Child Support Based On Imputed Income Raises Suspicions of Appellate Panel

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

Modify Your Alimony Obligation Before Retirement

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

Appeal Of Default Divorce By Pro Se Party Unsuccessful

In Dippel v. Dippel, the Plaintiff appealed from a 2013 Final Divorce Judgment that was entered by default on the Defendant's Counterclaim because the Plaintiff failed to comply with the Rules of the Court. The Plaintiff instituted divorce proceedings in 2010 and in 2012 the court dismissed his pleadings without prejudice for failure to comply with discovery requests. In 2012, the court denied the Plaintiff's application to vacate the default judgment and allow him additional time to provide discovery. Later that year, the Plaintiff once again made an application to vacate his divorce judgment, which was denied. The court had advised the Defendant that she could proceed with default proceedings based upon her Counterclaim because the Plaintiff did not comply with discovery. A trial was held in 2013, at which, the trial judge thoroughly placed on the record the history of the Plaintiff's failure to comply with discovery. The court then proceeded to adjudicate custody, parenting time, alimony, and child support. The court did not address equitable distribution, determining that any proceeds from the sale of assets shall be held in escrow. A Final Divorce Judgment was issued on June 13, 2013. The Plaintiff filed a pro se brief with the Appellate Court which did not comply with the Rules of the Court. N.J. Court Rule 2:5-4; N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278, 914 A.2d 1265 (2007). Further, the contents of the Plaintiff's brief did not comply with N.J. Court Rule 2:6-2. In essence, the Plaintiff asked the Appellate Court to review the entire divorce proceedings in totem. According to the Appellate Division, the Defendant's request mischaracterizes its role in the proceedings, as it is to give considerable discretionary decision to the Family Court. Donnelly v. Donnelly, 405 N.J. Super. 117, 127, 963 A.2d 855 (App. Div. 2009). When a Family Part judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, the judge's findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12, 713 A.2d 390 (1998). Further, "parties are required to make adequate legal argument." 700 Highway 33 LLC v. Pollio, 421N.J. Super. 231, 238, 23 A3d 446 (App. Div. 2011). Conclusory assertions that a judge committed error, devoid of reference to the judge's decision or the trial record, and further devoid of any attempt to apply the applicable precedent of the factual underpinnings of such conclusory assertions, do not satisfy the requirement. Therefore, the decision of the Family Court was affirmed. If you are considering and appeal of your final divorce judgment or you would like more information regarding divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, uncontested divorce, equitable distribution, child support, alimony or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Party Seeks Judge's Recusal After Post-Judgment Modifications Denied

The a recent post-judgment modification case, Hoffman v. Hoffman, the Defendant, Bruce Hoffman appealed from a 2013 Family Court Order which denied his Motion to recuse the Family Court judge and also denied his request that the court require the Plaintiff, Frances Hoffman, to provide him with a Case Information Statement (CIS). The Appellate Division affirmed the decision of the Family Court. The parties in the case were married in 1981 and obtained a legal divorce in 2000. The Final Judgment of Divorce incorporated the parties' Property Settlement Agreement (PSA). Following the divorce, the Defendant instituted many post-judgment actions against Plaintiff usually to terminate or modify his child support and alimony obligations. All of the Defendant's Motions were denied. In the case at hand, the Defendant filed a Motion in 2013 requesting the recusal of the Family Court judge and require the Plaintiff to provide him ". . . with her completed CIS with attachments within [three] days." The judge denied the Motion and provided a written statement detailing her reasons for doing so. In her statement, the judge stated that the Defendant sought her recusal because she had previously denied "hearing his request for [reimbursement of] $1,363,800.45." The judge found that this "denial is not a basis for a recusal." Further, she held that her prior involvement in the Defendant's case did not prevent her from producing a fair and unbiased hearing or judgment. Concerning the Defendant's request for the Plaintiff's CIS, the judge held that the Plaintiff submitted her completed CIS to the court and requested that it remain confidential, but did recognize that without access to the document the Defendant may not be able to prove that a modification of his child support or alimony obligation is warranted. In balancing the equities, the judge stated that she "wanted to review the financial information submitted so that [she] could excise irrelevant matters before demanding the parties exchange information," as the Defendant had harassed the Plaintiff with over fifty filings and appeals since 2001. Therefore, the judge denied the Defendant's Motion "at [that] time" to permit her review of the materials. The Defendant appealed. According to the Appellate Court, the disposition of a recusal Motion is "entrusted to the 'sound discretion' of the trial judge whose recusal is sought." Panitch v. Panich, 339 N.J. Super. 63, 66 (App. Div. 2001). Recusal is appropriate "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead . . . the parties to believe so." R. 1:12-1(g). Further, "Bias cannot be inferred from adverse rulings against a party." Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008). The Appellate Court found no abuse of discretion in the Family Court judge's denial of the Defendant Motion for recusal. Next, the Appellate Court dismissed the Defendant's appeal from the trial court's denial of his request for the Plaintiff's CIS because it is "well settled that a judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and all issues." R. 2:2-3(a)(1). The Family Court judge's decision was interlocutory until she reviewed the financial information. If you are seeking post-judgment modification of your divorce judgment, alimony award, or child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, equitable distribution, alimony, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Cohabitation Ends Alimony In Post-Judgment Modification Matter

In a recent post-judgment modification case, Syslo v. Syslo, the Plaintiff, Ann Marie Syslo, lost her appeal from a 2013 Family Court decision which granted the Defendant, Raymond Syslo's request to terminate his alimony obligation because she cohabitated with another person. The facts of the case are as follows. The Plaintiff and Defendant were married in 1990 and subsequently the couple were divorced in 2004. Three children were born of the marriage, the youngest of which still resides with the Plaintiff. Currently, the Defendant is obligated to pay $210 a week in child support. When the parties' decided to obtain a divorce, the Defendant agreed to pay to the Plaintiff $70 a week in alimony. That obligation was increased to $225 a week in 2007. Around 2010, the Defendant began trying to gather proof that the Plaintiff was co-habitating with another person. To do this, he hired a private investigator and began to film the cohabitant staying at the Plaintiff's residence overnight. He accumulated documentary evidence for about thirty-five days taking place in October of 2010, September of 2011, and March and April of 2012. These videos also revealed that the cohabitant possessed a key to the Plaintiff's residence, which he used to enter the home both when the Plaintiff was in the home and when she was not there. The cohabitant also drove the Plaintiff's car from time to time and transported the Plaintiff's child to different places and had opened joint bank accounts with the Plaintiff. Further, the Defendant was able to obtain evidence that the cohabitant received mail at the Plaintiff's home. As a result of this information and the testimony of the parties' emancipated children as well as that of the alleged cohabitant and Plaintiff, a Family Court judge found that the Defendant was able to establish that there was cohabitation. Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998). According to the judge, the Plaintiff and cohabitant acted like a "relatively permanen[t]" family unit, with the assumption of the duties and obligations "associated with marriage." Pursuant to this finding, the judge terminated the Defendant's alimony obligation effective on the date of the entry of the Order. The Plaintiff appealed this decision and argued that the trial court erred by finding that she had cohabitated within the legal understanding of the word. The Appellate Court affirmed the findings of the Family Court. According to the Appellate Division, it is well established that the cohabitation of a spouse who is receiving alimony constitutes a change in circumstances that may relieve the payor spouse from his or her alimony obligation. Gayet v. Gayet, 92 N.J. 149, 155 (1983). The cohabitation relationship must be more than simply an intimate relationship, it must also include that the parties engage in "duties and privileges that are commonly associated with marriage." Konzelman, 158 N.J. at 202. Some factors for consideration include if the parties share living expenses and household chores, intertwined finances, and recognition of the relationship in the couple's social and family circle. In the current case, the court found that the evidence on the record amply supported the Family Court judge's determination that cohabitation was established. If you anticipate that you may want to petition the court for a post-judgment modification of your alimony award based upon cohabitation or any other relief that was awarded in a final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, divorce, alimony, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Same-Sex Marriage: The Impact Of Windsor In America

The years 2013 and 2014 have ushered in great social and cultural change with regard to the status of same-sex marriage throughout America due in large part to the decision in United States v. Windsor, 570 U.S. 12 (2013). One year ago this week the United States Supreme Court decided the landmark Windsor case which struck down The Defense of Marriage Act (DOMA) as unconstitutional and essentially held that gay and lesbian people in the United States should be offered the same rights and respect under the law that heterosexual people currently enjoy. This decision has had a profound impact on the status of marriage equality in America. DOMA was passed by Congress in 1996 and functioned to define marriage as a legal union between a man and a woman only - in the eyes of the federal government. After DOMA's passage, gay and lesbian married couples were officially denied all of the federal recognition and benefits that were afforded to straight couples who were married. When the Windsor case was filed in 2010, only five (5) states and Washington D.C. allowed same-sex marriage. When the United States Supreme Court rendered its decision in the case, twelve (12) states allowed LGBT people to marry. Today, nineteen (19) states, as well as Washington D.C., recognize same-sex marriages along with the federal government. Currently, 44% of the population of the United States have the right to marry a same-sex partner if they choose to do so. This reflects a remarkably fast cultural shift across this nation - a shift that will have long lasting effects on the legal atmosphere for decades to come. At present, there are many other states' courts and legislatures that are deciding issues regarding marriage equality and there may be even more states that recognize same-sex marriage by the end of this year. The rolling trend toward marriage equality in America is undeniable. Therefore, gay and lesbian couples who are contemplating marriage in New Jersey or any other state that now recognizes marriage equality should educate themselves on their new rights and legal responsibilities, especially if they were previously joined in a civil union or domestic partnership. If you are a gay or lesbian couple who plan on seeking a legal marriage, filing for a same-sex divorce or would like more information regarding 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, equitable distribution, alimony, custody, visitation, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

No Vacating A Child Custody Agreement Based on Party's Mistake

In a recent, Morris County New Jersey case, Alexin v. Raiter, the Plaintiff, Alexander Alexin and the Defendant, Irena Raiter, established a consent agreement to provide solutions to child custody issues in their relationship dissolution and the Appellate Division ruled that the Plaintiff could not vacate the agreement after it was signed when he claimed that he thought it was temporary and could be changed. The Plaintiff and Defendant had been dating when they discovered that the Defendant was pregnant. In 2010, a son was born to the couple but their relationship ended soon thereafter. In October of 2012, the Defendant filed a domestic violence complaint against the Plaintiff and was awarded a temporary restraining order. The restraining order granted the Defendant temporary custody of the parties' son and provided no parenting time for the Plaintiff. The parties then filed criminal complaints against each other. In late October 2012, the parties and their attorneys negotiated a civil consent agreement and the Plaintiff and his attorney made handwritten changes to the agreement at that time. The agreement indicated that the parties, through their attorneys, had resolved their issues in consideration of the promises that were made in the agreement. On the issue of child custody, the agreement specified that that Defendant shall have full physical custody of the parties' son and the Plaintiff shall have parenting time on Sundays from 11:00 a.m. until 6:00 p.m. Barely three months after the agreement was signed by the parties and their attorneys, the Plaintiff filed another complaint with the Family Court requesting joint legal and physical custody of the parties' child, arguing that he did not need to show a change in circumstances because he did not enter into the agreement voluntarily. In February 2013, the Family Court conducted a hearing at which the judge issued a written opinion denying the Plaintiff's request to vacate the agreement because the Plaintiff was represented by counsel, had be questioned under oath, and affirmed his understanding of the agreement and his willingness to sign it. The Plaintiff appealed this decision to the Appellate Court and the Court affirmed the decision of the lower court. According to the Appellate Division, although the Plaintiff offered two certifications to support his motion to vacate the agreement, his arguments do not raise a genuine, material issue of fact given the explicit terms of the agreement. The Plaintiff contended that he signed the agreement believing that the terms were temporary and could be changed, and that he only had 10-15 minutes to review the agreement with his attorney. The Appellate Court reasoned that settlement agreements are contracts and therefore "should be enforced according to the intent of the parties." J.B. v. W.B., 215 N.J. 305, 326 (2013). A contracting party to an agreement is "bound by the apparent intention he or she outwardly manifests to the other party. It is immaterial that he or she has a different, secret intention from that outwardly manifested." Brawer v. Brawer, 329 N.J. Super. 213, 283 (App. Div. 2000). Disputes regarding child custody can be of the most important and emotional in family law. If you are involved in a child custody or child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on custody, parenting time, post judgment modification, child support, divorce, or other family law matters in New Jersey visit Darlingfirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Divorce Rates Rise As Economy Improves

According to a recent study conducted by the U.S. Census Bureau, the number of contested divorces or uncontested divorces that were filed over the past few years has dramatically increased when compared to the averages during the years immediately following the 2008 economic crisis. In 2012, (the most recent year studied) the number of divorces that were filed across the country rose to 2.4 million, a number which has steadily risen since the economic recession. The U.S. Census Bureau's investigation uncovered a correlation between the rising divorce rate and the strengthening economy. The report speculates that filing for a divorce results in the immediate need for the parties to procure separate housing which simultaneously generates finances that seem to have an overall beneficial effect on the national economy. In addition, divorced individuals are more likely to continue to work and seek out as many hours as possible as a means to maintain their lifestyles. Divorcing couples, typically, will no longer have the benefit of sharing living expenses with their soon to be ex-spouses and therefore either diligently remain in the workforce or persistently re-enter the workforce. Although this may have an advantageous affect on the national economy, studies show that that becoming single once again may prove to add to the expenses for the individuals who are divorcing. The cost of living for a single person is usually greater than it is for married couples because single individuals do not get some of the social benefits that married couples enjoy such as shared heath care, living expenses, and state and federal tax breaks. It is impossible to predict how divorce rates will be affected if the national economy continues to strengthen over time as certain variables can only be studied by looking at the longitudinal trends over time. Filing for a contested or uncontested divorce can be both confusing and emotionally difficult. Usually, doing so begins a process that will dramatically alter the lives of all of the parties involved and therefore no one should engage this process unless he or she is well informed regarding the process and the law. If you are involved, or anticipate that you will become involved, in a contested or uncontested divorce or it is critical that you seek out the advice of an experienced attorney before proceeding. For more information on contested divorce, uncontested divorce, alimony, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.

The Family Court Has Discretion In Family Law Matters

In a recent decision, the Appellate Court deferred to a Family Court ruling because, as it stated, the Family Court has special expertise in family matters. In the case, Formicola v. Kearn, the Plaintiff, Richard Formicola, and Defendant, Arleen Kearns, were married in 1987 and obtained a divorce in 2004. They have two children which were born during their marriage. There was a property settlement agreement that was incorporated into the couples' Final Judgment of Divorce. According to the property settlement agreement (PSA), the Plaintiff is required to pay the Defendant alimony in the sum of $9,100 per year for ten years starting on January 14, 2004 and ending on January 13, 2014. Further, the PSA specified that the Plaintiff was to pay child support in the amount of $18,900 per year along with one third of his annual bonus up to $5,000. In addition, the parties agreed that the child support obligation would be re-evaluated when each child matriculated to college. In 2011, the Defendant filed a motion claiming that the Plaintiff violated the PSA by not contributing his share of college tuition payments, not contributing to home repairs, and for additional information regarding his bonuses. At that time, the parties' daughter was a junior in college and their son was a high school senior. Initially, the parties attempted to settle the dispute in mediation, which failed. Therefore, a court ruled that the parties were to share in their children's college expenses in proportion to their incomes, that the Plaintiff was to pay the Defendant for deficient sums of his annual bonuses that she was entitled to, and the Defendant was to contribute to the marital home repairs, amongst other orders. The Plaintiff appealed the court's decision arguing that the trial court abused its discretion in granting the relief sought by the Defendant without analyzing the facts or case law, erred in allocating college expenses, and was wrong in awarding the Defendant counsel fees. The Appellate Division affirmed the lower court's decision holding that based on the ruling in Cesare v. Cesare wherein the court held "the general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." In addition, the Court noted that because the Family Court has special jurisdiction and expertise regarding family matters, the Appellate Division should offer deference to the fact finding that was conducted by the Family Court. In this case, the Appellate Court found that, although in some matters a plenary hearing must be held in order for the trial court to make a determination, the Family Court carefully considered the large number of documents submitted by the parties and its holding was supported by sufficient, credible evidence. The enforcement of the terms of property settlement agreements during or after a divorce can require an intricate understanding of the law, therefore if you require assistance in enforcing custody, alimony, parenting time, or any other terms contained in a settlement agreement or would like to engage mediation to reach such an agreement it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about divorce, mediation, custody, visitation, parenting time, alimony/spousal support, child support, 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.

Are Delinquent Child Support Payments Owed to Someone Who Is Deceased?

Roder v. Roder is a New Jersey Appellate Division case that was decided on December 31, 2013 involving the issue of whether delinquent child support payments owed to a person who has died should be paid to the deceased person's estate or to her son. The administrator of the estate issued an appeal from a lower court's order directing that the delinquent child support payments be made directly to the deceased individual's son. The deceased person, Adrian Ashford married Donald Roder in 1987. Upon their marriage, Mr. Roder adopted Ms. Ashford's son, Matthew. In 1997, the couple decided to divorce and according to the property settlement agreement that was incorporated into the parties' Final Judgment of Divorce, Ms. Ashford would have custody of Matthew and Mr. Roder would have visitation with him and pay $150 a week in child support until Matthew is emancipated. In July 2009, a New Jersey Family Division Court determined that Matthew had pursued a full-time college degree and was emancipated upon his graduation from college rather than on his eighteenth birthday. Mr. Roder had stopping paying child support years before Matthew graduated from college and therefore it was determined that he owed Ms. Ashford $40,648.53 in child support arrears. Ms. Ashford died on January 12, 2011, one month after the Appellate Division denied Mr. Roder's appeal. The Appellate Division concluded that the Family Court should have properly enforced the child support order by ordering that the delinquent child support payments be made to the decedent's estate for distribution under the supervision of the Probate Part. According to the Appellate Division, the Family Court issued an order that distributed an asset of an estate to one of the decedent's three heirs and that this was a function of the Probate Part. The Court noted that there was nothing before the Family Court that even suggested that the child support payments that were owed were anything more than a debt owed to a deceased person's estate for the support of a child. If you anticipate that you will become involved in a dispute concerning child support or emancipation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child support, custody & visitation, emancipation, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Significant Drop In Salary May Constitute "Changed Circumstances" For Alimony Modification

In a recent New Jersey case, Jones v. Jones, the New Jersey Appellate Division reversed a lower court's dismissal for a hearing to terminate or modify permanent alimony based upon a significant long-term change of circumstances. The parties involved in the case were divorced in 2009. As part of their divorce judgment a settlement agreement was executed that defined the permanent alimony amount that the defendant was to pay his ex-wife, the plaintiff, based upon each party's salary at that time. In 2012, the defendant submitted a motion to the court to modify the amount of alimony he agreed to pay his wife because he had suffered a 42% reduction in his salary. The defendant moved before the court to modify his existing alimony obligation based on this significant changed circumstance in his financial situation. The plaintiff opposed his motion and cross-moved for other relief. The NJ Superior Court judge denied both parties' motions without conducting an evidentiary hearing to address the defendant's claim of changed circumstances. On appeal, the New Jersey Appellate Division reversed the lower court's ruling and remanded the matter to the trial court for a hearing to consider whether or not his reduction in salary constituted a change in circumstances that would warrant a downward modification in alimony. In its holding, the Appellate Court noted that his allegations of a 42% reduction in salary constituted prima facie evidence (enough evidence on the face of the allegation) to entitle the defendant to an evidentiary hearing to determine if his spousal support obligation to defendant should be terminated or reduced. If you anticipate that you will become involved in a dispute over alimony or other issues regarding your divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about posst-judgment modification, alimony, divorce, custody child support 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.

Status of LGBT Parental Rights

As many more states continue to recognize marriage equality and same-sex marriage, it has become a hot topic across America leading many people to ask - what is the status of LGBT parental rights? There are gay and lesbian parents who were previously in heterosexual marriages but have divorced and are now having a very difficult time securing legal protections that permit them to maintain relationships with their children. Although marriage equality is now recognized in 16 states in America, the laws that govern the right to legally marry are different from the laws that govern parental rights. Therefore, even if a state recognizes marriage equality same-sex parents may not be receiving the same family protections as heterosexual parents. For instance, many states still do not allow LGBT, or more specifically transgender people, from adopting a child. Therefore, if a transgender person engages in a relationship with an individual who has children from a previous relationship, in most states, the transgender person will not be able to adopt the children - even if that person is legally permitted to marry his or her significant other. For transgender individuals this harsh fact prohibits them from realizing the family lifestyle that they so desire. In another example, many transgender men and women are finding that many state laws are creating significant impediments for them to gain visitation rights over their biological children because their status as parents, upon becoming transgender, is compromised by the laws of many states. This, compounds with the fact that many others in society and within their own families may choose to make it difficult for the transgender person to see his or her child, solely based upon the fact that the family disagrees with their choice to change their gender. Over time, the laws across the states will evolve and adapt to social change, this is evident in the fact that more and more states are beginning to recognize marriage equality at an ever-increasing velocity. The statue and protections of transgender parents will most likely follow this trend. If you are an LGBT individual and you anticipate that you will become involved in a child custody and/or parenting time dispute it is critical that you seek out the advice of an experienced family law attorney before moving forward. For more information about child custody, divorce, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

The Issues of Custody Disputes in NJ

The divorce process in New Jersey can cause many difficult issues to arise and child custody disputes are one of the most common issues, therefore it is very important for parties to know what a court considers when determining child custody. N.J.S.A. 2A:34-23 governs the issues regarding custody disputes. According to the statute, a Family Court judge is authorized to "make such order . . . as to the care, custody, education and maintenance of the children or any of them, as the circumstances of the case shall render fit, reasonable and just." A judge has very wide discretion to use this statute when making custody determinations. The public policy behind the broad language of the law is to ensure that judges have the legal ability to tailor their orders to fit each individual situation to maximize the contact that children have with both of their parents if possible. In Beck v. Beck, 86 N.J. 480, 485 (1984), the New Jersey Supreme Court held that there is a "legislative preference for custody decrees that allow both parents full and genuine involvement in the lives of their children following a divorce . . . in promoting the child's welfare, the court should strain every effort to attain for the child the affection of both parents rather than one." Currently, when making child custody determinations a New Jersey court is guided by the overarching best interest of the child standard according to N.J.S.A. 9:2-4. Pursuant to this statute, a judge will consider a list of factors that he or she will apply to the facts of each case before issuing a custody order. Another aspect of a custody determination is the kind of custody that is awarded. The New Jersey statute that governs custody permits the Family Court to award a parent or parents with 1) joint custody of a child in which both parents have legal and physical custody of the child, 2) sole custody to one parent with parenting time to the other; or 3) another custody arrangement that the court arrives at to satisfy the best interests of the child. If you are involved in a child custody dispute, or have children and are considering divorce, it is critical that you consult with an experienced custody attorney before moving forward. For more information about child custody, divorce, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Your Divorce Is Finally Over...Not So Fast

Phew! Your long, expensive, and difficult divorce is finally over, now you can rest easy...not so fast. In New Jersey, once a divorce is finalized and a Judgment of Divorce issued by the court, there may still be some very important issues that remain and deserve attention. After all, the parties just endured what most likely was a very difficult process, certainly no one would want to jeopardize any issues by failing to ensure that everything was done correctly. For instance, all court documents should be reviewed for accuracy to make sure that any mistakes, however small, are found. If a party discovers any mistakes in any court documents that party should immediately contact his or her attorney to make sure that the mistake is remedied as soon as possible. In most cases, a property settlement agreement and/or custody and parenting time agreement will be affixed to a Final Judgment of Divorce. These documents are of paramount importance because they are a guide to the parties' division of property, child support obligation, parenting time schedule, and any other specific details regarding child custody. Therefore, even though a divorce may be finalized, it is critical that a party review these documents to ensure they are completely correct - as their contents will dramatically affect the lives of all of the parties involved in the divorce. In addition, parties should make sure that other marital documents such as real estate deeds, wills, and trusts are properly amended to reflect that the parties are no longer legally joined. Once again, these changes should be made immediately upon the issuance of the Judgment of Divorce. Further, in some cases, names on Social Security cards, licenses, registrations, and titles to vehicles need to be changed. An experienced attorney can help the party to ensure that all of these necessary changes are properly made. Each party will receive only one original with the court's seal, it is advised that parties also obtain multiple copies of the certified Final Judgment of Divorce. Many entities such as government agencies, insurance companies, and banks will need copies of the certified Final Judgment of Divorce before they carry out certain provisions in the property settlement and custody agreements. If you are involved in a divorce it is critical that you obtain the services of an experienced family law attorney to assist you through the process and attend to the preparation of documents both during and after the divorce. For more information about contested divorce, custody, visitation, parenting time, alimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

NJ Grandparent's Visitation Rights - A Closer Look

In a previous blog post we explored the New Jersey state statute that governs grandparent's visitation rights, N.J.S.A. 9:2-7.1, upon a close look it may not be as easy for a grandparent to be granted visitation as it may initially seem. As previously stated, there is a New Jersey statute that provides that grandparents be awarded visitation with their grandchildren upon a court's analysis of a set of factors. It should be noted, that despite the statute, grandparents are rarely given liberal visitation with their grandchildren and only under unusual circumstances are such rights honored. Ultimately, a grandparent or grandparents will have to prove to a court that their grandchildren will be harmed if visitation with them is not granted. Further, the harm that the grandchildren would have to suffer is one that is more substantial than the harm that would qualify under New Jersey law that would provide visitation rights for others such as parents. Therefore, the legal threshold that a grandparent must meet in order to be given visitation rights is quite high and is rarely met. For instance, if a child would suffer significant psychological or emotional harm as a result of not having contact with his or her grandparent, then perhaps the harm would qualify as severe enough to warrant court ordered visitation. Proving significant psychological harm is not as easy as one might think at first blush. A grandparent seeking court ordered visitation would need to retain a mental health expert to conduct evaluations and bonding assessments and then conclude that substantial psychological harm would result if that grandparent were not awarded visitation rights. In addition, even if an expert recommends grandparent visitation, the inquiry does not end there. Next, the totality of the circumstances would be evaluated by the court who would apply a set of statutory factors to the facts of the case to determine if ordering grandparent visitation is within the child's best interests. It is so difficult to get a New Jersey court to award a grandparent with visitation rights because under the Fourteenth Amendment to the United States Constitution, a parent has a fundamental right to raise his or her child in almost any manner that they wish. Therefore, in order to protect this strong Constitutional right, a court will only award grandparents with similar rights if doing so would be to avoid significant harm to the child. If you are interested in seeking grandparent's visitation rights it is strongly advised that you seek out the advice of an experienced attorney. For more information about grandparent's rights, custody & visitation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way 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.

Mediation As An Alternative In Divorce or Dissolution

Many people concerned with the potential costs of a divorce and the lengthy process in the Courts are looking towards mediation as an alternative to traditional litigation. Mediation is one of the Alternative Dispute Resolution tools, another being arbitration. Mediation allows you to be in control of the legal issues you are facing, including those arising both before and after your divorce. You have several options to consider. You can choose to mediate with your spouse or partner and a neutral mediator who will help you facilitate negotiations of all issues involving your divorce or dissolution, such as custody, support and equitable distribution of the marital assets and debts to come to an amicable resolution. You can also choose to mediate with one or both parties having an attorney present in addition to the mediator. Also, you can mediate your family law matter in a 4 way settlement conference involving yourself, your spouse or partner and both of your attorneys without the additional expense of a mediator. Although there is additional cost, the benefit of a mediator is that they are able to help bring both sides together on issues where the attorney for either party may dig their heels in on a point and refuse to negotiate further. Another benefit to having a mediator is, in the event of a dispute between the parties as to what the actual terms of the agreement were, the mediator can clarify the discussion and insure both parties are sticking to the deal that was made. The mediation process can be started either before or after the filing of pleadings with the court. If the process is successful then a written mediation memorandum of understanding is executed. A written mediation memorandum can be converted into a formal property settlement agreement and attached to your Judgment of Divorce Mediation or converted to a consent order and filed with the court. Mediation may not be for everyone, and is often ineffective when there is a history of verbal and/or physical abuse between the parties. If you are thinking about divorce or dissolution or have issues that have arose after your divorce was finalized then you should consult with an experienced family law attorney to protect your rights. For more information about Mediation, the Alternative Dispute Resolution Process, divorce, dissolution, alimony, custody, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Child Support Obligations Upon Change of Custody

In the recent case of Wong, Jr. v. Wong, the Appellate Court, in its unpublished opinion, reversed the trial court's order obligating the Plaintiff-father to continue to pay child support to the Defendant-mother and denial of request for child support from Defendant-mother after the granting of a change of custody whereby the parties' son began living with the father. The trial court had ruled that a prior consent order between the parties whereby the Plaintiff-father waived his right to seek modification of his child support obligation for any reason and Defendant-mother waived her right to receive any further alimony prevented Plaintiff-father from seeking a subsequent termination of his child support obligation and a request for child support from Defendant-mother. The parties agreed to the terms in the consent order after plaintiff-father fell behind on his support payments due to a loss of employment. The Appellate Court cited to Lepis v. Lepis, 83 NJ 139 (1980) and the holding in Morris v. Morris, 263 N.J. Super. 237(App. Div. 1993) to support its finding that although a waiver to any future modification of support may be enforceable for specific limited reasons, the court can change an agreement if it finds equity requires it. It further found that the language of the parties' consent order does not indicate that when it was negotiated the parties considered the possibility of a transfer of custody which is a change of circumstances that warrants a look into the financial circumstances of the parties and a running of the child support guidelines worksheet. Therefore, it was appropriate to remand the matter to the trial court. Plaintiff-father did not challenge the denial of his application for child support from defendant-mother in his appeal but only the denial of his request to terminate his child support obligation. The Appellate Court held that on remand the trial court must consider the needs of the child, the parties' consent order, and the financial circumstances of the parties prior to determining whether or not Plaintiff-father should be permitted to waive child support from Defendant-mother. If you are owed or paying child support, have experienced a change of circumstances which may allow for a modification of child support, of if you have been served papers regarding a child support issue then you should consult with an experienced family law attorney to protect your rights. For more information about child support, child custody, divorce, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Risk Assessment Is Required if Requested By A Party in NJ Parenting Time Decisions

A New Jersey statute, N.J.S.A. 2C:25-29(b)(3)(a) requires a risk assessment prior to the entry of a parenting time order if either party requests one. This statute is designed to protect children but has potential for abuse by a resentful party. Because a risk assessment may be ordered when establishing the initial parenting time or any time thereafter for modification motions, it is one which may be used by a resentful party against another to cause further stress during or after the dissolution of a relationship in which children are involved. Fortunately, if the Court finds that the request is arbitrarily designed to cause difficulty for the defending party and has no real basis, the court need not order a risk assessment. In many situations risk assessment requests will not be ordered by the court. However, in cases where this is a final restraining order (FRO) against the party, there are concerns about drug or alcohol use, there are signs of inadequate supervision during parenting time and similar issues, the court will have reason to order a risk assessment. During the pendency of the risk assessment, parenting time may be limited or suspended. Risk assessment is a lengthy process which involves a court appointed professional meeting with each party to make an evaluation then preparing a report to the judge which will likely be relied on by the judge in making the final decision after a hearing in which both parties appear after the report is complete. When being assessed, either party may provide statements, witnesses, medical records and other evidence to prove their case. If you are seeking or defending a change in custody in which you believe a risk assessment will or should be involved you need an experienced family law attorney by your side to protect your rights. For more information on parenting time, custody, divorce, dissolution of civil union or domestic partnership, alimony, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Unfounded Abuse and Neglect Ruling Reversed by NJ Appellate Court

A mother was charged with abuse and neglect after drinking beer and taking Xanax after her children were put to bed for the night. The woman's husband was not the biological father but was present at all times and was able to provide care to the children if needed. There was no showing that the children needed the care of the mother after they were put to bed. The children were regularly left in the care of the woman's husband and there was no threat to their safety when they were in his care. The New Jersey Appellate Court reversed the decision finding the record below inadequate to establish that abuse and neglect occurred or that the children were in danger. If you are facing charges of abuse and neglect or your children have been removed by D.Y.F.S., you should consult an experienced family law attorney immediately in order to protect your rights. For more information on removal, abuse and neglect, D.Y.F.S., custody, divorce, dissolution of civil union or domestic partnership, alimony, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.