Alimony Deduction: No Rush to a 2017 Final Judgment

While the House Tax Reform Bill provided for the elimination of the alimony deduction in divorces as of January 1, 2018, a last minute change in the final ”compromise” House-Senate Bill instead eliminates the deduction effective 2019.   That is, alimony will no longer be deductible to the payor, nor includable as income to the payee, in divorces entered in 2019 and thereafter.

The original bill and the 2018 deadline had litigants and matrimonial attorneys nationwide rushing to enter final Judgments of Divorce in the final weeks of 2017 to preserve the deduction in pending matters.  The modification from 2018 to 2019  now gives litigants and lawyers alike time to consider the tax change and more properly plan for the loss of the deduction.  The revised timeline is particularly important in cases where parties in pending matters have negotiated alimony obligations assuming the income would be includible to the payee and deductible to the payor.

The House and Senate have passed the revised bill and news sources report that President Trump may sign it into law as early as next week.

If you would like additional information on this topic, please contact Tracy Julian at tjullian@pashmanstein.com.

Disclaimer by Pashman Stein Walder Hayden, P.C.: This article is for informational purposes only and is not offered as legal advice regarding any particular matter. No reader should act on the basis of this publication without seeking appropriate professional advice.  Before making your choice of attorney, you should give this matter careful thought.  The selection of an attorney is an important decision.

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Court Recognizes “Economic Abuse” as Type of Domestic Violence

When one thinks of “domestic violence,” the first (and perhaps only) thought that typically comes to mind is physical abuse. Indeed, this State’s Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-19, lists out eighteen (18) specific offenses that constitute domestic violence under the statute, and as one may expect, nearly all of them pertain to acts of physical abuse (e.g. assault, false imprisonment.) In a recent opinion, however, the court addressed the interesting issue of whether non-physical abuse, such as economic harassment and coercion, are also domestic violence that would warrant the issuing of a restraining order under the PDVA.

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

Understanding the Importance of the Case Information Statement in Divorce Actions

In a divorce proceeding, once the Complaint for Divorce and Answer are filed, the parties, with the help of their attorneys, must next each prepare their own Case Information Statement (“CIS”).  Parties to a divorce often view the CIS as an intimidating and burdensome part of the divorce process.  However, the CIS is arguably one of the most essential documents in a divorce action.  It is relied upon throughout the proceedings in order to answer written discovery, as well as in negotiating child support and alimony payments, even if those issues are uncontested.  Therefore, it is of utmost importance that clients take the time to provide their attorney with an accurate representation of their financial circumstances.  The CIS can essentially be broken down into three main sections – income information, monthly expenses, and assets and liabilities.

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.