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.

Failure to Make Mortgage Payments Decreases Equitable Distribution

Equitable distribution is how the parties' assets are divided in a divorce. Often one of the parties' largest assets is their marital residence. Frequently, a payor spouse or partner will be left with the alternative of paying the mortgage on the marital residence where the other party now resides or paying for their own residence when there are insufficient funds for both. When a party is ordered by the Court in a Pendente Lite Order, Final Judgment of divorce after a trial or agrees under the terms of a property settlement agreement to pay the mortgage on the marital residence and fails to do so, that party's share of the proceeds from the eventual sale of the marital home may be reduced equitably to permit the other spouse or partner to receive what they would have received had the payments been made. In the recent case of Debra Freeman v. William Freeman, Sr., the defendant was to buy the plaintiff's share of the residence or the residence was to be sold. William failed to buy out the plaintiff and also failed to make the mortgage payments due. Although Debra did not make an appropriate accounting of proceeds from the eventual sale of the residence and the court determined she was remiss for same. Although Debra's accounting indicated she walked out of the closing with approximately $12,000, the trial judge determined the parties should have received a combined $42, 422.34 in proceeds and ordered the plaintiff to pay William $21,211.17, representing one-half of the proceeds they should have received from the sale. Debra appealed and the NJ Appellate Court referred to the decision in F.G. v. MacDonell, 150 N.J. 550, 564 (1997) to support the finding that Debra, as the party responsible for the sale of the residence, was under a "duty to exercise reasonable skill and care" in the transaction. As a result of her breach of duty, William was entitled to an award remedying the situation as it pertained to him. However, the New Jersey Appellate Division also held that the Superior Court Judge should have considered the impact of the defendant's failure to make the mortgage payments as required. The Appellate Division remanded the matter to the NJ Superior Court to allow the trial judge to factor the defendant's failure to pay the mortgage into the award to him of $21,211.17 and reduce the award equitably. If you are considering or facing a divorce, it is imperative that you have an experienced family law attorney review your matter in order to ensure you are protected from unforeseen pitfalls which may result in the event of a change in the economy, a bitter former spouse or partner or other circumstances. For more information about divorce, dissolution, child support, alimony, equitable distribution, civil union 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.

New Jersey Palimony Agreements Must Be In Writing

According to a recent New Jersey Appellate Division decision, palimony agreements must be memorialized in writing if they are to be legally enforceable and the law requiring such is to be retroactively applied. The term "palimony" refers to the support that two unmarried people, who have lived together, promise to pay to each other upon the dissolution of their relationship. The status and availability of palimony throughout the United States varies dramatically from state to state. Some states will enforce palimony agreements other states will not. Further, of the states that do recognize the validity of palimony agreements, the rules that govern their enforcement are not uniformly applied across the states. Traditionally, in New Jersey palimony agreements could be either oral or written agreements to be legally enforceable. The 1979 case, Kozlowski v. Kozlowski, was the foundational precedent for these cases and had remained good law for decades. In 2010, the New Jersey legislature passed a law, N.J.S.A. 25:1-5, effectively amending the Statute of Frauds, which then mandated that palimony agreements be memorialized in writing. This shift in the law may have been caused by a shift in social culture. Over the last two decades, more and more couples have engaged in long term relationships that do not result in a marriage or civil union. Since the relationship dynamics have changed so much in our society, it may have proven difficult for a court to enforce an oral agreement for relationship configurations that appeared to be ever-changing. Therefore, it seemed natural for the law to mandate that palimony agreements be written as a means to minimize confusion and ambiguity over relationship statuses. On February 4, 2013, the Appellate Division rendered a decision in Maeker v. Ross that considered the issue of whether N.J.S.A. 25:1-5 could be applied to palimony agreements that were instituted before 2010. In Maeker, the litigants were engaged in a 10-year long relationship, in which the male partner supported the female. Their relationship ended in 2011 and Ms. Maeker sued Mr. Ross for palimony. The couple did not have a written agreement. N.J.S.A. 25:1-5, was codified in 2010 and required that palimony agreements be in writing in order to be enforceable. The trial court found that based upon the length of the relationship, the lawsuit could proceed. The Appellate Court disagreed and reversed the prior court's opinion, essentially holding that all palimony agreements must be in writing and that the law should be applied retroactively. The decision has been appealed to the New Jersey Supreme Court. For more information about palimony, divorce, civil union dissolution, alimony, child support, custody 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.

Relocating a Child Out of New Jersey Without Consent of the Other Parent

In child custody disputes, removing a child from the state of New Jersey to another state without a court order or consent of the other parent may subject you to sanctions and even kidnapping charges. According to N.J.S.A. 9:2-2, if a custodial parent wishes to relocate his or her child to another state, that parent must obtain the permission of the child’s non-custodial parent or must obtain a court order granting permission to remove the child over the non-custodial parent’s objection. The public policy behind the statute ensures that the non-custodial parent’s rights with regard to maintaining a relationship with his or her child are not infringed. The first question that a court must consider is the type of custody arrangement that exists. If the parents have a joint or true shared custody arrangement, then upon an application for change of custody, the court must make a best interests determination as set forth in N.J.S.A. 9:2-4(c). Alternatively, if custody is far from equal, with one parent having only the typical every other weekend and one overnight per week arrangement, then the court must apply a two-prong test set forth by the Supreme Court of New Jersey in Baures v. Lewis, 167 N.J. 91 (2001). First, the custodial parent must prove that the move is being considered in good faith and not simply to deprive the non-custodial parent of a relationship with the child. Second, the parent must prove that the relocation will not adversely affect the child. The Court in Baures listed twelve factors to be considered in determining whether the custodial parent has satisfied the two-prong test. The Baures factors include: • The reasons for the move; • Reasons for opposition by the other parent; • Parties' past dealings in regard to parenting; • Whether the child will receive equal educational, health and recreational opportunities in the new location; • Any special needs or talents of the child; • Whether a reasonable visitation schedule can be arranged to permit the continued relationship between the child and the non-custodial parent; • The likelihood that the custodial parent will foster the relationship between the child and non-custodial parent; • The effect of the move on extended family relationships in the present and new location; • The child's preference if of age and intellect to make an informed choice; • The child's scholastic performance and year of matriculation; • Whether the non-custodial parent is able to move to the new location; • Any other factor the Court may wish to consider. Relocation of a child to another state will have serious and lasting effects on the child's life and relationships, including the relationship with the other parent. If you are considering relocating with a child to a state other than New Jersey, or opposing such a relocation, you should consult with an experienced family law attorney to learn your rights and options. For more information about child custody, parenting time, child support 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.

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.

Divorce Does Not Always Result In What You Expect

In a divorce case in which the Husband,a contractor with the ability to receive his income in cash, the Judge found him to be untruthful about his earnings and the defendant Husband was ordered to pay the wife $500 per week in alimony and an additional $217 per week in child support for 2 children as well as the wife's counsel fees of $15,782.45. The parties were married for 19 years and the Morris County Superior Court Judge hearing the matter found it to be a permanent alimony case. In Gentile v. Gentile, the husband appealed the decision on the basis that the wife should have been imputed income in excess of $21,000 and permanent alimony should not have been awarded. Throughout the last 5 years of the marriage the husband earned an average of $90,000 per year but cited the economic downturn as a reason for lack of work around the time of the parties' divorce. The wife worked only part-time and sporadically during the marriage. The judge found both underemployed and imputed income of $100,000 to the husband and $20,800 to the wife. The judge specifically found the husband was intentionally underemployed at the end of the marriage to avoid child support and alimony obligations. The husband reported expenses of $3,405 per month, including rent to his brother, and the judge decided the husband's expenses were actually $2,000 per month. The court relied on the husband to show the wife could not earn more than $20,800 per year, rather than relying on the wife to show that was all she could earn. The judge used the factors in N.J.S.A. 2A:34-23(b) in determining that alimony should be permanent. The only asset for equitable distribution was the husband's annuity worth $106,733. Once the Judge divided the annuity in half and ordered the Husband to pay tax preparation fees, his share of the children's dental expenses, the Wife's share of a tax refund for 2 years, reimbursement to Wife for money he withdrew from the annuity, child support arrears and the Wife's counsel fees the Husband received nothing from his own annuity. The New Jersey Appellate Division affirmed. If you are considering a divorce, it is important to understand what is involved and the likely outcome in your matter. You should always consult with an experienced family law attorney when considering divorce to ensure you know your options and your rights are protected. For more information about alimony, child support, custody, visitation, post-judgment modification or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Burden of Proof for Alimony Modification

Lepis v. Lepis was decided by the NJ Supreme Court in 1980 and set the standard those seeking alimony modification must meet prior to the court ordering discovery, financial disclosure and a plenary hearing. According to Lepis, the moving party must make a prima facie case of changed circumstances which have "substantially impaired the ability of the movant to support themselves." If the movant meets the burden of proving changed circumstances, the Judge then must consider the factors set forth in New Jersey Statute 2A:34-23 which include the financial circumstances, education levels, child rearing obligations, physical and mental health and vocational opportunities of both parties as well as any other factors the court deems fitting. Also, the court considers the marital standard of living and whether the parties can maintain reasonably similar circumstances. In Fintland v. Fintland, a recent case, the plaintiff appealed from the order of a Bergen County Superior Court Judge granting the defendant's motion for a reduction in alimony. The NJ Appellate Division found that the Superior Court Judge ignored Lepis and N.J.S.A. 2A:34-23 in making her findings and remanded the matter for appropriate consideration. If you are filing of facing a motion to modify alimony or child support, you should consult an experienced family law attorney immediately in order to protect your rights. There are many ways in which such motions may be proven or disputed and it is critical you understand the burdens you face. For more information about divorce, civil union dissolution, custody, visitation or other family law matters visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.