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.

Motion To Enforce Equitable Distribution Of Tax Liability

In Lewis v. Lewis, a post-judgment case to enforce of litigant's rights, the Plaintiff appealed from a Court Order that required her to pay debt owed to the IRS when it was unclear whether the court was provided with the IRS's determination that granted her innocent spouse relief. The Appellate Court remanded the case back to the Family Court for reconsideration. The parties were married in 1996 and divorced in 2006. Their property settlement agreement (PSA) submitted with their final divorce judgment included the following language: "With respect to certain outstanding Internal Revenue Service debt, on account of 2004 income, the parties agree . . . each shall be responsible and pay, when as due, fifty (50% of this debt . . . ." In 2014, the Family Court held that the Plaintiff was in violation of litigants' rights for failure to pay her portion, including interest and penalties. The Plaintiff filed an appeal. A ruling on enforcement Motions in matrimonial actions must be "reviewed for abuse of discretion, with deference to the expertise of Family Part judges." Costa v. Costa, 440 N.J. Super. 1, 4, 111 A.3d 97 (App. Div. 2015). According to the Appellate Court, spouses who file joint federal income tax returns are held jointly and severally liable for any amounts due. 26 U.S.C.A. § 6013(d)(3). "Innocent Spouse" relief provisions in the IRS Code offer a narrow exception to this, under 26 U.S.C.A. § 6015(b), a spouse may seek relief if the spouse establishes that in signing the tax return the spouse did not know, and had no reason to know, there was an understatement of tax attributable to erroneous items of the other spouse, and that it would be inequitable to hold the spouse liable. On appeal, the Plaintiff attached IRS documents that indicate that she was granted innocent spouse relief by the IRS. She claims that the Defendant filed his Motion to enforce the PSA even though he knew she had been granted innocent spouse relief. The Appellate Division remanded the case back to the Family court solely to allow the Plaintiff the opportunity to file a Motion for reconsideration in the court consistent with Court Rule 4:49-2, and holding that such a Motion shall be considered timely if it is filed within twenty (20) days after service of the opinion on the Defendant. If you believe that a post-judgment modification to settlement agreement regarding equitable distribution, alimony, or any other issue may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, equitable distribution, child relocation, 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 if an attorney.

Alimony Term Of Property Settlement Agreement Will Not Be Reinterpreted By The Court

In Sercia v. Sercia, the Defendant appealed from a post-judgment matrimonial Family Court Order that denied her Motion for the payment of supplemental alimony from the Plaintiff's annual bonus income under. The Appellate Court affirmed the decision of the Family Court. The parties were married in 1999 and have two (2) children. The Plaintiff filed for divorce and the parties amicably resolved all issues and executed a property settlement agreement (PSA) that was incorporated into their final divorce judgment in 2010. In the agreement, the Plaintiff agreed to pay alimony and child support based upon his salary of $125,000 and the Defendant's imputed income of $20,000. Further, a provision in the agreement specified that the Plaintiff was to pay the Defendant one third of the net cash bonus that he earned each year in addition to the alimony award. Under the PSA, the Defendant was only entitled to a share of the Plaintiff's bonus when the bonus totaled $100,000 or greater. In 2011, the Defendant submitted a Motion to enforce litigant's rights and among the relief that she requested was to compel the Plaintiff to pay one third of his bonus. The Plaintiff did not oppose the Motion. The judge denied the Defendant's request because the Plaintiff's bonus did not come close to $100,000. Another Motion was submitted in 2013 in which the Defendant requested discovery regarding the Plaintiff's income and bonus income, payment of one third the net bonus for 2010, 2011, and 2012, and counsel fees. The Plaintiff did not respond. A Family Court judge granted the Defendant's request for discovery, but denied her request for the payment of supplemental alimony. The Defendant appealed from this decision arguing that the language of the parties' PSA was being misinterpreted by the court and by the Plaintiff and that it was intended to award her with alimony payments both from the Plaintiff's base income, as well as, his bonus despite the amount. According to the Appellate Court: "An agreement to settle a lawsuit is a contract, which like all contracts, may be freely entered into and which a court, absent a demonstration of fraud or other compelling circumstances, should honor and enforce as it does other contracts." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008). "When examining the terms of a settlement agreement, we are guided by the rules of contract construction." Globe Motor Co. v. Igdalev, 436 N.J. Super. 594, 601 (App. Div. 2014); Thompson v. City of Atl. City, 190 N.J. 359, 379 (2007). "The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.) certif. denied, 127 N.J. 548 (1991). Therefore, a court cannot re-write a contract or grant a better deal than that for which the parties expressly bargained. Solondz v. Kornmehl, 317 N.J. Super. 16, 21 (App. Div. 1998). The Appellate Division held that the language at issue in the parties' PSA is unambiguous and therefore should be applied as the Family Courts and the Plaintiff have understood it to apply. The decision of the lower court was affirmed. If you believe that a post-judgment modification to your property settlement agreement (PSA) regarding alimony may be beneficial to you or if you anticipate defending the language of your PSA as written it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, alimony, equitable distribution 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 if an attorney.

Equitable Distribution Will Not Be Enforced Against Equity

In Rubino v. Rubino, the Defendant appealed from a Family Court Order which denied his request to enforce a provision of a property settlement agreement (PSA) that he entered into with the Plaintiff concerning equitable distribution and denied his application to modify his child support obligation. The Plaintiff and Defendant were married in 1988 and had two (2) children. In 2004, the parties separated and were officially divorced in 2006. A PSA was incorporated into the parties' final divorce judgment. The PSA directed that the parties were to share joint legal and physical custody of the children until they were emancipated and that neither party was to be required to pay child support since they had equal incomes and would share the children equally. In 2007, the Defendant was arrested and charged with three (3) counts of endangering the welfare of a child, and three (3) counts of criminal sexual contact. Custody of the children was immediately transferred to the Plaintiff. Shortly thereafter, the court granted the Defendant supervised visitation with the children and required that he pay $254 per week in child support. In 2008, the Family Court issued another Order denying the Defendant's Motion for shared custody and to reduce his child support obligation. In 2013, the Defendant filed another Motion to enforce his rights to $40,000 under an equitable distribution provision in the parties' PSA, to retroactively reduce his child support obligation, to vacate all cost of living (COLA) increases to his obligation, and for an award of all retroactive credits based upon the vacated COLAs. The Family Court denied all of the relief sought in the Defendant's Motion. The Defendant appealed. The Appellate Division found that it would be inappropriate to require the Plaintiff to make a $40,000 payment to the Defendant pursuant to the PSA considering the very significant amount of money that the Defendant owed to the Plaintiff in child support arrears and other expenses related to the children. Regarding the reduction in his child support obligation, the court determined that the Motion judge reasonably determined that the request should be denied because it was not accompanied by sufficient information. Halliwell v. Halliwell, 326 N.J. Super. 442, 741 A.2d 638 (App. Div. 1999). Finally, the court denied the Defendant's argument that the Family Court judge erred by affirming two (2) Orders granting COLA increases to his child support obligation because he never received notice. The Appellate Division noted that the record supported the Family Court judge's decision and the Defendant's requests were without sufficient merit to warrant a full comment. Rule 2:11-3(e)(1)(E). Although the court did note that the Defendant had an obligation to inform the Probation Department of any change to his address. Property Settlement Agreements (PSA) are very common today. If you have questions regarding how an agreement should be drafted to best protect your interests with regard to alimony, equitable distribution, child support or any other disputed issue it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, child support, alimony, post-judgment modification, 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

Equitable Distribution By Property Settlement Agreement Not Modified By Court

Kurbel v. Kurbel, is a New Jersey Appellate Division case coming out of Sussex County, in which the Defendant appealed from 2013 Family Court Order that modified the parties' property settlement agreement (PSA) in a post-judgment action following their divorce regarding provisions that concerned his alimony and equitable distribution obligations. The Plaintiff filed for divorce from the Defendant in 2001 after 31 years of marriage and subsequently began to cohabitate with her boyfriend. The parties' divorce was finalized in a final divorce judgment in 2002 which incorporated a PSA. The PSA included a provision requiring the Defendant to pay to the Plaintiff "limited duration alimony" from 2002 until 2023 for the ten (10) months a year that the Defendant worked as a teacher. The payments began at $150 per month and were to increase by increments of $25 over twenty-one (21) years until the payments were $650 per month by 2023. In 2010, the Defendant filed a Motion seeking to terminate his alimony obligation based upon changed circumstances because he claimed he was forced to retire from his job due to a physical disability. The Defendant also argued that the Plaintiff's salary had more than doubled since the divorce and that she was cohabitating with her boyfriend which eliminated her need for alimony. In 2013, the court granted the Defendant's Motion to terminate his alimony payments. However, the Family Court also determined that the termination of the alimony created a windfall to the Defendant and noted that if the PSA had been equitably negotiated, the Plaintiff would have received more than three times the amount she was scheduled to receive under the full payout of the payment schedules according to the PSA. Therefore, the court ordered that the Defendant's equitable distribution payments be doubled until 2023 and that he was to pay $2500 towards the Plaintiff's counsel fees. The Defendant appealed from this decision citing that it was unfair to modify the PSA and award counsel fees in the Plaintiff's favor. The Appellate Court agreed with the Defendant. According to the Appellate Court, applications for relief from equitable distribution provisions found in PSAs are subject to review under Rule 4:50-1. Miller v. Miller, 160 N.J. 408, 418 (1999). Further, in matrimonial actions, PSAs, which are "essentially consensual and voluntary in character[,]" are "entitled to considerable weight with respect to their validity and enforceability," if they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); See also Lepis v. Lepis, 83 N.J. 139, 153 (1980). Court should rarely modify or set aside a PSA "absent clean and convincing evidence of fraud or other compelling circumstances." N.H. v. H.H., 418 N.J. Super. 262, 280 (App. Div. 2011); Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.) certif. denied, 180 N.J. 354 (2004). In this case, both parties were represented by attorneys during the negotiation and execution of the PSA and both had ample time to review and understand its provisions. Therefore, the Family Court mistakenly exercised its discretion in modifying the equitable distribution payment schedule in the PSA. Property Settlement Agreements (PSA) are very common today. If you have questions regarding how an agreement should be drafted to best protect your interests with regard to alimony, equitable distribution, or any other disputed issue it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony, post-judgment modification, 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 Appeal To Unseal Ex Parte Transcript Is Moot

In Gearey v. Gearey, the Defendant, Lillian Gearey, appealed from a 2013 Family Court Order denying her post-judgment modification Motion seeking to "reveal the 'super secret ex parte' protected [o]rder" with regard to a hearing that was conducted between the judge, her ex-husband and her ex-husband's attorney. The Appellate Division affirmed the decision of the Family Court. The parties in this case were married in 1979 and two (2) sons were born of the marriage - one in 1988 and the other in 1991. In 1999, the parties were divorced pursuant to a final divorce judgment which incorporated a property settlement agreement (PSA). The parties have engaged litigation multiple times since their divorce to deal with post judgment issues. The Defendant provided the Appellate Court with a transcript from 2009, which she specifically ordered for this appeal, that depicted a hearing that was held with regard to the Plaintiff's application to the court to reduce his support amount. At the time, the judge sealed (pursuant to Rule 1:38-11) the proceeding and specifically closed it to the Defendant and her attorney. The proceeding was a discussion involving the judge, the Plaintiff, and his counsel only, with regard to the attorney's request to be allowed to withdraw as counsel. Almost two (2) weeks after this, the Plaintiff's attorney wrote a letter to the court stating that the Plaintiff withdrew his application to modify his support obligation. The Appellate Division noted, that the Defendant had raised the issue of this protected Order on numerous other occasions and has been "denied numerous times." Further, the Defendant's appellate brief was "difficult to decipher," as she sought an "Order," with regard to the issuance of the "secret ex parte Order" but the court had no indication that an Order was ever generated after the "secret" on-record discussion that took place in 2009. The court opines, "Rather than an order, perhaps defendant has been seeking a copy of the sealed transcript of the proceeding where she and her attorney were excluded." Further, it was unclear to the Appellate Division why the transcript was even provided to the Defendant in the first place for the appeal in the absence of an Order unsealing it pursuant to Rule 1:38-12. Most obviously, the Appellate Court noted that the 2009 transcript it received was ordered six (6) weeks after the Family Court's 2013 Order from which this appeal spawned from. The court assumes that the receipt of the transcript might have satisfied the Defendant's need to know what the 2009 ex parte discussion was about. If that was the case, the entire appeal was moot. According to the court, "An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). The Appellate Division affirmed the decision of the lower court citing that the rest of the Defendant's arguments were without merit. If you anticipate that you may want to petition the court for a post-judgment modification of your child support or alimony obligations 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 HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Domestic Partner Challenges Equitable Distribution In PSA

In R.R. v. R.N., the Plaintiff appealed from a 2013 Court Order which enforced the parties' property settlement agreement (PSA) and denied the Plaintiff's Motion regarding equitable distribution for leave to sell real property owned by the parties. The parties in this case began a romantic relationship in 1999 and entered into a domestic partnership in 2005. In 2011, the parties entered into an agreement regarding their property. The agreement provided that the parties' real property located in Ocean Grove, New Jersey was converted from a joint tenancy to a tenancy in common with two-thirds owned by the Plaintiff and one-third owed by the Defendant. The Defendant possessed the sole right to occupy the property for ten (10) years from the date of the execution of the agreement and was "responsible for all carrying costs" which included utilities, repairs, taxes, and assessments. The agreement provided that the Defendant had the option to purchase the Plaintiff's share at the end of the ten (10) year term. Further, if the Defendant wished to sell his share before the end of the time period, he would have had to offer the share to the Plaintiff for $100,000 and if the Plaintiff did not purchase the share the property it was to be sold by a realtor and the proceeds split between the parties. Shortly after the agreement was signed, the parties' relationship deteriorated in early 2011. Following a trial, the court awarded the Plaintiff with a Final Restraining Order against the Defendant for stalking and harassment. In 2012, the Plaintiff filed a Complaint to force the partition of the parties' real property. In 2013, a Family Court judge denied the Plaintiff's request to force the sale of the property, holding that the parties had already resolved and agreed upon aspects of the real property in a negotiated agreement. The Plaintiff appealed from this decision arguing that the agreement between the parties was no longer enforceable because of the Defendant's subsequent acts of domestic violence and the institution of a Final Restraining Order making the joint ownership of the property inequitable. According to the Appellate Court, decisions regarding the granting of equitable remedies are left to the discretion of the trial courts and are not disturbed unless there is a clear showing of abuse or discretion. Feigenbaum v. Guaracini, 402 N.J. Super. 7, 17 (App. Div. 2008). The trial court in this case, found that the parties had carefully crafted and negotiated their agreement and the provisions of the agreement were clear and unambiguous and the Plaintiff had "not shown a basis for abrogating the Agreement and requiring sale of property earlier than required by the Agreement." The settlement of litigation is important to public policy in the state of New Jersey and domestic settlement agreements are enforceable in equity and contract as long as they are not unconscionable, fraudulent or overreaching. Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995). Therefore the decision of the Family Court was affirmed. The equitable distribution of assets often leaves both parties with great trepidation about their financial futures making it one of the most sensitive aspects of a relationship dissolution. If you are involved in a battle over the division of 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, domestic partnership 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.

No Extension Of Limited Duration Alimony

In the recent Appellate Division case from Morris County, Buscher v. Tully, a post-judgment matrimonial matter, the Defendant Steven Tully appealed from the Family Court's Order granting the Plaintiff, Ann Buscher's Motion to extend the period of her limited duration alimony. The parties in this case were divorced in 2007 after eighteen (18) years of marriage. The parties' final divorce judgment incorporated a property settlement agreement (PSA). There were three (3) children born of the marriage one of which was almost seventeen, other eleven, and the final emancipated at the time of the divorce. Pursuant to the PSA, the Defendant agreed to pay limited duration alimony to begin after the parties' sold their marital residence and to end in December of 2016. The parties also agreed to live together in the house after their divorce and until the home was sold. While they lived together after their divorce, the Defendant agreed to place almost all of his income in a joint account to assist with living expenses. The record indicates that the parties did not list the marital residence for sale in 2007 and the Plaintiff remained in the home until 2011, when she left with the parties' youngest child. The Defendant remained in the home with the other unemancipated child until 2012. While the Plaintiff lived in the home she worked part-time, completed her undergraduate education and eventually obtained a Master's degree. In 2013, post-judgment Motions were heard in which the Plaintiff requested that because the parties did not sell the home until 2012 she wanted her alimony end date to be extended. The Defendant argued that the court should enforce the plain language of the PSA which provided that alimony would not commence until the house was sold because when the parties entered into the PSA they did not know when the house would be sold and the agreement made sure that the Defendant would not have to pay both alimony and the carrying costs of the home at the same time. The Family Court granted the Plaintiff's Motion to compel payment of alimony though 2020 concluding that the parties intended that the Plaintiff would receive nine (9) years of alimony. The Defendant appealed arguing that the court erred in awarding nine (9) years of alimony ignoring the plain language of the PSA and that the extension of limited duration alimony violated N.J.S.A. 2A:34-23. In reversing and remanding the decision of the lower court the Appellate Court held that it discerned no basis in the PSA or extrinsic circumstances for the trial court's conclusion that the parties intended to award the Plaintiff nine (9) years of alimony. The parties agreed to remain in the home for an indefinite period of time after the divorce, until the house was sold. During that time, the Defendant agreed to bear the majority of the home expenses and that these expenditures were undoubtedly a form of spousal support or alimony. Schorr v. Schorr, 341 N.J. Super. 132, 139 (App. Div. 2001); Mendell v. Mendell, 162 N.J. Super. 469, 475-76 (App. Div. 1978). If you anticipate that you may want to petition the court for a post-judgment modification of your alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification, equitable distribution, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Father Contests College Tuition Obligations In Post-Judgment Divorce Filing

In the recent Appellate Division case, Gropper v. Gropper, the Defendant, Cy Gropper, appealed from two post-judgment Orders of the Morris County Family Court concerning his obligation to contribute to his son's college expenses based upon his final divorce judgment. The Defendant appealed from two (2) Family Court Orders, one filed on March 20, 2013 that directed him to pay $50 a week directly to the parties' son in child support and 58% of the child's college costs and expenses. The second Order, which was filed on May 21, 2013, denied the Defendant's Motion to reconsider the relief ordered in the previous Court Order. The Defendant claimed that his Motion for reconsideration was not properly considered by the court and that he should not have been ordered to pay his son's private school tuition when "the same education can be obtained a reputable public [state sponsored] schools" for a much lower cost. The Appellate Court ordered a limited remand to review the Defendant's Motion. The parties in this case were divorced in 1995. Their marriage yielded two children and pursuant to the property settlement agreement (PSA) which was incorporated into their final divorce judgment they were to share joint legal custody of their children and were to share their children's college education costs 52% by the Defendant and 48% by the Plaintiff. After the divorce, the Defendant moved to North Carolina. The parties' younger son applied and was accepted to attend an online private college, the University of Advancing Technology (UAT) as well as the University of North Carolina-Charlotte (UNC). Since he had to have spinal surgery, the child did not immediately attend college and subsequently moved to North Carolina. Based upon the child's move and his representation to UNC that his primary residence was the Defendant's address, the Defendant filed a Motion to modify his child support obligation asserting that any child support should be paid directly to the child and that the parties agreed that the child would attend UNC. The Plaintiff filed a Cross-Motion arguing that she agreed that the child support could be sent by Probation directly to the child, but disagreed that an amount adjustment was warranted. Further, she sought a review of each party's college expense contribution amount because the Defendant's income had increased from the time of the divorce. The Plaintiff also asserted that the parties' son had reluctantly agreed to attend UNC and planned on finishing his coursework at UAT because that school offered a major not found at UNC. In a 2013 Court Order, the judge modified the parties' child support obligations. In addition, with regard to the college expenses, pursuant to N.J.S.A. 2A:34-23(a), the judge ordered that the UAT tuition "after all loans, grants, and scholarships have been obtained" shall be paid 58% by the Defendant and 42% by the Plaintiff. The Defendant appealed. The Appellate Division found that the Family Court judge's statement of reasons supporting the Order at issue regarding the parties' respective college tuition obligations was premised on analysis of the child support statute, but did not mention any consideration of the factors outlined in Newburg v. Arrigo, 88 N.J. 529 (1982). Further, the Defendant, in his papers, also accurately indentified the need to consider whether the child is enrolled on a full-time basis. Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971). Therefore, the Appellate Division remanded the case back to the Family Court for an re-evaluation consistent with its opinion. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment regarding issues such as your obligation to pay your child's college expenses 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, parenting time, divorce, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Reimbursement of Child Support and Legal Fees Awarded post-Judgment

The recent Appellate Division case, Dickson v. Hansson, is a post-judgment dissolution case in which the Plaintiff, Abra Dickson, appealed from a 2013 Family Court order awarding her ex-husband, the Defendant Peter Hansson, counsel fees totaling $3,200 stemming from his successful Motion to enforce an earlier court order involving his over payment of child support. On appeal, the Plaintiff asserts that the counsel fees were not warranted because she did not "act in bad faith," and the court failed to properly apply Rule 5:3-5(c). The Appellate Court affirmed the decision of the lower court. in 2012, the Family Court ordered a modification of the Defendant's child support obligation to recognize the parties' daughter's college expenses. In the order, the court terminated the Defendant's child support obligation affective August 2012, based upon provisions in the parties' Property Settlement Agreement (PSA) regarding the Defendant's obligation to pay 100% of his daughter's college expenses. After the order was issued, the Defendant's attorney asked the Plaintiff for a refund of a few months of child support payments that the Defendant made prior to the issuance of the court order in the amount of $2,826. The Plaintiff responded by stating that the money was gone because she gave it to their daughter who spent it on expenses. In 2013, the Defendant filed a Motion to enforce the prior court order to get back the money that he over paid in child support and requested counsel fees. The Family Court judge ordered that the Plaintiff refund the Defendant $2,826 in child support that he paid and awarded the Defendant $3,200 in counsel fees. The Plaintiff appealed. The Appellate Division affirmed the decision of the lower court and held that "an allowance of counsel fees and costs in a family action id discretionary" but requires the court to consider the factors set forth in Rule 5:3-5(c). Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The Appellate Division did not receive any information provided to the trial court when it calculated the attorney's fee award from the Plaintiff and therefore the court was in no position to overturn that portion of the Family Court's ruling. Further, the court found no abuse of discretion in the Family Court's ruling. It found that the Plaintiff intentionally failed to comply with the court's order directing repayment to the Defendant, and taking the unreasonable position that the child support should be reimbursed by her daughter and not the Plaintiff herself. The court determined that the Plaintiff's decision to give the child support money to her daughter did not relieve her of the obligation to refund the overpayment. If you anticipate that you may want to petition the court for a post-judgment modification of your 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 modification, divorce, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Alimony Reduction Through Imputation Of Income Is In Court's Discretion

In the recent New Jersey Appellate Division case, Palestrini v. Palestrini, the Plaintiff, Carl Palestrini appealed from a Court Order establishing his alimony obligation and asked that the court impute income to his ex-wife, Defendant, Joann Palestrini, whom he claimed remained purposely underemployed as a means to increase her alimony award. The parties in this case were divorced in July 2012 after approximately nineteen (19) years of marriage. They were divorced pursuant to a dual judgment of divorce which incorporated a property settlement agreement (PSA). In the PSA, it was specified that the Plaintiff was, at that time, on unemployment, but required him to pay $200 a week in permanent alimony which was to be subject to an annual review to accommodate for the possibility that he would obtain a new job and there would be a resulting increase in his salary. On August 20, 2012, the Plaintiff's attorney informed the Defendant that the Plaintiff had gotten a new job with an annual salary of $65,000 a year and attached a pay stub which indicated that the Plaintiff had actually started to work at this job two days before the dual judgment of divorce was executed. The Defendant then filed a Motion with the court to increase her alimony award to $324.87 a week based upon the Plaintiff's new increased salary and based upon her part-time and varying salary of $11.00 an hour. The Plaintiff submitted a Cross-Motion arguing that the Defendant was earning approximately $20,000 a year at the time of their divorce and was subsequently choosing to be underemployed necessitating the court to impute her income back to $20,000 a year. After a hearing, the Family Court judge awarded the Defendant $325.00 a week and rejected the Plaintiff's requested relief. The Plaintiff appealed from this decision asserting that the court mistakenly exercised its discretion by failing to impute full-time income to the Defendant. The Appellate Court affirmed the decision of the Family Court. In its holding, the Appellate Division noted that it was required to defer to the Family Court's fact-finding because of the court's "special expertise" in the area of family law. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). Further, it held that: "imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). There was no evidence that the Defendant was voluntarily underemployed and a finding of voluntary underemployment "is requisite, before considering imputation of income." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). According to the Defendant's Case Information Statement, she had a history of working part-time and the Plaintiff failed to provide the court with information regarding the Defendant's education, training, or employability that would have provided a basis to prove purposeful underemployment. The court concluded that the Plaintiff's remaining arguments lacked sufficient merit to warrant a discussion in a written opinion pursuant to Rule 2:11-3(e)(1)(E). If you anticipate that you may want to petition the court for a modification of your alimony award or may want to seek to impute income to your ex-spouse for the purposes of re-calculating an alimony obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, 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.

Appellate Court Upholds Parties' Agreement Regarding Alimony Waiver

In a recent Appellate Division case, Degilio v. Degilio, the Plaintiff, Julianne Degilio appealed from a Family Court order arguing that the judge erred by not allowing her to petition for alimony despite a term contained in a property settlement agreement (PSA) between her and the Defendant, James Degilio, in which both parties agreed to forever waive alimony. The parties in this case were married in 1990. In 2005, they were divorced pursuant to a Final Divorce Judgment which included a PSA that specified the equitable distribution of their marital property. One particular term contained in the PSA stated that both parties “now and forever waive any and all claims for alimony and support, past, present and future, that they have or may have against the other party.” Further, the language of the PSA specified that “but for this waiver of rights to request alimony, the Husband would not have agreed to the equitable distribution arrangement set forth herein.” After the parties were divorced, the Defendant failed to make payments to the Plaintiff as he was directed under the terms of the PSA. The Plaintiff submitted a motion to the court to enforce the terms of the agreement. Once again, the parties engaged in negotiations and reached an agreement that modified their existing PSA by consent order. One of the modifications specified that the Defendant was to pay $300,000, in tax-free equitable distribution . . .” on a monthly basis until the obligation was satisfied. In addition, the consent order directed that “the parties specifically preserve all provisions set forth” in the previous PSA. Over time, the Defendant began to default on his obligation again and the Plaintiff filed multiple motions to compel him to pay. In 2011, the Plaintiff filed an unopposed motion to reopen the parties’ Judgment of Divorce seeking an alimony award because the Defendant continued to default on his obligation. The Family Court denied her motion. The Defendant continued to neglect his obligation and the Plaintiff yet again filed a motion to enforce the terms of the agreement and to reopen the Judgment of Divorce seeking alimony. This time, the Family Court found the Defendant in violation of litigant’s rights but did not reopen the Judgment of Divorce. The Plaintiff appealed from this order. In its opinion the Appellate Division first notes that it typically affords substantial deference to the decisions of Family Court judges. Donnelly v. Donnelly, 405 N.J. Super 117, 127 (App. Div. 2009); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Next, in affirming the Family Court’s decision, the Appellate Court holds that with regard to the Plaintiff’s argument that the Family Court judge erred in denying her motion to reopen her Judgment of Divorce – the courts are courts of equity and as such they strive to uphold settlement agreements whenever possible. Massar v. Massar, 279 N.J. Super. 89 (App. Div. 1995). With regard to this case, the Defendant had substantially complied with the terms of the PSA because he had “made payments for a number of years before he got into default,” and therefore the Appellate Court was unwilling to disturb the terms of their PSA as a matter of public policy. Further, with regard to the Plaintiff’s motion for reconsideration, the Appellate Court also found that the Plaintiff’s challenge to the initial opinion and order under Rule 1:7-4 was without merit because the judge’s decision adequately set forth the findings and legal grounds for denying her application. If you anticipate that you may want to file an application with the court to modify an existing alimony award or for a modification of your Final Judgment of divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, divorce, equitable distribution, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and in no way is it 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.

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.

Consequences of Setting Support Outside the NJ Child Support Guidelines

The payor spouse or partner must exercise caution when setting initial child support outside the NJ Child Support Guidelines ("Guidelines"). In the event the payor later seeks modification of child support based on changed circumstances, the court may find the Guidelines to be inapplicable to any modification sought. Unless there is a provision in the parties' property settlement agreement which specifies that the Guidelines are to be applied in the event of modification, they are likely not to be applied and any modification may also be set outside their framework. Unlike in a standard case in which changed circumstances are proven, modification is warranted and a new child support amount will be established within the Guidelines, there is another hurdle. The parties, or at least the party seeking the modification, will face the legal argument of whether there is now good reason to apply the Guidelines or whether the child support amount should remain outside their scope. In the case of Perri v. Salandra, the plaintiff conceded that the defendant suffered a drastic reduction in income and agreed child support should be modified. The NJ Superior Court held that the party sought to set support outside the Guidelines initially and included no provision in their property settlement agreement calling for application of the Guidelines in the event of modification therefore the Guidelines would not be applied to the modification. The New Jersey Appellate Court affirmed the decision of the Superior Court. If you are seeking a divorce or modification of support, you should consult with an experienced family law attorney to protect your rights and weigh the merits of your case. Although parties often prepare their own settlement agreements, they must be sure to understand that the other party may seek to change the terms of the agreement in the future and how those changes may be applied to their agreement as written. For more information about divorce, civil union dissolution, child support, alimony, equitable distribution 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.

Life Insurance Proceeds After Divorce

When going through the divorce process, the spouses may come to an agreement regarding support for a dependent spouse and/or a dependent child or children. A subsequent issue that has to be addressed is how to ensure the dependent spouse and/or dependent child or children are taken care of in the event of the death of the obligor spouse. Often, the obligor spouse agrees to maintain life insurance naming the dependent or dependents as beneficiaries for as long as the financial support obligation exists. The terms of the agreement can then be put into a formal written Property Settlement Agreement referred to as a PSA. What happens if the beneficiary designation on the policy does not comport with the Agreement? In the recent case of Thomas v. Thomas, the Appellate Court in its unpublished opinion considered the distribution of a life insurance policy where the named beneficiaries on the policy did not mirror the terms of the Property Settlement Agreement (PSA). The Appellate Division looked to the language of the Property Settlement Agreement (PSA) between the decedent and his ex-wife which was incorporated into their Judgment of Divorce when determining how the proceeds of the decedent's life insurance policy should be paid out. The Property Settlement Agreement contained spousal and child support provisions as well as a provision requiring the Decedent to maintain a life insurance policy naming the ex-wife as an irrevocable beneficiary for $500,000 so long as there is an alimony obligation and for each child of $125,000 until each child was emancipated. Subsequent to the divorce and prior to the decedent's passing, the decedent's two children were deemed emancipated therefore eliminating his obligation under the PSA to maintain the life insurance for the them. The obligor spouse passed away leaving a one million dollar life insurance policy. The decedent remarried and subsequently changed the beneficiaries on the policy so that his second wife would receive 60% of the proceeds while his ex-wife would receive 15% and his two children from the first marriage would receive 12.5% each. Problems arose when the ex-wife sought to claim $500,000 she believed she was entitled to pursuant to the terms of the Property Settlement Agreement (PSA) and the second wife sought to claim 60% ($600,000). The ex-wife filed a complaint with the court to ensure her claim. The second wife filed a counterclaim to ensure hers and subsequently filed a motion to reduce decedent's alimony obligation under the Property Settlement Agreement (PSA) which was later withdrawn. The second wife further claimed that the term of $500,000 was too much considering the amount of alimony decedent owed at death was less than when the Agreement was created and that the terms of the life insurance provision were automatically effective. She asked that alternatively she be awarded 71% of the 50% of the remainder of the proceeds if 50% was awarded to the ex-wife. She claimed that it reflected the decedent's intent that the children and her would share proportionally in the proceeds. The ex-wife claimed the ex-wife's motion was without merit and filed a cross motion which sought to enforce the terms of the Property Settlement Agreement (PSA) and requested that a constructive trust be utilized to protect her rights to the insurance proceeds. The two children cross-moved to enforce the decedent's beneficiary designation leaving them 12.5% of proceeds to each of them which would only leave the second wife with 25% of the 50% rather than the 71% she sought. The Trial Court ruled in favor of the ex-wife and denied the second wife's motion for reconsideration. The Appellate Court upheld the Trial Court's decision with regard to the ex-wife receiving her $500,000 as reflected in the Property Settlement Agreement (PSA) but reversed its decision as to the distribution to the second wife and the children. It held the remaining $500,000 had to be awarded in accordance with the decedent's intent per his beneficiary designation on the policy. For more information on divorce, alimony, child support, property settlement agreements and post judgment 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.

Relief for Payors Suffering After High Net-Worth Divorce

In a recent post-judgment motion following a high net-worth divorce, a modification motion by payor resulted in a finding that the court must consider not only changes in the payor's income but also changes in the payee's income when hearing motions for modification. In Heard v. Dunbar The judge hearing the divorce did not include any findings regarding the terms of the parties' Property Settlement Agreement. Defendant earned $800,000 per year working at Goldman Sachs until 1997 when he resigned after accusations of fraudulent activity. The parties had saved $800,000 and defendant became a day trader working with their personal funds and increased the value of their investments to $8,000,000.00 by 2000, when the parties separated. In the next 2 years the value of the portfolio decreased to only $304. Defendant returned to the financial industry as the manager of a "start up" investment fund and earned only $15,000 in 2003 when the parties entered the Property Settlement Agreement (PSA). Plaintiff was employed as a psychologist and earned $52,000 per year in 2003. Although the defendant earned only $1250 per month, the PSA called for him to pay $1885 per month in child support. Although defendant later represented, in 2011, that the payment was based on the presumption he could return to his previously high earning levels, no information was set forth in the PSA regarding how this figure was arrived at other than to state it was in accordance with the "marital standard of living" but the standard of living during the marriage was not set forth in the agreement. The PSA also called for defendant to provide plaintiff $2,000,000 in assets as equitable distribution in lieu of alimony, pay up to $250,000 for the child's college tuition and obtain a $2,000,000 life insurance policy. Defendant ultimately developed a career in real estate and, by 2011, was earning $119,000 annually while plaintiff's income had increased to $115,000 per year. Plaintiff filed a Motion to Enforce the agreement and defendant filed a cross-motion to decrease his child support and college tuition obligations. An Essex County Family Court Judge denied defendant's motion finding no appreciable or permanent change in circumstances from 2003 to the present time, granted plaintiff's motion, failed to acknowledge plaintiff's substantial increase in income and made no findings regarding the denial of defendant's motion to reduce college payments and insurance. In its opinion, the New Jersey Appellate Court set forth the standards for modification as requiring consideration of the circumstances of both parties and that the reasons for all findings of fact be set forth clearly on the record. If you are seeking a modification of child support or alimony, 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 or juvenile 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.

No Change in Custody in NJ Without a Hearing

In order to make a change in custody from the arrangement set forth under the terms of a Court Order or Property Settlement Agreement into which the parties freely and knowingly entered, the Court must hold a plenary hearing. A recent decision in the Essex County Superior Court, Family Part made a change in custody based solely on the recommendations of a court-appointed mediator. Originally, when plaintiff sought a change in custody, the parties agreed to retain a joint evaluator and enter into a consent order if they both agreed with the evaluator's recommendation. However, the parties and the court, further agreed that, if the decision of the evaluator was unacceptable to either party, that party could move for a hearing before the Court to determine whether the evaluator's recommendation should be implemented. The New Jersey Appellate Court reversed the superior Court ruling and reaffirmed a prior ruling in the case of G.C. v. M.Y. (287 N.J. super. 363, 368 (App.Div. 1995)) by stating that "unless there are exigent circumstances, changes in custody are not to be ordered without a plenary hearing." The exigent circumstances set forth were "evidence of imminent harm or threatened harm to the well-being of the child, there is no justification…[to make] a custody decision on an emergent basis, without a plenary hearing." This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you or your children's other parent are seeking a modification of custody, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on custody, divorce, dissolution of civil union or domestic partnership, alimony, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.