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Arrested (and released) for Non-Payment of Support

By Tadd Yearing

Recently, New Jersey’s Supreme Court ordered the release of a Hunterdon County man who had been jailed for more than eight weeks for falling behind in his alimony and child support payments and for failing to pay arrears. In a 5-2 vote, the high court granted the petitioner’s application for a stay pending the disposition of his appeal to the Appellate Division. While family court judges are generally loathe to incarcerate the supporting spouse for non-payment, as this can in fact cause more financial harm in the form of lost income or even loss of employment itself, the Hunterdon man was ordered to be jailed after he had fallen approximately $60,000 behind in his alimony payments.

There are many reasons a parent or former spouse may fall behind on child or spousal support payments. They may have lost a job or otherwise had a substantial change in income, which has been a common occurrence in the wake of the economic downturn over the last five or so years,  or they may be experiencing medical problems that keep them from working. In some cases, people blatantly choose not to live up to their obligations.

No matter the reason, it is important to recognize that falling behind on support payments is a violation of a court order. Support enforcement actions brought by the other party can lead to serious consequences, including wage garnishment, loss of professional and driver’s licenses, and, as the man in the case above found out, jail time.

In the above case, the incarcerated party contended that the current support obligations were beyond his means. In the context of child support, when either party experiences a substantial change in financial circumstances following a divorce, they each have the right to petition the court to seek modification of support payments. Where a settlement agreement so permits, such changes may also support a request for modification of alimony as well. Generally, the court will hold an “ability to pay hearing” to determine whether in fact support needs to be adjusted. At these hearings, the petitioning spouse can present proofs about their current reduced income, available assets and overall inability to afford support at current levels and the opposing party has the opportunity to challenge those proofs.

While unemployment is generally viewed as a temporary status, and thus has not customarily been deemed a significant changed circumstance supporting modification, for payor spouses who have lost their jobs – or who have endured a significant drop in income – it is critical that they take affirmative steps legally and not simply ignore their obligations. As the man in Hunterdon County found out, you might find yourself spending significant time in jail.

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Being Proactive with Retirement Planning: New Jersey Alimony Statute Permits Court to Terminate or Modify Alimony Obligation based on Obligor’s Prospective Retirement Date

By Robert B. Kornitzer, Esq. and Zach Levy, Esq.

While one should always seek to responsibly manage their finances throughout their entire life, at no point is prudent financial planning more critical than at the time of retirement. As a result of leaving the workforce one often loses a significant source of their income, and therefore one must think carefully about all their expenses and debts (e.g. mortgage, food, alimony, etc.) that they will continue to have after retirement, and ultimately decide whether they can actually afford to retire at a certain age. Therefore, the age of retirement is a natural time for an alimony obligor to seek termination or modification of their alimony obligation to their former spouse based on their changed financial circumstances, and in consideration of the factors set forth in New Jersey’s Alimony Statute, N.J.S.A. 2A:34-23(j).

Of course, an obligor is free to wait until the time they actually retire to petition the court to have their alimony terminated or modified, but this approach comes with one notable drawback. Indeed, if the obligor first retires and then seeks termination of their alimony obligation, they are taking the chance that the court will disagree with their position and decline to modify the alimony obligation. An outcome like this can place a heavy financial burden on the alimony obligor, as they must continue to make alimony payments notwithstanding their reduced income. Thankfully, this State’s Legislature provided an alternative approach to have one’s alimony obligation modified in consideration of their retirement. To avoid situations like the above, the New Jersey Alimony Statute actually permits alimony obligors to petition the court in advance of retirement to have their alimony obligation terminated or modified. The court can then make ruling as to what the alimony obligation will be at the future date of retirement based on the reasonably anticipated post-retirement circumstances of the parties. Accordingly, the alimony obligor will be able to know in advance of retirement whether they must continue with their alimony obligation, or whether the alimony obligation will be reduced or terminated. This can be extremely important information when it comes to retirement planning; the obligor will be able to whether they must be financially capable of affording continued alimony payments before actually leaving the workforce. As explained by the Honorable L.R. Jones, J.S.C., in the recent case of Mueller v. Mueller:[1]

The amendment permitting a court to presently consider an obligor’s prospective retirement, as opposed to an actual retirement, is logically designed to avoid placing an obligor in a “Catch 22” financial situation. Specifically, if an obligor is considering the possibility of retirement in the near future, he or she logically benefits from knowing in advance, before making the decision to actually leave the workforce, whether the existing alimony obligation will or will not change following retirement. Otherwise, if the obligor first retires and unilaterally terminates his or her primary significant stream of income before knowing whether the alimony obligation will end or change (and if so to what degree, i.e., termination vs. modification), then the obligor may find him/herself in a precarious financial position following upon such voluntary departure from employment if the court, for whatever specific reason, does not terminate or significantly reduce the existing alimony obligation.

For this reason, when an obligor reasonably approaches retirement age, and files a motion setting forth a specific proposed plan for a prospective and projected retirement in the near future, a court may now address and consider the merits of same under the amended alimony statute, and render a prospective ruling regarding a proposed termination or modification of alimony, to take effect upon the obligor’s actual retirement in accordance with the proposed plan.

At the end of the day, alimony obligors should consider whether making use of the Alimony Statute’s prospective retirement provision is right for them. Having advanced knowledge of whether one will need to be able to afford alimony payments after leaving the workforce can be critical knowledge when it comes to planning for retirement.

[1] Opinion available at http://www.judiciary.state.nj.us/decisions/Mueller%20opinion%20X.pdf

Can I Pay Less Child Support While I Go Back To School To Earn A Degree?

By Robert B. Kornitzer, Esq. and  Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Child support obligations are not set in stone, and courts have broad discretion to set aside or modify such obligations for several reasons, including simply because the circumstances of one or both of the parents have changed since the support order was originally entered. A parent losing their job or suffering a significant reduction to their income are likely good reasons for the court to modify a support order, but it is also well established that relief from support obligations should not be granted if a party is voluntarily unemployed. The same rule is also applicable in instances when a parent is voluntarily under-employed; for example, a highly skilled computer programmer who could earn $100,000 per year in that field choosing to work as a substitute teacher instead and earn just $30,000 per year.  Most would probably agree that a parent should not be permitted to escape their child support obligation because they made the decision not to work or not work up to anywhere near their full potential. Notwithstanding this general rule, consider the following: A husband and wife have a child; upon divorce, the parents enter a consent order requiring the husband to pay the wife an amount each month for child support; a few years later, the husband, who is still in only in his late-twenties and working two jobs, realizes that neither of his jobs have any opportunity for growth and he has no long-term future with either company; the husband concludes that if he is to establish a well-paying career and be a good provider for his child he must earn his Bachelor’s Degree; therefore, in order to better himself and provide a better future for his child, the husband decides to leave both jobs in order to attend college full time to earn a degree; the husband believes attending school full time, rather than keeping one or both jobs and attending school part time, is the better choice for himself and the child because he will be able to earn his degree much faster, and therefore be able to generate more income for the child’s benefit in a shorter period of time; accordingly, the husband asks the court to have his child support obligation substantially reduced while he is attending school and not working.

A request to have a child support obligation modified based on the above facts seems a lot more legitimate and genuine than when the same request is made by a parent who doesn’t want to be employed simply because they are lazy, unmotivated, or just don’t care. Perhaps many would agree that reducing child support on a short term basis in order to permit a parent to earn a college degree, which will likely result in that parent earning a much higher income, is actually in the child’s best interest, albeit for the long term.  After all, in this day and age it is very difficult to establish a well-paying career for one’s self without (at least) a Bachelor’s Degree, and having a higher income will be very helpful for paying expenses such as the child’s college education and other necessaries.   Recently, however, a court rejected, and the Appellate Division affirmed, an application to temporarily reduce child support based on very similar circumstances to the above hypothetical in the case of Zavaglia v. Bray. The trial court noted that the husband’s loss of employment while he would be attending college was not only voluntary, but also temporary, and therefore no modification of the support order was justified.

Overall, while one’s desire to better themselves and increase their earning potential for the benefit of their child is certainly commendable, based on Zavaglia, it does not appear that courts will permit parents to forsake their child support obligations, even on a short term basis, for this reason alone.

Courts Cracking Down on Bad Faith Negotiation of Non-Relocation Clause

By: Robert B. Kornitzer, Esq. and Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Physical custody of the children is often one of the most contentious issues that must be resolved during a divorce. The desire to be named the primary custodial parent is sometimes so great, unscrupulous litigants may negotiate the Marital Settlement Agreement (“MSA”) in bad faith and make false representations to the other parent in order to convince them to concede primary custody of the children. Along these same lines, a parent may only be willing to concede primary custody of the children under the condition that the other parent not relocate the children to a distant geographical location that makes regular visitation impracticable. Accordingly, a non-relocation clause will be included in the MSA.

Even if a non-relocation clause is included in the MSA, our courts realize that “life happens,” and the primary custodial parent may very well need to relocate with the children despite the agreement (i.e. they need to move to a different state for a new job). When an application to relocate by the primary custodian is made to the court, the court will generally permit the move to occur upon a showing by the primary custodial parent that: (1) there is a good faith reason for the move, and (2) the move will not be inimical to the child’s interest. Baures v. Lewis, 167 N.J. 116-17 (2001). However, if there is no good faith reason for the move, or if the non-relocation clause was not negotiated in good faith, the application must survive greater scrutiny, and the court must determine whether permitting the move would actually be in the child’s best interest (as opposed to simply not being inimical to the child’s interest). The former is a much easier showing for the primary custodial parent to make, and therefore there is a tremendous incentive to do whatever is necessary to be awarded primary custody of the children, and then just ask the court to permit the move later on, even if the parent secretly knew the relocation would be necessary and likely to occur all along during the negotiation of the MSA. This is exactly what happened in the recent unpublished case of Bisbing v. Bisbing.

In Bisbing, the Father agreed to let the Mother have primary custody of the children under the conditions that he have a great deal of regular visitation time with the children, and also that a non-relocation clause be included in the MSA – the Mother agreed to these conditions, and was granted primary custody of the children pursuant to the parties’ agreement. Just nine months after the Final Judgment of Divorce was issued, the Mother filed, and the court granted, a motion seeking to relocate the children to a far-away state so she could live with a man who would eventually become her new husband. Notwithstanding some very suspicious circumstances which would cause many to think the Mother planned on relocating all along, the trial court did not hold a plenary hearing[1] to determine whether the Mother negotiated the MSA in bad faith, and simply opted to apply the lenient analysis set forth in Baures.

On appeal, the Appellate Division reversed and remanded the matter for a plenary hearing, so a determination could be made as to whether the Mother had negotiated the MSA in bad faith, and set forth the analysis courts should use when an accusation of bad faith MSA negotiation is made. The Bisbing Court explained that the lower court must first determine whether the primary custodial parent negotiated the non-relocation clause of the MSA in bad faith. If so, a “best interests of the child” analysis must be conducted. Second, if bad faith is not demonstrated, the trial court must then consider whether the parent proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis. If the MSA was negotiated in good faith, yet the parent fails to satisfy her burden of proving a substantial unanticipated change in circumstances, the court must apply the same “best interests” analysis as required in the first step. Only if the noncustodial parent is unable to demonstrate that the custodial parent negotiated the MSA in bad faith, and the custodial parent is able to prove a substantial unanticipated change in circumstances occurred, should the custodial parent be accorded the benefit of the Baures analysis.

The Appellate Division’s holding is significant, as it provides valuable instruction on how trial courts should address colorable accusations of bad faith negotiations of MSAs, particularly non-relocation clauses. It is also demonstrative that this issue is now something our courts are on the lookout for, and will not tolerate. While it may be tempting to do so, divorce litigants should not attempt to game the system and trick their ex-spouse into giving up primary custody of their children based on bogus promises not to move out of the state.

[1] A plenary hearing is necessary when one party makes a motion and the court needs additional facts and information beyond what the parties have provided in their pleadings to make an informed decision.

Can I Pay Child Support Directly to My Child?

By Zachary Levy, Esq.
zlevy@pashmanstein.com

When children are involved in a divorce, determining an appropriate child support obligation for the non-custodial parent is a key function of Family Court judges. In cases where child support is necessary, the judge will typically order the non-custodial parent to pay a specific amount each month (or other predetermined amount of time) to the custodial parent to ensure that there are adequate funds available to meet the child’s needs. A recent opinion authored by the Honorable L.R. Jones, J.S.C., however, addressed an interesting alternative approach: if the child is over the age of eighteen, can the non-custodial parent can make child support payments directly to the child rather than to the custodial parent.[1]  It is called child support after all.

In the case of Kayahan v. Kayahan, the defendant/father (the non-custodial parent) requested that the court modify his child support obligation, and permit him to make payments directly to the parties’ daughter, who was over the age of eighteen and attending college at the time, instead of to the plaintiff/mother (the custodial parent). Although the father’s request to make payments directly to the child was ultimately denied in this case, Judge Jones noted that such a payment methodology could be permissible in certain circumstances, and identified three main factors that should be considered when determining if direct parent-to-child support payments should be permitted. The first factor is the child’s maturity and history of responsibility. Otherwise put, can the child be trusted to use the support money for its specific intended purpose? If the court feels that the child does not possess the requisite fiscal responsibility or would be too susceptible to the temptations typically associated with being eighteen years old and being away at college, direct payment to the child should not be permitted.

The second factor is the non-custodial parent’s history of paying timely child support. This factor is important because if the non-custodial parent fails make a support payment to the child, the child is far more likely to succumb to guilt or other pressures not to seek recourse for non-payment than the custodial parent would be. Finally, and perhaps most importantly, the court should consider whether there would be sufficient remaining child support funds for the custodial parent to continue reasonably maintaining the child’s primary home without significant economic hardship. In Kayahan, Judge Jones recognized that if the court were to permit a portion of the child support to be paid directly to the child, the remaining portion paid to the mother would not be enough for her to maintain the home and basic budget for the child’s benefit. This, of course, would not be in the best interest of the child, because even though the child was a college student, she was still dependent on her mother for support at this stage in her life.

At the end of the day, Family Court judges have broad discretion to fashion unique remedies based on the specific circumstances of the controversy before them. Although not the norm, direct parent-to-child support payments might be a worthwhile alternative option if appropriate based on the facts and circumstances of the case.

[1] Judge Jones’s opinion can be found here: http://www.judiciary.state.nj.us/decisions/kayahan%20%20opinion%20P.pdf

Recent Case Provides for Increased Child Support to Pay Motor Vehicle Insurance Premiums for Newly Licensed Teen Drivers

By Zachary Levy, Esq.
zlevy@pashmanstein.com

Every teenager dreams of the day they are able to get their driver’s license. On the other hand, parents may loath this day. While the cost of purchasing a new vehicle for a new driver can easily be avoided by simply sharing a car with their parents, the same is not true for motor vehicle insurance costs. In New Jersey, the State requires that all drivers carry a minimum level of insurance, and it is a crime to operate a motor vehicle without such insurance coverage. Insurance companies, wary of the new driver’s lack of experience behind the wheel, can charge tremendous premiums, sometimes approaching or exceeding $1,000 per year. Typically, parents subsidize or pay their children’s insurance costs, but the situation becomes a bit more unclear in instances when the child’s parents are divorced and a child support order is in play. More specifically, to what extent must the non-custodial parent, who is already paying guideline-level child support, contribute additional support to cover the cost of insurance for their child who is a newly licensed driver?

In Fichter v. Fichter,[1] the court was faced with a not unusual, but previously unaddressed situation involving this very issue. In that case, the plaintiff and defendant had two children at the time of divorce – one age seventeen and another age thirteen. The seventeen year-old already had his license, and support contributions were already being used to pay for his car insurance premiums. It seemed, however, that neither parent had contemplated that the thirteen year-old would also be getting her license in a few years, and there was no provision in the divorce settlement for this future expense. When the thirteen year-old turned seventeen and obtained her driver’s license; the custodial parent petitioned the court to increase the amount of support the non-custodial parent, who was already paying guide-line level support, needed to contribute in order to cover this new cost.

Interestingly, the State’s Child Support Guidelines (the “Guidelines”) expressly include “all costs involved with owning or leasing an automobile,” including costs related to “insurance,” among the expenses to be considered when crafting a support order. Based on this language, however, it is unclear if future motor vehicle insurance costs for a newly licensed driver would have been included in the award amount, or whether this is something that would warrant a support adjustment once the child obtains their license. Although a literal reading of the Guidelines would suggest that all motor vehicle insurance costs (current and future) would be accounted for in a Guideline support order, the Fichter Court rejected this interpretation, noting it would lead to the nonsensical result of the custodial parent receiving the exact same amount of support both before and after their teenage child obtains a driver’s license, irrespective of the sudden need to insure the driver and the related costs to do so. The court also noted that requiring an increase in support to pay for car insurance is in the best interest of the child, which is always the paramount consideration in child support determinations.

Alternatively, the court also explained that even if one were to interpret the Guidelines as already including future car insurance costs for a newly licensed driver in a support order, the Guidelines themselves also permit the court to deviate from the Guidelines in order to reach an equitable result based on the specific facts and circumstances of the case. Motor vehicle insurance costs are atypical from most other items on a family’s budget in that the law expressly requires it be had. Furthermore, the court touched upon important public safety concerns, noting that car insurance offers protection to members of the public at large who may be in the wrong place at the wrong time and fall victim to the new driver’s lack of experience behind the wheel.

Ultimately, the court required that the non-custodial parent’s support contribution be increased to cover fifty percent of motor vehicle insurance costs for the youngest child. Although foreseeable future expenses should always be considered when crafting a support order, Fichter provides important guidance on an issue that many divorced parents may encounter years later when their young children grow up and obtain their driver’s licenses.

[1] Opinion available at http://www.judiciary.state.nj.us/trial_court_opinions/Fichter-v-Fichter.pdf

Is Nesting Right For Your Family?

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

For anyone with children thinking about divorce, one of the most important issues to address is how time will be divided with their children, both during the divorce process and once the divorce is finalized. The most common way for parents to address parenting time is for one parent move out of the marital home and the children to go back and forth between their parent’s homes.  While this may be the most common time-sharing method; for some, due to their financial constraints, it may not be financially feasible for one parent to secure a separate residence during the divorce. In other circumstances, neither parent may be willing to move out of the marital home, for non-financial reasons. For example, both parents may want to maintain the home after the divorce; therefore, neither parent may be willing to move out.  Whatever the reason, parents may be forced to continue to live together and share parental responsibilities during the divorce proceeding.  Doing so, however, may result in heightened conflict in the home, which ultimately impacts the children.

There is, however, a middle ground between one parent moving out and transporting the children back and forth, and parents continuing to live together.  This option is known as “nesting” or a “bird’s nest co-parenting arrangement”. This arrangement is uniquely child-centered, as it involves the children remaining in the marital home full-time and the parents rotating in and out.  This arrangement is usually temporary, but it allows the children more time to adapt to having one parent care for them at a time, as well as the other changes in the family that stem from the divorce.  For those parents interested in minimizing the disruption to the children’s lives caused by divorce, nesting may be an option to consider.

In order to successfully implement a nesting arrangement, parents may live in separate areas within the home or, more commonly, in another location when they are not caring for the children.  Some parents share an off-site location, such as a studio apartment. Others stay with friends or family in order to avoid the expense of obtaining a second residence.

Nesting may seem extreme, however, this arrangement allows both parents to experience first-hand what it will be like for their children when they have to go back and forth between their parents’ homes.  This perspective may make it easier to relate with the children once the divorce is finalized and the family transitions to a more traditional parenting time arrangement.

Clearly, a nesting arrangement will not work for every family. In order for nesting to be successful, parents must make a significant sacrifice and truly be willing to place their children’s needs above their own. Anyone considering a nesting arrangement should consider the following tips:

  1. Determine if Nesting is right for your children: The children’s ages and maturity levels are of utmost importance. Parents should consider seeking the advice of a therapist to assist in determine whether nesting will benefit the children.
  2. Parents must be able to communicate with each other regularly about the children. Parents do not have to like each other or even get along to accomplish a nesting arrangement, they just need to act rationally (rather than emotionally) and put the children’s needs first.
  3. Develop a written agreement regarding time-sharing, household duties and payment of household expense. Parents must develop and agree on the parameters of the arrangement.  This agreement should include not only a schedule for when each parent will be at the family home, but also who will pay the bills, do the laundry, purchase groceries, transport the children to activities, etc.
  4. Secure an off-site location near the family home where you and/or your spouse will stay when you are not in the family home with the children. In order for nesting to work, it is best that the off-site location is near the family home. Parents should consider their finances and whether they can afford to rent a separate residence. Parents must also decide whether they will share an offsite location or if each will have his/her own space. Those who have family nearby have the option to use the home of family members as an off-site location. For others, the off-site location may be another part of the family home.

Divorce is very difficult even for mature and emotionally-healthy adults; therefore it goes without saying that it can be extremely difficult for children who do not have voice in the decision to divorce and do not have the life skills and maturity level to handle the significant changes that divorce inevitably brings.  For this reason, in certain cases, a nesting co-parenting arrangement should be considered when determining an appropriate time-sharing arrangement for the children. While nesting does not work for everyone, under the right circumstances, nesting may be an option that addresses the children’s needs, the parents’ financial constraints and/or other interests.

Cohabitation Facts To Consider – Part 2

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

Prior to the enactment of the alimony statute,  N.J.S.A. 2A:34-23(n), New Jersey Courts relied on the standards set by previous case precedent to determine whether a party was cohabiting and its impact on alimony.  Essentially, the new statute consolidates many of the standards developed in prior case law to simplify the inquiry as to whether a particular romantic relationship amounts to cohabitation.

The New Jersey Legislature defines cohabitation as a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union.” To further assist in determining whether a relationship fits the above definition, the new legislation identifies eight factors for Courts to consider in determining whether cohabitation is occurring:

  1. Intermingled finances, such as joint bank accounts and other joint holdings or liabilities;
  2. Shared or joint responsibility for living expenses;
  3. Recognition of the relationship in the couple’s family and social circle;
  4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
  5. Shared household chores;
  6. Whether the alimony recipient has received an enforceable promise of support from another individual within the meaning of subsection h. of R.S.25:1-5;
  7. The relationship’s length; and
  8. Any additional relevant evidence.

If you are paying alimony, after reviewing these factors, you may come away thinking, “How in the world am I supposed to prove most of these factors?  I have no idea if my ex-spouse shares a bank account or household chores with his or her significant other.”  Don’t fret, because if you believe that your ex-spouse is cohabiting, you only have to provide the Court with evidence that, at first appearance, suggests cohabitation.  This can come in the form of showing that your former spouse is spending most nights at the home of his or her significant other. In the legal field, this is called making a “prima facie” case. Once you have successfully done so, you will be given the opportunity to obtain discovery from your ex-spouse.  This discovery includes obtaining bank records, proof of living expenses, taking depositions of your ex-spouse, and other witnesses to determine the true extent of the relationship. It is in the discovery stage that you will be able to obtain the information to prove the foregoing factors.

If you are in a serious relationship and receive alimony, you should look closely at the eight factors and determine if any of them apply to you.  If you find that any of the above factors are applicable, your romantic relationship may have an impact on your entitlement to alimony.

Whether you are receiving or paying alimony, the issue of cohabitation can be tricky, as it is fact-sensitive and often not clear cut. You should contact an attorney to assist you in determining whether or not your current living arrangement or your spouse’s relationship may have an impact on your entitlement to alimony or your responsibility to pay alimony.

 

Cohabitation Facts To Consider – Part 1

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

It is becoming more and more common for couples to cohabitate; that is, live together, in a relationship without the bond of marriage.  Many couples find this arrangement to be a great way to “test the waters” before jumping into marriage.

If you are divorced, receiving alimony from a former spouse and are thinking about “testing those waters,” you should read this article carefully, because your romantic life may have a significant impact on your financial future.  If you are paying alimony, you should be aware of the changes to the law, as they may impact your obligation to continue to pay alimony.

Most divorcees are aware that if they receive or pay alimony, the obligation will automatically terminate if the recipient remarries (in most cases).  Many divorcees also know that if the recipient of alimony lives with their significant other, it may impact alimony.  The new alimony statute, N.J.S.A. 2A:34-23(n) enacted on September 10, 2014 provides clarification to help Courts and practitioners to determine if a party is cohabiting.

A noteworthy addition to the law regarding cohabitation is the Legislature‘s overt recognition that some couples may be cohabitating without living together full-time. The new statute specifically states that a Judge cannot find the absence of cohabitation based on “grounds that the couple does not live together on a full-time basis.” This language certainly changes the game, as many people may have believed that if a couple was maintaining two separate households, that factor would carry the day in defining whether or not cohabitation was occurring. The moral of the story is that a person may be deemed to be cohabiting even if he/she maintains a separate residence from their significant other.

Holiday Parenting Time: Tips to Survive the Holidays During a Divorce

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

The holiday season brings a mixed bag of emotions.  Some people find it to be a time when they can slow down the normally hectic pace of everyday life, take a vacation, spend time with family, make great memories and enjoy traditions. Others find the holidays to be a time when stress is at its peak, as the holiday season often brings unwelcome guests, an exhausting list of demands; including shopping, parties, baking, cleaning and entertaining, to name just a few. No matter which camp you may belong to, going through a divorce will probably put a damper on the holiday season.

In New Jersey, when couples with children decide to divorce, one of the first issues which must be addressed is custody of their children, at least on a temporary basis until the divorce is finalized. After the parents agree or the Court makes a determination on custody of the child(ren), parenting time and visitation will also need to be determined. In some cases, parents reach a suitable agreement without having to battle it out in court. However, in other instances, a Judge must determine parenting time.

Among the many obstacles parents must overcome when going through a divorce, one of the more difficult challenges is often figuring out how to share time with their children during the holidays. This is particularly difficult if parents have spent years creating holiday traditions and routines, which have to be abandoned or modified when parents no longer live in the same household.   This challenge often leads people to overlook or ignore the issue until the last minute.  However, doing so can lead to even more stress and costly litigation.

As attorneys who practice family law know, the holiday season can be one of the busiest times in the profession. This surge in litigation is often due to last-minute disputes regarding holiday parenting time with children.  In 2013, I had to participate in a telephonic hearing on Christmas Eve to address Christmas Day parenting time for one of my clients.  This type of nail biting suspense is great at the movies, but created an extremely difficult and unpleasant experience for my client, who had to wait until Christmas Eve to find out if she would be able to spend time with her children on Christmas Day.

Unfortunately, these situations occur every year during the holidays, and make it very difficult for parents to plan activities and enjoy the holiday season with their children.   However, proper planning and communication can alleviate these issues and allow people to enjoy the holidays (as much as possible, given the circumstances). Here are my four tips on surviving, and even possibly enjoying, the holidays with your children during the divorce process:

1- Think Ahead-Discuss & Create A Holiday Time-Sharing Schedule With Your Spouse

People often wait until the last minute to make holiday plans.  We are all guilty of procrastination.  But, if you are going through a divorce, you no longer have this luxury. When parents reside in two different households, they must share time with the children and cannot simply make unilateral plans, as they may have done when the family was intact.

Many divorcing couples make the mistake of addressing their general time sharing arrangement when they commence the divorce process, but ignore the holidays, especially when holidays are relatively remote. I recommend that parents address holiday parenting time early in the divorce process, in conjunction with addressing their general parenting plan.  Failing to do so may result in one party enjoying the bulk of the holidays if there is only one general schedule in place.  This scenario leads to last-minute litigation.

If, after discussing holiday parenting time, the parents are unable to agree on a schedule, at least they will still have plenty of time to address the issue.  Parties can seek the assistance of counsel to negotiate a settlement or the assistance of a mediator to resolve these disputes.  If all else fails, they can file an application with the Court and request that a Judge make a final decision.

2- The Child(ren)’s Needs Come First

It is understandable that parents want to spend every holiday with their children; however, the holidays should not become a battleground.  When deciding how to share holiday parenting time, the children’s needs should be the first consideration.  If a parent has extended family coming to visit or a special event has been planned for the holiday, these scenarios should be taken into consideration when determining the holiday parenting time schedule. Placing the children’s needs above the parents’ desires may simplify the task of preparing a holiday time-sharing schedule.

3- Be Flexible and Don’t Focus on the Day

Which parent celebrates Christmas Day and Thanksgiving with the children seems to cause a lot of problems.  It is often recommended by family law practitioners that parties alternate holidays each year; for example, one parent will have Christmas in odd years and the other in even years.  However, the issue of who celebrates a particular holiday with the children during the first year is always a problem.

It may be helpful to view holidays as a season, rather than a particular day.  If there is a dispute over who enjoys Christmas with the children, think about celebrating Christmas (or any holiday) on a different day with your children. Family and traditions make Christmas special, not December 25th.  Once you are divorced, it is likely you will not spend every holiday with your child(ren) every year anyway; therefore, it is beneficial for you to plan ahead and develop alternate ways to celebrate the traditional holidays on different days.  Thanksgiving, Hanukkah and Christmas holidays often coincide with school recess, so there is ample opportunity to celebrate each holiday on a different day with your children.

4- Memorialize a Holiday Time-Sharing Schedule

Once a holiday time-sharing schedule has been agreed upon, it is important to memorialize it in a written agreement or consent order.  If the divorce is mutual and unhostile, it may seem tempting to ignore this tip, but I highly recommend that you do not do so.  Placing the schedule in writing will avoid misunderstandings and will prevent one parent from reneging on the previously agreed-upon schedule out of spite or animus later in the litigation, not to mention saving both parties counsel fees and costs incurred to re-address parenting time in the absence of a written agreement.

Holidays can be a stressful time for “intact” families.  For families going through a divorce or custody dispute, holiday stress can become intolerable.  Consulting a family law attorney to discuss the specifics of a situation can avoid adding additional stress to the holidays. We hope to hear from you so that we may help alleviate your anxiety during the divorce process and assist you in ensuring that you and your children enjoy the holidays.

If you have any further questions on this topic, please email Valerie at vmccarthy@pashmanstein.com.

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Disability Status and Its Effect on Support: Does It Ever End?

As published in the New Jersey Law Journal, October 26th, 2015

This article explores the impact that a determination of disability may have on support obligations, discusses the Social Security Administration’s (SSA) requirement for disability status, surveys the case law, and makes recommendations for practitioners handling such matters.

When an individual is deemed disabled by the SSA, that status creates a rebuttable presumption of a limited ability to work. This reduces the ability of the nondisabled spouse to argue that the disabled spouse should be imputed income commensurate with that spouse’s earnings capability, were he or she not disabled.

For the rest of the article, click here.