Pre-Marital Assets Comingled Become Joint Property

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

Prenuptial Agreement Reform in New Jersey

There have been recent reforms to the laws governing prenuptial agreements in New Jersey. The purpose of a prenuptial agreement is to legally memorialize the parties' intentions and rights regarding all or certain aspects of the marriage or civil union before either takes place in an attempt to avoid litigation should the marriage or civil union dissolve. In most states throughout this country, prenuptial agreements are strictly enforced provided that procedural and disclosure requirements are followed. In New Jersey, courts will neglect to enforce prenuptial agreements if the aforementioned procedural safeguards are not followed, just like in most other states. However, New Jersey courts provide parties with an additional means to avoid the enforcement of such agreements. The courts will not enforce prenuptial agreements that are considered to be unconscionable, both when the agreements are initially executed and also at the time that the parties want them to be enforced - typically at the time of a divorce or dissolution. The affect that this has on the validity of a "prenup" can be profound. The language in the law that allows for a party to avoid the enforcement of the terms of an agreement due to unconscionability essentially provides a party with an avenue to allow the terms of the agreement to be litigated in the courts, which is contrary to the entire purpose of the prenuptial agreement. If a party desires to prevent the enforcement of the terms of the agreement at the time of dissolution, he or she only has to claim that the agreement is or was unconscionable and the court may delay the enforcement of the agreement until the disputed terms are litigated. As of June 27, 2013, the New Jersey Legislature amended R.S.37:2-38, the law that governs prenuptial agreements, to remove the language that provides parties with the ability to claim unconscionability at the time of enforcement. Therefore, as long as the agreement was not unconscionable at the time of its execution, parties were provided with full disclosure of information, and all other procedural safeguards were followed at the time of execution - the courts should strictly enforce the agreement upon dissolution. Ultimately, the removal of this language in the law functions to strengthen the enforceability of pre-marital and pre-civil union agreements. This amendment will govern all prenuptial agreements executed on or after the effective date of the amendment. If you are entering into a second marriage and want to protect your children, you have a high net worth, are seeking to protect a business interest or have any other reason to protect your assets when entering into a marriage it is critical that you consult an attorney experienced in prenuptial agreements. For more information regarding pre-nups, alimony, palimony, child support, equitable distribution or other family law issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.