It’s almost back-to-school time and many area students rely on their parents to cover all of their college-related costs that remain after scholarships, grants, and loans. This can be a very stressful situation for kids and parents, particularly those in divorced families committed to contributing to their child’s college costs. There will be some parent who will decide that he/she is unhappy with that commitment and will often leave the child in a lurch while the two parents argue as to how the costs will be covered.

A recent unpublished New Jersey Appellate Division case has dealt with the parents’ obligations for the payment of college-related costs and expenses when one party has decided she doesn’t want to follow the terms of the parties’ Property Settlement Agreement (PSA). In Polcari v. Polcari, Docket No. A-3538-14, the Court not only evaluated the factors under Newburgh v. Arrigo, 88 N.J. 529 (1982), and N.J.S.A. 2A:34-23, the Court found that a plenary hearing “was not necessary in light of the specified terms of the PSA and the certified financial information the parties had submitted.”

The Trial Court had allocated, by percentages, the amount each parent was to be responsible for based strictly on their respective incomes. The Appellate panel found that, considering the circumstances, the findings were fair and just.

The issue of cohabitation can be a tricky one for divorcing spouses in New Jersey. State law currently allows one former spouse to ask a court to terminate his or her obligation to pay alimony to the other spouse if that person cohabits with another person. In other words, the money may stop if the former spouse lives with a romantic partner in a relationship that’s similar to a marriage. Although that legal principle was recently criticized by two sitting members of the New Jersey Supreme Court, the state’s highest court nevertheless enforced an agreement between former spouses to stop alimony payments upon cohabitation.

wedding ringWhen Husband and Wife divorced in 2006, they signed a property settlement agreement (PSA) resolving issues like how the former spouses would divide their assets. They also agreed that Husband would pay Wife more than $1,300 per week in alimony. The PSA stated that the payments would continue until either spouse died or Wife remarried or cohabitated with another person.

Husband asked a court to terminate his alimony obligation roughly two years later, arguing that Wife was now living with another man. Wife acknowledged that she was in a committed relationship with the man for 28 months leading up to a trial on the issue. But she also asserted – and the court agreed – that the relationship had since ended. As a result, the trial court suspended Husband’s alimony obligation during the length of the relationship. It allowed him to pay Wife half of the regular amount of the alimony payments until he recouped the money paid while she was cohabitating with the man.

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POSSESSION OF DRUGS

The statute for a violation of Driving While Under the Influence does not require identifying the amount of narcotic, hallucinogen or habit-producing drug required in order to establish a violation.  A police officer’s observations of the fact of intoxication is admissible.  The police officer’s opinion about cause of intoxication other than from alcohol consumption is not admissible.  This is because there is a general awareness of the signs and symptoms of alcohol intoxication which is not the same as a drug impairment.

DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL

If you want to get a child support or alimony order changed in New Jersey, you have to show that the circumstances have changed in a way that justifies the change. As the State’s Superior Court recently explained, judges are expected to compare the circumstances in place at the time the award was set to those in place at the time the request is made.

workersHusband and Wife divorced in 2012, following 11 years of marriage in which they had two kids. Husband was working as a loan officer at the time, bringing in about $24,000 per year. He was ordered to pay $231 a month in combined alimony and child support. That order was still in place two years later, when Husband went back to court and asked a judge to modify the arrangement. He said he’d been laid off due to an economic downturn and was unable to find a new job. Husband also said he’d lost his professional license as a result of poor credit and had lost money in real estate investments.

The trial court denied Husband’s motion to modify the support order. The judge said she wasn’t inclined to change the order so soon after an eight-day trial on the issue. She also found that Husband remained “capable of working” and “doing more.” As a result, the judge said Husband had not proved a sufficient change in circumstances to justify reducing the support award. Although Husband argued in a motion for reconsideration that Wife was living with her new boyfriend and had the capacity to make more money, the court said he didn’t present enough evidence to prove those claims.

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When a couple with kids decides to divorce, they often consider how they might pay for their children’s potential college costs down the road. In New Jersey, a parent’s responsibility to pay child support and college expenses past the child’s 18th birthday is standard. However, As New Jersey’s Superior Court recently explained, the law requires courts to follow specific procedures in considering the arrangement.

school kidsHusband and Wife divorced in 2002, following more than nine years of marriage. They entered into a settlement agreement as part of the divorce, under which the couple agreed to share legal and physical custody of their two daughters. They also initially agreed that Husband would pay Wife about $140 a month in child support, and they later agreed to kick that amount up to $800 per month in 2009. The agreement further provided that each former spouse would be equally on the hook for their kids’ net college expenses, or the expenses after any available financial assistance like loans, grants, and scholarships.

The former spouses wound up back in court after a dust up over their oldest daughter’s college expenses in the fall of 2012. Daughter was awarded an extensive financial assistance package from her school, but additional loans were also required to make up the difference. A trial court granted in part Husband’s request to modify the child support arrangement. The court found that a certain PLUS loan being used to finance part of Daughter’s schooling was only available to parents and that Husband and Wife were jointly responsible for paying it.

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New Jersey divorce cases often raise complicated issues about how to divide property and calculate income. The Superior Court recently handled.  The Court was called on to decide whether certain payments one spouse received from his employer after a divorce should count as bonus money to be shared with his ex-wife under the terms of a settlement agreement. The answer? It depends.

writing checkHusband and Wife were married for 19 years and had four kids before divorcing in 2012. They eventually reached a settlement agreement, under which they resolved child support, alimony, and other issues. Husband agreed as part of the deal to give Wife 30 percent of any bonuses as supplemental alimony. He also agreed to pay an additional two percent of each bonus in child support.

Wife later went back to court to enforce the agreement. She claimed she was entitled to 32 percent of certain compensation that Husband received beyond his salary. Husband explained that he was let go from his job in 2013. He said the additional money wasn’t bonus payments but instead payments for severance and stock options in the company. He also submitted documentation from his former employer to back up this argument.

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Annulment is an alternative to divorce in which a court concludes that a marriage is invalid. Unlike an actual divorce, in which a court legally terminates a marriage, an annulment determines that the marriage never existed in the first place. An annulment may be granted on only very limited grounds, including that one spouse was under the age of 18 or mentally incapacitated or intoxicated at the time of the marriage, that the marriage was obtained by fraud, inducement, or threats, or that one spouse was already married at the time. The state’s Superior Court recently took on an annulment case in which one spouse said his Wife married him for immigration purposes.
wedding ring
Husband filed for an annulment of his marriage to Wife in 2009, less than two years after the couple married. He asserted that Wife, a Chinese citizen, fraudulently entered into the marriage for the sole purpose of getting a green card. He said she never moved in with him after the wedding and stopped talking to him after she got the green card. Husband said he was not aware where Wife, who didn’t answer the annulment complaint, was currently living. He believed she had returned to China.

A trial court entered a default judgement granting the annulment when Wife failed to appear at a hearing on the matter. It wasn’t until about four years later that she finally showed up to court, this time asking that the default judgement be vacated. Wife claimed that she and Husband were visiting her family in China in 2009 when she was detained on embezzlement charges. Wife said that she was unable to return to the U.S. during her incarceration and that Chinese law barred her from communicating with people outside China in a foreign language during her incarceration.

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Settlement agreements often offer divorcing spouses an opportunity to resolve many or all of the issues related to their split in an effective and mutually agreeable way. It is important to remember that these are legal documents, however, and that they should be carefully crafted by an experienced family law attorney. A recent case out of New Jersey’s Superior Court makes that clear.

graduationHusband and Wife divorced in 2011, following some 14 years of marriage in which the couple had three kids. They entered into a property settlement agreement as part of the divorce. Husband and Wife acknowledged in the agreement that each was obligated to contribute toward their children’s future college expenses. The agreement noted that the couple had set up certain savings accounts to cover some of those expenses, as well as a portion of each child’s tuition. It stated that the remaining expenses would be paid proportionately, based on income and assets.

Wife returned to court in 2014, alleging that Husband had failed to live up to his end of the bargain and seeking an order to require him to pay more of their daughter’s (Daughter’s) college expenses. The judge instead ordered Daughter to pay $5,000 worth of the expenses herself and told Husband and Wife to split the remaining costs.

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When a person who is paying or receiving alimony wants to change the arrangement – whether it’s to increase, decrease, or stop the payments altogether – he or she usually has to show a court that there’s been a change in circumstances to justify the request. As a recent case out of New Jersey’s Superior Court shows, that can be a tough thing to do in situations in which the former spouses have fixed incomes and expenses.

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Husband and Wife divorced in 2003, following nearly a decade of marriage in which the couple didn’t have any children. They eventually entered into a consent agreement, under which Husband pledged to pay Wife $1,000 per month in alimony. They later agreed to kick that amount up to $1,750 a month. It wasn’t soon thereafter, however, that Husband went back to court and asked a judge to either reduce the payments or terminate them completely. A court agreed to reduce the payments to $1,250, noting that Wife was also getting Social Security disability benefits and health care assistance through Medicare.

Husband appealed the decision, arguing that the payments should have been trimmed even more. The issues bounced around the courts before landing back before the Superior Court. It said Husband failed to show that the circumstances had sufficiently changed to justify a further reduction of the alimony payments. The state’s alimony law was changed in 2014 to presume that a former spouse paying support should be relieved of that duty when he or she retires. The Court explained, however, that the new law doesn’t apply to alimony deals in place before the law took effect.

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Child custody and support matters involve complicated legal issues that require the counsel of an experienced attorney. There are specific types of custody which have legal significance affecting each parents’ rights, responsibilities and the status of the children.  In any proceeding involving the custody of a minor child, the rights of both parents are equal.  It is the public policy of the State of New Jersey to assure minor children of frequent and continuing contact with both parents after they have separated and dissolved their marriage.  It is in the public interest to encourage parents to share the rights and responsibilities of child rearing.  Parents must be fully informed about the implications of custodial terms and what they mean.  A Court will normally grant joint legal custody unless one parent has been found to be unfit.  Unless a parent’s rights are terminated and someone else has adopted the child, the parent still is responsible for child support.

When entering into a custody agreement, parents must never assume that it can easily be changed.  If there is a significant change of circumstances and the parents are unable to agree on a change of custody including a change in parenting time or removal, an action is brought into Court.  This can entail a process involving expert witnesses and litigation.  In making an award of custody, the Court shall consider, but not be limited to the following factors:

a.  the parents’ ability to agree, communicate and cooperate in matters relating to the child;

b.  the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

c.  the interaction and relationship of the child with its parents and siblings;

d.  the history of domestic violence, if any;

e.  the safety of the child and the safety of either parent from physical abuse by the other parent;

f.  the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

g.  the needs of the child;

h.  the stability of the home environment offered;

i.  the quality and continuity of the child’s education;

j.  the fitness of the parents;

k.  the geographical proximity of the parents’ homes;

l.  the extent and quality of the time spent with the child prior to or subsequent to the separation;

m.  the parent’s employment responsibilites;

n.  the age and number of children.

REMOVAL

One question that regularly comes up is what happens when one parent wants to move away. Past judicial decisions require the custodial parent to demonstrate a benefit of the move before the Court will grant removal.  Other decisions have been based on whether the children will suffer from it.

The custodial parent must first establish a good faith reason to move out of State.  The Court will then determine whether the move is against the child’s best interests or if it will adversely affect the visitation rights of the non-custodial parent.  A reasonable visitation schedule will have to be developed.  It is a recognized factor that it is in the child’s best interest to have frequent contact with both parents.

Where neither parent was the primary residential custodian, custody to one parent will first have to be changed.  If there is no agreement, this will entail a best interest evaluation.  The parent who then becomes the parent of primary residence will have to go through the steps required for approval to remove the child.

In the case of Baures v. Lewis, an application to remove a child from the jurisdiction over the non-custodial parent’s objection, the Court looked to the following factors:  a.  reasons for move; b.  reasons given for opposition; c.  past history of dealings between parties insofar as it bears on reasons advanced by both parties for supporting and opposing move; d.  whether the child will receive education, health and leisure opportunities at least equal to what is available here; e.  any special needs or talents of the child that require accommodation  and whether such accommodation or its equivalent is available in the new location; f.  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; g.  the likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed; h.  the effect of move on the extended family relationships here and in the new location;  i.  if child is of age, his or her preference; j.  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; k.  whether the non-custodial parent has the ability to relocate; and l. any other factor bearing on the child’s best interest.

New Jersey’s Superior Court recently examined a case in which one parent’s decision to move to Florida and send her child to live with her father in the meantime was considered a “de facto” agreement to change the parents’ existing child custody arrangement.

welcome-to-florida-1484292Mother and Father divorced in 2009, following a 20-year marriage in which the couple had four children. They agreed to share joint legal custody of the kids, with Father assuming primary physical custody of the two boys and Mother assuming primary physical custody of the two girls. The couple’s younger daughter later went to live with Father. The couple had initially agreed to share physical custody of Daughter, but Mother moved to Florida about five months later.

Mother later asked a court to enforce the shared physical custody arrangement. She claimed that Husband had “encroached” on her relationship with Daughter and had refused to allow them to spend time together when Mother visited New Jersey. A trial judge denied the request. The judge tentatively ordered that Husband have primary physical custody and that Wife be allowed liberal visitation time. The judge also tentatively ordered Mother to pay Husband $100 per month in child support for Daughter. Mother’s attorney advised the judge that she agreed to the order, which then became final.

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