Equitable Distribution In Small Business Divorce Is Contested

In Hetherington v. Molinaro, a divorce involving a small businesss, the Defendant appealed from a trial court's confirmation of two arbitration awards, one setting the termination date of the marriage in the parties' divorce and the other one setting value and equitable distribution of a business formed and operated by the Plaintiff. The Appellate Court affirmed the decision of the lower court. The parties in his case were married in 1996. In 1999, the Plaintiff established Hetherington Information Services, LLC ("HIS") and was the sole owner. In 2006, she stopped working at this company and started working for a company called AON. After the parties separated in 2008, the Plaintiff returned to HIS and expanded the business. In 2010, the Plaintiff filed a complaint for divorce that did not go anywhere following a series of adjourned case management conferences. The parties both retained the services of forensic accountants to assess the value of HIS. The parties mutually dismissed the first complaint for divorce after deciding not to proceed in 2011. Later that year, the Plaintiff filed a second complaint for divorce and in 2012 the parties agreed to binding arbitration on the termination date of their marriage for equitable distribution purposes as well as the value of HIS. In 2013, in a written decision, the arbitrator made detailed factual and legal findings regarding the issues in his case. Pursuant to Portner v. Portner, 93 N.J. 215, 460 A.2d 115 (1983) and Painter v. Painter, 65 N.J. 196, 218, 320 A.2d 484 (1974), a divorce complaint generally marks the end of a marriage for equitable distribution purposes when the proceeding culminates in a final judgment of divorce. However, the arbitrator relied on Genovese v. Genovese, 392 N.J. Super. 215, 920 A.2d 660 (App. Div. 2007), which held that a marriage is deemed ended for equitable distribution purposes prior to the filing of a divorce complaint where the facts "provide incontrovertible evidence that the marital partnership terminated prior to the filing of the . . . complaint" . . . and where the "facts evidence more than a mere physical separation . . . ." Id. at 226-27. The arbitrator determined, by the parties' own admissions, the marriage ended by February 11, 2010 and set the termination of the marriage to that date for equitable distribution purposes. The arbitrator also awarded the Defendant with 25% interest in the value of HIS as of February 11, 2010 or $18,750. The Defendant appealed. The Appellate Division affirmed the lower court's decision to uphold the arbitrator's decision. According to the court, an arbitrator may "conduct an arbitration in such a manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding." N.J.S.A. 2A:23B-15(a). The arbitrator's authority includes the power of "determine the admissibility, relevance, materiality, and weight of any evidence." N.J.S.A. 2A:23B-15(a). The court concluded that it found no basis to disturb the arbitrator's award as it was consistent with the arbitrator's broad authority to conduct the proceeding and the record sufficiently supported the final award. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the pre- or post-judgment division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about divorce where a party owns a business, high net-worth divorce, equitable distribution, post-judgment modification, contested divorce, alimony, 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.

Motion For Reconsideration of Equitable Distribution Of Home Denied

In the recent Appellate Division case out of Morris County, Abdalla v. Assadourian, the Plaintiff, Fatima Abdalla, appealed from a 2013 Court Order that denied reconsideration of the part of the Order dealing with the equitable distribution of the parties' former marital residence. The previous Court Order directed that the proceeds received upon the sale of the home were to be divided equally amongst the parties, after the Defendant, Hovsep Assadourian, remitted $15,600 to Plaintiff in alimony arrears from his share of the proceeds. The Appellate Court affirmed the lower court's denial of the Plaintiff's request. The parties in this case were married in 1973 and subsequently obtained a divorce in 2003. The parties did not memorialize a property settlement agreement (PSA) and the Plaintiff's attorney retired and destroyed her file. The parties did not agree on the substance of their settlement so a hearing was held to discern the specifics. The Plaintiff testified that she did not understand her divorce proceedings because she is Arabic and did not have an interpreter at the time of her divorce. She claimed that she was unaware who was supposed to pay the mortgage, taxes, and insurance on the marital home but that she never made such payments since her divorce yet she continued to live in the home with the parties' two sons. The Defendant testified that he was under the impression that the house was to be sold immediately after the divorce and the proceeds divided equally. Both parties were in their 60's at the hearing and both were unemployed. At the conclusion of the hearing the judge ruled that the marital home was to be sold immediately. The Plaintiff refused to participate in the sale and in 2012 the judge appointed a listing agent and ordered that the parties sign the listing agreement within 10 days. Soon thereafter the judge appointed an attorney to act as a signatory to executed the listing agreement on behalf of the Plaintiff and assessed $3,000 in counsel fees against her. The Plaintiff's attorney filed a Motion for reconsideration in 2013. The Motion was filed more than five (5) months after the judge first ordered the home sold, which was wall beyond the non-enlargeable twenty (20) day time period as prescribed in the court roles. N.J.C.R. 4:49-2; N.J.C.R. 1:3-4(c). The trial judge denied the Motion for reconsideration because it was untimely. A Motion for reconsideration is addressed to the "sound discretion of the [c]ourt, to be exercised in the interests of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Reconsideration should be utilized only for those cases which fall into that narrow category in which either 1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence. Id. The Appellate Court held that the Plaintiff sought reconsideration because she alleged she would be able to find new evidence to convince the judge to change the decision. The judge viewed her Motion as a stall tactic because the Plaintiff made clear by her behavior that her intention was to not cooperate in the sale of the home. The trial judge exercised sound discretion in denying the Plaintiff's Motion for reconsideration. The equitable distribution of assets is of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, post-judgment modification, contested divorce, spousal 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.

Party's Successive Post-Judgment Motions To Change Divorce Agreement Are Denied

In a recent New Jersey case, Dunbar v. Woods, the parties entered into a property settlement agreement ("PSA") and a custody and parenting time agreement when they divorced in 2010, and since that time the Plaintiff (husband) has made multiple, successive post-judgment motions to modify the terms of the agreement. All of the Plaintiff's motions to change the terms of the PSA have been denied by the court because they require a showing of a change in circumstances that the Plaintiff has failed to demonstrate. The Plaintiff appealed from the last Family Court order denying his request for a modification. The parties in his case were married in 2008, one day after executing a prenuptial agreement. The Plaintiff filed for a divorce in 2009 upon moving from New Jersey to Louisiana. The Defendant gave birth to the couple's twin children in 2009. In 2010, the the parties entered into the original PSA that is at issue in this case. At that time they were represented by legal counsel and the Plaintiff was unemployed. In Plaintiff's numerous post-judgment motions to significantly modify the agreement, he has requested multiple forms of relief. He has asserted that the PSA was the product of fraud and deception because the Defendant overstated her child care expenses in her case information statement (CIS). He sought to have the PSA vacated and his child support obligation reduced. The Defendant submitted cross motions indicating the Plaintiff had violated litigant's rights for not abiding by the terms of the PSA and seeking court orders denying his motions to modify the agreement. In the final order, for which the Defendant appealed to the Appellate Division, the court order denied all of the Plaintiff's requests and awarded the Defendant counsel fees in the amount of $2,100. In a statement attached to the final order the Judge specified that in order to modify the terms of the PSA the Plaintiff would have to show "a substantial change in circumstances . . . that renders the agreement no longer fair or equitable to enforce." Further, the judge specified that claims for relief requesting modification of child support under Court Rule 5:5-4 require a copy of both prior case information statements (CIS) and updated versions of the document reflecting current tax returns and other financial statements to support any claim that there is a substantial change in circumstances. In this case, the Plaintiff has failed to provide any of these documents. Finally, the court opined that the Plaintiff should be aware of the consequences under Court Rule 1:4-8 of filing multiple frivolous law suits. The Appellate Division affirmed the lower court's decision and order and noted that the Plaintiff's argument lacked any merit. If you anticipate that you may want to petition the court for a post-judgment modification of your property settlement agreement, divorce judgment, or child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, divorce, prenuptial agreements, property settlement agreements, visitation & 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.

Court Standards for Post-Judgment Modification of Alimony and Child Support

In a recent NJ Appellate Division Case, Cronin v. Cronin, the Court reversed and remanded the decision of the lower court finding that the judge did not make adequate findings of fact and conclusions of law as required by N.J. Court Rule 1:7-4(a) in a case involving a motion for post-judgment modification of alimony and child support. Defendant appealed from two separate court orders issued by the lower Family Court in August 2012 compelling him to pay alimony arrears in the amount of $11,500, authorizing the issuance of a bench warrant should he miss two spousal support payments, and denying his post-judgment application to reduce his alimony and child support obligations. In the case, the Plaintiff cross appealed from the part of the order that denied her application for counsel fees. The parties in this case were married in March of 2003 and became divorced in May of 2011. The parties' Judgment of Divorce incorporated their settlement agreement which required that the Defendant pay $12,000 per month in alimony for four years and $2,000 a month in child support - both of these obligations were based upon the Defendant's gross income of $504,000 annually which was his average income from 2005-2007. In 2011, during the divorce proceedings, the Defendant claimed that his earnings had decreased substantially since 2007 and he stated that he could not meet his spousal support or child support obligations. During the hearing, the Plaintiff's counsel stated that the Defendant was aware of this decrease in salary prior to engaging in negotiations for the marital settlement agreement. The Defendant acknowledged this fact and stated on the record that he was not waiving his right under Lepis v. Lepis to seek a modification of the order later. In 2012, the Defendant had become $11,500 in arrears and the Plaintiff petitioned the court to compel the Defendant to pay his obligation and for counsel fees. The Defendant filed a motion in response seeking to modify his alimony and child support obligation based on changed circumstances. The lower court judge ordered that the Defendant pay the $11,500 within 120 days and denied the Plaintiff's request for counsel fees. The Appellate Court reversed and remanded this decision because it found that the lower court judge failed to make adequate findings of fact and conclusions of law required by N.J. Court Rule 1:7-4(a). According the Appellate Division, the lower court judge recited the law in his opinion but did not engage in a factual analysis or apply the facts of the case to the law in his legal conclusions. If you anticipate that you will want to petition the court for a post-judgment modification of alimony or child support it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, 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.

Post-Judgment Modifications Require Due Diligence By Judges In NJ

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

Details Are Critical In Property Settlement Agreements

It is well established law that a substantial change of circumstance is required to warrant a modification of support. Aronson v. Aronson Being specific and detailed you are when drafting Property Settlement or Matrimonial Settlement Agreement between two parties is beneficial beyond words. The parties should include all the assets and liabilities accrued during the marriage even if it seems tedious, i.e. last four digits of account numbers, dollar amounts, etc. In addition, a paragraph describing the “standard of living” enjoyed during the marriage by the spouses and children should be included. As evidenced by the recent New Jersey Appellate Division case, Heard v. Dunbar, details as to how the parties’ incomes were established and the support obligations were calculated is imperative. In Heard, the Defendant requested a modification to his child support, college contribution and life insurance obligations. Although there was a Property Settlement Agreement, the parties were not specific as to how their incomes or the support obligation was calculated. In addition, the standard of living enjoyed during the marriage was not defined either. The Heard Court made it clear that a change to either parties’ income, increase or decrease, should be taken into account when considering a modification request. Unfortunately, the omission in the parties’ Agreement as to what the payments were based on made the Court incapable to make decisions regarding the modification of support without further discovery and/or a plenary hearing. If you are seeking or fighting a post-judgment modification, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony 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.