Alimony Reform Gets Legislature's Final Approval

This month, a comprehensive alimony reform proposed law completed its progression through the New Jersey legislature with unanimous support from the State Assembly. The combined bill, A-845/971/1649 received legislative approval from the State Senate following a 30-2 vote in favor. New Jersey lawmakers, the State Bar Association, and other interested Family Law organizations have debated the status of the laws regarding alimony for many years. Most agree that there has been a lack of legal guidance, other than case law, directing judges with regard to alimony issues resulting in a lack of uniformity in the administration and enforcement of alimony awards. As it stands currently, the proposed law would only affect the small number of divorce cases that do not end with a settlement agreement. At present, the vast majority of divorce cases end with a mutually agreed upon settlement between the parties which controls factors such as amount and duration of alimony. The new law would eliminate permanent alimony in most divorce situations and provide judges and lawyers with a set of factors to use as guidelines in the determination of amount and duration of alimony awards. Any modifications to the current status of the laws regarding alimony would be prospective and not apply to any divorce settlements that have been or are currently being executed. If a civil union or legal marriage persists for more than twenty (20) years an alimony award cannot exceed the duration of the relationship. Under the proposed law, in addition to the statutory factors that have already been established Family Court judges would have to consider the ages of the litigants when they married and when their relationship ended, the necessity for separate residences, the ability of each litigant to maintain a standard of living, the dependency of one party on the other party, the parties' health status, along with other issues. In regard to cases of cohabitation, which has always been a hotly contested legal issue, the proposed law would compel judges to consider, along with other relevant factors, the joint finances of the cohabitating people, the duration of the relationship between the cohabitants, and the division of household chores. In addition, a Family Court judge would not be able to reject a claim of cohabitation on the grounds that the cohabitating couple does not live together on a full-time basis, alone. Further, the law states that alimony award sums may be terminated when the payer spouse attains full retirement age. The law would also bestow greater authority to modify or alter alimony obligations if the payer spouse becomes involuntarily unemployed or sees a large reduction in salary. For instance, if a payer loses his or her job they would be permitted to apply for a modification of their alimony obligation after being unemployed for at least 90 days. If you anticipate that you may want to petition the court for a modification or alteration of your alimony award or have any questions regarding alimony it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about alimony, post-judgment modification, 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.

In Child Relocation Case, Appeal Is Only Possible After An Adjudication

In the recent post-judgment matrimonial case, Russitano v. Russitano, John Russitano appealed from a 2012 Court Order that directed action based upon his ex-wife's Motion to relocate the parties' children to Alabama and recalculate his child support obligation. The Appellate Court could not rule on appeal because the Family Court Order did not issue a final disposition on issues involved with the case. The parties in this case were married in 2000 and three (3) children were born of the marriage. On June 27, 2011, they were divorced pursuant to a Final Judgment of Divorce with their own negotiated Property Settlement Agreement (PSA) incorporated. In 2012, the Defendant, Melissa Russitano, filed a Motion with the court to relocate with the children to Alabama and to modify the parties' PSA to increase John's child support obligation. John filed a cross-motion seeking a recalculation of his child support obligation and to enforce the parenting time provisions contained in the PSA. After hearing oral argument, the Family Court judge issued an order directing that the parties engage mediation to attempt to resolve the relocation issues and the custody and parenting time issues. The judge also ordered that John's child support obligation be re-evaluated based upon his three most recent pay stubs. John appealed from this Order. The Appellate Division affirmed the decision of the lower court holding that, although John disagrees with his ex-wife's request to relocate to Alabama with their children, he failed to challenge the lower court's order referring the parties to mediation or the determination to hold a plenary hearing on the removal of the children if the parties are unable to reach a decision. The Appellate Court concluded that the Family Court judge's order on this issue was not a final disposition of the issue at the time that the appeal was filed because the court had never ruled on Melissa's Motion requesting permission to relocate with the parties' children. As such, a party is required to seek leave to appeal according to Rule 2:5-6(a), and neither party did so. As required under Rule 2:2-3(a)(1), the Appellate Court has jurisdiction to consider appeals from "final judgments of the Superior Court trial divisions." In all other cases, jurisdiction to consider an interlocutory matter is only granted upon leave of the court. Rule. 2:2-4. Therefore, this claim was dismissed. Next, regarding the child support issue, the Family Court is given substantial discretion to determine child support awards and other support obligations based upon the ruling in Foust v. Glaser, 340 N.J. Super., 312, 315 (App. Div. 2001). In this case, the Appellate Division found no reason to disturb the ruling of the Family Court as there was no basis to do so as the lower court's decision to order a recalculation of the obligation was appropriate. Disputes regarding child relocation and child support can be of the most important in family law because of the substantial impact that decisions regarding these issues will have upon the lives of the parties and their children. If you are involved in a child relocation or child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child relocation, child support, post judgment modification, 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.

Cohabitation Ends Alimony In Post-Judgment Modification Matter

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

Does Retirement End Alimony?

In Cusick v. Cusick, the Defendant, Janet Cusick, appealed from a 2013 Family Court order that terminated her right to receive alimony from the Plaintiff, William Cusick based upon his claim that he was forced into retirement. The Order also ended the Plaintiff's obligation to reimburse the Defendant for insurance and medical expenses related to the parties' children. The Appellate Court vacated these parts of the Family Court Order and remanded the case back to the Family Court for a full explanation of the judge's decision and for an application of certain factors to determine if retirement should end his alimony obligation. The parties in this case were married in 1985. From their marriage, two children were born, twins, born in 1990. The divorce Complaint was filed in 2007 and the parties engaged a retired judge to act as a financial arbiter who issued a decision in 2008 awarding the Defendant $300 a week in alimony. At that time the Defendant was 44 years old and the Plaintiff was 63 years old. The arbiter acknowledged that the Plaintiff's "bona fide retirement . . . [would] be a substantial change in circumstances that would warrant modification, if not termination of his alimony obligation." This decision was incorporated into the parties' Final Judgment of Divorce in 2008. In 2013, the Plaintiff filed a Motion with the court to terminate his alimony obligation, certifying that he was forced into retirement and was unable to secure other employment through headhunters or by directly applying for jobs. In his Motion, he stated that his only "guaranteed" income would be his Social Security entitlement of $2,034.30 per month. The Defendant opposed the Motion and sought a Court Order to require the Plaintiff to continue paying his obligation and for arrears including medical insurance and medical treatment expenses. Following oral argument, the Family Court judge denied the Defendant's request and granted the Plaintiff's request to terminate his alimony obligation. The Defendant appealed. According to the Appellate Division: "In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999). A supporting spouse's income is just one of the factor's that should be considered when determining his or her ability to pay support. There are other factors to be considered such as "[r]eal property, capital assets, investment portfolio, and capacity to earn by 'diligent attention to . . . business." Innes v. Innes, 117 N.J. 496, 503 (1990). With regard to retirement age and the termination of alimony, numerous factors must be considered when a court determines whether a party's retirement including "age, health of the [retiring] party, the motives in retiring, the timing of the retirement, ability to pay maintenance even after retirement, and the ability of the other spouse to provide for himself or herself." Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992). The Appellate Court judges held that upon a review of the record, the Family Court judge did not adequately consider all of these factors, or at least, did not articulate such a consideration in reaching the decision that the termination of alimony was warranted. Therefore, the case was remanded back to the Family Court for such a determination. If you anticipate that you may want to petition the court for a modification of your alimony award or any other relief that was awarded in a final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, alimony, child support, custody, parenting time, 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 of an attorney.

Same-Sex Marriage: The Impact Of Windsor In America

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

Post-Nuptial Agreements Protect Financial Interests In Divorce

With divorces in New Jersey on the rise, people should educate themselves on the ways in which they can protect their past, present, and future assets and financial interests and the execution of a postnuptial agreement may help to protect these interests in the event that a married couple should choose to divorce. Postnuptial agreements function very much like prenuptial agreements except for the fact that these agreements are executed during the pendency of the marriage as opposed to before the marriage has taken place. Postnuptial agreements are generally utilized in situations where the married parities did not draft a prenuptial agreement prior to their marriage and although the couple may intend to stay married, they want to be protected if their relationship were to dissolve at some point. Parties typically find it much easier to establish resolutions to marital issues before the dissolution of the relationship and therefore postnuptial agreements can offer both protection but also peace of mind for married couples who want to try to avoid protracted and expensive legal battles if they choose to divorce. Couples find that postnuptial agreements apply to many marital situations. For instance, drafting such an agreement may function to modify an existing prenuptial agreements in the event of changed martial circumstances. Also, if the parties discover, only after being married, that they have very different perspectives on financial management a postnuptial agreement anticipate the division of assets or establish a procedure for doing so in the event of a divorce. The case of Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999) established the standards for postnuptial agreements. According to the Pacelli decision, court will exercise a very high level of scrutiny when determining the enforceability of a postnuptial agreement to make sure that neither party was coerced into entering the agreement by the other party. This means, that it is very important that those considering entering into a postnuptial agreement should seriously think about consulting with an experienced attorney before doing so. A postnuptial agreement will be enforceable if both parties offer their full financial disclosure during the process, both are represented by separate attorneys, there is no evidence of duress of coercion, and that the terms of the agreement are fair and equitable (both when the agreement was executed and when it is being performed). If you are interested in learning more about postnuptial agreements or if you are prepared to draft and execute such an agreement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about postnuptial agreements, divorce, prenuptial agreements, 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.

Same-Sex Marriages Are Flourishing In NJ- Are Divorces To Follow?

Currently, the statistics indicate that same-sex marriages are flourishing in New Jersey, does this mean that some of these couples will inevitably be heading for a divorce at some point? Matrimonial data and common sense seem to insinuate so. Same-sex marriage became legal in the state of New Jersey on October 21, 2013 following the decision of Garden State Equality v. Dow, N.J. 216, 314 (2013). Since that date, over 2,955 homosexual couples were legally wed in the Garden State. During this same period of time 43,619 heterosexual couples were married which means that for this period of time one out of every fifteen (15) marriages that were conducted in New Jersey was a same-sex marriage. These numbers roughly translate to about 500 homosexual marriages a month or 150 every weekend. Professionals have stated that these number comport with what estimates were projected to be and the data is on par with what happened in other states as gay and lesbian couples gained the right to marry. Currently approximately 4% of the 8.8 million New Jersey residence identify themselves as being homosexual. Researchers predict that the number of same-sex marriages will continue to steadily increase as the summer months commence and as autumn approaches - as these two seasons are the most popular for weddings. A study conducted by the Pew Research Center reflects that about 71,165 gay and lesbian couples have been legally married in the United states with at least 12,285 being married in the state of New York. In New Jersey, Monmouth County has seen the most same-sex weddings since October 2013 with 324; Camden County had 298; and Essex County had 258. As gay and lesbian couples continue to exercise their right to marry they will experience many family law issues that perhaps they did not encounter before such as step-parent adoption of children, tax benefit issues, or estate planning considerations. The unfortunate consequence of many legal marriages -whether they be heterosexual marriages or homosexual marriages - is the possibility of a relationship dissolution and divorce. As the number of same-sex marriages increase it is inevitable that a significant percentage of these marriages may end in a divorce. In the event of a divorce, gay and lesbian couples need to be prepared to deal with the issues that heterosexual divorcing couples have experienced for many years such as - equitable distribution of assets, alimony, child support, child custody and visitation, just to name a few. If you are a gay or lesbian couple who plan on seeking a legal marriage or filing for a same-sex divorce or would like more information regarding same-sex divorce it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, equitable distribution, alimony, custody and visitation, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.