Will Your Spouse Pay Your Divorce Costs?

Friedrich v. Friedrich was a post-judgment divorce action, wherein Defendant wife’s attorney sought counsel fees against the Plaintiff for outstanding legal fees over and above the $20,000 in counsel fees the Plaintiff had been ordered to pay pendente lite. In spite of substantial disparity in the parties’ incomes, the court held that pursuant to all factors to be considered under N.J.C.R. 5:3-5(c), an additional counsel fee award was not warranted. Pursuant to Rule 5:3-5(c), the court has discretion to award counsel fees to either party in a family law action, both pendente lite and upon Final Judgment if the court finds the award to be in the interest of justice. Specifically, Rule 5:3-5(c) includes fees for “any claim for divorce, dissolution of civil union, termination of domestic partnership, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of agreements between spouses, domestic partners, or civil union partners and claims relating to family type matters.” The criteria for an award of attorney’s fees include the legal services performed, or likely to be performed, and the financial circumstances of each party. In setting the amount of any award, Rule 5:3-5(c) directs the trial judge to consider: “(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.” In addition, the court has discretion to direct one or both parties to liquidate assets in order to pay counsel fees. In affirming the denial of counsel fees to the Defendant, the N.J. Appellate Division held that the trial judge gave proper review to the factors set forth and found that the Plaintiff was not able to contribute to the Defendant’s attorney’s fees. A major consideration in any divorce is the impact on one’s financial future. Although the financial issues of divorce are not to be taken lightly, if you are miserable and feel that the only thing standing between you and your happiness is the ability to finance your divorce, you should speak with an experienced divorce attorney about the possibility of receiving some of your counsel fees from your spouse. For more information about divorce, child custody, parenting time, post-judgment issues and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Equitable Distribution Under MOU Affected By Bad Faith

In Justich v. Justich, a post-judgment equitable distribution challenge, the defendant, Robert Justich, sought the full 50% he had bargained for under the negotiated memorandum of understanding (MOU) incorporated into his divorce judgment. Under the agreement, Robert and Diana Justich were to share the carrying costs of the marital residence until it could be sold and then each would receive 50% of the sale proceeds. However, the defendant failed to pay the carrying costs of the marital home leading up to the sale. The defendant claimed to have paid the costs, but the court questioned the assertions. As a result of an ongoing pattern of bad faith on the part of the defendant, the NJ Superior Court judge determined that the defendant was entitled to only 43% of the proceeds from the sale of the marital residence. The NJ Appellate Division affirmed the decision of the court below. If you are considering or seeking a divorce, it is critical that you have a full understanding of the impact it will have on your living situation, parenting time, finances and even your future lifestyle before you make any decisions. If you are contemplating divorce or are divorced and seeking post-judgment relief, you should consult with an experienced family law attorney immediately. For more information about equitable distribution, divorce, alimony, memorandum of understanding or other family law issues visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post-Judgment Divorce Decision To Call Step-Parent "Mom" Or "Dad" Belongs To Child

In B.S. v. T.S., Superior Court Judge Lawrence Jones ruled that, in a post-judgment divorce matter, the decision whether to call a step-parent "mom" or "dad" rests solely with the child. B.S. and T.S. were divorced with a judgment calling for joint legal custody of their son, Daniel, and both parents actively participated in their child's life. B.S. ultimately began sharing a residence with his fiancee', Lori and Daniel developed a emotional bond such that Daniel opted, without encouragement, to begin calling Lori "mom". Daniel and T.S. maintained a strong bond as well which was not impacted by Daniel's interactions with Lori. In hearing the motion by T.S. to prevent Daniel from calling Lori "mom", Judge Jones noted that children of divorce often have few rights but one of those rights is certainly the choice of what to call a step-parent. In his ruling, Judge Jones did include that, in cases where the biological parent remains an active participant in the child's life, the biological parent shall always be responsible for decisions regarding the child's upbringing and that the step-parent's marriage to a child's biological parent does not, without more, confer parental rights on the step-parent. For more information regarding post-judgment modification, parental rights, custody, child support, divorce 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.

Post Divorce Challenge To Alimony And Child Support Findings

In Wicker v. Wicker, James Wicker challenged the method in which his alimony and child support obligation was calculated. Specifically, Wicker challenges the court's determination of his monthly expenses and income in arriving at his available funds from which child support for the parties' 3 daughters may be paid. Wicker contended to the NJ Appellate Division that the court did not adequately consider his expenses in commuting from Virginia to New Jersey every other weekend in order to exercise his parenting time and failed to properly include his rental expenses and was inequitable in creating the need for him to remain employed in Washington, D.C. which necessitated the retention of two separate residences. Tara and James Wicker entered into a voluntary and negotiate, but not complete, property settlement agreement (PSA) leaving some remaining issues for the court to decide. From 1996, the date of the parties' marriage, until 2010, the defendant earned under $100,000. In 2010, the defendant secured an income of approximately $190,000 per year leading up to the parties' divorce in 2013. Two of the parties' 3 daughters had significant medical issues and Tara Wicker was the primary caretaker. An employability expert determined that Tara Wicker's long-term absence from the job market and need to care for the children limited her earning capacity to $35,000 per year. Both parties challenged the figures which should be used in determining income. There was also substantial question as to how the defendant arrived at his monthly expenses, including his claim of $9,000 monthly in pendente lite support. The NJ Appellate Division began the analysis with Cesare v. Cesare, 154 N.J. 394 (1998), which dictates that decisions of the court below will remain undisturbed if supported by the weight of credible evidence and law, and Gnall v. Gnall, 222 N.J. 414 (2015), dictating that decisions of the court below will be disturbed if the court below abused its discretion or the findings are not consistent with the credible evidence and legal principles. The Appellate Division reasoned that N.J.S.A. 2A:34-23(b) empowers judges with the authority to fashion individual solutions best suited to meet the needs of both parties. Randazzo v. Randazzo, 184 N.J. 101 (2005). In affirming the decision of the court below, the court found that the trial judge gave full review to the facts, including the defendant's income and expenses, and the findings were supported by the weight of credible evidence under the guiding principles of law. A divorce will likely have a considerable impact on your life, including determinations about support, custody and parenting that affect where and how you and your family will live. If you are considering divorce or modification of a prior judgment, you should first consult with an experienced family law attorney to determine the likely outcome. For more information about divorce, alimony, child support, relocation with a child and other family law matters visit DarlingFirm.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Divorce Follows Rape Conviction

In Watley v. Watley, Louis Watley appealed the court's decision in a divorce case centered largely on witness credibility. In 1998, Louis Watley, then age 55, married a 19 year-old woman he met in the Philippines. In question was whether the young woman was advised before the marriage that Louis Watley was under indictment for rape and facing jail. After the parties were married for 2 years and had a child together, the defendant was sentenced to 10 years in prison for rape. Upon his release the plaintiff, then 35 years old, file for divorce. After evaluating the credibility of both parties, the trial judge found that the plaintiff had not been apprised of Watley's indictment nor had the plaintiff signed any prenuptial agreement, as the defendant contested, which would bar her from acquisition of assets under the divorce judgment. The NJ Appellate Division affirmed. If you entered into marriage under fraud or duress, as long as you can prove fraud or duress existed, the court will likely take equitable action to protect your rights in addition to granting the divorce you seek. For more information about divorce, annulment, alimony, equitable distribution or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Divorce Complaint Dismissed For Lack Of Jurisdiction

Although divorce can seem like a simple proceeding at first, not only can problems arise between the parties but also in bringing the case itself. In Appelbaum v. Huff, the court granted a motion to dismiss the divorce claim on the basis that the plaintiff was not a bona fide resident of New Jersey for the statutorily required one year immediately preceding the filing of the divorce complaint. In order to the courts of NJ to have what is called subject matter jurisdiction over an individual, said individual must have been a resident for the statutory one year period. Subject matter jurisdiction is not waivable and can be raised at any time during a matter. This is but one example of the pitfalls that can cause substantial delay or even dismissal of your case. There are a multitude of similar court rules which are hard to know without substantial experience in such matters. In the event you are considering divorce, it is always important to seek the advice of an experienced family law attorney before filing an action in court. For more information about divorce, child custody, child support, alimony 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.

Celebrate Wisely

The Darling Law Firm wishes you a Happy New Year! We would like to remind you to celebrate responsibly tonight. If you are driving, there will be others on the road who may have been celebrating less responsibly than you so please drive defensively. Also, remember that it only takes 2 drinks to put you over the legal limit in New Jersey and the police will be looking for those who may be driving under the influence tonight. Although you may stop drinking after the champagne toast at midnight, your blood alcohol level (BAC) only decreases by only .015% per hour while one standard drink, defined as one 12-ounce beer, one five-ounce glass of wine, and one 1.5-ounce shot of distilled spirits, will add .05% to your BAC each hour. This means that it will take much longer for your BAC to decrease than to increase. As it is difficult to tell when you have had too many, driving after consuming alcohol should be avoided. Please be safe so that you and your loved ones can enjoy a Happy New Year! DarlingFirm.com