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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.
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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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One of the many questions that often come up in spousal support or alimony cases is whether the support payments continue after the ex-spouse making those payments retires. Alimony may be terminated or modified upon the prospective or actual retirement of the obligor.  An Act concerning alimony was passed in 2014 which applies to divorce occurring after that date, but with provisions concerning retirement for divorces prior to the Act where there was a written agreement or final alimony order.

1. There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled.  The Court may set a different alimony termination date for good cause shown based on specific written findings of fact and conclusions of law.  The attorney will gather the information necessary to prepare the documents in support of the client’s application if an agreement cannot be reached.  There must be good reasons to oppose termination of alimony upon reaching full retirement age.

The rebuttable presumption may be overcome if, upon consideration of the following factors and for good cause shown, the Court determines that alimony should continue:

a.  the ages of the parties at the time of the application for retirement;

b.  the ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

c.  the degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

d.  whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

e.  the duration or amount of alimony already paid;

f.  the health of the parties at the time of the retirement application;

g.  assets of the parties at the time of the retirement application;

h.  whether the recipient has reached full retirement age as defined in this section;

i. sources of income, both earned and unearned, of the parties;

j.  the ability of the recipient to have saved adequately for retirement; and

k.  any other factors that the Court may deem relevant.

If the Court determines, for good cause shown based on specific written findings of fact and conclusions of law, that the presumption has been overcome, then the Court will apply the alimony factors that are relevant to the parties’ current circumstances to determine whether modification or termination of alimony is appropriate.  These factors may include as well as other factors:

a.  the actual need and ability of the parties to pay;

b.  the duration of the marriage;

c.  the age, physical and emotional health of the parties;

d.  the standard of living during the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

e.  the equitable distribution of property;

f.  the income available to either party through investments of any assets held by that party;

g.  the tax treatment of any alimony award.

If the obligor intends to retire, but has not yet retired, the Court shall establish the conditions under which the modification or termination of alimony will be effective.

2.  Where the obligor seeks to retire prior to attaining the full retirement age as defined in this section, the obligor shall have the burden of demonstrating by a preponderance of the evidence that the prospective or actual retirement is reasonable and made in good faith.  Both the obligor’s application to the Court for modification or termination of alimony and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documetns from the date of entry of the original alimony award and from the date of any subsequent modification.

In order to determine whether the obligor has met the burden of demonstrating that the obligor’s prospective or actual retirement is reasonable and made in good faith, the Court shall consider the following factors:

a.  the age and health of the parties at the time of the application;

b.  the obligor’s field of employment and the generally accepted age of retirement for those in that field;

c.  the age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

d.  the obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;

e.  the reasonable  expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

f.  the ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;

g.  the obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and

h.  any other relevant factors affecting the obligor’s decision to retire and the parties’ respective financial positions.

If the obligor intends to retire but has not yet retired, the Court shall establish the conditions under which the modification or termination of alimony will be effective.

3. When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith retirement age.  Upon application by the obligor to modify or terminate alimony, both the obligor’s application to the Court for modification or termination of alimony and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification.  In making its determination, the Court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate:

a.  the age and health of the parties at the time of the application;

b.  the obligor’s field of employment and the generally accepted age of retirement for those in that field;

c.  the age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

d.  the obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;

e.  the reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

f.  the ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;

g.  the obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and

h.  any other relevant factors affecting the parties’ respective financial positions.

4. The assets distributed between the parties at the time of the entry of a final order of divorce or dissolution of a civil union shall not be considered by the Court for purposes of determining the obligor’s ability to pay alimony following retirement.

COURT CASES

The Court pointed out in a case that the standard is a little different for alimony awards that were issued before that law took effect in 2014.

summer-fun-on-the-lake-1-1367107Husband and Wife divorced in 1991, following 22 years of marriage. As part of the split, Husband was ordered to pay Wife spousal support on a schedule that declined over time. Husband made the support payments for 24 years before he asked a court to terminate his obligation. He was 66 years old at the time, and he said he’d recently retired because of a number of medical conditions. Husband was living off of Social Security benefits and his half of a pension that was divided with Wife as their shared marital property.

Wife responded by asking the trial court to keep the alimony obligation in place. She said she also suffered from a number of health conditions, and her income came from her share of the pension and Social Security benefits, as well as about $2,500 from working as a consultant. She also argued that the alimony award could not be modified, pursuant to the law on the books at the time of the divorce. The trial judge disagreed, explaining that state law presumes that alimony obligations terminate when the person making the payments retires.

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New Jersey law generally presumes that spousal support or alimony payments should be terminated when the person making the payments retires. This general presumption is rebuttable, however. As the state’s Superior Court recently explained, courts will not use the presumption to undo or modify an agreement between former spouses about how they will handle alimony.

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Husband and Wife divorced in 2001, following a 25-year marriage in which they had two kids. As part of a settlement agreement, Husband pledged to pay Wife $250 per week in “permanent, non-modifiable” spousal support. The agreement specifically stated that the alimony payments could not be changed as a result of either spouse’s inability to find work, or an illness, incapacity, or inability to work for any other reason.

Husband sought to terminate the payments in 2014, explaining that he had been forced to retire early because of an illness. He was more than $5,000 in arrears at the time. Husband was bringing in a little more than $45,000 per year in retirement benefits, according to the family court that heard his request to terminate the payments. The court declined that request, noting that the agreement expressly stated that the alimony wasn’t modifiable. The trial judge also noted that Husband’s salary more than doubled in the 10 years following the divorce and before his retirement. Nevertheless, his payments to Wife did not increase accordingly.

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Former spouses eventually move on with their lives after a divorce, including by starting new relationships. Those relationships can raise some tricky legal issues in cases in which one former spouse is paying the other alimony. New Jersey law allows a court to terminate or suspend alimony payments when a spouse receiving those payments “cohabitates” with another person. The law defines cohabitation as a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” The state’s Superior Court recently weighed in on just what that means.

dollarsWhen Husband and Wife divorced in 2004, Husband agreed to pay Wife $2,500 per month in alimony. They also agreed that the payments could be modified or terminated under certain circumstances, including “cohabitation.” It was that provision of the deal that Husband highlighted when he later went back to court to try to get the alimony obligation terminated. He said Wife was cohabitating with another man and that the couple publicly put themselves out as the equivalent of married spouses. He also pointed to various Facebook postings showing that the couple attended social and family events together and that Wife’s children referred to the man as “Papa Thom.”

Wife denied that she was cohabitating with Thom. Instead, she said she spent about 100 nights per year with the man and that they kept their finances and assets separate. She also provided bank statements showing that she paid all of her bills from her savings account and that there were no unaccounted for contributions. That was good enough for a trial judge, who denied Husband’s request to terminate the alimony payments. The judge also declined to allow Husband additional discovery on the cohabitation issue. Although he did require Wife to provide an accounting of her household expenses and how she was covering them, the judge said Husband didn’t provide enough evidence of cohabitation to justify full-blown discovery.

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A number of tricky legal questions can come up when a couple with kids decides to divorce. These include how to handle a situation in which the parents split custody and one decides that he or she wants to move out of state. New Jersey’s Superior Court recently gave us a quick glimpse at how judges are expected to handle these cases.

childHusband and Wife separated in August 2013, following an eight-year marriage. They eventually entered into a marital settlement agreement, under which the parents shared joint legal custody and Wife was granted primary physical custody over the couple’s twin girls. Husband, meanwhile, got a “liberal” visitation arrangement in which his daughters stayed with him every other weekend, two or three weeknights per month, and on rotating holidays. The former spouses also agreed that they would try to live within a 15-minute drive from each other, that neither spouse would move more than 20 miles away from the other, and that neither spouse would move out of state without the other’s prior written consent.

Wife started a relationship with a man living in Utah shortly after Husband and she separated. She quit her job after the divorce, telling Husband that she intended to be a stay at home parent. Six months later, she told Husband that she intended to get remarried and move to Utah with the kids. Although Husband denied permission, a trial court granted Wife’s motion to relocate without holding a hearing on the matter. Instead, the court ordered the former spouses to come up with a new visitation schedule. When Husband refused to participate, the court granted a schedule based largely on Wife’s suggestions. Wife then permanently moved to Utah with the kids.

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One of the factors that courts look at in setting a child support award is each parent’s income. As New Jersey’s Superior Court explained in a recent ruling, a judge has the right to consider both what a parent is actually making and what he or she could be making.

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Husband and Wife were married for roughly 18 years and had two children before divorcing in 2002. The spouses entered into a negotiated agreement as part of the divorce, under which Husband agreed to pay Wife $1,000 per month in child support. Wife, in turn, was granted primary custody of the kids. A court later increased Husband’s child support obligation to more than $5,000 per month in 2006.

The judge found, among other things, that Husband was bringing in about $200,000 per year in base pay and bonuses from his mortgage and credit counseling job. Wife, on the other hand, was making just over $76,000 per year. Husband later asked the court to reduce the child support award, asserting that he was let go from his job in 2011. He briefly moved to Florida, married twice, and then went to live with his parents in New Jersey in 2012. Husband said that his unemployment insurance benefits eventually ran dry, and he became economically dependent on his parents, whom he said were giving him about $2,000 per month. He said he didn’t file tax returns for 2012 and 2013 because he had no income during that time.

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Things change after spouses divorce, including their area codes. When they have kids, one parent’s decision to move to another state can raise a number of legal issues related to child custody and support. New Jersey’s Superior Court recently looked at one of those issues:  which court should have the authority to consider changes to a child support order after the spouses have gone their separate ways?

mapHusband and Wife were married in New Jersey but later moved to Georgia in 1999. They were still living in the Peach State in 2004 when they divorced. A judge in Georgia ordered Husband to pay Wife $3,500 in monthly child support, which the judge said was about a quarter of his income at the time. Wife later moved back to New Jersey with the kids, while Husband remained in Georgia.

The Georgia court reduced Husband’s support obligation by nearly half in 2013, finding that one of the couple’s children had since graduated high school and turned 18. Wife responded by filing suit in New Jersey. She asked a court there to set a new child support amount, arguing that Husband understated his monthly income during the Georgia court proceedings. A New Jersey judge dismissed the case, explaining that the Georgia court had continuing and exclusive jurisdiction over all matters related to the original child support case.

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