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.

Custody and Parenting Time Conditioned on Reunification Therapy

William Iozia filed a motion for parenting time after failing to see his children for almost 2 years. Kelly Krzeckowski, the mother, entered into a consent order with Iozia calling for a custody and parenting time evaluation for both parents, reunification therapy for the father and the parties 2 children, and the possibility of a substance abuse evaluation for the father. The consent order also called for the parties to share the cost of the custody and parenting time evaluator equally. Iozia sought supervised parenting time until the evaluations could be completed and successfully completed the required substance abuse evaluation to obtain the supervised parenting time but Krzeckowski claimed the substance abuse evaluation was limited. Additionally, no reunification therapy had occurred and the parties, upon return to court, received an order reserving custody issues until reunification therapy was completed and ordering the father to pay for reunification therapy costs. After attempting reunification therapy for some time and changing therapists at the request of the mother, the situation broke down. The father sought a plan for supervised parenting to be followed by unsupervised daytime parenting and ultimately unsupervised overnights every other weekend. The mother requested another substance abuse evaluation of the father. The parties were instead ordered to comply with the prior order for reunification therapy and the father was ordered to undergo a drug screening at the mother's expense. The court denied both parties' counsel fees requests but included that, should either party fail to comply with the order, the non-compliant party would be responsible for the other party's counsel fees. Krzeckowski appealed the denial of her counsel fee request and, in Iozia v. Krzeckowski, the N.J. Appellate Division upheld the decision of the court below denying counsel fees finding that the original order failed to spell out certain details relating to reunification therapy costs which could have resulted in delay without fault of either party. Child custody cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for to establish custody, or for a post-judgment modification of your current child custody arrangement, it is critical that you consult with an experienced family law attorney before moving forward. For more information about child custody, post-judgment modification, parenting time, divorce, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Will Your Spouse Pay Your Divorce Costs?

Friedrich v. Friedrich was a post-judgment divorce action, wherein Defendant wife’s attorney sought counsel fees against the Plaintiff for outstanding legal fees over and above the $20,000 in counsel fees the Plaintiff had been ordered to pay pendente lite. In spite of substantial disparity in the parties’ incomes, the court held that pursuant to all factors to be considered under N.J.C.R. 5:3-5(c), an additional counsel fee award was not warranted. Pursuant to Rule 5:3-5(c), the court has discretion to award counsel fees to either party in a family law action, both pendente lite and upon Final Judgment if the court finds the award to be in the interest of justice. Specifically, Rule 5:3-5(c) includes fees for “any claim for divorce, dissolution of civil union, termination of domestic partnership, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of agreements between spouses, domestic partners, or civil union partners and claims relating to family type matters.” The criteria for an award of attorney’s fees include the legal services performed, or likely to be performed, and the financial circumstances of each party. In setting the amount of any award, Rule 5:3-5(c) directs the trial judge to consider: “(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.” In addition, the court has discretion to direct one or both parties to liquidate assets in order to pay counsel fees. In affirming the denial of counsel fees to the Defendant, the N.J. Appellate Division held that the trial judge gave proper review to the factors set forth and found that the Plaintiff was not able to contribute to the Defendant’s attorney’s fees. A major consideration in any divorce is the impact on one’s financial future. Although the financial issues of divorce are not to be taken lightly, if you are miserable and feel that the only thing standing between you and your happiness is the ability to finance your divorce, you should speak with an experienced divorce attorney about the possibility of receiving some of your counsel fees from your spouse. For more information about divorce, child custody, parenting time, post-judgment issues and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Equitable Distribution Under MOU Affected By Bad Faith

In Justich v. Justich, a post-judgment equitable distribution challenge, the defendant, Robert Justich, sought the full 50% he had bargained for under the negotiated memorandum of understanding (MOU) incorporated into his divorce judgment. Under the agreement, Robert and Diana Justich were to share the carrying costs of the marital residence until it could be sold and then each would receive 50% of the sale proceeds. However, the defendant failed to pay the carrying costs of the marital home leading up to the sale. The defendant claimed to have paid the costs, but the court questioned the assertions. As a result of an ongoing pattern of bad faith on the part of the defendant, the NJ Superior Court judge determined that the defendant was entitled to only 43% of the proceeds from the sale of the marital residence. The NJ Appellate Division affirmed the decision of the court below. If you are considering or seeking a divorce, it is critical that you have a full understanding of the impact it will have on your living situation, parenting time, finances and even your future lifestyle before you make any decisions. If you are contemplating divorce or are divorced and seeking post-judgment relief, you should consult with an experienced family law attorney immediately. For more information about equitable distribution, divorce, alimony, memorandum of understanding or other family law issues visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post-Judgment Divorce Decision To Call Step-Parent "Mom" Or "Dad" Belongs To Child

In B.S. v. T.S., Superior Court Judge Lawrence Jones ruled that, in a post-judgment divorce matter, the decision whether to call a step-parent "mom" or "dad" rests solely with the child. B.S. and T.S. were divorced with a judgment calling for joint legal custody of their son, Daniel, and both parents actively participated in their child's life. B.S. ultimately began sharing a residence with his fiancee', Lori and Daniel developed a emotional bond such that Daniel opted, without encouragement, to begin calling Lori "mom". Daniel and T.S. maintained a strong bond as well which was not impacted by Daniel's interactions with Lori. In hearing the motion by T.S. to prevent Daniel from calling Lori "mom", Judge Jones noted that children of divorce often have few rights but one of those rights is certainly the choice of what to call a step-parent. In his ruling, Judge Jones did include that, in cases where the biological parent remains an active participant in the child's life, the biological parent shall always be responsible for decisions regarding the child's upbringing and that the step-parent's marriage to a child's biological parent does not, without more, confer parental rights on the step-parent. For more information regarding post-judgment modification, parental rights, custody, child support, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post Divorce Challenge To Alimony And Child Support Findings

In Wicker v. Wicker, James Wicker challenged the method in which his alimony and child support obligation was calculated. Specifically, Wicker challenges the court's determination of his monthly expenses and income in arriving at his available funds from which child support for the parties' 3 daughters may be paid. Wicker contended to the NJ Appellate Division that the court did not adequately consider his expenses in commuting from Virginia to New Jersey every other weekend in order to exercise his parenting time and failed to properly include his rental expenses and was inequitable in creating the need for him to remain employed in Washington, D.C. which necessitated the retention of two separate residences. Tara and James Wicker entered into a voluntary and negotiate, but not complete, property settlement agreement (PSA) leaving some remaining issues for the court to decide. From 1996, the date of the parties' marriage, until 2010, the defendant earned under $100,000. In 2010, the defendant secured an income of approximately $190,000 per year leading up to the parties' divorce in 2013. Two of the parties' 3 daughters had significant medical issues and Tara Wicker was the primary caretaker. An employability expert determined that Tara Wicker's long-term absence from the job market and need to care for the children limited her earning capacity to $35,000 per year. Both parties challenged the figures which should be used in determining income. There was also substantial question as to how the defendant arrived at his monthly expenses, including his claim of $9,000 monthly in pendente lite support. The NJ Appellate Division began the analysis with Cesare v. Cesare, 154 N.J. 394 (1998), which dictates that decisions of the court below will remain undisturbed if supported by the weight of credible evidence and law, and Gnall v. Gnall, 222 N.J. 414 (2015), dictating that decisions of the court below will be disturbed if the court below abused its discretion or the findings are not consistent with the credible evidence and legal principles. The Appellate Division reasoned that N.J.S.A. 2A:34-23(b) empowers judges with the authority to fashion individual solutions best suited to meet the needs of both parties. Randazzo v. Randazzo, 184 N.J. 101 (2005). In affirming the decision of the court below, the court found that the trial judge gave full review to the facts, including the defendant's income and expenses, and the findings were supported by the weight of credible evidence under the guiding principles of law. A divorce will likely have a considerable impact on your life, including determinations about support, custody and parenting that affect where and how you and your family will live. If you are considering divorce or modification of a prior judgment, you should first consult with an experienced family law attorney to determine the likely outcome. For more information about divorce, alimony, child support, relocation with a child and other family law matters visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Divorce Follows Rape Conviction

In Watley v. Watley, Louis Watley appealed the court's decision in a divorce case centered largely on witness credibility. In 1998, Louis Watley, then age 55, married a 19 year-old woman he met in the Philippines. In question was whether the young woman was advised before the marriage that Louis Watley was under indictment for rape and facing jail. After the parties were married for 2 years and had a child together, the defendant was sentenced to 10 years in prison for rape. Upon his release the plaintiff, then 35 years old, file for divorce. After evaluating the credibility of both parties, the trial judge found that the plaintiff had not been apprised of Watley's indictment nor had the plaintiff signed any prenuptial agreement, as the defendant contested, which would bar her from acquisition of assets under the divorce judgment. The NJ Appellate Division affirmed. If you entered into marriage under fraud or duress, as long as you can prove fraud or duress existed, the court will likely take equitable action to protect your rights in addition to granting the divorce you seek. For more information about divorce, annulment, alimony, equitable distribution 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.

Divorce Complaint Dismissed For Lack Of Jurisdiction

Although divorce can seem like a simple proceeding at first, not only can problems arise between the parties but also in bringing the case itself. In Appelbaum v. Huff, the court granted a motion to dismiss the divorce claim on the basis that the plaintiff was not a bona fide resident of New Jersey for the statutorily required one year immediately preceding the filing of the divorce complaint. In order to the courts of NJ to have what is called subject matter jurisdiction over an individual, said individual must have been a resident for the statutory one year period. Subject matter jurisdiction is not waivable and can be raised at any time during a matter. This is but one example of the pitfalls that can cause substantial delay or even dismissal of your case. There are a multitude of similar court rules which are hard to know without substantial experience in such matters. In the event you are considering divorce, it is always important to seek the advice of an experienced family law attorney before filing an action in court. For more information about divorce, child custody, child support, 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 Arrears Effect Income Tax Deductions

Although child support arrears are do not result in a prohibition of a parent enjoying visitation or parenting time with their child, child support arrears can result in suspension of a parent's right to claim a child as a child support deduction. In Zeitlin v. Zeitlin, the New Jersey Family part refused to modify the property settlement agreement to the extent that each parent was entitled to claim one child as an exemption on their income tax returns. However, on appeal, the N.J. Appellate Division held that a parent's failure to pay child support breached their duty of good faith and fair dealing and could result in the suspension of that parent's right to claim a child as an income tax deduction. Based on the notion of good faith and fair dealing, the court suspended the father's right, under the property settlement agreement, to claim one of the children as a tax exemption. 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 considering divorce or seeking a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney before taking action. 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.

Divorcing With A Small Business

Business partner disputes can become so contentious as to lead to dissolution of the business or expulsion of a partner, and things can become even more complicated in the event the business partners are divorcing spouses. Many small businesses are started by one spouse and ultimately, as the business grows, both spouses become full-time employees. With these businesses starting as a simple idea that grows, it is rare to find an operating agreement in place. During divorce it often becomes impracticable for the parties to cooperate on any level as a result hurt feelings and the raw emotions which arise thereafter. Limited Liability Company (LLC) is one of the most common forms of business today. Formerly governed by the Ne w Jersey Limited Liability Company Act (LLCA), partners could be removed from the business for enumerated reasons including wrongful conduct, significant breach of the LLC's operating agreement or it unreasonable to expect the business to continue with the member involved. The LLCA was replaced by the Revised Uniform Limited Liability Company Act (RULLCA) in 2013, leaving the expulsion provisions substantially intact as can be seen by review of N.J.S.A. 42:2C-46(e). The unpublished case, IE Test LLC v. Carroll, A-6159-12T4, 2015 N.J. Super. Unpub. LEXIS 567 (Mar. 17, 2015), heard in the Essex County Chancery Division, was a case of first impression in New Jersey regarding removal of a member of an ongoing and viable LLC that the other members wished to continue. The members failed to enter into an operating agreement upon formation of the business, leaving the N.J. Appellate Division to interpret N.J.S.A. 42:2B-24(b)(3)(c) noting that expulsion of a member does not require past wrongful conduct but rather charges the court with determining whether it is feasible for the business to continue with any viability if the member is not expelled. The court found that the it need not find it impossible for the business to continue but rather that the business cannot carry out its purpose without substantial dysfunction if the member remains. The NJ Appellate Division also looked to Gagne v. Gagne, 338 P.3d 1152 (Colo. Ct. App. 2014), wherein the Colorado Court of Appeals interpreted the same factors as wet forth in RULLCA resulting in a 7 factor test for determining whether expulsion is appropriate. The factors set forth in Gagne include 1) whether management is unwilling or unable to reasonably promote the reasons for which the company was formed; 2) whether there was misconduct on the part of the member the others are seeking to expel; 3) whether the members are clearly unable to work together for the benefit of the company; 4) whether there is a deadlock between the members; 5) whether there are provisions in the operating agreement that can resolve a deadlock; 6) whether the business remains viable; and 7) whether it will be financially feasible to continue the company after any harm from the dispute and payment to the expelled member. After considering the language of N.J.S.A. 42:2B-24(b)(3)(c), the factors set forth by the Colorado Court of Appeals in Gagne and the fact that the members had failed to prepare an operating agreement to govern their acts, the N.J. Appellate Division upheld the decision of the Essex County Chancery Division Judge that the minority member should be expelled. If you are involved in, or considering, divorce and own a small business with your spouse, it is critical that you speak with an experienced attorney to ensure you are aware of your rights. Whether you will be paying or receiving alimony or child support, the continued viability of the business will likely be critical to your and your family's economic future. For more information about small business divorce, high net worth divorce, partner and shareholder agreements or other matters involving divorce or business in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Custody Transfer To Father Stands While Awaiting Plenary Hearing

Custody of a 13 year old child was transferred from the mother to the father in Skinner v. Cole. The parties were never married and the mother, Janice Skinner, Plaintiff, was Noah's primary caregiver since birth as before he was 2 years old she and Noah moved to Pennsylvania while the father remained in New Jersey. When Noah was 13, the Defendant, Bruce Cole, Noah's father, filed a petition for custody claiming Noah desired to live with him, Plaintiff's relatives used drugs in the residence, the Plaintiff worked long hours and rarely gave him attention, and Noah was frequently subject to assaults in the school he attended at his mother's residence. Alternatively, the Defendant claimed to enjoy a good relationship with Noah and live in a drug-free environment with a good school district. Plaintiff's reply maintained that she enjoyed a good relationship with Noah, he had a glucose problem that the mother was used to managing properly while the father mismanaged the problem while Noah was visiting with him, the father's house offered inadequate quarters for Noah , and Noah was an honor roll student in his current school yet she was still seeking a better school system for him. The Plaintiff further added that the Defendant frequently lied to Noah to destroy his faith in his mother, that her family members did not use drugs, and the only reason for the Defendant's motion was to terminate child support. The trial judge interviewed Noah who expressed a desire to live with his father and offered positive reasons for the change and negative reasons for wishing to leave his mother's residence. The trial judge took no testimony from the parties and only briefly addressed some of the factors set forth in N.J.S.A. 9:2-4(c), which are required considerations in making custody decisions, then rendered the decision that custody of Noah would be transferred to the Defendant. The mother, Plaintiff, appealed the transfer of custody on the basis of the trial court's failure to hold a plenary hearing before rendering its decision. The NJ Appellate Decision considered the requirement of Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) that a party seeking a modification of child custody must first demonstrate a change in circumstances substantial enough to affect the welfare of the child, especially when there are material issues of fact in dispute. Further, Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009) wherein the court set forth that custody should only be modified after a full hearing unless exigent circumstances evidencing extreme danger are present. The NJ Appellate Division reversed and remanded the matter for a plenary hearing to resolve the issues in dispute between the parties. It should be noted that, pending the plenary hearing following appeal, custody of Noah remained with the Defendant as the parent of primary residence rather than being returned to the mother. If you are seeking a modification in child custody or defending a motion filed by your child's other parent, it is critical that you are aware of the factors and procedures involved. For more information regarding child custody, child support, divorce, emancipation, relocation of a child or other family law matters in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Pendente Lite Support Pending Divorce

Pendente lite support is temporary support, established during the pendency of a divorce, intended to preserve the financial status quo, or marital standard, of the parties until equitable distribution and alimony are resolved, between the parties or by a judge, and a final judgment of divorce is obtained. The span of time between separation or the filing of a divorce complaint and actually obtaining a divorce can sometimes take years making pendente lite support a critical issue for both parties. Although the intent is to continue the status quo existing prior to the marriage and ensure an economically dependent party is not left destitute, pendente lite support often leaves both parties lacking. Expenses often increase during this time as there is typically another residence to support and, if there are children, the party vacating the residence must have adequate housing for themselves and the children or they will be in an inferior position when it comes to parenting time. Often, parties will separate but make efforts at resolution for long periods of time prior to filing for divorce. During this time, if things are amicable, the party who vacates the marital residence may simply obtain quarters adequate for sleeping and little more such as a spare room at a friend's residence, their old bedroom at their parent's house or similar. They will continue to provide the bulk of their income to the family for household expenses and be comfortable "getting by" for the interim. Unfortunately, this period of time can establish a precedent and, if a divorce complaint is filed, either the supported or supporting spouse can find themselves in a very difficult financial situation without enough assets for themselves if a judge decides a motion for pendente lite support using this period of separation as the model for the "marital standard." If you are considering divorce, prior to leaving your residence, you should consult with an experienced divorce attorney in order to discuss your needs, your family's needs and your financial situation. An experienced family law attorney can protect you from finding yourself with a pendente lite support order which will leave you financially destitute. For more information about divorce, child support, custody, emancipation and other family law issues in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Alimony Not Terminated In Spite Of Cohabitation

In Coshland v. Coshland, the Defendant appealed from a Family Court Order that denied his Motion to terminate his alimony payments because he claimed that the Plaintiff was cohabitating with her boyfriend. The Appellate Division affirmed the decision of the Family Court finding that the Plaintiff's boyfriend did not cohabitate but was a frequent visitor who did not economically benefit the Plaintiff. Following a twenty-seven (27) year marriage that yielded two (2) children, the parties divorced in 2011 pursuant to a Property Settlement and Support Agreement (PSSA). The agreement directed that the Defendant would pay $230 a week in alimony but stated that the obligation would terminate if the Plaintiff were to begin "residing with an unrelated person, or vice versa, where [the Plaintiff] is receiving and economic benefit, for a period of not less than 30 consecutive days." After the divorce the Plaintiff moved to a townhouse that was recently vacated by two of the Plaintiff's friends, K.C. and her brother J.C. The townhouse was individually owned by K.C. After the Plaintiff moved in, J.C. began to spend two to five nights a week at the townhouse. The Plaintiff and J.C. "attempted" a romantic relationship but both claimed at the time of the hearing that the relationship was platonic. When the Defendant suspected the Plaintiff of cohabitating with J.C. he hired a private investigator to gather information about the relationship. Between March and April 2013, the investigator observed the Plaintiff and J.C. arriving home from work together (they both worked at Shop-Rite) and the Plaintiff visited the residence seventeen (17) times in that time frame. The Defendant filed a Motion to terminate his alimony. The Family Court Judge denied the Motion and scheduled a plenary hearing to take place. At the hearing, the judge heard testimony from the private investigator, a real-estate expert, and the Plaintiff. After hearing the testimony, the judge issued an oral opinion denying the Defendant's Motion to terminate alimony finding that J.C. did not live at the townhouse and that the Plaintiff was not receiving economic benefit from his visits. The Defendant appealed. According to the Appellate Division, alimony can be modified if a party demonstrates a significant financial change since the alimony was first awarded. Reese v. Weis, 430 N.J. Super. 552, 572, 66 A.3d 157 (App. Div. 2013). One type of changed circumstance is cohabitation by a former spouse. Gayet v. Gayet, 92 N.J. 149, 155, 456 A.2d 102 (1983). Cohabitation is typified by a showing of a relationship "shown to have stability, permanency, and mutual interdependence." Konzelman v. Konzelman, 158 N.J. 185, 202, 729 A.2d 7 (1999). Therefore, a former spouse residing with a significant other is not, by itself, enough to terminate alimony, further, there must be additional proof that the cohabitating spouse received some form of economic benefit from the cohabitation or the supported cohabitant "supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief. Reese, supra, 430 N.J. Super. at 557-58, 576; Gayet, supra, 92 N.J. at 153-54. Proving cohabitation creates a rebuttable presumption of changed circumstances. Ozolins v. Ozolins, 308 N.J. Super. 243, 248, 705 A.2d 1230 (App. Div. 1998). Accordingly, the burden of proof which is ordinarily on the party seeking modification, shifts to the dependant spouse to prove the lack of economic benefit and continued need for support. Id. at 248-49. In this case, the Appellate Division found that apart from proving J.C.'s frequent overnight stays at the Plaintiff's residence, the Defendant failed to present any evidence in support of an intimate relationship or economic benefit. Therefore, the Family Court's denial of the Defendant's Motion was affirmed. Being that the laws governing the issues involving alimony and cohabitation have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony obligation based upon your ex-spouse's cohabitation with another person or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Child Support Modification Denied

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

Emancipation Granted And Alimony Increase Denied

Dripps v. Dripps, is an appeal from a Family Court Order issued pursuant to the parties post-judgment divorce Motions with regard to alimony and emancipation. The Defendant, ex-wife, moved before the court for an increase in her alimony. The Plaintiff, ex-husband, brought a Cross-Motion for relief which included the emancipation of the parties' two (2) children. The Family Court issued an Order denying an increase in alimony, granting the emancipation of the children, and denying the Motion for reconsideration. The Defendant appealed. The Appellate Court affirmed the decision of the Family Division. On appeal, the Defendant essentially sought to re-litigate the property settlement agreement (PSA) that was incorporated into the parties' final judgment of divorce. Specifically, the Defendant contested the Family Court's failure to increase her alimony and the grant of emancipation of her children. According to the Appellate Court, on appeal, legal issues involving the interpretation of a contract are subject to plenary review. Vosough v. Kierce,437 N.J. Super. 218, 241, 97 A.3d 1150 (App. Div. 2014), certif. denied, 221 N.J. 218, 110 A.3d 931 (2015). "A trial court's interpretation of the law and the legal consequences that flow from established facts" are not entitled to "special deference" on appeal. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995). However, the Family Court's findings of fact should be upheld "if they are supported by adequate, substantial and credible evidence on the record" and they are not "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279, 914 A.2d 1265 (2007). When a Motion or a Cross Motion is brought for enforcement or modification of a prior Order or Judgment, a copy of the Order or Judgment sought to be enforced or modified shall be appended to the pleading filed in support of the Motion. N.J. Court Rule 5:5-4. Further, when a Motion is brought for the entry or modification of an Order or Judgment for alimony or child support based upon a showing of changed circumstances, the pleading filed in support of that Motion shall have appended to it a copy of the prior Case Information Statements (CIS). Id. The Defendant failed to submit the prior Judgement of Divorce (JOD) and PSA and failed to submit the requisite CIS, and therefore the Appellate Division found that the court properly denied her Motion. With regard to the emancipation, one of the children was twenty-three (23) and the other twenty-two (22), working and had not attended college for three (3) semesters. According to the Appellate Court, the circumstances of the children at the time of the hearing clearly met the parties' PSA definition of emancipation and public policy favors settlement of litigation. Bistricer v. Bistricer, 231 N.J. Super. 143, 151, 555 A.2d 45 (Ch. Div. 1987). An agreement to settle litigation is a contract, which like all contracts freely entered into, should be honored and enforced absent fraud or other compelling circumstances. Brundage v Estate of Carambio, 195 N.J. 575, 601, 951 A.2d 947 (2008). Therefore, the decisions of the Family Court were affirmed. Being that the laws governing alimony have recently been changed, it is very important that you seek out the advice of an attorney to protect your rights an entitlements. If you think that it may be beneficial for you to petition the court for a post-judgment modification of your alimony or emancipation status of your children or for any other reason it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, post-judgment modification, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.