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Frequently Asked Divorce Questions
by Ted Sliwinski of Law Offices of Theodore Sliwinski


Can a dependent spouse be forced to work?
A very popular issue in divorce cases is that the dependent spouse has earning capacity, and that she should go get a job. In cases like these, the lazy spouse may have to be evaluated by an employability expert to assist the court to determine what an appropriate level of income to impute to that spouse. The expert's report may enable the court to consider whether the dependent spouse has the ability or inability to contribute to her support.

Can a person insert an anti-modification of alimony clause in the property settlement agreement?
In many cases, the parties will insert a clause in the property settlement agreement that would prevent any modification of alimony even if there is a potential chance of circumstances in the future. This type of clause is known as an Anti-Lepis clause. These types of clause have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.

Can a person limit their exposure to alimony by having an antenuptial agreement?
An antenuptial agreement is also known as a premarital agreement. A premarital agreement is considered valid provided that there has been full disclosure of each party's financial status. If there is a finding of fraud, duress, or overreaching of any party, then the court will not enforce the premarital agreement. In some premarital agreements, the parties may try to limit alimony in the future. If a premarital agreement is contested, then the court will examine if a denial of alimony to a dependent spouse is equitable and just based on a totality of the circumstances of the case.

Can a person request alimony after the divorce is complete?
In many divorces, neither party receives any alimony. This is because the dependent spouse has sufficient income to support herself, and maintain a reasonable standard of living. However, unforeseen circumstances may change after the divorce to justify alimony. (ie, serious illness and an inability to work) In cases such as these, the sick spouse will file an application for alimony even though the judgment of divorce does not provide for any. If the case has merit, then the court will set a plenary hearing to determine if an award of alimony should be made. This type of hearing is also called a Lepis hearing. The court will examine the financial situation of both parties, the standard of living enjoyed during the marriage, the sick spouse's current prognosis, and any other relevant factor.

Can a spouse bankrupt his alimony obligations?
If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree are not dischargeable. In short, a husband can't wipe off an alimony obligation in a bankruptcy case.

Can a spouse file a motion for a decrease in alimony?
If a payor's income decreases then he can file a motion to ask the court to decrease or terminate his alimony obligation. The payor spouse must demonstrate that the decrease in income and/or salary was bona fide, in good faith, and not reduced in order to avoid and limit alimony. If a spouse is unemployed or underemployed then the court may impute income to him. The court may also look a person's unearned income and assets to ruling on any alimony modification motions.

Can a spouse file a motion for an increase in alimony?
The courts will examine a spouse's ability to pay alimony and the payee spouse's need for alimony. Sometimes, a supported spouse will file an application for an increase of alimony. The grounds for the motion is that the supported spouse needs additional income to maintain a decent lifestyle. If the payee spouse is not receiving sufficient alimony to live, then a post-judgment increase in the payor's spouse's income may justify an increase in alimony. The party seeking to have alimony increased bears the burden of proof to demonstrate a change of circumstance. The courts will also examine the parties' historical standard of living during the marriage.

Can alimony be awarded during a domestic violence hearing?
The start of many divorces occur when a party files a domestic violence complaint. Quite often, in a DV case, the dependent spouse will also request that the court issue an temporary alimony award. A court in a DV case has the authority to make a temporary alimony award. The rationale for this rule is that the courts do not want the dependent spouse and the children to starve.

Can alimony be changed after the divorce?
Yes. As previously explained, the main purpose of alimony is to permit the dependent spouse to maintain a reasonable standard of living. Alimony can be increased or decreased if the moving party can prove to the court that there was a "change in circumstances" since the divorce. The party who files the application has the burden to prove that there has been a "change in circumstances."

The most common "change in circumstances" is a major health problem(s), a loss of employment, failure of a business, or a decrease in income, and/or retirement. In my experience it is very difficult to obtain a termination of alimony based on employment loss. However, the court in many cases will reduce/terminate alimony if the payor spouse experiences major health problems that impair his earning abilities.

Can alimony be extended?
In most cases no. However, some property settlement agreements provide that a spouse may be entitled to alimony after a certain number of years. A dependent spouse will have to file an application for an increase in alimony. The dependent spouse will have to prove a "change of circumstances" to justify an extension of alimony. The courts analyze these applications on a case by case basis. The court will make this determination based on the payor's ability to pay, both parties' respective income's, and the dependent spouses needs.

Additionally, rehabilitative alimony can be extended beyond the expiration date as specified in the property settlement agreement. The standard once again is whether there has been a "change of circumstances."

Can alimony be terminated if the supported spouse cohabitates with another man?
In some cases if a supported spouse cohabitates with another man then this may constitute a change of circumstances to justify a change of circumstances. If the supported spouse lives with another man, then the court may reduce alimony. However, cohabitation alone is not enough to reduce alimony. The cohabitation must also be coupled with some economic consequences in order to modify alimony.

The courts use the economic contribution test to determine whether an alimony award to a dependent spouse should be reduced. This test looks to see if the cohabitation is similar to a permanent house situation or a marital like relationship. If the dependent spouse' new boyfriend or girlfriend reduces the dependent spouse financial needs, then alimony may be reduced. Moreover, if the dependent spouse is using alimony to support the live-in boyfriend, then the payor spouse has very good grounds to reduce alimony.

The payor spouse has the burden to prove that there has been a prima facie showing of cohabitation. The fact of cohabitation triggers a finding of a change of circumstances. Thereafter, the court will set down a hearing, and permit the parties to conduct limited discovery. The payee spouse then has the burden to prove to the court that there is no economic consequence from the fact that she is living with another man.

In many property settlement agreements there are some very specific clauses as to alimony termination if the woman lives with another man. The New Jersey courts have enforced property settlement agreements that provide for a termination of alimony regardless of economic circumstances if the payee spouse lives with another man. The courts however will not uphold a property settlement agreement which attempts to control the former wife's social activities through the suspension of alimony. If the property settlement agreement places unfair conditions on a former wife that has nothing to do with her financial status, then this agreement will be declared void.

How does a spouse's earning capacity affect alimony?
When a court determines alimony the actual income of the supporting spouse is not always the only factor used to determine the alimony award. In many cases, the court will also assess if the deadbeat spouse is underemployed. In my experience, once the divorce starts the husband often loses that second job, they get laid off, and they defer bonuses and promotions. Basically, the men try to paint their economic circumstances as bleak as possible.

The courts most of the time can see through these games and BS. The court may impute income to the deadbeat spouse. The court will analyze the husband's income based on the New Jersey Occupational Wage Survey. Basically this book gives an average of yearly incomes for specific fields and occupations.

How does alimony affect the calculation of child support?
When the court calculates child support it will deduct any alimony payments from the payor's spouse's income. Moreover, the alimony will be included as income to the payee spouse. In summary, a high alimony payment may result in a reduction in child support. Alimony is deductible by the payor spouse, and it must be declared as income to the payee spouse.

How is spousal support (alimony) calculated?
A family court has a fair amount of discretion to determine an alimony award. The New Jersey Supreme Court has established some very specific guidelines and formulas to determine child support. However, there are no alimony guidelines. Many courts and panels have tried to formulate alimony guidelines. However, this goal is very similar to the Cubs quest to win the World Series. It just will never happen! Many men don't enjoy paying child support, but they pay it anyway because they love their kids. However, most men are sick of their ex-wive's and they hate paying alimony. Any set of proposed alimony guidelines is just too controversial and it will never become law.

New Jersey has caselaw and a statute that requires the courts to consider very specific factors when it calculates alimony. There are some guidelines and objective standards for the courts to consider, but there is not specific formula for a family court to calculate alimony.

In general, New Jersey case law states that the court must consider the marital lifestyle, the supporting spouse's ability to pay, and the dependent spouse's ability to contribute to his/her own support.

The alimony statute, N.J.S.A. 2A:34-23(b) states that the court must consider the following thirteen factors:
  1. The actual need and ability of the parties to pay.
  2. The duration of the marriage.
  3. The age, physical and emotional health of the parties.
  4. The standard of living established during the marriage and the likelihood that each party can maintain a reasonable comparable standard of living.
  5. The parties' earning capability, education and employability.
  6. The length of absence from the job market.
  7. Parental responsibilities for the children.
  8. The time and expense needed to acquire education or training to enable a depended spouse to obtain appropriate employment.
  9. The financial and non-financial contributions of each spouse to the marriage.
  10. Equitable distribution.
  11. Income available and non-financial contributions of each spouse to the marriage.
  12. The tax consequences of alimony.
  13. Any other factor which the court deems relevant.

If a person receives an inheritance does this affect alimony in any way?
Although an inheritance is not subject to equitable distribution, any income derived from any inheritance can be used to determine any alimony award. Moreover, if a person receives an inheritance this is also a factor to analyze any motion to reduce or increase alimony.

If a spouse commits adultery does this increase alimony?
The standard answer is no. However, from practical point of view marital fault or infidelity certainly does affect alimony. A court must examine the proofs and determine that the amount of alimony is "fit, reasonable and just." Moreover, alimony can't be used to punish a payor spouse, or be used as an award to a payee spouse.

It must be emphasized that the judges are human. If one spouse commits adultery, and if he/she emotionally destroy their spouse, it is very hard for the judge not to be sympathetic. Therefore, in my opinion, marital fault certainly is a very relevant factor that a court considers in making an alimony award. However, the court will not admit it, or list it as a factor to substantiate their decision.

If a spouse receiving alimony remarries does this terminate her right to receive alimony?
If the spouse receiving alimony remarries, then any permanent alimony award or term alimony will be terminated regardless of the parties' financial circumstances. The rationale for this is because the supported spouse has entered into a new marital partnership, and the former spouse is not required to financially support this new partnership. If the supported spouse's new marriage fails, then she can't later petition the court to reinstate the first husband's alimony obligation.

If a spouse remarries does this terminate his obligation to pay alimony
If the spouse who pays alimony remarries, then this remarriage does not terminate his alimony obligation. If the payor spouse remarries, and he claims that he can no longer support his former spouse, then this factor alone is not a sufficient change of circumstances to just a decrease in alimony.

If a spouse retires does this constitute a "change in circumstances" to justify a termination of alimony?
If a party has a good faith retirement at the age of 65 then this may constitute a change of circumstances to justify a modification of alimony. The court will also consider several other factors such as; the age of the parties; how the pensions and retirement assets were divided during the marriage; whether the retirement was reasonable; and was the retirement motivated to reduce alimony. Our New Jersey courts have held that when a person retires at the age of 65, he is entitled to a plenary hearing to reduce alimony based on a "change of circumstances."

If a payor spouse retires before the age of 65, then he is subjected to a more stringent standard to have alimony terminated. The court will then balance the benefits to the payor spouse against the disadvantage to the payee spouse. Only if the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse will the court view the retirement as a legitimate change of circumstances which would justify a modification of alimony.

Some other factors that a court considers when it rules on terminate alimony if there is a retirement are: the age and health of the party, his or her motives in retiring; his or her ability to pay support; and the ability of the other spouse to provide for herself.

What does "double dipping" mean?
Although alimony and equitable distribution are two different concepts, they are interrelated. The courts try to avoid "double dipping" when they determine an alimony award. Retirement and pension benefits are major marital assets and they are subject to equitable distribution. If the pension benefits are equitably distributed during the divorce, then these pension benefits can't be used later on for alimony purposes. In simpler terms a dependent spouse can't receive a share of the pension, and also receive alimony from the pension benefits.

The New Jersey statute that governs "double dipping" states;

When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony. N.J.S.A. 2A:34-23.

In summary, if a spouse receives his or her share of a pension or retirement benefits under equitable distribution, then that asset cannot be used against to determine alimony.

What is alimony?
Alimony is the term that is used for payments that are made by one spouse to the other after a divorce. Alimony is different from the equitable distribution of marital property. Equitable distribution looks in the past at what property the parties acquired during the marriage. Equitable distribution involves splitting up the "marital pot." Meanwhile, alimony is prospective, and it is used to balance the unfairness in the parties' earning capacities. Alimony is not designed to punish the payor spouse, and it is not a reward to the payee spouse. Instead, alimony is designed to permit both parties to continue to live, as best as possible, the same standard of living that they became accustomed to during the marriage. The parties to a marriage are not taxed on the equitable distribution of marital property. However, alimony payments are taxable to the payee spouse, and tax deductible to the payor spouse.

What is limited duration alimony?
The most common form of alimony that is awarded is called limited duration alimony. This is also frequently called term alimony. This type of alimony is payable only for a specific period of time. This type of alimony is usually awarded in mid-length marriages. Like permanent alimony, it can also be modified if there is a change in circumstances.

What is pendente lite alimony?
Pendente lite alimony is basically temporary alimony that is awarded before the final judgment of divorce is entered. The goal of pendente lite alimony is to maintain the status quo of the family lifestyle. The court wants to insure that the mortgage is paid, the lights stay on, and that the kids are fed. Pendente lite support is not part of child support. In most cases, an award of pendente lite support is a rude awakening to the husband that his lifestyle and available cash will most certainly change. Alimony of any type is not very popular with men. Many men consider it to be a four-letter word.

What is permanent alimony?
There are many types of alimony. To most men, the most vilest form of alimony is called permanent alimony. To a man, if they have to pay a permanent alimony award it really is a nuclear blast to their lifestyle. Permanent alimony is usually awarded in a long-term marriage where there is a large unequal earning capacity between the spouses. Moreover, the dependent spouse must be unable to earn a sufficient income to maintain a reasonably comparable marital lifestyle. Permanent alimony can be modified/reduced based on a change of circumstances. The courts are often flooded with motions to reduce permanent alimony. However, the standards to convince a court to reduce/terminate a permanent alimony award are very strict.

What is rehabilitative alimony?
Just like limited duration alimony, rehabilitative alimony is payable for a specific term. The purpose of rehabilitative alimony is to provide support to a dependent spouse while she acquires education or training to permit her to obtain employment that would allow this spouse to support herself. Rehabilitative alimony does not terminate if the supported spouse gets remarried.

What is reimbursement alimony?
Reimbursement alimony compensates a spouse for economic sacrifices that were made during the marriage, and these sacrifices helped to enhance the other spouse's earning capacity. Reimbursement alimony is often awarded in cases where one spouse supports the other so that he or she can obtain a professional degree, with the understanding that both spouses will materially benefit from one spouse having obtained that degree in the future. The court may find it unfair for the spouse with the degree to retain not only the degree, but all of the financial benefits of having the degree. Reimbursement alimony generally covers all financial contributions towards the former spouse's education, household expenses, and educational contributions. Reimbursement alimony does not terminate if the supported spouse remarries.

What is the standard to modify alimony?
Alimony can always be modified upon a showing of a "change of circumstances." The party who is seeking a modification of alimony bears the burden of proving that there is a "change of circumstances." The party must show how the changed circumstances have sufficiently impaired her ability to earn a reasonable living.

Are the children's wishes considered by the court in a custody dispute?
In many cases, the court will consider the children's wishes if they believe that they are of an age to make an intelligent decision. The court will then interview the child in chambers. The court will then ask the child if they have a preference with regard to custody. This type of interview with the child is called an "in-camera interview." The goal of this type of interview is to assist the court to determine what the child's wishes are. In many cases, younger children are often influenced by the parent with whom they live with. Therefore, sometimes a young child's answers may be skewed. Alternatively, older children are much less influenced by their parents. A court always takes into consideration the age of the child when it determines how much weight to place on the outcome of the interview.

Can a custodial parent move out of the State of New Jersey with the child?
When a custodial parent wants to move out of New Jersey, that parent must either have the consent of the other non-custodial parent, or obtain the court's permission. If the non-custodial parent does not consent to the relocation, then the court becomes involved. If the non-custodial parent does not consent to the child's relocation, then the custodial spouse must file an application to the court to relocate. If the custodial parent moves without first obtaining the court's permission, then he/she could be breaking New Jersey law.

Can a parent's new spouse adopt her child?
In many cases, a woman remarries after she gets divorced. Thereafter, she may lose contact with her prior husband, and the father of her children. Unfortunately, in many cases the non-custodial parent does not pay any child support, and he fails to develop any type of relationship with his children.

A parent's new spouse may only adopt the stepchildren if the former father's rights have terminated. Termination of a spouse's parental rights may be done by consent of the former father or by a court order.

Can a parent's visitation rights be terminated completely?
In New Jersey a parent has a constitutional right to have visitation with their children. Therefore, only in the most rarest of circumstances will visitation be terminated completely. The only possible cases where visitation will be terminated is if the parent is a habitual drug offender, or a sex offender. The court may terminate visitation because they do not want the children to be corrupted or harmed.

Can I move away from New Jersey with the child without obtaining the court's permission?
The removal of children of parents who are divorced or separated to another state is not permitted without court authorization unless both parents consent. The parents can always mutually agree to permit removal. However, if there is no mutual consent amongst the parties, then New Jersey places strict limits on the ability of a custodial parent to remove the children from New Jersey.

In general, the removal of the children from this State by a custodial parent is governed by N.J.S.A. 9:2-2, which provides in pertinent part:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorce, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction..... without the consent of both parents, unless the court upon cause shown, shall otherwise order.

Do grandparents have visitation rights?
In many divorces, the parties hate each other so much that they try to get back at each other by refusing to permit the grandparents to visit with the children. For many of our senior citizens, seeing their grandchildren is the most cherished part of their life. In my opinion, in most cases the courts will grant grandparents visitation rights even if the custodial parent objects.

Grandparent visitation is a very rapidly expanding field of law. The courts are very reluctant to deny a grandparent the right to visit with their beloved grandchildren. In general, grandparents must apply for visitation with grandchildren. The grandparent must file motion of complaint for visitation with the court.

The court will then refer the case to custody mediation. At the mediation, a court-appointed mediator will try to get the parties to agree on a visitation schedule. If the mediation session is not successful, then the case will be referred to a judge. The court will then formulate a reasonable visitation schedule.

In only the most extreme cases will grandparent visitation be denied. In most cases, it is in the best interests of the children to have visitation with all of their grandparents. Once a visitation schedule has been established, it must be modified like any other visitation schedule.

Does a child still have to have visitation his parent, if he does not want to see them?
When a child does not want to see the other parent, there are a few factors to consider in pursuing visitation. If the child is 16, then the child is old enough to make an intelligent decision as to whether he/she wants to visit with their parent. However, a custodial parent has a legal duty to encourage visitation with their former spouse. In short, a custodial parent should never bad-mouth their former spouse to their children, and try to poison their relationship.

If the children are young, then the courts are inclined to force the child to have visitation with their parent, even if they do not want to. It must always be remembered, that a parent has a constitutional right to have visitation with his/her child. It is very unlikely that a court will terminate visitation entirely. Most courts believe that it is in the child's best interest to have two parents jointly raise him or her.

Does a stepparent have a statutory right to have visitation with their stepchildren?
Currently, there is no statutory right for a stepparent to have visitation with their stepchildren. However, each application for a stepparent to have visitation with their stepchildren is decided on a case be case basis. If a stepparent has formulated a relationship with the stepchild, and it the application is made in good faith, then in most cases the application for visitation will be granted. The stepparent has the burden to demonstrate to the court that there is a relationship between him/her and the child which includes reliance for financial support or love and comfort.

How are these removal hearings handled by the courts?
The court will set the removal case down for a case management hearing. At this hearing, the lawyers for the parties will meet with the judge and discuss a discovery deadline. The parties will be ordered to exchange their discovery. The discovery will consist of any proofs that will be submitted at the plenary hearing. Some relevant proofs are a comparison of the school districts, pictures of the new home, information about the new home, a reasonable proposed visitation plan, and psychological reports. Finally, the court will encourage the parties to try to reach an amicable settlement.

In many removal cases, the court will also order that a family psychologist be appointed to prepare an evaluation report. In most cases, the court will order that the parties split the costs of the retainer fee to hire the psychologist. The family psychologist normally charges between $3,000 to $5,000 to prepare a report and to testify at court.

The psychologist will then interview the child, the parents, the extended family members, review all of the school records, and any other relevant evidence. Thereafter, the psychologist will prepare a written report and give his professional opinion as to whether the removal of the child out of New Jersey is in the "best interests of the child."

After the discovery is complete and the psychologist's expert report is submitted, the court will set the case down for a plenary hearing. In some removal cases, the hearing case will be held in one afternoon session. However, in many other removal cases, the hearing can consist of several court sessions. Please keep in mind that the New Jersey family courts are overwhelmed. In many removal cases, a judge may be only able to hear a few hours of testimony even though the parties have been in court waiting all day. The family court judges have many cases that they have to hear each day. Consequently, it is almost impossible for a family court judge to hear a removal case on a continuous basis. This makes it very difficult for the parties, and it also increases the cost of the litigation. Lawyers always have to charge for their waiting time.

How can a custody arrangement be modified?
Once a custody arrangement is established, then either party can make an application to modify the custody arrangement if there is a "change of circumstances" which has occurred from the time of the original custody decision. The party who applies for a change in the custody arrangement has the burden to prove that there is a sufficient change of circumstances to justify granting the application. It is important to emphasize that a person must have credible evidence to convince a court to change custody. It is insufficient evidence to base a change of custody based a person's beliefs that he or she could raise the child better. The party who is making the application for a change of custody will have to prove to the court that something significant has happened which the court has not considered when it made the original custody decision.

The courts are much more liberal when it considers applications for an increase in visitation time. In most cases, if there is a bitter visitation dispute, the case is referred to custody mediation. The courts are also much more reasonable in considering applications to modify visitation schedules. The courts will do everything they can to try to have the parties cooperate and formulate a reasonable parenting plan.

How can a parent's rights be terminated?
The termination of parental rights makes the parent and child relationship obsolete. It severs all of the legal ties between the parent and the child. To terminate a person's parental rights, a petition to the court must be filed based upon the best interests of the child. The petitioner must prove that; (1) the child's health and development have been or will continue to be endangered by the parents; (2) that the parent is unable or unwilling to eliminate the harm; (3) that there have been attempts made to correct the circumstances; and (4) that termination will not do mare harm than good. These four criteria must by proven by clear and convincing evidence. In most cases, applications to terminate parental rights must be made by DYFS.

How can a person apply for custody of their child?
The first step that a person must take in a custody case is to file a complaint or a motion with the court. Once the custody application is received by the court, it will then be reviewed to determine if the case should be sent to custody mediation. Each county has their own custody mediation procedure. However, in almost every county, a custody case is first sent to mediation to try to work out a reasonable compromise. In addition, all parents are required to take a parental education class. These classes are run by the county, and there is only one session. If the custody mediation is unsuccessful, then the court will then order a hearing to determine the issues of custody and mediation.

How is custody determined in a case where the parties are not married?
When the parties are not married, this type of case is referred to as a non-dissolution case. This type of case is given a FD docket number. A custody dispute for people who are not married is treated the same way as it is for married couples. The parties are also referred to custody mediation. Moreover, in FD cases the issue of paternity also frequently arises. In many cases, the father if he contests paternity may be required to take a paternity test. This is a relatively simple procedure. The paternity test(s) is usually given by Lab Corp. These tests consist of a lab tech taking a swab on the inside of a person's mouth. The results are usually provided within three to four weeks.

I have been divorced for five years and I want to move to another state. I can't stand New Jersey any longer! What are the requirements that will permit me to move away and escape from New Jersey?
A custodial parent(s) may only relocate if he or she has the consent of the former spouse. Alternatively, the relocating spouse must obtain a court order to permit the move. The purpose of the statute is to preserve the rights of the non-custodial parent and the child to maintain and develop their familial relationship. This mutual right of the child and the non-custodial parent is usually achieved by means of a parenting plan. Because the removal of the child from the state may seriously affect the parenting schedule of the non-custodial parent, the courts require the custodial parent to show why the move should be permitted.

The custodial parent must show both good faith in making the move and that the relocation will not be contrary to the child's interest. Our Supreme Court has delineated twelve factors that must be considered to determine whether the custodial parent has proven good faith and that the move will not adversely affect the child's interest:
  • The reasons given for the move;
  • The reasons given for the opposition;
  • The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
  • Whether the child will receive educational, health and leisure opportunities at least equal to that is available here;
  • Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location, and
  • Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
  • The likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed;
  • The effect of the move on extended family relationships here and in the new location;
  • If the child is of age, his or her preference;
  • Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
  • Whether the non-custodial parent has the ability to relocate;
  • Any other factor bearing on the child's interest.

My ex-spouse is now living with another person, can I request that visitation be modified so that the new companion cannot spend the night where the children are located?
When a parent starts a new romantic relationship, the former embittered spouse often tries to have the visitation modified so that the new companion cannot spend the night with the children. The former spouse will argue that the children are too young to understand the new situation, and that it will cause emotional harm to them. The court will then assess if there is any the emotional impact to the children if they visit their parent with his new girlfriend or wife. The court will also consider the stability of the new relationship, the ages of the children, and the relationship of the children with the new companion in making this determination.

What are some of the types of proof that I will have to submit to the court in support of my removal application?
The custodial parent who is proposing the move out of New Jersey may want to provide the following information or evidence to the court;
  • The reasons given for the move.
  • Proof of inability to find suitable employment in New Jersey.
  • Proof that a career move to another state would be beneficial to the family and to the child.
  • The past history of dealings between the parties. The custodial parent should submit proof that he or she has been fully compliant with any visitation or parenting plans that were part of any divorce judgment or court order.
  • Proof that the child will receive educational, health and leisure opportunities at least equal to what is available New Jersey.
  • Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location.
  • Proof that a visitation and communications schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child.
  • Proof that there is a strong likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed.
  • Proof that the move will produce no detrimental effect on the extended family relationships, here and in the new location.
  • If the child is of age, his or her preference.
  • Information about the new school district where the children may be moving to.
  • Pictures of the new home where the child will live.
  • Proof that the moving parent has strong family ties to the new state.
  • A proposed reasonable visitation plan if the removal application is granted.
  • Any proof that proves that the child will have a better life in the new state.

What are the different types of custody?
Custody can be divided up into two parts, legal custody and physical custody. Legal custody means that the parent has the ability to make the major decisions about the child's health, education, safety and welfare. Physical custody refers to which parent the child lives with.

What are the factors that the court considers during a custody case?
The primary standard that the court uses to determine a custody case is always, "what is in the best interests of the child." The court has to determine many factors when it makes this decision.

Some of the factors that are considered when the court makes a custody determination are: (1) emotional and physical environment; (2) the personal safety of the child; (3) moral atmosphere of the household; (4) the mental and physical health of the parents; (5) the age of the children; (6) the age of the children; (7) preference of the child; (8) the prior behavior of the parents, including any history of abuse; (9) the ability of each parent to care for the child; (10) and the importance of religious upbringing within the family.

What can a person do if they continually fight with their former spouse during the pick up and drop off of the children?
In many cases, the parties actually have physical fights when they drop off and pick up the children during the visitation. This type of scenario is especially enhanced if the wife moves in with another boyfriend, or if the husband shacks up with a new girlfriend. Given the high cost of living in New Jersey, this type of situation occurs all of the time.

If the parties can't control their emotions, then the court will order that the pick up and the drop off of the children must occur at the local police station. However, in many cases the people are still berserk, and they still engage in violence even though they are in the police station.

In my opinion, people are generally nuts. Having the children picked up and dropped off at a police station really is in many cases the only avenue available to prevent the parties from killing each other. Nonetheless, a nasty visitation dispute is a great way to ruin a kid's childhood.

What can be done if a party fails to comply with the visitation schedule?
A common problem with visitation is that one party fails to comply with the visitation schedule. Visitation schedules are derived from court orders or judgments of divorce. Therefore, if a person consistently fails to comply with a visitation schedule then they can create a real mess for themselves. A court can sanction a parent with fines if they consistently fail to comply with a visitation schedule.

In some cases, an embittered former wife becomes so enraged that she does everything within her power to deny the husband visitation rights. This type of scenario often occurs when the ex-husband leaves his former wife for another woman. The world is a nasty place, and this scenario happens quite frequently. The embittered spouse often convinces the kids that dad is a reincarnation of "Satan."

It must be emphasized that a former husband has the right to visit with his children, regardless of the circumstances that led to the dissolution of the marriage. In some extreme circumstances, the court will even transfer custody if a parent is consistently denied visitation rights. This measure is only used as a measure of last resort.

What can I do to stop my wife from moving away from New Jersey?
The non-custodial parent may want to produce the following proofs and information to the court at any plenary hearing:
  • The reasons given for the opposition to the move.
  • Proof that the moving party can find suitable employment in New Jersey.
  • Proof that the moving party has not permitted a reasonable visitation and/shared parenting plan in the past.
  • Proof that the child will receive better educational, health and leisure opportunities in New Jersey than in the proposed new home state for the child.
  • Any special needs or talents of the child that require accommodation in New Jersey. Moreover, any proof that verifies that such accommodation or its equivalent is not available outside of New Jersey.
  • Proof that a visitation and communication schedule is impossible to develop.
  • Proof that it is impossible for the non-custodial parent to maintain a full and continuous relationship with the child outside of New Jersey.
  • Proof that the custodial parent will not continue to foster the child's relationship with the non-custodial parent if the move is allowed
  • Proof that it will be impossible for the child to maintain extended family relationships, here and in the new location.
  • If the child is of age, his or her preference to remain in the Garden State.
  • Proof that the child's current school district in New Jersey is superior to the proposed new state's school district.
  • Proof that your former spouse has not complied with the visitation provisions of the judgment of divorce or with any other court orders regarding visitation.
  • Proof that the child has bonds with extended family members in New Jersey.
  • Proof that it will be impossible for the parent to have a reasonable visitation plan with the child if the removal is granted.

What do I have to establish to obtain the court's approval to move to another state?
The major case that deals with child removal cases is Baures v. Lewis, 167 N.J. 91 (2001). This is a New Jersey Supreme Court case. This case established what the burden is on the parent who wants to move away from New Jersey. The major point of the landmark Baures case is that it made it significantly easier for a parent to move out of New Jersey with the children in a removal case. The Baures case noted that there was a growing trend in the law easing restrictions on the custodial parent's right to relocate with the children.

The Baures case established the burden that a parent must establish to convince the court to grant a removal application.

In terms of the burden of going forward, the party seeking to move, who has had an opportunity to contemplate the issues, should initially produce evidence to establish prima facie that; (1) there is a good faith reason for the move; and (2) that the move will be harmful to the child's interest.

If, for some reason, the custodial parent fails to produce evidence on the issues above, then the non-custodial parent will have no duty to go forward and a judgment that denies the removal will be entered.

If the custodial parent does establish a prima facie case, then the court will set the case down for a plenary hearing. At the hearing, the custodial parent must produce evidence that supports the move. Whereas, the non-custodial parent must produce evidence opposing the move as either not in good faith or harmful to the child's interest.

What happens if a parent kidnaps a child by taking him out of state?
In many cases, a distressed parent may "kidnap" a child by taking him/her out of New Jersey. If this happens, then New Jersey courts have jurisdiction. A New Jersey court has parens patriae jurisdiction over the custody and maintenance of the children who have resided in New Jersey for five years or more. If the children have lived most of their lives in New Jersey, then a New Jersey court would exercise jurisdiction is such a case. The public policy behind such a rule precludes the removal of children from one state to another without any prior judicial recourse.

What happens if there is a custody dispute that involves different countries?
A custody dispute that involves different countries is becoming more common all of the time. I am sure that many people have heard of the case wherein a man marries a "hot looking" latina woman. Quite frequently, once marital problems arise, the latina women moves back to South America, Central America, the Dominican Republic, or to the Caribbean. Moreover, those arranged marriages from India often are a disaster. I have heard of many cases wherein the Indian wife leaves her husband and goes back to India. Quite often, the Indian wife also leaves with the child(ren).

The plain truth of the matter is that the world is getting smaller as each generation passes. In the near future, inter-country custody disputes will be just as common as interstate custody disputes.

The UCCJA also applies to international custody disputes in a case where the child has been removed from the United States. If a child is removed from New Jersey to another country, then a person can apply to have any international custody dispute decided by a New Jersey Court. However, it may be difficult to have a New Jersey custody order to be enforced in another country.

What if a spouse has consent from the other spouse to move to another country, is it still possible for one spouse to compel the other to move back to the United States?
The party who remains in the United States can apply to the court for a modification of the custody agreement. However, before this application can be made, the person must satisfy the four requirements of the Hague Convention. The party who still resides in the United States must prove that: (1) both countries participate in the Hague Convention; (2) that the child was a habitual resident of the United States immediately before the removal; (3) that the child is under the age of 16; and (4) that the removal of the child was wrongful. If the person who still lives in the United States can prove these four requirements, then he can make an application in the foreign country where the child is now residing for custody.

What if there is a custody order from another state other than New Jersey?
In many custody cases, there are different states of jurisdiction that are involved. It is not uncommon for a spouse to leave New Jersey once he or she encounters marital problems. In many cases, a person may obtain a custody order from another state. If there is a custody order from another state besides New Jersey, then a determination must be made if the order will be enforced.

In New Jersey, our courts do not always give "full faith and credit" to a sister state's custody decree. The reason for this policy is that custody judgments involve continuing relationships, and they are always subject to changing conditions. When a New Jersey court reviews an out of state custody order, it must look to the basis of the court's jurisdiction, the location of the child, and the court's access to necessary info about the child and its present custodian. Moreover, the New Jersey court will not enforce an out of state custody order if it is not in the best interests of the child.

What is a Guardian Ad Litem, and when is one appointed?
A "Guardian Ad Litem" is an attorney who is appointed to represent the children themselves, and not the parents in a divorce case. Usually, a guardian ad litem is only appointed in the very nasty cases. A court usually appoints a guardian ad item when they believe that the children need their own lawyer to protect their interests. In many divorce cases, the parents become so enraged that the court feels compelled to appoint a guardian ad litem. The downside of appointing a guardian ad litem is that the parties have to split the costs of hiring the lawyer/guardian ad litem.

In summary, a custody case can be a wonderful opportunity for a family to blow all of their money and life savings. If a guardian ad litem is appointed, then the family will have to pay for three lawyers; the wife's lawyer, the husband's lawyer, and the guardian ad litem. If the case drags on, then legal fees can fast approach the $20K to $35K range. If at all possible, I strongly advise all parties to try to work out a custody arrangement that everyone can live with. Custody disputes are really just a miserable experience. In many custody cases, a family often blows all of their savings, and they also become heavily in debt to their lawyer(s). It is not uncommon at all for a person to file for bankruptcy after they have endured a bitter custody case. I hear of these horror stories all of the time.

What is supervised visitation?
In some cases it may be appropriate for a parent to have supervised visitation with the children. In some cases, the parent may have a drug or alcohol problem, and if they have visitation with the children alone, then they could corrupt them. Moreover, in some cases, the non-custodial parent may have a conviction for a sex-related charge. In these types of situations, the courts will often order that all visitation must be supervised.

Supervised visitation can take place at the locate county court house. The Sheriff Department will supervise visitation normally on the weekends. The courts only order court supervised visitation in the most extreme cases. There are only so many sheriff offices, and there are a limited amount of cases that they can supervise.

Therefore, in the vast majority of the cases, the court will order that a parent or a relative of the non-custodial parent be appointed as the supervisor. Basically, this means that the non-custodial parent can't visit their children unless that supervisor is present.

What is the Hague Convention?
On October 25, 1980, an international convention was held at the Hague. Here, numerous resolutions were adopted that concerned the wrongful removal of children from their home country. The resolutions of the Hague Convention was ratified by the United States in 1988. A parent has one year, as per United States law, to apply under the Hague for the wrongful removal of a child.

Under the Hague Convention, a parent may also oppose the return of a child. The parent has the burden of establishing, by clear and convincing evidence, that one of the following exceptions apply:

  1. The person was not actually exercising custody rights at the time of the removal or retention or had acquiesced to the removal or retention;
  2. There is a grave risk that his or her return would expose the child to physical psychological harm and place the child in an intolerable situation;
  3. The child objects to being returned.

What is the most traditional custody arrangement that a court imposes?
The most traditional arrangement is for the parties to share joint legal custody, and the wife/spouse in most cases gets physical or residential custody. When one parent receives custody, the other parent receives visitation rights. This parent is also referred to as the "non-custodial parent." The amount of visitation rights that a parent receives varies in each individual case. Visitation rights cases range from supervised visitation at the court house, to splitting parenting time equally.

What is the overall guiding principle in a removal case?
At all times in a removal case the guiding principal is what is in the best interests of the children. The court will focus on the question will the child have a better life in New Jersey or in the new state.

What is the UCCJA?
The UCCJA stands for the Uniform Child Custody Jurisdiction Act. The purpose of the UCCJA is for states to cooperate with one another in placing children up for adoption. The UCCJA permits jurisdiction to be exercised by the home state or a state having a significant connection with the child.

The UCCJA was enacted to allow the states to avoid jurisdictional competition in bitterly contested custody disputes. It also ensures that custody cases are litigated in the state that has the closest connection with the parties and the child. Under the UCCJA, a New Jersey court has jurisdiction to make a child custody determination if the child resides in New Jersey at the time of the filing of the custody case, or if New Jersey has been the child's home state within six (6) months before the commencement of the case. The court will also assume jurisdiction of the custody case if it is in the child's best interests, if one parent has significant ties to New Jersey, or if there is substantial evidence regarding the child's present or future care in the Garden State.

Under the UCCJA, there are four standards that are used to determine if an alternate jurisdiction should be granted. The four standards are: (1) the state is or has been, within six months of the custody case, "the home state" of the child; (2) it is in the best interests of the child to proceeds in the former state because the child and the family have a significant connection there; (3) the child is present in the jurisdiction and is abandoned or threatened with harm; and (4) no other state has jurisdiction and it is in the best interests of the child that the former state entertain that dispute.

What kind of assessments does the court make of the parents?
In many custody cases, one parent alleges that the other parent is an unfit parent, and they should not have custody. In this type of case, the court will order an evaluation of the parties. These types of evaluations are called a best interest investigation, a risk assessment, and/or a psychological evaluation.

A risk assessment is an evaluation that is provided by the court on request. A risk assessment is conducted by the County Probation Department. A risk assessment is usually requested when one parent is alleged to have an alcohol or drug problem. A risk assessment is also often requested when one parent has a history of sexual abuse. These types of cases are the nastiest.

For a risk assessment, a member of the Probation Department will go to the parties homes and determine if it is safe for the child to have visitation there. Many courts are just overwhelmed. In some counties, it can take many many months for a risk assessment to be completed. In other less backlogged counties, a risk assessment is completed in a timely fashion.

Another type of evaluation conducted by the courts is called a "best interest investigation." This type of investigation is also performed by the County Probation Department. There is no charge to the parties for the court to conduct this type of investigation. This type of investigation looks into the character and fitness of the parents, the economic condition of the family, and the financial abilities of the parties.

Finally, a court can also order a psychological evaluation of the parties. Whether a court grants an application for a psychological evaluation will depend on the individual judge. A psychological evaluation is costly, and the parties must also pay for this expense.

What must be proved to obtain court permission to remove a child from the State of New Jersey?
To obtain court approval to remove a child from the state of New Jersey, a person must be able to show (1) a good faith reason for the move; (2) that the move will not adversely affect the non-custodial parent's visitation, and (3) that it is in the best interest of the children to remain with the custodial parent and move out of the state.

Additionally, if moving to a new state would affect the existing custody arrangement, the party seeking to remove the child must also show it is in the child's best interest to move.

In my experience, the courts mostly grant relocation motions. However, the custodial parent must insure that the parent who still lives in New Jersey has adequate visitation rights. Quite often, the courts will require that the moving parent be required to pay for any transportation costs for the child to go back to New Jersey to visit with the other parent.

In many cases, there is just no solution to resolving a relocation motion/application. Initially, the court will refer a relocation application to custody mediation. Custody mediation is not binding on the parties. If the parties still can't agree on a reasonable settlement, then the relocation application will be set down for a plenary hearing. This type of plenary hearing is called a Holder hearing.

What type of custody arrangements can a court impose?
Once a court makes a custody determination, there are several possible custody arrangements that a court may impose. The court may impose: (1) sole physical or legal custody; (2) sole physical custody with joint legal custody; (3) joint custody. The term "joint" does not mean equal. Instead, "joint" means that the parties equally share the obligation to raise the child.

What type of visitation rights does a parent have in New Jersey?
In the State of New Jersey a parent has a constitutional right to see his/her children. Before any parent can be denied of visitation rights, it must be shown that having the child in the parent's presence would cause physical or emotional harm to the child. Moreover, it must be proven that there are no other alternatives than completely terminating visitation.

What type of visitation schedules are available in New Jersey?
There is an endless amount of different types of visitation schedules. Each couple can arrange a visitation schedule that can suit their own lives and their work schedules. The standard visitation plan is for the husband to have visitation every other weekend, and on Wednesday evenings. The visitation on the weekend normally starts on Friday at 6:00 p.m. and ends on Sunday evening at 6:00 p.m. The visitation on Wednesdays usually starts and 6:00 p.m. and ends at 9:00 p.m.

A new trend in family law is to have shared residential custody. This means that the children live with both parents. In my opinion this is really a scam that is used by many ex-husbands. This type of shared custody is primary a ploy by ex-husbands to reduce their child support obligations. The more overnights that the husband has will translate into a lower child support award.

I always recommend to all of my clients to reject a shared parenting plan. Furthermore, I always advise my clients to permit the non-custodial parent to see their children as much as possible. However, I don't permit my clients to agree to a shared parenting plan because in most cases it is just a ploy by husbands to pay lower child support.

When will a New Jersey Court recognize a foreign country's decision regarding custody?
A New Jersey court will recognize a foreign country's decision regarding custody, provided that the foreign country had adequate jurisdiction over the case, the New Jersey spouse had adequate notice, and the other country considered the "best interests" of the child.

When will I get my court date and a plenary hearing?
The custodial parent is entitled to a hearing only after having satisfied the threshold requirements. The court in Baures v. Lewis, 167 N.J. 91 (2001), held that the party seeking to move should initially produce evidence to establish a prima facie case that; (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child's best interest. If the custodial parent satisfies this burden, then the court will set the case down for a plenary hearing. The courts often refer to this proceeding as a Holder or a Baures hearing.

Are child support awards increased for a Cost of Living Adjustment?
All child support orders are adjusted every two years to reflect any increase in the cost of living. The cost of living adjustment will be based on the average change in the Consumer Price Index (CPI) for New Jersey. The most current CPI figures can be obtained from the US Department of Labor, Bureau of Vital Statistics, or from the New Jersey Law Journal.

Can a person be arrested if a parent does not pay child support?
A court also has other more drastic methods to make a person pay child support. The court has the ability to suspend a person's driver's license or professional license if he/she refuses to pay child support. A court can suspend a person's law license, medical license, or any other license. The threat of this type of this sanction can instill the fear of god into someone. In many cases, child support is paid up to date rather quickly once this threat is put in writing or in a motion. The court can also suspend a person's passport if he refuses to pay child support. This can cause significant aggravation to a person if he frequently travels for business..

Additionally, if a person accrues child support arrears then this is reported to the three credit bureaus. A report of significant child support arrearages can really nuke a person's credit score.

Moreover, child support arrearages also constitute a lien on a person's real estate. In short, a person can't refinance their home if he has child support arrearages.

If all of the above sanctions do not work, then the court will issue a bench warrant for the "deadbeat dad." The Sheriff will then go out and arrest the "deadbeat dad" at his home or at his place of employment. Once the warrant has been issued, then if the "deadbeat dad" is arrested for a traffic ticket, then the local police officer will arrest and incarcerate him on the bench warrant.

The "deadbeat dad" will then be taken to the County Jail. The court will set a purge amount. A purge amount is the amount of the child support arrearages that the "deadbeat dad" must pay in order to be released from jail.

The "deadbeat dad" will eventually be taken before the court for a "purge hearing." The court will not permit the defendant to be released until some of the child support arrearages can be paid. Moreover, the defendant must also propose a reasonable payment plan for the arrears.

Can child support be modified?
When sufficient circumstances are present, a child support obligation can be modified. New Jersey law requires that the person who seeks to modify a support award must prove that there has been a "change in circumstances." The phrase "change of circumstances" is a very broad legal term of art. There are literally hundreds of cases that discuss what is a "change of circumstances." Either party can file a motion for an increase/decrease in child support with the clerk. The parties must submit a completed CIS, income info, and the normal motion package.

In my experience, it is very difficult for a father/payor to have child support lowered on the grounds that he lost his job or receuved a decrease in pay. In most of these cases, the court will temporarily reduce child support, and give the father time to find better employment. Motions to reduce child support are usually only granted if the father can prove that he has health problems that limit his earning abilities.

The courts may also lower child support if the father has additional children after the divorce. However, some courts will hold that the father is underemployed, and he should work additional jobs to pay for both families.

Can the court also award additional expenses with respect to the parties' basic child support obligations?
In addition to calculating a straight child support award, the court may also award additional expenses with regard to the parties' basic child support obligations. The most common expenses that are awarded are day care and health insurance expenses. The expenses for day care and health insurance can easily inflate a child support award to approach the size of a mortgage payment.

If the parties have some dough, then the courts will also require the father/payor to pay for a share of any summer camp, and for the children's extracurricular activities. The courts will also require the payor to pay for a share of the sports related activities, dance classes, music lessons, etc. If the parties have limited economic resources, then a court most often will hold that the expenses for these activities are part of the child support award. If the parties have money, then in most cases the court will make the payor front these expenses. The lesson to be learned is that getting divorced is not cheap.

Can the court impute income to a person if he is purposefully unemployed or underemployed?
If the court believes that a father is purposefully unemployed or underemployed, then the court will impute income to the party. Imputed income is what the court estimates what the "deadbeat dad" day should be earning. The Child Support Guidelines require that the court to impute income based on the person's potential employment, earning capacity, work history, job qualification, educational background, and regional opportunities.

The court imputes income based on the parent's former job and as reported by the New Jersey Division of Labor. The Division of Labor publishes a book every year called the New Jersey Occupational Wages Survey. This book has an average income of every job and profession in every county in New Jersey. In summary, there is no escape to pay for child support. If a man just does not feel like working, then a judge will just look into the New Jersey Occupational Wages Survey and find the average salary that the person should make. This book is also used to ascertain income for the classic self-employed person who always hides or under reports his income.

How can a person emancipate a child and stop paying child support?
Child support does not end automatically once the child turns 18. A person who pays child support must file an application with the court clerk and it is known as a motion to request that the child be declared emancipated. The child support obligation will only end once a family court judge enters an order that declares the child emancipated. The order of emancipation is then given to Probation, and the garnishment of the payor's pay check will then be stopped.

This entire emancipation process takes about 3 to 4 months. Therefore, the emancipation application should be made in advance of the child's graduation from high school or of their 18th birthday. In some counties, the judge will rule on the emancipation application only on the papers, and a court appearance will not be necessary. However, in some counties a hearing is set down, regardless whether the opposing party files an objection.

In summary, it is extremely important to always timely file for emancipation. A person should not take it for granted that child support automatically ends once the child turns 18. I have had many cases when child support arrearages accrues into the tens of thousands of dollars, even after the child is well over 18 years of age. The parent can avoid this problem if they just file a timely emancipation motion. The child support arrearages continue to accrue up until the child reaches the age of 26. If a person just ignores filing for emancipation, then eventually they will get a bill from Probation advising him that he owes tens of thousands of dollars in back child support. Furthermore, Probation will advise him that his driver's license is also indefinitely suspended.

How do the Guidelines define gross income?
The Guidelines define gross income as any and all of the followings: compensation for services; income from a business minus any operating expenses; gains from property; interest and dividends; rents; bonuses and royalties; alimony or maintenance payments received from the current or other relationships; annuities; life insurance contracts; payments from retirement plans; awards from personal injury or civil suits income from a trust disability payments, profit sharing plans; worker's compensation; unemployment benefits; overtime, part-time and severance pay; net gambling winnings; earnings from investments; tax credits or rebates; unreported cash payments; and imputed income.

How does a court arrive at the parent's net taxable income to calculate a child support award?
To arrive at a parent's net taxable income, the parent's withholding tax, prior child support orders, mandatory union dues and other dependent deductions are subtracted from the adjusted gross income. If there is non-taxable income, it is then added to the net taxable income to arrive at the parent's net income. Each parent's net income is then divided by the combined net income to determine their percentage share of income. The parents are then required to pay their percentage share of the weekly child support obligation.

How does a person obtain a child support order?
When a parent needs to obtain child support, she must make an application to the Superior Court where the parent and child reside. Normally, the clerk has pro se forms that they give to the pro se litigants. The clerk will then interview the applicant and try to obtain as much info as possible. The clerk will want to ascertain where the father lives, and where he works.

Once a party makes an application for child support, the Family Division will then schedule the case for a hearing. The court will mail notices to appear to all parties in the case. The notice advises the parties as to the time, date and place to appear.

If the parties are not filing for divorce, then the court will open up a non-dissolution case. The court will assign the case a FD docket number. In divorce cases, the court will assign the case a FM docket number. A FD case basically means either that the parties are not filing for divorce yet. Alternatively, it may mean that the parties were never married.

In a FD case, once the application for child support is made, then the case will be scheduled to be heard before a Child Support Hearing Officer. A Child Support Hearing Officer is a trained lawyer who is appointed to assist judges to determine child support and insurance. After the Child Support Hearing Officer issues their award, the parties can either accept it, or request to see the judge to review it..

At the child support hearing, both sides will present their pay stubs, W-2 info, tax returns, and health insurance info to the officer. The Child Support Hearing Officer will then review this info, and enter the pertinent data into a computer program that calculates child support. The Child Support Hearing Officer will then calculate a child support award, prepare worksheet, and present it to the parties.

The parties can then either accept the child support award, or request to have it reviewed by the Superior Court judge. If the case is appealed to the Superior Court judge, in most of the cases the court will affirm the findings of the Child Support Hearing Officer.

How is child support collected?
In most of the cases, all child support is collected by wage garnishment through Probation. Most child support orders provide for income withholding or wage execution. It is not advisable that child support be collected by a direct pay. This can lead to unending accounting issues and collection issues.

An order for withholding will require an employer to deduct the child support payment directly from the employee's pay checks. The employer then forwards the withheld amount to the Probation Department. Once the support is received and recorded, Probation then forwards the payment to the supported spouse. If the payor spouse also owes child support arrears, then the child support order may also require that these monies should also be garnished.

How is child support determined during a divorce case?
IIn a divorce case, an application for child support is almost always made during a preliminary hearing called a pendente lite application. Basically, the dependent spouse must file an application to the court that requests child support. These motions must be very detailed. These motions must include a completed CIS, the parties income info, a detailed description of the major family bills, and a completed child support guideline worksheet.

At the motion hearing, the judge will then enter the relevant income data into his computer program, and he/she will determine a child support award. The child support award and the employment date will then be given to the Probation Department. In most case, a garnishment will start in about three weeks. The dependent spouse should start receiving checks in about 6 to 8 weeks. In the interim, the payor spouse must make direct payments to the dependent spouse until the wage garnishment kicks in..

How is child support enforced if one parent does not pay?
In many cases, the parent does not pay their child support obligations. There is no shortage of "dead beat dads" and "deadbeat moms" in New Jersey. When a parent fails to pay child support child support and the money becomes past due, the amount is called an arrearage. There are two types of arrears: fixed arrears and unfixed arrears. Fixed arrears are amounts which a court has found to be due and owing. Unfixed arrears are amounts which the support payor owes, but which have not been addressed by the court. An enforcement application is an attempt to get the courts to address the arrears and require the owing parent to pay.

A party or an attorney for a party may file an application for enforcement. Additionally, when the child support is being collected by the local Probation Department, the Probation Officer that supervises the case may also file an enforcement application. If a party fails to make their child support payments, the Probation Department will notify the payor that his continued failure to pay will result in contempt proceedings.

Thereafter, once the supporter payor falls behind more that 14 days in payments, then the Probation Department will file a statement with the court, and set forth the facts regarding the non-payment. Following that step, the Probation Department may then apply to the court for relief on behalf of the party who is opposed to receive support.

IIn a divorce case, if a party is not paying child support, then an enforcement motion is filed by the supported spouse. Probation will not get involved in enforcement motions of child support if the case is still in divorce proceedings.

What are the Child Support Guidelines worksheets?
When a court calculates child support they must use a Child Support Guideline worksheets. There are two types of worksheets.

The sole parenting worksheet is used when any of the following occur: (1) there is no visitation from the other parent; (2) there is sporadic visitation from the other parent (which does not exceed 2 or more overnights per week); (3) there is more than one child and at list one child resides with each parent.

What are the Child Support Guidelines?
A child support award allows the custodial parent to provide the child with all of the essentials, such as food, clothing, and shelter. In order to ensure that the courts issue consistent chid support awards, the State has enacted the Child Support guidelines. These guidelines are a formula which guides the person with factors to consider in reaching a child support award. The guidelines are derived from the Consumer Expenditure Survey. The guidelines take income info from both parties, and this info is applied to a formula to calculate a child support award.

The current guidelines also provide for a self-support reserve for the payor parent. Basically, this means that if a person is too poor, and they can't even survive, then they don't have to pay child support. As of February 7, 2003, the self-support reserve was $181, or 105% of the poverty guideline for one person.

What are the criteria considered by the court to determine child support?
When a court makes a child support award, the court must consider the following factors: (1) the needs of the child; (2) the standard of living and the economic circumstances of each parent; (3) the sources of income and assets of each parent; (4) the earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children (including the cost of providing child care and the length of time and cost of each parent to obtain training and experience for appropriate employment); (5) the need and capacity of the child for education (including higher education); (6) the age and health of the child and parents; (7) the income and earning capacity of the child; (8) prior support orders for other children; (9) the reasonable debts and liabilities of each parent and child; and (10) any other relevant facts.

What if a person loses their job, or if the amount of their pay is reduced, does this guarantee that child support will be reduced?
A decrease in available income is not a guarantee that the support obligation will be decreased. In order to justify a downward modification of child support, the decrease in income must be permanent in nature. The support payor must be able to prove that after numerous attempts, that he could not find a decent paying job.

The payor spouse will have to create a paper trail to prove to the court that he has been diligently seeking employment. Copies of e-mails, and correspondences to prospective employers, must be attached to any application to any motions to reduce child support.

Moreover, in order to obtain a child support reduction, a support payor must be able to prove that the decrease in income was involuntary. A father cannot voluntarily remain under employed. Additionally, a parent cannot voluntarily retire or take a much lower job than he is qualified for in order to purposefully avoid paying for child support.

What is child support?
Every child is entitled to support from his parents. The New Jersey child support guidelines are based on the theory that child support is determined in proportion to the parent's income and assets as well as the child's needs.

All parents, whether natural or adoptive, have a financial obligation to support their child. This obligation continues even if the parties have divorced. A support award can be increased or decreased as circumstances may arise. In order for a party to change the amount of child support, the moving party must file a motion with the court, and establish a "change of circumstances."

What is the Uniform Interstate Family Support Act?
A very important issue in child support is whether a New Jersey support award can be enforced in other states. Alternatively, can an out of state child support award be enforced in New Jersey. To address these interstate child support issues, the United States Commission on Interstate Child support, has created a federal law called Uniform Interstate Family Support Act (UIFSA).

Each state has their own set of child support guidelines. New Jersey has some of the strictest and highest child support awards in the United States. Therefore, in many cases where a person moves to another state, he may try to have a child support award established anywhere but New Jersey. The child support awards are much lower in the southern states and in Florida than they are in New Jersey. The child support awards are higher in New York than in New Jersey.

The UIFSA is very complex. The parties can generally litigate for years and battle over which state has jurisdiction to establish child support. This can be a very important issue. If a person lives in the south, and if they have to pay a New Jersey child support award, this can be quite a hardship. The wages and salaries are generally lower outside of the tri-state area. Therefore, many people will try to have a child support award calculated in their home state.

In general, the state where the child lives has controlling jurisdiction over the case. It can be very difficult to enforce a child support order if a person moves out of New Jersey. The sister state will enforce the child support order. However, in many sister states they are very slow in their efforts to use their police powers to enforce the New Jersey child support order.

It is common knowledge that many "deadbeat dads" deliberately move out of New Jersey to try to avoid child support. With the advent of computers, it is now almost impossible for a "deadbeat dad" to hide forever. However, the sister state may not be as aggressive or efficient as New Jersey is in enforcing the collection of child support.

When does child support terminate?
A child support order will terminate once the child becomes emancipated. Emancipation basically means that the child can take care of themselves. Because self-reliance can occur at any age and under any given set of facts, there is no set age when a child will be determined to be emancipated. Many people erroneously believe that once the child turns 18 then their child support ends. This is not the case in New Jersey. The State of New Jersey has some of the strictest child support laws in the United States.

In most property settlement agreements the parties will delineate as to what events or circumstances will define an emancipation. When an agreement does not exist, the courts generally will presume that a child becomes emancipated at the age of 18. The Child Support Guidelines do not apply to a child who is 18 years or older and no longer in high school or any other secondary educational institution. A child often will be declared emancipated when the child marries or if the child has his or her own child. Additionally, a child may be declared emancipated if he or she enters into the military.

Does a person have to pay for the college costs for their child?
The courts have viewed education as a necessity. The recent trend in New Jersey has been to require parents to pay for the college costs for their children. Therefore, if the child is attending college, then it is very unlikely that a court will grant an emancipation motion.

When a court makes a decision as to whether or not to require a parent to pay for a child's college education and related expenses, the court must consider the complete set of facts of each case. The court will analyze the following factors to assess if a parent should pay for a child's college costs; (1) the effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education; (2) the amount of contribution sought by the child for the cost of the higher education; (3) the ability of the parent to pay that cost; (4) the relationship of the requested contribution to the kind of school or course of study sought by the child; (5) the financial resources of both parties; (6) the commitment to and aptitude of the child for the requested education; (7) the financial resources of the child, including assets held individually or in custodianship or trust; (8) the ability of the child to earn income during the school year or on vacation; (9) the availability of financial aid in the form of college grants; (10) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; (11) the relationship of education requested to any prior training and to the overall long range goals of the child.

The decision on whether or not a parent should pay for the college costs rests in the court's hand. However, there is a strong trend toward requiring parents, if they are financial capable, to pay for the college. In most cases, the court will not require the payor to pay for college and for child support at the same time. However, once again the key issue is how much money the payor who is usually the father has.

In most cases, if there is an ongoing dispute as to who pays for college, then the court will set down a plenary hear. The parties will be required to exchange discovery and prepare a CIS. In simpler terms, the parties will be required to exchange their tax returns, W-2's, and a list of their assets. The court will then hold a plenary hearing, and review the proofs and listen to the testimony of the parents. Thereafter, the court will determine each parent's contribution to college. Moreover, the court will determine if any child support orders should also be modified.

Is a parent required to pay for a child's graduate or professional school?
In New Jersey the duty to pay for a child's college expenses extends beyond college, to graduate and professional school. In the case of Ross v. Ross, 167 N.J. Super. 491 (Ch. Div. 1979), the court held that a parent has a responsibility to pay for a child's graduate and/or professional school. In the Ross case, the court found a 23-year daughter not to be emancipated until her law school training ended and required the father to continue to pay child support for her.

My daughter wants to go to Harvard, however, I only earn $50,000 per year, will I be required to pay for his tuition?
Every application to require a parent to contribute to college costs is different, and each stands on its own merits. Every case is decided on a case by case basis. In most cases, the court will set up a plenary hearing, and order the parents to provide a CIS and disclose their financial info. In a situation like the one above, the court would only require the parent to contribute to pay for a portion of the Harvard college cost. An important case is Nebel v. Nebel, 103 N.J. Super. 216 (App. Div. 1968). This case established the "Rutgers" rule. In the Nebel case, the court ordered a financially able father to contribute to the college education expenses of the son, but it also held that, while the custodial mother could designate a private college, the court would limit the college expense obligation of the father to his hare of the far lesser costs of attending a state university, such as Rutgers, where a quality education could be obtained.

Should a property settlement agreement contain terms about who should pay for college?
Absolutely, no person with children should get divorced unless a property settlement agreement or a judgment of divorce contains terms that delineate each parent's obligation to contribute to the children's college costs. The clause that I incorporate into my property settlement agreements is as follows:

Contribution to College Clause

Post-Secondary Education. The parties agree that they desire to see the children attend college, a university, vocational school or other post-secondary education. The parties agree they will cooperate in the selection of secondary education. The school based on the children's capabilities, opportunities, the children's desires and the parents' income and assets and respective financial ability to pay at that time. The children shall be required to use their best efforts to apply for grants, loans and scholarships to which they may qualify. The balance of the expenses associated with the post-secondary education, including the cost of tuition, room and board, SAT preparation courses, PSAT and SAT testing fees, application fees, miscellaneous fees and transportation to and from home at the beginning and end of the school year and for holidays shall be shared by the parties in proportion to their income and assets at that time. The parties' respective contributions for the children's post-secondary education shall be allocated after application of any financial aid received by the children and after application of funds held by the parties for the benefit of the children including but not limited to savings bonds, custodial accounts and similar savings vehicles for the children. Discussions regarding a child's college choice shall begin no later than the spring semester of their Junior year in High School. The issue of the amount of child support due from either parent for a child who is attending a post secondary institution, shall be evaluated and determined at the time.

Under what situations is the contribution to college not warranted?
There are certain situations in which a contribution to college is arguably not warranted. The most obvious situation is when a child who is alienated from a parent, and refuses all contact despite the parent's efforts to maintain a relationship. Even though there is no relationship, the child still requests that parent be held responsible for college. A very perplexing question then arises. Should the child who unreasonably refuses to have a relationship with a parent, and who fails to include that parent in the college selection process be able to turn around and demand a contribution to college?

The answer to this dilemma is determined on a case by case basis. The Arrigo v Newburgh case requires the family court to consider the "child's relationship to the paying parent, including mutual affection and shared goals, as well as responsiveness to parental advice and guidance." Id. at 545.

What are some of the cutting edge cases with regard to "Who Should pay for the price of college"?
A. Child Estrangement - In spite of his claim that he was estranged from his son, and that the estrangement was not of his own doing, the father is nevertheless ordered to pay 44% of the college expenses of the son. This result applies, even though; (a) the parties did not address the issue in their New Jersey divorce agreement and (b) the mother gave the father no notice about the child's college plans. The court notes that the father did not attend court-ordered therapy sessions. Conod v. Hall, New Jersey App. Div., July 21, 2005.

B. Dentist Pays More - After their New Jersey divorce, the parties had a dispute regarding the sharing of their son's college expenses. It was error to have the ex-wife pay for almost 19% of those expenses, when the ex-husband, a practicing dentist, made more than $500,000 annually and had much more discretionary income. By contrast, the ex-wife's income was mostly from alimony and child support and went to maintain her home and personal expenses. Bowne v. Anderson, New Jersey App. Div., June 29, 2005.

C. Appealing College Aid - Once you receive a college's financial aid offer, it's a done deal, right? Not necessarily. Aid packages can be appealed and enhanced -- even for this fall. If you think a college hasn't considered your complete financial situation, it's worth a try. Stuart Siegel, a certified college planning specialist, says that while families are awarded fair financial assistance most of the time, there are times when "persistence pays off" in improving aid packages. "I had one family where the parents were divorced and the child received no aid for the first three years while attending Northwestern University," Siegel says. "The applications from the parents, though, contained conflicting information and that's why the student got nothing and wasn't going to be able to afford to graduate." After reworking the aid forms with new information, Siegel says the student received $17,000 from the college for her senior year. Bloomberg.com, June 2, 2005.

D. At What Age? - Unlike other states, New Jersey divorce law does not deem a child emancipated at any particular age. Instead, the focus is event-driven, i.e., when is the child no longer economically dependent on her/his parents? In this case, the parties' 23 year-old son was not emancipated until after he received his college degree, even though that required an additional semester past the fourth year of college attendance. Colonno v. Colonno, New Jersey App. Div., April 4, 2005.

E. No Trust For College - The mother wanted to have a $50,000 college trust fund established for the parties' daughter, using the proceeds of the sale of their rental property. However, the parents' responsibility for college contributions and the provision for the sale of the rental property had previously been stipulated. Thus, the application was denied because it failed to address any of the college contribution factors under Newburgh v. Arrigo. Actually, the mother was merely speculating that the father would shirk his responsibilities. Nesic v. Nesic, New Jersey App. Div., March 9, 2005.

F. After High School - Under New Jersey divorce law, both parents may be obliged to pay for their child's college education. Sometimes, that obligation can be avoided if the child is estranged from one or both parents, without just cause. An effective way of dealing with such issues is to address them in an agreement. Here, however, the parties expressly reserved the issue for future decision. Even though there were questions of fact as to the lack of connection between the daughter and her father, he was required to pay for one-half of the college expenses, relationship issues notwithstanding. Jackson v. Jackson, New Jersey App. Div., February 7, 2005.

G. Graduate School Expenses - Some states emancipate a child at age eighteen. But under New Jersey family law decisions, a child is not automatically emancipated at any particular age. Further, New Jersey parents can be obliged not only to pay for their child's college education, but also for graduate school. Here, the court found that the parties' 23-year-old daughter was not emancipated merely because she had graduated from college, because she was continuing her post-graduate education in a six to eight year Ph.D. program. Burg v. Burg, New Jersey App. Div., January 25, 2005.

H. Paying For College and Parental Estrangement - In a New Jersey divorce action, the court has the power to order the parents to pay for their child's college [and sometimes graduate school] expenses. A complex set of variables is considered in deciding which parent pays how much, originally outlined in Newburgh v. Arrigo. In the present case, the father had been ordered to pay 50% of his daughter's tuition loans which she incurred while obtaining a college degree. The father had appealed and the trial court's decision was reversed in Gac v. Gac, 351 N.J. Super. 54 (App. Div. 2002), for the failure to properly address the Newburgh factors. These included the father not having communicated with the daughter since age five and his not having been consulted on the choice of college, including whether or not a cheaper State college could have been chosen. On remand, the father is ordered to reimburse his daughter 40% of the $70,000 she incurred in undergraduate tuition loans while attending college, plus interest. Gac v. Gac, New Jersey App. Div, January 19, 2005

I. New Jersey Divorce: College Expenses - Paying for college expenses can be the costliest of all child support expenses. What if the parents provide for this contingency in their divorce agreement? This case demonstrates that the court is not necessarily bound by the terms selected by the parties. Here, they had agreed that payment should be in the ratio of their incomes at the time, but that neither party should be responsible for less than 20% of those costs. The trial judge found that the net college expense for the parties' daughter, after deduction of the amount he found the daughter should be contributing, was $20,000; he did not abuse his discretion in then ordering the defendant-father to pay $5,000, or one quarter of those expenses. Francis v. Francis, New Jersey App. Div., December 7, 2004.

What if I can't afford to send my children to college?
In many cases, a parent has gotten remarried, and he or she is now supporting two families. Many parents cry the blues when they are faced with applications to require them to pay for their child's college costs? I always try to console the client and advise them the money is going to a good cause? Moreover, I always respond to the client with the following: "Don't you want your child to be successful." Most clients agree with my logic and they see my point!

Nonetheless, some parents are still very cheap, and they refuse to be agreeable to pay for their child's college. If a parent is financially challenged, then they can apply to the court for a hearing that is commonly known as a Newburgh/Arrigo hearing. The court will order that the parties prepare a CIS, and to disclose their pay stubs, W-2's, and tax returns. Thereafter, a hearing will be held. The court will review the evidence and hear the testimony of the parents. Thereafter, the court will attempt to fairly apportion to costs of college.

There is a trend that is now emerging, some judges are now referring college contribution disputes to ESP or to an Early Settlement Panel. This is an excellent idea, and it should be used more often by our courts. At an ESP hearing, two very experienced matrimonial lawyers will try to assist the parties to reach a settlement on the college contribution issues. In most cases, the parties can reach an accord on the college contribution dispute at the ESP hearing, and avoid spending additional thousands of dollars on legal fees. The costs to prepare for a Newburgh/Arrigo hearing can be substantial. Moreover, the money that is saved on legal fees can be used to pay for the college tuition that is in dispute.

What if my divorce judgment does not mention that I have obligation to pay for my child's college education?
Many people simply get divorced and they omit many important provisions in their property settlement agreement, or in their judgment of divorce. The divorce centers are relatively inexpensive to use. However, a person may spend thousands of dollars to try to correct mistakes that a divorce center may have made. It is imperative that a provision that spells out who should pay for college should be incorporated in any divorce judgment. Nonetheless, if this provision is not put into the divorce judgment, then in the majority of the cases, a court will still will require both parents to contribute to the child's college costs. The court will set the case down for a plenary hearing. These hearings are commonly referred to as Newburgh/Arrigo hearings. Moreover, the parents will be required to produce their pay stubs, W-2's, and tax returns. Moreover, the parents will have to prepare a CIS. Thereafter, the court will try to fairly apportion each parent's proportionate share of contribution of the college expenses that he or she must pay.

What is the leading case that determines who pays for the price of college?
The leading case is Newburgh v. Arrigo, 88 N.J. 529 (1982). In this case, the Supreme Court of New Jersey held that, on public policy grounds, that the parental duty to provide an education to children extends to the responsibility to provide a college education. As a result of this seminal case, New Jersey became the most liberal jurisdiction in the nation, in terms of post-high school financial duties of parents.

What is the rational of the Newburgh v. Arrigo holding?
The underlying rational of the Newburgh v. Arrigo decision is that if society does not mandate the duty of parents to pay for their children's college costs, then the number of children who go on to high education will decrease. Moreover, society will suffer if fewer children receive a college education.

My personal view is that both parents, whether married or divorced, have a moral duty to contribute to college if they are financially able to do so. The citizens and parents of New Jersey's children have an obligation to contribute to their college if they are financially able to do so. New Jersey has a vested interest to encourage children who want to go to college. If they have the academic ability, then children should be able to attend college without assuming staggering student loans, if their families can afford to help out.

There is no doubt that New Jersey is one of the most liberal states with regard to child support, and requiring parents to pay for their children's college costs. An overwhelming majority of states do not require parents to provide their children with a college education.

Who should pay for the cost of college?
In most circumstances, the privilege of parenthood carries with it the duty to assure that the child receives a good college education. Our courts have held that, in general, financially capable parents should contribute to the higher education of children who are qualified students. In evaluating a party's obligation for contribution toward the cost of higher education, courts will consider the following 12 factors:
  1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
  2. The effect of the background values and goals of the parent on the reasonableness of the expectation of the child for higher education;
  3. The amount of the contribution sought by the child for the cost of higher education;
  4. The ability of the parent to pay that cost;
  5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
  6. The financial resources of both parents;
  7. The commitment to and aptitude of the child for the requested education;
  8. The financial resources of the child, including assets owned individually or held in custodianship or trust;
  9. The ability of the child to earn income during the school year or on vacation;
  10. The availability of financial aid in the form of college grants and loans;
  11. The child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
  12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

Will a parent be required to pay for both child support and for a contribution to the child's college costs?
The answer to this question is "maybe"? The courts treat every case on an individual basis. The court will once again hold a plenary hearing that is often called a Newburgh/Arrigo hearing. If a parent is rolling in the "dough" then in most cases a court will require that a parent has an obligation to continue to pay for child support, and also to contribute to the costs of college. However, if a parent has additional children from a new marriage, and if he or she is financially strapped, then the court will in most cases only require the parent to either continue to pay for child support or to contribute to college, but not for both. The courts try to be fair with everyone. Most family court judges do not want to make a parent go bankrupt. However, if a parent has the money, then he or she will pay for both child support and also be required to contribute a fair share toward college.

Are there ever any false complaints made under the Domestic Violence Act?
In my experience, the area of domestic violence is one of the most abused laws in the State of New Jersey. In my opinion, in about one half of the cases, the primary reason why the wife filed for the restraining order is because she wants to evict her husband from the home. Remember, even if a couple are divorcing, both parties have equal rights to live at the marital home. In my opinion, about one half of domestic violence complaints that are filed every year are frivolous. There appears to be three major reasons for filing groundless domestic violence complaints. They are as follows;
  • The "victim" wants to exclude the estranged spouse or lover from the home.
  • The "victim" wants to achieve a perceived advantage in the context of a contested child custody action.
  • The "victim" wants to punish the alleged aggressor for things having nothing whatsoever to do with domestic violence.
If an innocent party has been unjustly accused of an act or acts of domestic violence, it is strongly recommended that competent legal counsel be immediately sought. Pro se representation should be avoided if at all possible. In choosing an attorney to defend against a false domestic violence claim, great care must be taken to ensure that the attorney is well-versed and experienced in this area of the law. It is extremely difficult to get rid of a Final Restraining Order "once one has been entered" without the purported victim's consent. Experienced New Jersey Family Lawyers with special knowledge of our domestic violence laws should be contacted the moment it is suspected that a false accusation may emerge.

Can I get a restraining order if I am sick and confined to bed, or if I have a physical or mental disability?
Yes. A judge may issue a TRO upon sworn testimony or complaint of a person who represents a person who is physically or mentally incapable of filing.

Do I also have the right to file a criminal complaint if I choose?
YES. A criminal complaint accuses the abuser of committing a crime. The New Jersey Prevention of Domestic Violence Act lists acts that are considered to be crimes against the victim. They are:

  • Homicide
  • Assault (both simple assault and aggravated assault)
  • Terroristic Threats
  • Kidnaping
  • Criminal Restraints
  • False Imprisonment
  • Sexual Assault
  • Criminal Sexual Contact
  • Lewdness
  • Criminal Mischief
  • Burglary
  • Criminal Trespass
  • Harassment
  • Stalking

Do I have to go back to the court if I choose to dismiss the civil complaint?
YES. If you want to dismiss the civil complaint, you must go to court on the scheduled hearing date. You will be asked to explain your reasons for wanting to dismiss the complaint. The judge will want to know that you are doing this without threats or pressure from someone else. If the judge is convinced that this is your own decision, the complaint will be dismissed.

Do I have to speak at the hearing?
At the final hearing you will tell the judge what the abuser did to you that caused you to file for a TRO. You will tell the judge if the abuser hit you, punched you, kicked you, pushed you, etc. If you are afraid of the abuser you will tell the judge this and why you are fearful. You will tell the judge about other times when the abuser hurt you or made you afraid or threatened you in any way. You must not be afraid of the judge because he or she is there to help you and to keep you safe from harm.

You will also tell the judge how much money you will need for support from the abuser if he or she has an obligation to support you and your children. You will show the judge the proof of how much you need for housing and food and other things for you and your children.

How can I get a temporary restraining order (TRO)?
Between the hours of 8:30 a.m. and 3:30 p.m., Monday through Friday, go to the court clerk in the Family Part of your county's Superior Court at the County Courthouse and tell a court employee that you are there to file a TRO. A family court intake employee will give you papers to fill out and ask you to describe what happened during the most recent domestic violence incident. You can ask if there is someone there who can assist you in preparing the papers, which contain a complaint and statement against your abuser. Ask the intake person to explain what will happen when you go into the courtroom.

On weekdays between 4 p.m. and 8:30 a.m. the next day, and on weekends and holidays, you must go to your police department to obtain a TRO through a municipal court judge. The police usually take the information for the complaint and call the judge to advise what has occurred. The judge may wish to speak to you on the phone. Then the judge will issue a TRO if he or she thinks you are in danger.

How do I file a criminal complaint?
You usually begin the process at your police department or your local municipal court. From this point, the process is different, depending on the crime and the county where the crime has taken place. In some cases the police will issue a warrant for arrest. In other cases a court summons will be issued.

The case will either proceed through the municipal court system or be handed over to the county prosecutor's office. A case screening may be scheduled. If you receive notice about a case screening, make sure you call the phone number on the notice the day before the scheduled screening to find out what has happened to your charges. Sometimes charges will be reduced, depending upon the evidence in the case. It is important to keep in touch with the prosecutor's office or municipal court, and provide whatever they need to resolve your case.

REMINDER: Criminal complaints and violations of a restraining order complaints must be filed and prosecuted in the county where the offense took place. This is different than the filing for a civil restraining order. Civil restraining orders can be filed in several different places: where you live or are sheltered, where the abuser lives or where the domestic violence took place.

How do I know if I am a victim of domestic violence under this law?
You are a victim of domestic violence if you have experienced any of the following from a person who is over the age of 18 or an emancipated minor:
  • beatings or physical attacks such as kicking, slapping, punching, pushing, hair pulling, or any other physical attack in any other way that causes you harm or fear of harm;
  • threats that make you fear serious injury to yourself or your children (example: "When I come home I'm going to kick you, punch the kids, hurt you.");
  • threats that make you fear for your life (example: "If you don't do what I tell you to do, I'm going to kill you.");
  • imprisonment within your own home or at another location (example: A person locks you in your home, in a room, in a closet, in an automobile, for any period of time)
  • kidnaping (example: You are taken against your will from your home, place of business, or anywhere else and not permitted to leave.)
  • sexually assaulted where you are forced to have sexual contact or raped under threats of harm to yourself or someone else. This can also include unwanted sexual touching or if the perpetrator exposes his genitals
  • damage to your personal property
  • forced entry into your home, with or without a weapon
  • theft of your personal belongings
  • threats against you with a weapon such as a gun, knife, machete, baseball bat, or any other object that you feel can harm you
  • repeated verbal humiliation and attacks (example: A person calls you obscene names, or calls you stupid, ignorant, dumb, ugly, or other disrespectful names)
  • stalking you by actions done more than one time that include maintaining you in his sight, repeatedly being in physical proximity to you, repeatedly conveying verbal or written threats or threats implied by his actions, or all of these actions, and these actions cause you to fear bodily injury to you or a member of your family or to fear the death of you or a member of your family.

How long will I have to wait to see a judge?
There is no way to tell how long it will take for you to see a judge on any particular day. Go to the courthouse as early as possible. You may have to spend an entire work day at the courthouse, so notify your employer beforehand. Be prepared in the event your wait is a long one. Arrange for a safe place for your children to stay while you are in court.

If I file criminal charges, what can I expect before the case goes to trial?
After you have filed criminal charges, the abuser will probably be released from custody on bail, or on his or her own word. According to the law, the court that releases the abuser (the defendant) on bail may require him or her to follow certain rules. These rules are listed in a bail order, which, like the civil restraining order, is a legally enforceable document. The rules on the bail may include prohibiting the defendant from having any contact with you. This includes prohibiting the defendant from entering your home, place of work or school, or harassing you or your relatives.
If you and the abuser are living together, the judge releasing the defendant may allow him or her to return home to pick up personal belongings. Ask the judge to limit the time the defendant can stay, and ask that a police escort supervise him or her while there. The court clerk, or your lawyer if you have one, must give you a copy of this bail order. Keep it in a safe place. You may need it if the defendant does not obey the bail order. If the abuser is released on bail, you have the right to be notified of this release. Law enforcement authorities will attempt to notify you of the release.

Is there anything I need to do if I file a criminal complaint?
All criminal cases require evidence. This is why it is important for you to seek treatment for any physical or emotional injuries you have suffered at the hands of the attacker. For example, if the attacker has given you a black eye, take a photograph of your black eye. It would also help if you tell a medical professional, either your private doctor or someone in a hospital clinic or emergency room, how you received this injury or why you have become so emotionally upset. If you are on welfare, or if your family is working with the Division of Youth and Family Services, tell your social worker what happened. You can also call your local domestic violence hotline if you need help and support. (See Helpful Numbers at the end of this booklet.)

REMINDER: If you are physically injured, ask the doctor or nurse to document your injury, how it happened, and to include photos of your injury in your medical record. These records may be useful to you if you choose to take legal action. Even if you choose not to file criminal charges at that time, it is still important to have a record of what was done to you.

Should I file criminal charges if I have already filed for a restraining order and received this protection?
You should discuss with a domestic violence advocate the issue of whether to file a criminal complaint against your abuser. However, you should make your own decision about filing a criminal charge against the abuser. You have been the victim of a criminal act by someone with whom you have or once had a relationship. A criminal act is not permitted between any two people regardless of their relationship to each other.

Domestic violence is recognized as a serious life-threatening crime. The Prevention of Domestic Violence Act was enacted to protect you. It is your right to use the law.

What do I put in the complaint?
It is very important that you carefully read each part of the complaint before completing it. You must list all facts of the incident that happened that made you file the complaint. For example, facts like: "hit; punched; threatened to kill me; cursed; pulled hair; burned with cigarettes; threw chair, knife, fork at me; followed me to work, home, school, store" should be included, if they happened.
If the abuser used a weapon to hurt or attempt to hurt you include this in the complaint.

It is also very important to include previous acts of violence/abuse against you in the complaint. Something else to include is if the abuser has a criminal history or if he has been arrested previously.
Under the section marked "Relief" read the requests carefully and then check or tell the intake worker to check the box that states what you want from the court. For example:
  • That the abuser's weapons be seized.
  • That the abuser is temporarily forbidden to have contact with you, your children, your relatives, and other people you identify as being at risk.
  • That the abuser is temporarily forbidden to enter the location where the violence happened and the home you share with him.
  • That you are granted sole possession of the home you shared with the abuser.
  • That you are granted temporary sole custody of the children.
  • That the abuser temporarily support you and your children.
  • That you have temporary possession of a car, a key to the car and residence, a health, insurance card, a checkbook, passport for yourself and your children, immigration documents, birth certificates, or other things you might need.
  • That the abuser have either no visitation with the children or supervised visitation.
  • That a risk evaluation be conducted before any visitation is ordered by the court if the children have been abused by the abuser.
  • That the abuser pay you for any losses, such as moving expenses, lawyer's fees, medical bills, lost wages, or money spent to repair damage to your property.
  • That the abuser pay for your pain and suffering.
  • That the abuser be ordered to go to psychological counseling, counseling for substance abuse (alcohol/drugs) with a counselor who is a certified domestic violence counselor.
The intake worker or domestic violence advocate will assist you in completing the complaint. If there is no one to help you, you can fill it out yourself, but read it carefully to make sure you don't miss anything.

You will need the name and address of the abuser, and a description, along with his date of birth, social security number and the name and address of his employer if you know them. This information is necessary so the complaint can be served to the abuser.

What happens after I file the complaint and papers with the court and get a TRO?
The sheriff of your county will attempt to serve the abuser at the places you have told them they can find him. The abuser must be served with the papers so he or she knows to stay away from you and your children and others you have requested he or she stay away from in your complaint.

What happens if a bail order or sentencing order is not obeyed?
If the abuser does not obey the terms of the bail order or the sentencing order, he or she can be arrested and put in jail. Call the police if a violation occurs. Have your copy ready to show the police when they arrive.

What happens if I receive a temporary restraining order at the courthouse or through the police and the municipal judge?
A TRO is a legal document. It will contain the orders of the judge. You will receive a copy that you are to keep in your possession at all times. The police department receives a copy, the court receives a copy, and the defendant must be served with notice that he or she is not allowed to have contact with you until the court schedules another hearing, usually within 10 days. At this second hearing, you and the abuser will have a chance to testify. The judge will consider both testimonies before issuing a Final Restraining Order.

What if a weapon was used during an act of domestic violence?
If a police officer at the scene has reason to believe a weapon was used during an act of domestic violence, the officer must arrest the suspect and seize any weapons on the premises that could expose you to further harm. The officer must also sign a criminal complaint in this instance.

Seized weapons are turned over to the county prosecutor's office. If the prosecutor does not institute a legal action within 45 days to retain the weapon(s) seized, they may be returned to the owner.

What if the police don't come fast enough or refuse to come?
You must be prepared when dealing with a violent person. You should have access to a telephone at all times. Carry a cell phone if possible. If you don't have a phone, try to establish a relationship with a neighbor or relative who will call the police for you when you need help. It is imperative that you tell a neighbor or relative about the violence for your protection and the protection of your children in the event that the police do not come or do not come fast enough.

If the police are taking too much time to respond and you remain in danger, call your local domestic violence hotline. A worker for the domestic violence hotline can put you on hold while someone calls the police and advocates on your behalf to respond quickly to your situation.

You should have a safety plan in the event that the police do not come or do not come quickly enough. If all else fails, draw on your own resourcefulness either to escape the danger or attract attention by screaming for help or setting off the security alarm.

What is a civil complaint?
In a civil action you are asking the court to resolve a conflict between you and the person abusing you. You are not asking the court to punish that person for breaking the law. One of the protections available to you in a civil action is a civil restraining order.

What is a civil restraining order?
A civil restraining order is a legally enforceable document that, among other things, limits the physical contact between you and the person abusing you. When you first sign a complaint for a restraining order, and if you meet all the criteria under the Prevention of Domestic Violence Act, you will receive a "Temporary Restraining Order" (TRO). The abuser will not have to be present to obtain the TRO. Within approximately 10 days you will appear in court at a hearing and tell the judge what happened to cause you to sign the complaint against your abuser and the judge will decide whether or not to give you a Final Restraining Order. The abuser will be present during this hearing, but sheriff's officers will protect you.

What is the Battered Woman's Syndrome?
In some bitter divorce cases, a battered spouse will also sue their husband for a personal injury tort. The tort claim of being a battered spouse will be consolidated with the divorce case. A ruthless lawyer will use a battered spouse tort claim to try to obtain additional financial concessions in the divorce case.

The Battered Woman's Syndrome was first recognized by the New Jersey Supreme Court in the case of State v. Kelly, 97 N.J. 178 (1984). By definition, a battered woman is one who is repeatedly physically or emotionally abused by a man in an attempt to force her to do his bidding without regard for her rights.

The trial court in the case of Cusseaux v. Picket, 279 Super. 335 (Law Div. 1994) established a four-part test to prove a cause of action for Battered Woman's Syndrome:

  1. Involvement in a marital or marital like intimate relationship;
  2. Physical or psychological abuse perpetrated by the dominant partner to the relations over an extended period of time;
  3. The afore stated abused has caused recurring physical or psychological injury over the course of the relationship; and
  4. A past or present inability to take any action to improve or alter the situation unilaterally.
In order to prove a "Battered Spouse" tort claim, a woman must also produce a psychological expert at trial. The psychiatrist must verify that the woman was battered, and that she suffers from psychological damages as a result of her abuse.

What is the Prevention of Domestic Violence Act?
The Prevention of Domestic Violence Act applies to a person 18 years of age or older or a person who is an emancipated minor that has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. A "victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child, or with whom the victim anticipates having a child, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

This means you are a victim of domestic violence if you or the abuser are the parents of any children, whether or not you have ever lived together; you are pregnant with the abuser's child; you and the abuser now live together or have lived together in the past; or you and the abuser now have or did have, at one time, a dating relationship.

You and the abuser do not have to be married or girlfriend/boyfriend. He or she can be a family member, your gay or lesbian partner, your roommate, your caretaker, or any other adult who lives with you now or has lived with you.

What legal remedies can I seek if I have been a victim of domestic violence?
You have the right to file a civil complaint under the Prevention of Domestic Violence Act, along with a criminal complaint. Both complaints should be filed for your protection since the civil complaint is designed to protect you and the criminal complaint is designed to punish the abuser.

What should I do if I have a restraining order and my abuser still doesn't leave me alone?
If you have a Domestic Violence Restraining Order and your abuser violates the terms (example: mails a letter to you or has someone else deliver a letter to you; calls you on the telephone; appears at your place of work, home, school or restaurant where you are eating, and does not immediately leave when he sees you), call the police immediately. Have your copy of the restraining order ready to show the police. Your abuser can be arrested and jailed. You have the right to call the police as many times as you need to when you are in danger from your attacker, whether or not you have a Domestic Violence Restraining Order. It is very important for you to carry a copy of the Domestic Violence Restraining Order with you at all times.

What steps do I take after I receive a final restraining order?
You will receive a copy of the Final Restraining Order after the hearing. It is important to keep a copy with you at all times. It is important that you do the following:
  • Review the order before you leave the courtroom. If something is wrong or missing ask the court clerk to correct the order before you leave.
  • Make several copies of the order to leave in safe places in case you need them. Keep one at your job, one at your home, one at your children's school, babysitter or day care program.
  • Give a copy to a neighbor that you trust.
  • Give a copy to friends or relatives who are named and protected in the order.
  • Make sure your local police have a copy of the order.
  • Give a copy to the security guard where you live or work.
  • Change your locks as soon as possible.
  • Change your telephone number as soon as possible to an unlisted number.

What will I have to do when I file for my TRO through the police?
The police will help you file a written complaint that explains what happened. The police officer will call a judge and read your complaint. The judge should speak with you, and perhaps ask you a few more questions, before he or she decides whether or not to issue a TRO on your behalf.

If your TRO is denied, call the hotline of your local domestic violence program for other options that are available to you. You are entitled to a review of this denial by a Superior Court judge. If you are denied a TRO and continue to feel unsafe at home, the domestic hotline can help make arrangements for you to stay in a safe place.

What will I need to bring with me to court?
At the time of the final hearing you should bring proof of the amount of money you need from the defendant as support if he or she has an obligation to support you. Proof includes: canceled checks or a lease or other documents that show the amount of your rent or mortgage, utility bills, the latest income tax returns or pay stubs and any other information to prove how much money you need from the abuser

Where must I file for a temporary restraining order?
You may file in the county where the domestic violence occurred, where you live, where the abuser lives or where you are sheltered.

You may file in the county where the domestic violence occurred, where you live, where the abuser lives or where you are sheltered.

This answer supplied by: Ted Sliwinski of Law Offices of Theodore Sliwinski     (732)257-0708  

Who issues a temporary restraining order?
A TRO must be issued by a Domestic Violence Hearing Officer or by a judge from the municipal court or a judge from the Family Part of the Superior Court at the county courthouse. If you are denied a TRO by a municipal court judge, you may immediately reapply (8:30 a.m. to 4 p.m., Monday through Friday) to the Family Part of the Superior Court based upon the same incident of domestic violence.

Will anyone be arrested?
A police officer must arrest the person you state perpetrated the acts of domestic violence against you, even if you do not want her/him arrested and even if you do not want to file a complaint against the person who committed these acts, if: (1) you exhibit any signs of injury; (2) the perpetrator has violated a previous Domestic Violence Restraining Order; (3) there is probable cause that a weapon has been involved in the commission of the act of domestic violence; (4) there is a warrant for the abuser's arrest on any other charge.

A police officer may arrest the person who committed the act of domestic violence against you if you exhibit no visible signs of injury but you have told him/her what happened and have advised him/her that an injury has occurred. The injuries could be internal and painful or the injury could be on an area of your body that you do not feel comfortable exposing to the officer.

If you act with reasonable force to protect yourself from the attacker, and you and the attacker both show signs of injury, you should not be arrested or charged with a domestic violence offense. The officer at the scene should consider the nature and extent of the injuries, along with any previous history of reported domestic violence incidents.

It is very important for you to tell the police officer if weapons were used to injure you or threaten you, and where the weapons are located.

It is very important for you to tell the police officer what happened, what your injuries are and if there were previous acts of domestic violence against you by your attacker or previous reports of attacks, or if there is a Domestic Violence Order already in place.

Will I have to go back to the court at any time?
Within 10 days of the date of the TRO you will have to appear in court for the final hearing. The abuser may also be in court at this time, and the judge will give him or her a chance to tell his or her side of the story. There will be protection for you in the courtroom and in the courthouse. If you are fearful because the abuser is there, tell the court officer. If you need an escort out of the Courthouse because you are afraid of the defendant, ask the court officer to get a sheriff's officer to escort you.

Will I have to testify?
YES. A court hearing will be scheduled as soon as possible on your charges, and you will have to testify. If the defendant is found guilty, the judge will sentence him or her. The sentence will depend on the facts in the case. As part of the sentence, the judge may order the defendant to continue obeying the bail order. This is called a sentencing order. In addition, as part of the sentencing order, the judge may require the defendant to get professional counseling.

Will I need a lawyer to handle these procedures?
The New Jersey Prevention of Domestic Violence Act was written so you can do everything yourself, which is called "pro se" in legal terms. There are times when you may want to consult a lawyer, especially if you are considering a divorce because of an abusive and threatening marital relationship. You may contact a lawyer through your county legal services office or county bar association lawyer referral service. Also, your local domestic violence program may know of lawyers with particular expertise in domestic violence.

Are pensions subject to equitable distribution in a divorce?
Pensions are absolutely subject to equitable distribution. A pension is usually one of the most valuable asset that a couple has. The funds from a pension that are acquired during the marriage are subject to equitable distribution regardless of when they vest. Public policy states that to insure the support of a financially depended spouse, a statute prohibiting attachments should not intervene in providing support for a dependent spouse.

The issue of whether the pension constitutes property acquired during the marriage is highly relevant issue to equitable distribution. Both parties contribute to earnings of one spouse's pension by their participation in the marriage and both expect to share in the future enjoyment of that pension benefit.

Are professional degrees subject to equitable distribution?
In many cases, a very valuable assets is a professional degree. In many cases, a devoted wife or husband helps pay for a law degree or a medical degree for their husband. I am certain that many people have heard of the common case wherein the devoted wife spouse is a nurse, and she works her tail off to pay for her husband to go to medical school. Once the wife's looks wear off, it is not uncommon for the husband/doctor to become a playboy.

A medical degree and a license or other professional degree is not an asset that is subject to equitable distribution. Instead, the courts deal with this issue in the context of alimony rather than in equitable distribution. The courts realize that there are too many problems associated with value and worth of a professional degree. A professional degree, for purposes of property distribution, are nothing more than a possibility of enhanced earnings. It is not considered property because it cannot be sold. Its value cannot be readily determined. Instead, the court will consider the needs of the spouse who does not hold a degree, and the ability of the other spouse to pay alimony.

Can a spouse recover a down payment for the purchase of the marital home, if the marriage is a "quickie."?
In many cases, one spouse usually the husband comes into the marriage with the money. Quite frequently, one spouse pays for the deposit to purchase the marital home. In some cases, the marriage is a disaster, and the marriage only lasts a year or two. A frequent issue is whether the richer spouse can recover his deposit monies that were used to purchase the home.

Unfortunately, even though only one spouse paid for most of the deposit, the courts will view this as an implied gift to the other spouse. Therefore, the court will view the entire down-deposit as a marital asset. The court will consider that the down-payment was a gift to the other spouse, and it was made in contemplation of marriage. In summary, once a spouse makes a down-payment on a marital home, then this money is immediately converted into a marital assets, and it must be equally split in a divorce.

Can I blow off my obligations to my ex-spouse by filing for bankruptcy?
Bankruptcy and divorce really go together like ham and eggs, Batman and Robin, and bad girlfriends and headaches. This topic really deserves a whole set of FAQ's. Eventually, I will write an entire set of FAQ's on the impact of bankruptcy on family law.

In summary, child support and alimony can't be discharged in bankruptcy. A spouse can't wipe off his child support and alimony obligations by filing for bankruptcy. However, a devious ex-spouse may have a small opening to try to discharge some of the debts to his/her spouse that were created by the equitable distribution aspects of the divorce. If a person files for bankruptcy, and if he tries to discharge debts to his spouse, then there is a possibility that this debt could be discharged in bankruptcy. The dependent person must object to the discharge of a non-support debt in bankruptcy court. The bankruptcy court will then hold a hearing to determine the dischargeability of the debts. It will consider whether the debtor has the ability to cover the debt with income of property which is not necessary for his or her support or for the support of the dependent, such as a spouse or child. Furthermore, the bankruptcy court will balance the benefit of paying the debt with the detrimental consequences of not paying the debt.

Can my ex-husband escape paying for child support and alimony by filing for bankruptcy?
The Bankruptcy Code attempts to protect the rights of children and former spouses to collect support. Any support whether it is called family support, alimony, or child support, the Bankruptcy Code makes it non-dischargeable in bankruptcy. The spouse who receives the support does not have to file any types of proofs of claims or objections to the Bankruptcy Court to enforce her rights to continue to receive support.

In most cases, once a debtor files for bankruptcy, all creditors must stop all actions to collect their debts. This block is called an "automatic stay." The automatic stay stops all foreclosures, garnishments, bank levies, and creditors from calling you at all hours of the night. The automatic stay does not apply to the enforcement of the collection of child support or alimony. These types of obligations have a super priority under the Bankruptcy Code.

For equitable distribution purposes, does the court take into consideration if only one of the spouses worked during the marriage?
The fact that one spouse may not have worked during the marriage is not particularly important. The whole concept of a marriage in New Jersey is that it is an economic partnership. Unless proven otherwise, the court will presume that both the husband and wife both made substantial financial and/or non-financial contributions to the acquisition of income and property during the marriage.

How are pensions divided and split up in a divorce?
There are essentially two methods of distribution of a pension in a divorce case. The two methods to split up a pension is a (1) deferred benefit share and (2) immediate offset distribution against the other assets. A deferred benefit share postpones distribution until a pension comes into pay status. An offset distribution trades off the present value of the pension interest against a current asset which is given to him/her in satisfaction of his/her share of a pension.

Basically, in a divorce case, the parties must hire an actuary to value the pensions, and to prepare the necessary court orders to split up the pension. The two most commonly used actuaries that are used are called Troyan, Inc. and Pension Appraisers. These companies charge about $300 to value the marital portion of the pension. They also charge about $700 to prepare the necessary court orders to split up the pensions.

Most pensions are split up by a very complicated procedure. In summary, a Qualified Domestic Relations Order, commonly called a QDRO must be prepared to split up the pension. All of the pension information must be given either to Troyan, Inc. or to Pension Appraisers, and they will prepare the QDRO. In most cases, the parties equally split the costs to prepare the QDRO's. Once the proposed QDRO order is obtained, then is it sent to the court. The court will then sign the order and certify it as well. Once the order is certified, then the order must be sent to the plan administrator of the pension. The pension administrator will the distribute the pension according to the terms of the QDRO. It is very important to have either Troyan, Inc. or Pension Appraisers prepare the QDRO. A poorly drafted QDRO can be a disaster. If a QDRO is not prepared correctly, then there can be some tremendous adverse income tax consequences.

How are the marital assets distributed pursuant to a divorce judgment?
After a divorce is over, the parties have to distribute the marital assets according to the terms of the judgment of divorce. In most cases, this is almost as hard to accomplish as it is to reach a divorce settlement. The bottom line is that after a divorce is over the parties are full of rage and hate for each other. Divorcing people is not an easy way to make a living.

The parties and the lawyers should try to work out a reasonable plan to liquidate the marital estate, and to distribute the assets in an orderly and fair manner. However, this goal is rarely accomplished. Liens and judgments are filed. Mortgage payments are missed. Automobiles are smashed in accidents.

If the parties can't reach an accord as to how to distribute the marital assets, then a party may have to file an application for post-judgment relief. Many people are very naive and they believe that once the divorce is complete then their problems are over. In many cases, there is more work in the post-judgment aspects of the case than there is in the divorce case.

Homes have to be sold. Pensions must be split via a QDRO order. Stocks must be sold. Credit card bills must be paid. It is my advice to my clients to liquidate the marital assets, and to pay off all of the joint debts ASAP. Moreover, I always advise my clients to insist that they be taken off any joint mortgage within six months of the marriage. I have had countless cases wherein a person's credit has been ruined because their ex-spouse did not pay for the mortgage on the former marital home. Thereafter, the home goes into foreclosure. As a result of this disaster, the spouse who does not even live in the marital home any more has his credit ruined. The aggrieved spouse did not even "see it coming" that is credit would be nuked. Sometimes the most awful things that happen to a person hit them when they don't even expect it. Once your credit is ruined your chances of buying a new home are slim to none.

In summary don't expect that your problems will be over once your divorce case is over. In most cases, the distribution of marital assets is never an easy process. It is always a very good idea to keep track if your former spouse is paying the mortgage if you are still listed as a borrower. Don't let your ex-spouse ruin your credit. I have seen this occur countless of times. Don't let yourself become a victim.

How does a court determine how to apportion all of the marital assets in a marriage?
Equitable distribution calls for a judge to apportion the marital assets in such a manner that will be equitable and just to both parties under all circumstances. "Equitable distribution" states that each spouse is entitled to a portion of the marital property in relation to his/her contributions during the marriage.

Equitable distribution does not mean an equal division of the marital assets. The court cannot mechanically divide the assets on a 50/50 basis. When determining equitable distribution, the extent of each parties' contribution to the marriage is not measured only by the amount of money that was contributed during the marriage. The court will also evaluate all of the financial and non-financial components of the marriage. Therefore, the efforts of raising the children, making a home and providing emotional support is as essential to the maintenance of the marriage as the economic factors. The trial judge also considers the factors above to help determine how much or how many of the assets should be allotted to each party.

How does bankruptcy affect a divorce?
Family law and bankruptcy seem to go together like Batman and Robin. Upon splitting up, either the spouses can't pay the family debts, or one spouse seeks to use bankruptcy as a weapon against the other spouse, or the other spouse's lawyer.

For those divorcing or divorced, the bankruptcy issues generally fall into three categories; 1) The payment of child support and alimony after a bankruptcy has been filed; 2) The enforceability of a property settlement agreement after a bankruptcy has been filed; and 3) What happens to a joint credit card debt if only one spouse files for bankruptcy.

How is the marital debt distributed during the marriage?
In many divorce cases, the issue really is not the distribution of marital assets. Instead it is the distribution of credit card debt, car-repo debt, tax debt, and paying off mortgage arrears. The bottom line is New Jersey is a very expensive state to survive in. Property taxes are sickening. Tolls are high. Food is expensive. Even just going to the beach will cost you almost $10. What a rip off! Jersey is the only state besides New York to charge to get onto the beach. Let's face it, many aspects of living in New Jersey suck.

In about one half of my cases, the primary issue is how can the parties split up the debt that was accumulated during the marriage. The basic rule is that any debts that were accumulated during the marriage must be allocated between the parties. However, a court may consider who has a greater income and proportion the debts accordingly.

I always recommend that marital assets be sold, and that as much of the marital debt be paid off. I always recommend that the assets be sold or liquidated as soon as possible after the divorce is over. In many cases, I recommend that the marital home be sold, and that any outstanding credit cards be paid off from the proceeds of the closing. I also counsel my clients that they should not pay full value to the credit card companies. I always recommend that I be retained to obtain a "work out agreement" of the credit card debt. In many cases, I can work out a deal with the credit card company to settle their claims for 40% to 50% of the outstanding credit card bill(s). However, the credit card company must be paid the full amount of the settlement from the closing. In return, the credit card company will waive the remaining balance, and they will mark the debt as a "paid settlement in full" on the parties credit reports. This is a great service that I can provide to recently divorced couples, who are in financial trouble.

It is never a good idea to just split up the credit card debts. In many cases, the parties just do not honor the terms of the judgment of divorce. In many cases, one spouse will eventually declare bankruptcy, and he/she will not honor the terms of the judgment of divorce to pay off certain credit card debts. Once the credit card debt is discharged by one spouse, then the credit card company will pursue the collection of this debt against the other spouse. If the other spouse co-signed on the credit card application, then he/she could be liable for this consumer debt even if the judgment of divorce specified otherwise.

In summary, the issue of outstanding credit card debts is very common in most divorces. Great care should be given to insuring that the debts are paid off as soon as possible with the liquidation of some marital assets. If this is not possible, then great care should be given to determining if both spouses are listed on the credit card application as co-debtors. A litigant must always be mindful that if their spouse files for bankruptcy, then the credit card company may go hunting for you if your beloved ex-spouse filed for a bankruptcy.

How will the marital property be distributed?
All property acquired by the parties during their marriage is subject to "equitable distribution." The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage.

"Equitable" does not necessarily mean that the property will be divided one-half to each of the parties. New Jersey is not a so-called "community property" State, where this would necessarily be the case. In New Jersey, there is no initial presumption in favor of an equal division.

The theory is based upon viewing the marriage as a partnership or joint enterprise, so that even if one party technically acquired all of the assets through earned income, while the other was at home and not working outside the home, the court would still recognize that the marriage was, in fact, a partnership and that, but for the fact that the unemployed spouse was at home keeping the household for the family, the employed spouse would not have had the opportunity to earn the income for the marital partnership.

Thus, the identity of the person who actually earned the money becomes largely immaterial and, unless the parties can agree upon a fair distribution, the court would distribute all property in a manner that it deems "equitable."

I have filed a motion for an increase in child support. What happens to my motion if my ex-husband files for bankruptcy?
In most cases, the family court will not hear the support motion until the bankruptcy case is finished. Some judges will rule on the motion, and hold that the automatic stay does not bar the family court from considering the motion. Other judges will require that the moving party to obtain stay relief. In simpler terms, stay relief means that the Bankruptcy Court issues an order that permits the moving spouse to continue her family court motion. To obtain stay relief, the moving spouse will have to obtain an order from the Bankruptcy Court that permits her to continue to pursue her motion requesting an increase in support. In the majority of cases, a Bankruptcy Court routinely grants these types of motions.

I purchased a house prior to marriage, and I used my own premarital funds to purchase the house. The property was titled in my name alone. After we married, I agreed to re-deed the home over to the both of us as tenants by the entireties. What then?
In most cases, the deeding over would be regarded as evidence of an inter-marital gift of one-half of the property to the previously non-titled spouse.

I was ordered to pay for my wife's lawyer's fees, can I wipe them out if I file for bankruptcy?
In many cases, a divorce is simply a war of attrition. In many cases, the family court will award the wife counsel fees. Basically, this means that the husband will have to pay for the wife's lawyers' fees. In many instances, this could be a $10,000 or higher bill. People quite often feel very sick if they are ordered to pay for their spouse's legal fees. This type of arena obviously explains why the security checks are so intensive at the local county courthouses.

It is not uncommon for a husband spouse to file for bankruptcy after a divorce is over. In many cases, the husband will list the wife's lawyers' fees as a debt on his bankruptcy schedules. Consequently, the issue arises as to whether the lawyers' fees are dischargeable in a bankruptcy. The key question is whether the counsel fee debt is declared as a support obligation or a property settlement claim.

The Bankruptcy Court recently declared obligations to pay spousal support and attorney fees, awarded as additional spousal support, as non-dischargeable pursuant to 11 U.S.C. 523 (a)(5) of the federal Bankruptcy Act. Van Aken v. Van Aken, 2005 Fed. App. 0001 (6th Cir. 2005).

If an ex-husband tries to discharge a counsel fee award, then it is imperative that the non-debtor spouse file for an adversary proceeding with the Bankruptcy Court. Basically, the adversary proceeding will request that the Bankruptcy Court set this dispute down for a hearing. Thereafter, the Bankruptcy Court will decide whether the counsel fee award is a form of support and is non-dischargeable. Alternatively, the Bankruptcy Court could decide that the counsel fee award is a form of equitable distribution and that it can be discharged. Moreover, the Bankruptcy Court could order that the payment terms of the counsel fee debt should be restructured. It is very important to emphasize that if a non-debtor spouse ignores when their spouse files for bankruptcy, this could lead to a disastrous result. If there is no objection, then in all likelihood the debtor spouse will be successful in discharging a counsel fee obligation.

If certain assets are titled in my name alone, does this insulate me from any equitable distribution claims by my spouse?
No. This is a widely held misconception. There may or may not be an equitable entitlement to the titled property by the untitled spouse, but keeping the title in one party's name alone accomplishes very little. Buying property in one's own name during marriage accomplishes nothing in terms of immunizing it from any claims of equitable distribution.

If I file for a bankruptcy will this impact my spouse's or my own I.R.A. accounts, cash value life insurance accounts, or jointly owned land?
In general, your filing bankruptcy will not affect your spouse's property. In a Chapter 7 Bankruptcy, the Trustee will be able to take property which you own if it is not exempt. The Trustee cannot take property of your spouse even if it is not exempt.

Unfortunately, the answer is not so easy if you own property with someone else, including your spouse. Whether the property may take only your interest in the property, or all of the property depends on the nature of your ownership in it.

If you own property jointly with anyone, including your spouse, the Trustee may take your share of the property. The Trustee cannot take the joint owner's share. However, dividing the property between the joint owner and the Trustee may require that the property be sold.

You should be able to keep your SEP, IRA and 401K plans. In New Jersey, IRAs are exempt--except for deposits made within six months before filing--and EISA plans (which 401K and other retirement plans would ordinarily be) are also protected--if the documents that created them contain properly drafted spendthrift protection.

In New Jersey, the cash value in your life insurance is exempt up to a certain amount, if you name the proper beneficiaries and meet the other requirements to claim the exemption

If my case goes to trial, and if I disagree with the Judge's decision regarding the equitable distribution of property, do I have any rights?
Yes. In every case, the court is required to make specific findings of fact on the evidence relative to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including the factors listed above. If you have a good faith belief that the judge either didn't consider a specific factor that is important, or misapplied a factor to the facts of your case, and you might consider filing an appeal to the Appellate Division.

Please keep in mind that the odds of winning your appeal are only about one in four. Moreover, appeals can be very expensive. The filing fees are very high. Moreover, a person who appeals also has to pay for the transcripts of the divorce proceedings. The cost of transcripts are very high. Finally, if your appeal is not strong, then you may be required to pay for your ex-spouse's legal fees to contest the appeal. In summary, before anyone appeals, he or she must carefully consider that there is a downside to an appeal. Moreover, the odds of winning an appeal are only about 25%.

If my husband files for a bankruptcy can I still enforce the terms of the divorce judgment?
The Bankruptcy Code recently made non support obligations created in connection with a divorce or separation non-dischargeable in Chapter 7 if the discharge of the obligation would harm the non- debtor spouse more than it would benefit the debtor. 11 U.S.C. 523(a)(15).

Unlike support obligations, which are non-dischargeable without the necessity of action on the part of the recipient spouse, these marital separation obligations survive the bankruptcy only if the non debtor spouse files a timely action to except the debt from discharge.

The key issue in any family law and bankruptcy case is to determine if a debt is classified as a support obligation or a property settlement claim. There is a tension in the Bankruptcy Code that proposes to give a debtor a fresh start after bankruptcy, while at the same time protecting the interests of the non-debtor spouse, usually a wife, and the minor children.

If a spouse files for bankruptcy, and attempts to discharge marital debts to you that are not support related, then it is imperative that you obtain an experienced bankruptcy ASAP.

If your spouse tries to wipe you out in a bankruptcy, then you have to file an adversary proceeding. An adversary proceeding is basically a lawsuit within the bankruptcy case. The Bankruptcy Court will then decide whether or not to discharge any marital debt. If the non-debtor spouse does not file an adversary proceeding, then in most cases the marital debt will be discharged or wiped out. Therefore, some of the terms of the property settlement agreement will not be enforceable.

If one spouse files for bankruptcy, what happens to any joint credit card debts?
The distribution of credit card debts is a primary issue that arises in the majority of divorce cases. I always suggest that all credit card debts be paid off from the marital assets before any monies are distributed. It is always advisable to pay off all of the marital debt before the divorce is put through before the court. It is always important to emphasize that post-judgment issues always arise. It is extremely important for a divorcing couple to tie up as many loose ends as possible.

If there is a sale of a marital home, then I always advise that the credit cards should be paid off at the closing. The closing attorney can send out checks to the credit card companies at the closing table. Moreover, in many cases, a good family court lawyer can assist their client to negotiate a settlement of the credit card debt(s). Many credit card companies will accept 60% settlement of the debt if it is paid in one lump sum. However, before any credit card debt is settled, a person must always get a settlement letter from the credit card company or collection agency that verifies the terms of the settlement. Never trust a credit card company or a collection agency. Their chief goal is to collect as much money as possible. In many cases, credit card companies and collection agencies can be ethically challenged. Therefore, always get your settlement in writing before any checks are issued.

If one spouse files for bankruptcy, and if the other spouse does not file, then the credit card company will "go after" the spouse who did not file. When you sign up for a credit card, the spouses usually sign a contract that you need a microscope to read it with. The contract requires both parties to be jointly and severally liable. Basically, this means that if one spouse should die or files for bankruptcy, then the other spouse is liable for the entire credit card debt. The credit card companies do not care whether it is fair to collect the credit card debt from you or from your ex-spouse, even though the charges were racked up by your ex-spouse. The credit company is possessed with only one objective, and that is to collect money. They will destroy your credit, lien up your home, and garnish your paycheck to achieve their goals.

In any divorce case, the distribution of credit card debts must be handled with an extreme attention to detail. One should never assume that their soon to be ex-spouse will pay their credit card debt(s) that are delineated in their divorce judgment. Moreover, bankruptcy is a part of life in the United States. Even though the bankruptcy laws just recently got harder, I predict that the amount of filings will remain stable. Any property settlement agreement should have provisions in it that address what will happen to the apportionment of credit card debts if one spouse files for bankruptcy. I have seen countless of divorce cases, wherein one spouse files for bankruptcy, and tries to sandbag the other spouse with all of the credit card debt. Life is not fair. However, informed divorcing men and women can hedge their risks, and minimum these types of disasters that occur more often than not.

Is a severance package subject to equitable distribution?
A pre-retirement benefit package received by a spouse after a divorce complaint was filed, but representing in whole or in part a deferred compensation for services provided during the course of the marriage, is subject to equitable distribution. The key question is whether the "benefit" represented deferred compensation based upon the spouses previous endeavors during the marriage. For example, severance pay may be determined by an employee's skills during his/her employment at a company. This, then would be subject to equitable distribution because both parties would have contributed to the employed spouse success in his or her care. Severance pay may also be considered for past labor. Payment for vacation day may accrue during the marriage and it must also be considered under equitable distribution. Finally, commissions upon departure from a company are also considered deferred compensation for previous endeavors.

My child support and alimony are deducted from my former husband's paycheck. Will this garnishment stop if my husband files for bankruptcy?
Any child support or alimony garnishment order(s) that deduct current support from the husband's wages are generally affected by the bankruptcy filing. However, in many cases unscrupulous husbands will rack up thousands of dollars in child support arrears. The collection of child support arrears will be stayed in a bankruptcy filing. Any garnishment order(s) that collect past due support arguably are stayed in Chapter 7 and certainly stayed in Chapter 13. The husband will be able to propose a repayment plan to repay the child support arrears in a Chapter 13 case.

My husband filed for bankruptcy and he wiped off all of his credit card debts. The credit card companies are now suing me. What can I do?
Under New Jersey Law, the courts have continuing jurisdiction to review awards of alimony and child support and may increase or decrease such awards where parties' circumstances have changed.

The post divorce bankruptcy of a spouse is a change in circumstances that may warrant a modification of a prior alimony award. More likely, it will be the non-debtor spouse who makes the Lepis application because the bankruptcy has diminished the amount paid to the non-debtor spouse as equitable distribution and because the discharge of the debtor spouse leaves more money available to distribute as alimony or child support.

In simpler terms, the non-debtor wife can file a motion with the family court, and request that the alimony, child support, and the terms of divorce settlement be reconsidered because of the bankruptcy. This type of application is commonly referred to as a Lepis application.

My spouse has just filed for bankruptcy in the middle of our divorce case. What do I do now?
Divorce and bankruptcy really are intertwined in many cases. Living in New Jersey is extremely expensive. Paying for property taxes each year is similar to purchasing a new car. The stress of living in the "Garden State" is compounded once the spouses each have to maintain two separate households. Quite often, a divorce triggers a bankruptcy filing as well. In my opinion, the mixture of divorce case and a bankruptcy filing can really create a supreme mess. There are no winners or loses in a divorce case. Therefore, if possible all parties really should try to achieve a compromise, and reach a fair property settlement agreement. In many cases, a bankruptcy can help out both spouses, if they both file jointly.

If one spouse files for bankruptcy, then the family court can still continue to hear and decide issues relating to establishing support. However, with regard to issues of equitable distribution, the family court will require stay relief, or a Bankruptcy Court order that permits the divorce case to continue. Basically, the Bankruptcy Court will not split up the family home, divide pensions, and apportion any stocks or mutual funds, until the Bankruptcy Court gives it permission to.

We are in the middle of a nasty divorce, and I was just served with foreclosure papers. What should I do?
In many cases, once a divorce is filed, the family just falls apart. It is a sad reality that many families simply can't pay for their mortgage payments once they split up. A spouse can file a Chapter 13 Bankruptcy to stop the foreclosure. A Chapter 13 Bankruptcy will enable the family to propose a debt restructuring plan and a payment plan on the mortgage arrearages. At the very least, a Chapter 13 Bankruptcy will buy the family some time, and enable them to find an apartment to live in.

Alternatively, a Chapter 13 Bankruptcy could give a family some additional time to list their home on the real estate market, and then sell it. If a family loses their home at a sheriff's sale, then the sheriff's commissions, and the legal fees that are reimbursed to the bank's lawyer are mind numbing. A family receives any excess equity in their home, only after the sheriff's fees, the bank's lawyers fees, and the mortgage are fully paid off. Therefore, it is always advisable for an economically distressed family to sell their home in a "distressed sale" rather than lose it at a sheriff sale.

What are the factors that a court uses to determine the equitable distribution of the marital assets?
There are many factors that a court takes into consideration when it determines how to equitably distribute the marital assets. The factors are the following:

  1. The duration of the marriage;
  2. The age, physical and emotional health of the parties;
  3. The income of property brought to the marriage by each party;
  4. The standard of living established during the marriage;
  5. The existence of any written agreements made by the parties before or during the marriage concerning an arrangement of property distribution.
  6. The economic circumstances of each party at the time the division of property becomes effective.
  7. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquired sufficient educational training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
  8. The contribution by each party to the education, training or earning power of the other.
  9. The contribution of each party to the acquisition, dissipation, preservation depreciation or appreciation of the account or value of the marital property, as well as the contribution of the party as a home make.
  10. The tax consequences of the property distribution to each party.
  11. The present value of the property.
  12. The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects.
  13. The debts and liability of the parties.
  14. The need for creation, now or in the future, of a trust fund to secure reasonable foreseeable medical or education costs for a spouse or child.
  15. The extent to which a party deferred achieving their career goals.
  16. Any other factors which the court may deem relevant.

What assets are considered part of the marital estate for equitable distribution purposes
Only assets that are "acquired during the marriage" are considered to be part of the marital estate. Any property that was acquired before the marriage is considered to be premarital property, and it is not subject to equitable distribution. "During the marriage," is frequently interpreted as beginning the day the marriage ceremony took place, and ending the day when the divorce complaint was filed.

The concept of a marriage is that it is an economic partnership. Therefore, if the parties have a separation agreement before the complaint for divorce is filed, then the partnership died on the date of the separation agreement, rather than the date when the complaint was filed. Any assets acquired during the marriage would be considered under equitable distribution up to the date of the separation.

In summary, only property that is acquired during the marriage is subject to equitable distribution. However, property that is acquired by one party in contemplation of their marriage before the marriage is also still subject to equitable distribution. The courts recognize that the "partnership" of marriage may begin even before the actual marriage ceremony through the purchase of an assets, such as a home. The spouse who does not have his/her name on the deed may be required to show that they were actively involved in making improvements to the home before and after the marriage.

Additionally, all property that is acquired during the course of the marriage is subject to equitable distribution. This includes real estate, homes, pension proceeds, and any other tangible or real property assets. Even if the property was acquired in one spouse's name, it is subject to equitable distribution as long as it was acquired during the marriage.

What can I do to protect myself if my spouse files for a bankruptcy?
The more experience that I gain in the matrimonial world of divorce, the more I realize that life is not fair. In my one of my first divorce cases, the parties agreed to equally split $40,000 worth of credit card bills. Unfortunately, my client did not want to ruin her credit, and she was forced to repay all of this debt. Her deadbeat husband did not pay a dime of these credit card debts even though the divorce judgment required him to pay one half of it. Credit card companies just want their money, and they don't care who they collect it from.

It is always advisable to insert clauses into a property settlement agreement or a divorce judgment that limits the impact of a bankruptcy. Clauses can be put into a property settlement agreement that will give a spouse a right to reopen a case if a spouse has filed for a bankruptcy. Some sample clauses are as follows:

Sample Bankruptcy Proof Clause A
In the event of the declaration of bankruptcy by the Wife or Husband, then, in that event, said party shall continue to remain personally liable to the other for any and all expenses incurred by that other party in the connection with the defense of any suit instituted by a creditor or in connection with the payment of any monies to said creditor. It is the intention of the parties that any bankruptcy filed should be effective as against the creditor but shall not be intended to act to the financial detriment of the other spouse. The parties further agree that in the event a financial detriment to the other spouse is encountered as a result of the bankruptcy laws, then any provisions regarding equitable distribution and/or alimony shall be modified as to compensate the aggrieved party for the financial loss.

Sample Bankruptcy Proof Clause B
It is the intent of the parties that the obligations assumed by each in this Agreement, including any and all indemnifications, shall not be dischargeable in any future bankruptcy proceeding. The parties recognize that the support and equitable distribution provisions are interrelated; in the event one party is called upon to make payment on a debt, or fails to make payment to the other of an asset, as provided herein, such a

circumstance would be considered a significant change

in circumstance, warranting an application for a modification of the support provisions provided for herein, as well as a redistribution of assets and liabilities in order to effectuate the overall intent of ths Agreement. As a result of the interrelationship between the support and equitable distribution provisions of this agreement, it is the intent of the

parties to consider the payment of debts and transfer of assets, including indemnifications, to be in the nature of alimony, support or maintenance for purpose of interpretation under the bankruptcy code. Moreover, the parties acknowledge that the benefit to the defaulting party of discharge of any obligations hereunder in any future bankruptcy proceeding will not outweigh the detrimental consequences to the no-defaulting party. As a result, it is the intent of the parties that the obligations assumed hereunder shall not be discharge able in any future bankruptcy proceeding.

What does equitable distribution mean?
New Jersey is an "equitable distribution state." This means that in a divorce in New Jersey, any property that is acquired during the marriage must be divided in an equitable manner. Therefore, any marital property must be distributed either by a voluntary agreement of the parties or by an order of the divorce court.

Equitable distribution basically is the process as to how marital assets will be distributed. The distribution of marital assets is always very hotly contested and emotionally charged. In many cases, the parties actually become violent when they try to reach an agreement as to how to split up the marital assets.

The main theory of equitable distribution is that a marriage is an economic partnership. Therefore, each spouse is entitled to a share of the marital property.

What happens to a divorce judgment if the parties reconcile?
In some of my cases, the parties reconcile after the divorce is over. If the parties reconcile this can be interpreted as revocation of the prior divorce judgment. Reconciliation occurs when spouses resume living together for a sufficient period of time, which leaves the court to conclude that the parties resolved their differences and agree to resume their marital relationship. In many cases, a court may view a reconciliation as voiding the executory sections of the divorce judgment. However, the executed portions of the divorce judgment will remain unaffected.

The concept of reconciliation can be very important if one spouse has obtained unfavorable terms in their divorce. Sometimes, real estate market conditions change, or stock values plummet. If a devious spouse convinces a lovelorn ex-spouse to reconcile, it may very well be a ploy to try to have the remaining executory terms of the divorce judgment declared null and void.

What if I purchased a house prior to marriage, and I used nothing but my own premarital funds to purchase the house. The property was titled in my name alone. After we married, I agreed to re-deed the home over to the both of us as tenants by the entireti
In most cases, the deeding over would be regarded as evidence of an inter-marital gift of one-half of the property to the previously non-titled spouse.

What is an antenuptial agreement?
An antenuptial agreement is one made prior to the parties' marriage. It disposes of property and alimony rights to a spouse in the event that a marriage should fail. Normally, the intent of an antenuptial agreement is to deny a spouse an interest in assets held in the full name of the other at the time of the marriage. By executing an agreement, the parties have agreed not to allow the court to resolve questions of alimony and equitable. Distribution. These agreements are enforceable provided that there is full disclosure both parties as to their financial conditions, including assets and income. The agreement is null and void if one spouse is left destitute. An agreement which leaves one souse with a standard of living far below which was enjoyed during the marriage may not be upheld by the court. The courts will also make sure that there is no fraud or duress in the execution of the agreement.

What property is not subject to equitable distribution?
There are several categories of property not subject to distribution. The major type of asset(s) that is not subject to equitable distribution is property that was acquired before the marriage. Moreover, any property that was acquired by way of an inheritance is not subject to equitable distribution. In summary, any property that was acquired before the marriage, and any property that was acquired by an inheritance is not part of the marital estate.

Unless there is a pre-nuptial agreement, if property is acquired prior to a marriage, it must be kept separately, and it must not be commingled with other marital assets. It is very important to keep premarital assets separate from the marital property. If real property was purchased or inherited prior to marriage - while it may start out immune to claims of equitable distribution - should the property be maintained, improved or prepared with money earned or otherwise received during the marriage, that property might slowly find its way onto the bargaining table.

A very common issue in many divorces is that premarital assets become commingled with marital assets. In many cases, it is not a realistic option to have a person sign a pre-nuptial agreement. However, it is not too overbearing to insist that premarital monies be kept separately and commingled. My philosophy about marriage is to hope for the best, but expect the worst. Don't commingle premarital assets with other marital property. During a divorce case, people become ruthless animals. Protect yourself as best as you can!

What will happen to my ex-spouse's credit report if I file for bankruptcy?
Each person has (or is supposed to have) a separate credit file for credit reporting purposes. Your debts, if yours alone, are not supposed to show in your ex-spouse's credit file. Similarly, your bankruptcy should not show in your ex-spouse's file if you have no joint debts.

Even so, it pays to monitor your credit file, since credit reporting, like so much else in life, does not always follow the law.

How can I enforce my rights to have visitations with my grandchildren?
A grandparent has to file an application with the county court house and request visitation with their grandchildren. The complaint will then be served on the parent(s). Thereafter, the court will set the case down for a case management conference. At this court hearing, the judge will make a sincere attempt to try to mediate a settlement. The judge may also refer the case to mediation. Mediation is the hot new trend in grandparent visitation cases. Mediation is an excellent way to resolve bitter grandparent visitation disputes. The court may also set the case down for a plenary hearing. At the hearing, both parties will be permitted to present evidence that either supports grandparent visitations, or submit evidence that proves that grandparent visitation would not be in the child's best interest.

If the case is sent to mediation, then the case will be heard in approximately 30 to 60 days. The mediator is usually a member of the Probation Department. Lawyers usually are not permitted to attend the mediation session. If the mediation is not successful, then the case will be sent back to the family court for a disposition.

What are the arguments against grandparents' rights?
  1. The state has no business interfering with the child-rearing decisions of competent parents, even if the parent determines that grandparent visitation will not be permitted.
  2. Some grandparents are excluded from their grandchildren's lives for good cause - for example, because they were abusive to their own children and cannot be trusted with the grandchildren. Some grandparents interfere with ordinary parental decision-making, or bad moth one or both parents to the grandchildren, and create unnecessary aggravation.
  3. If a conflict exists between the parents and the grandparents, any court interference could destabilize the home environment for the children.

What are the arguments for grandparents' rights?
  1. Grandparents may provide a stabilizing role in their grandchildren's lives, particularly after a divorce or crisis (such as the death of a parent).
  2. Where grandparents have been involved in a child's life, it can be traumatic to the child to suddenly be denied access.
  3. The mere fact that parents are divorced, or the grandparent's child dies or is incarcerated, should not automatically serve to grant the custodial parent the right to sever a positive relationship between grandparents and their grandchildren.

What is the law regarding grandparent visitation in New Jersey?
New Jersey's Grandparents' Visitation State, N.J.S.A. 9:27.1 allows a grandparent residing in New Jersey to make an application for visitation. The grandparent must prove that visitation is in the best interest of the child. In making this determination, the court must consider eight factors, including:
  1. The relationship between the child and the grandparent;
  2. The relationship between parents and the grandparents;
  3. The time that has elapses since the child last saw the grandparent;
  4. The effect that such visitation will have on the relationship between the child and the child's parents;
  5. If the parents are divorced or separated, the time sharing arrangements which exist between the parents with regard to the child;
  6. The good faith of the grandparent filing the application;
  7. Any history of physical, emotional or sexual abuse or neglect by the application; and
  8. Any other factor relevant to the best interests of the child.
The starting point for any grandparent visitation case is whether it will serve the best interests of the child. Courts carefully consider the length of the relationship and the frequency of actual contact as primary evidence that the relationship should be preserved. Finally, the court will look at the "totality of the circumstances" when it rules on any grandparent visitation application.

Can a premarital agreement be signed after the wedding?
A premarital agreement can be made after the wedding whenever differences arise between the parties regarding the future financial issues. This type of agreement is often called a postnuptial agreement. A postnuptial agreement must be based upon some consideration other than the marriage itself. Sometimes a postnuptial is made as part of a reconciliation of the parties or following some other dispute. A postnuptial has been held to be just as enforceable as a premarital Agreement.

What are the essential requirements that must be satisfied in order for a premarital agreement to be upheld?
  1. There must be full and fair disclosure of the earnings, property and financial obligations of the parties. A complete and comprehensive financial statement must be annexed to the agreement that sets forth the part's earnings, property and financial obligations. A CIS should also be attached to the agreement.
  2. Both parties should be represented by attorneys. In all probability, a premarital agreement will not be enforceable if the other party did not consult with an attorney, or did not waive the right to do so in writing.
  3. The agreement must not be unconscionable. A premarital agreement is defined as an agreement that would leave a spouse as a public charge or close to it. N.J.S.A. 37:2-32 defines a premarital agreement as unconscionable if certain circumstance should arise. These situations are as follows:
    1. When a spouse is rendered without a means of reasonable support.
    2. When a spouse becomes a public charge.
    3. When a spouse is provided a standard of living far below that which was enjoyed before the marriage.

What are the reasons why a prenuptial agreement may be declared invalid?
  1. Unconscionability. A premarital agreement must be fair and reasonable. A premarital agreement can't cause financial hardship to the other party. Unconscionable contracts are often found to be invalid in the courts. The concept of unconscionability is often used the family court arena as well.
  2. Both Parties Don't Have Independent Counsel. Each party must have their own lawyer. Many people mistakenly believe that they can have one lawyer represent both of them. Lawyers are expensive, and no one can blame the public for wanting to save on legal costs. However, each party must have their own legal counsel. A lawyer must make it clear to the unrepresented party that he or she does not represent him/her, and further advise them to obtain their own lawyer. All steps should be taken to insure that any premarital agreement is "air tight" and can't be challenged one day if the marriage turns out to be a disaster.
  3. The Premarital Has Incomplete Information. There must be full disclosure when negotiating a premarital agreement. Quite often a person will try to hide some assets when he or she negotiates a premarital agreement. This can be a tragic mistake. If a person does not make full disclosure during the negotiation of a premarital agreement, then this can eventually be strong grounds to void premarital agreement.
  4. The Premarital Agreement Has False Information. A premarital agreement can't be based on false and misleading financial information. A person must make full disclosure during the negotiations of a premarital agreement. There are many risks to getting married. However, if a person wants to increase the odds that a premarital agreement can withstand any legal challenges, then he or she must insure that they were completely honest in their dealings.
  5. Invalid Provisions. A premarital agreement can't limit child support or any other child support related areas. If a premarital agreement contains clauses that try to limit child support or child support related areas, then that specific clause will be invalidated. If a divorced spouse has signed a very oppressive premarital agreement, then he or she will try to use this illegal clause to invalidate the entire agreement. However, in most cases, the court will only strike the illegal clause, and enforce the remainder of the premarital agreement, provided that it is fair and equitable.
  6. There Must Be Reasonable Time For Consideration. The prospective spouse who is entering into a premarital agreement must have a reasonable amount of time to adequately review it. It would not be wise to give a prenup to your prospective bride or husband the day before the wedding. These agreements must be thoroughly reviewed and considered.
  7. There Must Not Be Undue Pressure. Premarital agreements are often challenged once the parties get divorced. One of the most popular challenges to a premarital agreement is that a person will allege that they were pressured by their spouse, the lawyer, or the in-laws to sign the prenup. I would suggest that the execution of a prenup should be videotaped. If there is a significant amount of "money on the line" then a videotape can really save the agreement. Obviously, these formalities may take out some of the romance out of the wedding. However, let's face it, life is not romantic. It is always my credo to be overly cautious in life. The divorce courts are packed! A premarital agreement may enable many people to sleep a little better at night.
  8. No Written Agreement. All premarital agreements must be in writing. An oral premarital agreement is not enforceable. Don't be cheap, hire a lawyer, and put your agreement in writing. Don't be misled to believe that all lawyers are expensive. Don't hire the first lawyer who tells you he charges $200 per hour. If you have a "war chest" of assets, then it may be wise to hire a top echelon family lawyer in your county. However, most cases are no so complicated, and many lawyers will charge you a much more reasonable fee.

What is a prenuptial agreement?
A prenuptial agreement is also known as premarital agreement or an antenuptial agreement. This type of agreement may be used by a couple to determine, prior to marriage, what each party's rights and obligations will be in the event of divorce. Premarital agreements are governed by the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 et seq. The agreement must be in writing and it must have a statement of assets attached to it. It becomes effective upon the marriage of the parties.

Premarital agreements are entered into by prospective husbands and wives before they get married. If a premarital agreement is properly drafted, then they can save the parties significant emotional and financial expense if they get divorced.

What is the standard of law that a court uses to ascertain if a prenuptial agreement is legally binding?
As to enforcement of premarital agreements, there is a three-pronged test that must be addressed by a court if the agreement is challenged:
  1. Was the agreement entered into voluntarily;
  2. Did the parties have the opportunity to have the agreement reviewed by counsel of his/her own choosing; and
  3. Was there full disclosure as all assets, liabilities and income?
If these three prongs can be proven, then the burden to set aside the agreement shifts to the other side (with a higher burden of proof) and the primary focus will be on whether the agreement was "unconscionable" at time of enforcement, which shall be determined by the court as a matter of law.

What marital terms can be negotiated in a premarital agreement?
The parties to a premarital agreement may negotiate about the following areas:
  1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
  2. The rights to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  4. The modification of elimination of spousal support;
  5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  6. The ownership rights in and disposition of the death benefit from a life insurance policy;
  7. The choice of law governing the construction of the agreement; and
  8. Any other matter, including their personal rights and obligations, not in violation of public policy.
However, a premarital agreement cannot predetermine issues relating to children including child support, custody or parenting time.

What martial terms can't be included in a premarital agreement?
A premarital agreement cannot limit any child support or any other types of financial support for a child. This includes costs to maintain health insurance or life insurance. Moreover, a premarital agreement can't stipulate which party should have custody of any child born of the marriage.

Child support provisions are governed by different rules that take into account a child's needs and best interests and the state's concern as to the welfare of children. Waivers of child support are invalid. Agreements as to child custody and visitation will not be upheld because as the welfare of the child born after marriage will override.

When should a premarital agreement be signed?
It is critically important that all parties have adequate time to review and sign a premarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. It simply does not make sense to try to put together a premarital agreement on short notice and hope that if is ever challenged that it will survive.

White six to eight weeks would be optimum, this does not mean to suggest that an attorney cannot successfully complete a premarital agreement in less time. If there is a short period of time for the preparation and negotiation of the agreement, it would not be unreasonable to state in the body of the agreement that the parties recognize that they have come to an understanding within a limited period of time, and feel that the time frame did not in anyway affect their ability to freely and voluntarily entered into the agreement or cause them to do so under any coercion, duress or undue pressure.

Can a person record or tape a conversation of their spouse?
Pursuant to federal and state wire tapping statutes, a person is legally permitted to record and tape a conversation only if the person who is doing the recording or taping is a party to the conversation. A person can't tape their spouse while they are talking to other people, and more specifically their paramour.

In 1991, a New Jersey trial court in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991), addressed the issue as to whether a husband violated the wiretapping statute by taping his wife's telephone communications in the marital home, and whether such actions could result in damages. The court ruled that it was illegal for a person to record the phone conversations of his spouse with another person. The court reasoned that the invasion of privacy was severe. The court found that the secretive taping of a spouse's telephone calls under those circumstances as an egregious invasion that warranted both compensation and punitive damages.

Can a spouse file a tort for an assault and battery?
In many cases, a spouse is actually physically injured by her husband or wife. Unfortunately, in many cases a husband actually physically hurts his wife by punching her. I have had a case wherein the husband actually fractured his wife's skull. Moreover, there are other cases out there wherein a wife has stabbed her husband in the "heat of passion." Acts of domestic violence frequently occur once a spouse is busted for cheating.

In these types of cases, once a violent assault and battery has occurred, divorce is the only option. If there is a permanent physical injury, then a spouse can also sue their husband or wife for the tort of assault and battery. If there are serious physical injuries, then the amount of damages that can be awarded can be quite substantial.

Battery is defined as a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent. Battery, stands in contrast with "assault," a term that is ordinarily used to refer to apprehension of imminent contact rather than the contact itself. "Assault" is more fully defined as ones interest in freedom from the apprehension of a harmful or offensive contact with a person, as distinguished from the contact itself, and it is protected by an action for the tort known as assault. No actual contact is necessary, and the plaintiff is protected against a purely mental disturbance.

In the majority of cases, a spouse files a complaint for assault or battery with the local police department. If a wife calls the police to report an incident of domestic violence, then the police will often file a complaint for assault and battery. These case are mostly heard on the Municipal Court level. Moreover, a local municipal court judge will also issue a temporary restraining order. If a spouse commits an assault or battery, then it is not a good idea to permit him to stay in the marital home.

In most cases, the assault and battery charges will be dropped, if the husband completes an anger management course. In many cases, the municipal court will adjourn the case for six months to permit the husband to complete an anger management course. The municipal court also wants to assess how the marriage is going, and if any additional acts of domestic violence have occurred.

If the injuries caused from the assault and battery are serious and substantial, then the case will be sent up to the County Prosecutor to review for a possible indictment.

What can a spouse do if a husband or wife tries to dissipate and hide assets prior to or after the filing of divorce?
A very common problem in many cases is that after the complaint for divorce is filed, then one spouse attempts to dissipate and hide valuable marital assets. In such circumstances, if a spouse wrongfully transfers marital assets to a third party for no or insufficient consideration, then a cause of action may be filed against not only the spouse but also the third party based upon the fraudulent conveyance.

I have been frequently asked what is the difference between a legal separation and a divorce. My answer to this question is that a husband has more time to hide his assets if there is a legal separation rather than in a divorce case.

In many cases, once a wife files for divorce, a husband will go berserk and panic by trying to hide his assets everywhere. Soon to be ex-husbands often have close family members hide their money and assets for them. Alternatively, a sneaky husband will also have his new girlfriend hide money or assets for them as well. In many cases, a tremendous amount of time must be spent on trying to uncover hidden assets concealed by a devious husband.

If a husband still attempts to hide and conceal assets, even after a probing investigation, then a good lawyer should amend the divorce complaint. The husband should also be sued for a fraudulent conveyance cause of action. At the very least, the filing of this type of lawsuit will force the husband to testify under oath what happened to the concealed money and assets. In many cases, a court will award the wife the marital home if the husband persists in hiding and concealing marital assets.

What is a marital tort?
Basically, a tort is a civil wrong, for which the court will provide a remedy in the form of an action for damages. Torts may be intentional, negligent or reckless. They may result in any number of physical or emotion injuries and they also include injuries to property. Torts have increasingly become very relevant in New Jersey divorces. Many spouses now also sue their ex-husband for a marital tort(s), and it is then consolidated with the primary cause for the divorce.

In my opinion, a marital tort is basically a "shake down" tactic by a wife to obtain a distinct advantage in a divorce case. Examples of marital torts include: assault and battery; marital rape; Battered Woman's syndrome; wrongful death, intentional infliction of emotional distress; false imprisonment; use of excessive force; defamation; and wiretapping.

Claims may also arise after the complaint for divorce has been filed. These types of claims frequently involve hiding money after a divorce case has started. These types of torts are called the dissipation of marital assets, fraudulent conveyance of marital assets, invasion of privacy, and interference with custodial rights.

In summary, marital torts is an emerging trend in New Jersey divorce law. The concept of inter-spousal immunity has been abolished in New Jersey. Therefore, the gates have been open to permit spouses to sue each other for individual torts. What a wonderful world we live in!

What is the Battered Woman's Syndrome?
In some bitter divorce cases, a battered spouse will also sue their husband for a personal injury tort. The tort claim of being a battered spouse will be consolidated with the divorce case. A ruthless lawyer will use a battered spouse tort claim to try to obtain additional financial concessions in the divorce case.

The Battered Woman's Syndrome was first recognized by the New Jersey Supreme Court in the case of State v. Kelly, 97 N.J. 178 (1984). By definition, a battered woman is one who is repeatedly physically or emotionally abused by a man in an attempt to force her to do his bidding without regard for her rights.

The trial court in the case of Cusseaux v. Picket, 279 Super. 335 (Law Div. 1994) established a four-part test to prove a cause of action for Battered Woman's Syndrome:

  1. Involvement in a marital or marital like intimate relationship;
  2. Physical or psychological abuse perpetrated by the dominant partner to the relations over an extended period of time;
  3. The afore stated abused has caused recurring physical or psychological injury over the course of the relationship; and
  4. A past or present inability to take any action to improve or alter the situation unilaterally.
In order to prove a "Battered Spouse" tort claim, a woman must also produce a psychological expert at trial. The psychiatrist must verify that the woman was battered, and that she suffers from psychological damages as a result of her abuse.

What is the tort of the malicious abuse of process/malicious use of process?
In many cases, a bitter ex-wife files many frivolous criminal and domestic violence complaints against her husband. I have seen many cases, wherein a bitter ex-wife sole concern is only to destroy their husband. In many cases, they do a great job! A husband can sue his ex-wife in an egregious case for a tort that is called the malicious abuse of process. This cause of action should only be considered in the most egregious set of facts because it is very difficult to prove. However, the filing of a complaint for abuse of process against a raging ex-wife could slow her down, and make her think twice against filing any more frivolous criminal or domestic violence complaints.

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