a), the court noted that the child support guidelines called for $508 each week in child support which was stepped up substantially already to account for the parties’ incomes and the children want for nothing. Pursuant to the child support guidelines, if the combined net income of the parents is greater than $187,200 per annum, the court shall supplement child support with a discretionary amount based on the actual family income and the factors of N.J.S.A. 2A:34-23. The children vacation four times annually with their families, attend sports camps, enjoy country club memberships and live in luxurious residences. Additionally, the Plaintiff agreed to pay for the children's private school costs, college expenses and extracurricular activities. The court denied the Defendant’s request to modify child support and the N.J. Appellate Division affirmed. For more information on high net worth divorce, alimony, child support, or other family law matters, visit DarlingFirm.com or call 973-584-6200 to schedule a consultation and protect your rights. This blog is for informational purposes only and not intended to replace the advice of counsel.

The Parties' Own Knowing Agreement, Absent Fraud, Prevails In Emancipation

In Longer v. Nace, Robert Nace sought to emancipate the parties’ daughter, as the parties’ separation agreement entered at the time of their divorce, defined emancipation as attaining the age of 18 years or completing college. Plaintiff, Nina Longer, opposed the motion based on N.J.S.A. 2A:17-56.67 providing for child support until the age of 23 years. The daughter was enrolled full-time in a master’s degree program and living at home at the time. Plaintiff was not seeking contribution to the daughter’s tuition, only that child support continue. Under Newburgh v. Arrigo, 88 N.J. 529 (1982) the court denied the motion for emancipation. Robert Nace and Nina Longer divorced in 2002 with a property settlement agreement after eleven years of marriage. The children were ten and seven at the time of the divorce. The parties agreed to share equally the cost of all post-secondary education for the children. The parties further agreed that child support would terminate upon each child’s attaining the age of 18 years or completing college, the last of which occurs. The parties shared the costs of college for the children and the Defendant moved to emancipate the daughter upon her completing college, in accordance with the property settlement agreement. On appeal, the appellate division determined that the court below failed to properly apply Newburgh, which is to be applied only when tuition for the child is being sought and that the court should have enforced the property settlement agreement that the parties knowingly and voluntarily entered into which, on its face did not have any appearance of impropriety and therefore reversed the decision of the trial court with regard to the motion. If you are interested in emancipating a minor or preventing a minor from being emancipated early, visit DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes and not intended to replace the advice of counsel.

Contributing to Your Children's Education

In Fanelli v. Hnatowski, Plaintiff Daria Fanelli filed a post-judgment motion seeking contribution from her former husband, Kenneth Hnatowski, for 50% of their two children’s private school tuition as was agreed upon in the parties’ property settlement agreement. Fanelli paid the tuition for both children for 9 years without contribution by the Defendant. The parties divorced in 2005 and Plaintiff was the primary caregiver to the children, ages 15 and 16 at the time of the post-judgment motion. At the time of their divorce, the parties entered into a property settlement agreement containing, among other things, that each would pay 50% of the children’s school costs. The children have attended private school since kindergarten. In 2016, the Plaintiff sought a contribution from the Defendant in the amount of 50% of the children’s tuition or a contribution in proportion to the parties’ respective incomes. The Union County Family Part judge hearing the matter ordered the Defendant to pay 50% of the children’s tuition and Defendant appealed on the grounds that the Plaintiff’s failure to seek contribution for 9 years barred her from doing so and that the term “school costs” does not mean tuition. The Defendant directed the court to Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff’d, 288 N.J. Super. 478 (App. Div. 1996) which sets forth 14 enumerated factors which the court must evaluate when ordering payment. The factors include the ability of parents to pay, the continuity of the children’s education, the contemplation that they would participate in the program for which contribution is sought, whether enrollment was reasonable, the benefit to the child of the program, whether the party enrolling the child had the right to do so, the child’s best interests and other factors. The NJ Appellate Division held that the term “school costs” was not ambiguous and that the Defendant was required to contribute to the children’s tuition under the parties’ agreement. Thereafter, the appellate division stressed the importance of upholding resolutions negotiated by the parties in citing to Quinn v. Quinn, 225 N.J. 34, 44 (2016), Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999). The trial court determined that Defendant’s failure to object to the children’s attendance in private school for 9 years operated as implied consent. On appeal, the court found the issue of consent to be of no consequence as the Plaintiff was not seeking contribution for the 9 prior years of private school tuition and the Defendant did not seek relief compelling the children to attend public school. If you need post-judgment relief to enforce litigant’s rights in a family law case, please visit DarlingFirm.com for more information or call us now at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.

Fleeing the Country to Avoid Alimony and Child Support

In Jonas v. Jonas, defendant Edwin Jonas, III appealed, for the eleventh time, the court’s decision in favor of Linda Jonas. Edwin Jonas, III was a prominent attorney who willfully refused to pay child support and alimony for decades, since his 1990 divorce, to the demise of his reputation and business. In his efforts to avoid payment, Edwin Jonas has removed his children from the country, lied to the court, fled jurisdiction and dissipated assets. The Defendant's appeal centers around the theme that he cannot receive a fair trial in Camden County Superior Court due to judicial prejudice against him. The Defendant's belief stems from the fact that he represented to the court that he had no intention of liquidating assets or leaving the country with the parties' children. Thereafter, Edwin Jonas, III left the country with the children, purchased a residence in the Cayman Islands and took steps to sell a convenience store he owned, causing title of several assets owned by the Defendant to be transferred into Plaintiff's name by Court Order. The idea was to create a constructive trust to ensure payment of alimony and child support. Rather than paying the sums due for support for a full twenty-eight years, the Defendant, is willing to file appeals and appear in court to try to seek an accounting from the Plaintiff. As a result of the Defendant's ongoing failure to acknowledge any wrongdoing and continue with his onslaught of appeals, the court denied the Defendant's motion. If your earnings, or those of your spouse, include commissions, bonus, expense accounts, profit sharing or other items which are irregular, it may make a substantial difference in what you pay or receive at the conclusion of your divorce. It is imperative that you consult an experienced divorce attorney to discuss your rights and obligations prior to filing for divorce. For more information about divorce, child support, alimony, property distribution or other family law matters visit DarlingFirm.com.

Disability Claims in Alimony and Child Support Matters

Assembly Bill 1551 would serve to amend the New Jersey support statute, N.J.S. 2A:34-23 insofar as it would make a social security disability determination inadmissible in the calculation of a party’s alimony or child support receipt or obligation. The Bill, introduced by Morris County Assemblyman Michael Patrick Carroll, would affect actions in which earning capacity was in question due to a disability claim by a party in an action for child support or alimony. In making a determination of earning capacity, “a record or oral testimony on a determination of a federal social security disability benefit award or the receipt of past or on-going social security benefits shall be inadmissible for purposes of establishing the cause, or the extent or duration of the party’s disability in its impact on the earning capacity of that party.” The Bill would require genuine medical records and testimony of treating physicians in order to prove a party’s earnign capacity as it relates to need or ability to pay alimony or child support. Further, the Bill would provide for reasonable costs and attorney fees for the production of proofs by a party victorious in proving a disability limiting earning capacity and costs to a party successfully refuting the other party’s disability claim. The basis for the Bill is the lack of a meaningful adversarial process in the determination of whether an individual is afflicted with a disability in the confines of a social security administration hearing. The language in the bill would add a layer of proof serving to protect the interests of the other party in a family law matter whose interests were not represented in the social security disability matter. If you are considering divorce or post-judgment modification of alimony, you should consult an experienced divorce attorney to protect your rights. This blog is for informational purposes and not intended to replace the advice on an attorney. If you wish to consult with a divorce attorney, please visit DarlingFirm.com to learn more about our services and how to contact us.

High Income Divorce With Extra Complications

In the high income divorce of Jennifer Maynard and Chad Michna, the parties disputed child support. The parties each had a prior marriage and in each marriage a child with special needs was born. One child was born of the marriage and the parties’ relationship ended approximately 4 months thereafter. Maynard filed a Divorce Complaint seeking sole residential custody and legal custody, child support and payment of the child’s expenses. During their divorce hearing, the parties reached an agreement with regard to custody and parenting time. The plaintiff was a medical sales representative with a base salary, commission, and bonus. She also had investment income from outside business affiliations, rental property and child support. The plaintiff included her prior son’s expenses, as well as mortgage and costs of her investment properties, as expenses on her Case Information Statement. She also included the costs of a nanny at is employed 12 hours each day, and weekends. During cross-examination, plaintiff provided more accurate versions of her expenses. Michna was a director of government accounts with a base salary, commissions and a company stock appreciation rights plan and passive interest income. The defendant showed approximately $2,500 per month in expenses related to his son from a prior marriage. Michna sought to have the time period for income calculations to extend back to 2009 when he earned substantially less and Maynard made substantially more. Additionally, as the parties’ maintained a long-distance relationship during most of their marriage, Michna indicated that Maynard’s lifestyle was attributable to her family’s wealth and he could neither afford nor match such a lifestyle. The trial judge’s written opinion included income calculations from 2010 through 2012 and included child support differing from the Guidelines amount. Michna appealed and Maynard cross-appealed in Maynard v. Michna. The Appellate Division first looked to Pascale v. Pascale, 140 N.J. 583 (1995) for the basic premise that child support is to ensure the child’s basic needs are met. Pursuant to N.J.S.A. 9:2-3 and Caplan v. Caplan, 182 N.J. 250 (2005), child support is paid by the non-residential parent to assist the residential parent in raising the child with the economic means he or she would have been raised had the family remained intact. Child support may not be waived by a parent as it is the right of the child. Pascale, 140 N.J. at 591. Under Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012) and N.J.C.R. 5:6A, the Guidelines are to be followed in establishing child support. Under Harte v. Hand, 438 N.J. Super. 545 (Ch. Div. 2014), if an award in line with the Guidelines would cause injustice, the trial judge could use discretion to modify the award. Reviewing the facts of the case through binding precedent, the N.J. Appellate Division remanded the matter for recalculation of the parties’ incomes and a clear statement on the record as to whether the Guidelines were utilized, why the child support award differed from the Guidelines including adjustments to account for the fact that Maynard included her child from another marriage in the expenses utilized to calculate child support for the parties’ child and the deduction of non-work related child care. If your earnings, or those of your spouse, include commissions, bonus, expense accounts, profit sharing or other items which are irregular, it may make a substantial difference in what you pay or receive at the conclusion of your divorce. It is imperative that you consult an experienced divorce attorney to discuss your rights and obligations prior to filing for divorce. For more information about divorce, child support, alimony, property distribution or other family law matters visit DarlingFirm.com.

Small Business Divorce Results in Imputed Income

In this divorce matter involving a small business, Avraham Arbely appealed the decision of the judge as to imputation of income to Arbely, thereby increasing his alimony payment, bias by trial judges and other matters. Lea Brandspiegel-Arbely and Avraham Arbely were married in 1989, 2 children were born of the marriage and a final judgement of divorce was entered in 2013 with economic issues reserved for trial which began in November 2013. During the trial of Brandspiegel-Arbely v. Arbely, the plaintiff’s expert, Martin Abo, a certified public accountant (CPA) provided testimony indicating that the defendant’s proofs with regard to income from his business were designed to frustrate the CPA’s efforts at ascertaining the defendant’s actual income and that the defendant apparently underreported a significant amount of cash sales to the IRS. Arbely, who chose to represent himself rather than hire an attorney, challenged the figures and methods of Abo but provided no countervailing evidence. Following trial, the judge found Abo to be credible and further found that Arbely sold the business after the divorce complaint was filed in order to divest himself of his “cash cow” prior to equitable distribution and drew a negative inference against Arbely for refusing to provide Abo with adequate information and found Arbely to be less than credible when testifying. Plaintiff was awarded alimony of $23,000 per year for 14 years based on defendant’s imputed income of $95,000 per year. Plaintiff was also awarded the marital residence, and investment and business properties. The NJ Appellate Division looked to Stenken v. Stenken, 183 N.J. 290 (2005) with regard to the established principle that alimony is designed to assist the supported spouse in enjoying a standard of living after the marriage which is reasonably comparable to that enjoyed during the marriage. Additionally, the Appellate judges looked to Tannen v. Tannen, 416 N.J. Super. 248 (App. Div. 2010) which reaffirmed the long held principle providing for imputation of income in the process of establishing an alimony award. Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015) was used by the Appellate Division in support of the premise that imputation of income is discretionary wherein the trial court must consider the party’s actual earning capacity. Finding no basis to disturb the trial judge’s findings with regard to expert credibility, the N.J. Appellate Division upheld the decision of the court below with regard to alimony, imputed income and all other issues. If you are considering filing for divorce and own a business, or portion thereof, you are facing considerations outside the scope of a typical divorce. Depending upon their own ownership interest in the business, your spouse may fight to obtain increased alimony or funds by disputing the net worth of your business, annual profits and your personal income. Not only can the valuations be tedious and expensive but the results of the court’s findings can have permanent and financially devastating consequences. It is critical that you obtain an experienced divorce attorney familiar with small business divorces. For more information about small business divorce, alimony, child custody, equitable distribution 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.

In Child Custody Matters, Custody Neutral Assessments Have Limited Admissibility

In a child custody matter, a report issued in a Custody Neutral Assessment (C.N.A.) was not admissible as substantive evidence but was admissible for the limited purpose of the impressions of the assessor and statements and conduct of the parties during the assessment. Manuel Serrano and Gregoria Urbano were divorcing after a marriage of only 2 years and the issue of custody of their child was contested. They could not afford a forensic psychologist to perform a comprehensive evaluation and render a report as to custody but did participate in a C.N.A. with a clinical social worker. The C.N.A. included meetings with each party individually and a report of the evaluator’s impressions and observations during the process. Thereafter, the matter proceeded to trial. In the trial of Serrano v. Urbano, the judge held that: (1) A C.N.A. is not, and therefore cannot be substituted for, a forensic custody evaluation; (2) Unless a forensic evaluation is undertaken, an expert opinion cannot be rendered as to the issue of custody from a forensic psychological standpoint; (3) The testimony and report of the evaluator may have limited admissibility for the purpose of determining the best interests of the child; and (4) The evaluator may offer testimony with regard to statements or actions of the parties during the assessment and the evaluator’s impressions thereof as long as said information is relevant. If you are contemplating divorce and child custody or parenting time is likely to be an issue, it is critical that you consult with an experienced family law attorney in order to learn your rights and the likely outcome of your matter before making any decisions. Child custody determinations can be painstaking for the parties and the court and are not easily modified without consent of both parties or a considerable change in circumstances that is obvious to the court. For more information about custody, parenting time, divorce, alimony or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

With Overnight Parenting Time Comes Responsibility

The NJ Superior Court addressed mid-week overnight parenting time with a non-custodial parent when there were allegations that the children’s performance in school was being hampered by the arrangement in M.C. v. P.C. The court held that the best interests of the child include the child’s educational interests. The court reasoned that when there is sufficient evidence to conclude that overnight midweek parenting time must be eliminated in furtherance of the child’s education, parenting time will be modified. There is an obligation for parents, held the court, to oversee the child’s performance of schoolwork and class preparation. The court also noted that when the parent of alternate residence lives a substantial distance from the parent of primary residence, travel time may also be reason for caution in establishing midweek overnight parenting time during the school year. When establishing custody, the best interests of your children are always paramount. It is critical that you seek an experienced family law attorney who will assist you in setting up a plan that works best for your family’s needs in order to ensure that during what can be a very difficult time for any child, they have continuity and support to the fullest extent possible. For more information about custody and parenting time, divorce, 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 counsel.

Cohabitation Excluded From Property Settlement Agreement Fails To End Alimony

Frick v. Frick was a post-judgment application to terminate alimony based on co-habitation. The parties divorced in 2009 with the court making no findings with regard to alimony, equitable distribution or other matters. The terms of the divorce were set forth within a Property Settlement Agreement (PSA) which both parties testified they entered into freely and voluntarily. Beginning in 2013, Shari Frick began co-habitating with another man and Glen Frick sought termination of his 10-year alimony obligation. The New Jersey Superior Court judge hearing the case terminated alimony, with certain exceptions. The NJ Appellate Division reversed the decision of the trial court finding that co-habitation is a forseeable occurrence after divorce and the parties failed to include it as a reason to terminate alimony under their Agreement. In light of the fact that the parties included death and remarriage as events which would serve to terminate alimony, the NJ Appellate Division found that, had they intended it to be a trigger for termination of alimony, the parties would have included co-habitation in their PSA. When divorcing, by way of agreement or trial, it is critical that the agreement or judgment be as detailed as possible in order to avoid misunderstandings or misinterpretations. If you are seeking a reduction of alimony based on co-habitation of your former spouse, it is critical that you obtain an experienced divorce attorney to assist you with your matter. For more information about alimony termination, co-habitation, divorce, property settlement agreements 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.

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

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

Alimony Modification Denied For Lack Of Changed Circumstances

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

Twins From Different Fathers - Who Pays Child Support?

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

Alimony Motion Dismissed For Discovery Violations

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