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Manalapan, NJ Family Law & Divorce Law Blog

Saturday, January 31, 2015

Relocation in New Jersey - OK, If you are PPR (Parent of Primary Residence) ??

Allan Weinberg - Attorney at Law -  

 100 Craig Road,  Suite 102  Manalapan, NJ 07726

 732 80 NJ LAW (732) 806-5529

 AllanWEsq@GMail.com 

www.AllanWeinbergEsq.com

Twitter:       AllanWEsq      

FaceBook:  Allan Weinberg   

LinkedIn: AllanWeinberg                                                                                                   

                                                                          

                                                  

Relocation in New Jersey

     - OK, If you are PPR (Parent of Primary Residence??

 

 

         

 

Divorce

 

If you agreed in your Marital Settlement Agreement to that your spouse was the "PPR" - Parent of Primary Residence -then the PPR may be able to relocate within the State of New Jersey.

 

 

 

         In an Unpublished Decision "Clemas", the court held:

 

The motion judge, having reviewed the Agreement, found, as a matter of law, that plaintiff was the PPR, and as such, she was permitted to relocate within the state. The motion judge rejected defendant's argument that the language of the Agreement prevented plaintiff from having "enhanced rights" and concluded that language in the Agreement referred to the parties making joint legal custody decisions. The judge determined that the provision did not alter plaintiff's right to relocate.

 

The judge further determined that it was defendant's burden to demonstrate changed circumstances infringing upon the best interests of the children, defendant had not met his burden, and defendant was not entitled to a hearing on the matter because he had identified no reason why the new school district could not accommodate his children's needs, or demonstrate that he would not be able to maintain the same parenting schedule or "a reasonable alternative."

          

 

******************************************************

 

The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.

 

 

1/31/15

 


Thursday, January 29, 2015

Mediation == A Benefit or Burden

Mediation

     - A Benefit or a Burden??

 

 

         

 

Divorce

 

If you agreed in your Marital Settlement Agreement to "Mediate" future Child Issues then you may be barred from first going to Court to seek remedies and enforcement.

 

 

 

         In an Unpublished Decision "Richardson", the court held:

 

Here, the parties executed a comprehensive Agreement which included a provision to utilize the services of a mediator prior to litigation to address disagreements regarding time-sharing and any other issues regarding their children. Our review of the Agreement leads us to conclude that any calculation of childcare expenses, such as "lessons, sports, camps, equipment, after school care and other child care related expenses such as work related child care," is inextricably intertwined with a determination of custody and parenting time. This is particularly true in light of the fact that the Agreement recognizes that these expenses are subject to certain contingencies and changes, but fails to identify any other method of calculating these costs.

          

 

******************************************************

 

The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.

 

 

1/29/15


Tuesday, January 27, 2015

Default - Do Not Dither

Allan Weinberg - Attorney at Law -  

 100 Craig Road,  Suite 102  Manalapan, NJ 07726

 732 80 NJ LAW (732) 806-5529

 AllanWEsq@GMail.com 

www.AllanWeinbergEsq.com

Twitter:       AllanWEsq      

FaceBook:  Allan Weinberg   

LinkedIn: AllanWeinberg                                                                                                   

                                                                          

                                                  

Default

     - Do Not Dither

 

 

         

 

Divorce

Default may not allow you to later seek Equitable Distribution

 

A Wife was Denied a Pension

 

         In an Unpublished Decision "Morales", a Wife who had Defaulted and not appeared lost her bid years later to attain her Husband's Pension

 

          

 

******************************************************

 

The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.

 

1/27/15


Tuesday, November 25, 2014

Domestic Violence - Texting >> Even If Reconciliation Sought

Allan Weinberg - Attorney at Law -  

 100 Craig Road,  Suite 102  Manalapan, NJ 07726

 732 80 NJ LAW (732) 806-5529

 AllanWEsq@GMail.com 

www.AllanWeinbergEsq.com

Twitter:       AllanWEsq      

FaceBook:  Allan Weinberg   

LinkedIn: AllanWeinberg                                                                                                   

                                                                          

                                                  

Domestic Violence

     - Texting -

       

 

Repeated Texts can be Domestic Violence

even if Reconciliation Sought

         

V.A.C. v S.J.C

 

[An Unreported Decision ]

(NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION)]  

 

Excerpt:

 

Defendant argues on appeal that he wanted to reconcile with plaintiff, not harass her. We note that defendant may well have had a dual purpose in sending the messages: to reconcile and to harass. Our Supreme Court has stated, "We do not imply that, in evaluating claims of domestic violence, an individual can have only one motive or intent." J.D. v. M.D.F., 207 N.J. 458, 487 (2011). Drawing from common sense and experience, the end of a relationship may cause a party to behave in a harassing fashion while telling himself it is in the cause of true love. Defendant did not testify as to his purpose in contacting plaintiff, but the judge's finding that he had the purpose to harass is certainly supported by adequate, substantial, credible

evidence.

 

 

 

******************************************************

 

The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.

 

11/25/14


Friday, September 19, 2014

Alimony - What's New in New Jersey Divorce

Allan Weinberg - Attorney at Law -  

 100 Craig Road,  Suite 102  Manalapan, NJ 07726

 732 80 NJ LAW (732) 806-5529

 AllanWEsq@GMail.com 

www.AllanWeinbergEsq.com

Twitter:       AllanWEsq      

FaceBook:  Allan Weinberg   

LinkedIn: AllanWeinberg                                                                                                   

                                                                          

                                                  

Alimony

     - What's New in New Jersey Divorce

 

 

         

 

"Permanent" Alimony is No More!!

 

                                                "Open Durational" Alimony exists!!

 

 

         

 

          Previously >> New Jersey provided for a form of Alimony defined as "Permanent" which was a form of Alimony that the Court could Order. 

 

          Now >>  There is a new statute in New Jersey. The new statute eliminates the term "Permanent" as to Alimony. Alimony may now be "Open Durational"

 

          There exist other forms of Alimony which too exist

 

          The advice of an experienced attorney can assist you. I welcome and invite your trust in me to positively assist you.

 

 

 Statute

 

1. N.J.S.2A:34-23 is amended to read as follows:

2A:34-23. Alimony, maintenance.Pending any matrimonial action or action for dissolution of a civil union brought in this State or elsewhere, or after judgment of divorce or dissolution or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders, including, but not limited to, the creation of trusts or other security devices, to assure payment of reasonably foreseeable medical and educational expenses. Upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with any such order, the court may award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just; or the performance of the said orders may be enforced by other ways according to the practice of the court. Orders so made may be revised and altered by the court from time to time as circumstances may require.

The court may order one party to pay a retainer on behalf of the other for expert and legal services hen the respective financial circumstances of the parties make the award reasonable and just. In considering an application, the court shall review the financial capacity of each party to conduct the litigation and he criteria for award of counsel fees that are then pertinent as set forth by court rule. Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a  decision is rendered on the other issue then before the court and shall consider the factors set forth in  the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party. The court may not order a retainer or counsel fee of a party convicted of an attempt or conspiracy to murder the other party to be paid by the party who was the intended victim of the attempt or conspiracy.

a. In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) 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 or experience for appropriate employment;

(5) Need and capacity of the child for education, including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

The obligation to pay support for a child who has not been emancipated by the court shall not terminate solely on the basis of the child's age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent. The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent. However, in assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in this section, the child's eligibility for public benefits and services for people with disabilities and may make such orders, including an order involving the creation of a trust, as are necessary to promote the well-being of the child.

As used in this section "severe mental or physical incapacity" shall not include a child's abuse of, or addiction to, alcohol or controlled substances.

b. In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: [permanent] open durational alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, the following factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;

(13) The nature, amount, and length of pendente lite support paid, if any; and

 (14) Any other factors which the court may deem relevant.

In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.

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.

c. In any case in which there is a request for an award of [permanent] alimony, the court shall consider and make specific findings on the evidence about all of the statutory factors set forth in subsection b. of this section [above factors. If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded].

For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.

Determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of the statutory factors set forth in subsection b. of this section. In addition to those

factors, the court shall also consider the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto.

Exceptional circumstances which may require an adjustment to the duration of alimony include:

(1) The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;

(2) The degree and duration of the dependency of one party on the other party during the marriage or civil union;

(3) Whether a spouse or partner has a chronic illness or unusual health circumstance;

(4) Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;

(5) Whether a spouse or partner has received a disproportionate share of the marital estate;

(6) The impact of the marriage or civil union on either party’s

ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;

(7) Tax considerations of either party;

(8) Any other factors or circumstances that the court deems equitable, relevant and material.

An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.

In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.

d. Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur. An award of rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award.

This section is not intended to preclude a court from modifying [permanent] alimony awards based upon the law.

e. Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. An award of reimbursement alimony shall not be modified for any reason.

f. Except as provided in subsection i., nothing in this section shall be construed to limit the court's authority to award [permanent] open durational alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case.

g. In all actions for divorce or dissolution other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just. In all actions for divorce, dissolution of civil union, divorce from bed and board, or legal separation from a partner in a civil union couple where judgment is granted on the ground of institutionalization for mental illness the court may consider the possible burden upon the taxpayers of the State as well as the ability of the party to pay in determining an amount of maintenance to be awarded.

h. Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution. The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party

h. Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution. The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party.

i. No person convicted of Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide, N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a substantially similar offense under the laws of another jurisdiction, may receive alimony if: (1) the crime results in death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing party; and (2) the crime was committed after the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy. Nothing in this subsection shall be construed to limit the authority of the court to deny alimony for other bad acts.

 i. No person convicted of Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide, N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a substantially similar offense under the laws of another jurisdiction, may receive alimony if: (1) the crime results in death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing party; and (2) the crime was committed after the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy. Nothing in this subsection shall be construed to limit the authority of the court to deny alimony for other bad acts.

 

 

*****************************************************

 

The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.

 

9/18/14

 

Allan Weinberg - Attorney at Law -  

 100 Craig Road,  Suite 102  Manalapan, NJ 07726

 732 80 NJ LAW (732) 806-5529

 AllanWEsq@GMail.com 

www.AllanWeinbergEsq.com

Twitter:       AllanWEsq      

FaceBook:  Allan Weinberg   

LinkedIn: AllanWeinberg                                                                                                   

                                                                          

                                                  

Alimony

     - What's New in New Jersey Divorce

 

 

         

 

"Permanent" Alimony is No More!!

 

                                    "Open Durational" Alimony exists!!

 

 

         

 

          Previously >> New Jersey provided for a form of Alimony defined as "Pernanent" which was a form of Alimony that the Court could Order. 

 

          Now >>  There is a new statute in New Jersey. The new statute eliminates the term "Permanent" as to Alimony. Alimony may now be "Open Durational"

 

          There exist other forms of Alimony which too exist

 

          The advice of an experienced attorney can assist you. I welcome and invite your trust in me to positively assist you.

 

 

 Statute

 

1. N.J.S.2A:34-23 is amended to read as follows:

2A:34-23. Alimony, maintenance.Pending any matrimonial action or action for dissolution of a civil union brought in this State or elsewhere, or after judgment of divorce or dissolution or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders, including, but not limited to, the creation of trusts or other security devices, to assure payment of reasonably foreseeable medical and educational expenses. Upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with any such order, the court may award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just; or the performance of the said orders may be enforced by other ways according to the practice of the court. Orders so made may be revised and altered by the court from time to time as circumstances may require.

The court may order one party to pay a retainer on behalf of the other for expert and legal services hen the respective financial circumstances of the parties make the award reasonable and just. In considering an application, the court shall review the financial capacity of each party to conduct the litigation and he criteria for award of counsel fees that are then pertinent as set forth by court rule. Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a  decision is rendered on the other issue then before the court and shall consider the factors set forth in  the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party. The court may not order a retainer or counsel fee of a party convicted of an attempt or conspiracy to murder the other party to be paid by the party who was the intended victim of the attempt or conspiracy.

a. In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) 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 or experience for appropriate employment;

(5) Need and capacity of the child for education, including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

The obligation to pay support for a child who has not been emancipated by the court shall not terminate solely on the basis of the child's age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent. The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent. However, in assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in this section, the child's eligibility for public benefits and services for people with disabilities and may make such orders, including an order involving the creation of a trust, as are necessary to promote the well-being of the child.

As used in this section "severe mental or physical incapacity" shall not include a child's abuse of, or addiction to, alcohol or controlled substances.

b. In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: [permanent] open durational alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, the following factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;

(13) The nature, amount, and length of pendente lite support paid, if any; and

 (14) Any other factors which the court may deem relevant.

In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.

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.

c. In any case in which there is a request for an award of [permanent] alimony, the court shall consider and make specific findings on the evidence about all of the statutory factors set forth in subsection b. of this section [above factors. If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded].

For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.

Determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of the statutory factors set forth in subsection b. of this section. In addition to those

factors, the court shall also consider the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto.

Exceptional circumstances which may require an adjustment to the duration of alimony include:

(1) The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;

(2) The degree and duration of the dependency of one party on the other party during the marriage or civil union;

(3) Whether a spouse or partner has a chronic illness or unusual health circumstance;

(4) Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;

(5) Whether a spouse or partner has received a disproportionate share of the marital estate;

(6) The impact of the marriage or civil union on either party’s

ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;

(7) Tax considerations of either party;

(8) Any other factors or circumstances that the court deems equitable, relevant and material.

An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.

In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.

d. Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur. An award of rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award.

This section is not intended to preclude a court from modifying [permanent] alimony awards based upon the law.

e. Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. An award of reimbursement alimony shall not be modified for any reason.

f. Except as provided in subsection i., nothing in this section shall be construed to limit the court's authority to award [permanent] open durational alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case.

g. In all actions for divorce or dissolution other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just. In all actions for divorce, dissolution of civil union, divorce from bed and board, or legal separation from a partner in a civil union couple where judgment is granted on the ground of institutionalization for mental illness the court may consider the possible burden upon the taxpayers of the State as well as the ability of the party to pay in determining an amount of maintenance to be awarded.

h. Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution. The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party

h. Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution. The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party.

i. No person convicted of Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide, N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a substantially similar offense under the laws of another jurisdiction, may receive alimony if: (1) the crime results in death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing party; and (2) the crime was committed after the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy. Nothing in this subsection shall be construed to limit the authority of the court to deny alimony for other bad acts.

 i. No person convicted of Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide, N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a substantially similar offense under the laws of another jurisdiction, may receive alimony if: (1) the crime results in death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing party; and (2) the crime was committed after the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy. Nothing in this subsection shall be construed to limit the authority of the court to deny alimony for other bad acts.

 

 

******************************************************

 

The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.

 

9/18/14

Allan Weinberg - Attorney at Law -  

 100 Craig Road,  Suite 102  Manalapan, NJ 07726

 732 80 NJ LAW (732) 806-5529

 AllanWEsq@GMail.com 

www.AllanWeinbergEsq.com

Twitter:       AllanWEsq      

FaceBook:  Allan Weinberg   

LinkedIn: AllanWeinberg                                                                                                   

                                                                          

                                                  

Alimony

     - What's New in New Jersey Divorce

 

 

         

 

"Permanent" Alimony is No More!!

 

                                    "Open Durational" Alimony exists!!

 

 

         

 

          Previously >> New Jersey provided for a form of Alimony defined as "Pernanent" which was a form of Alimony that the Court could Order. 

 

          Now >>  There is a new statute in New Jersey. The new statute eliminates the term "Permanent" as to Alimony. Alimony may now be "Open Durational"

 

          There exist other forms of Alimony which too exist

 

          The advice of an experienced attorney can assist you. I welcome and invite your trust in me to positively assist you.

 

 

 Statute

 

1. N.J.S.2A:34-23 is amended to read as follows:

2A:34-23. Alimony, maintenance.Pending any matrimonial action or action for dissolution of a civil union brought in this State or elsewhere, or after judgment of divorce or dissolution or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders, including, but not limited to, the creation of trusts or other security devices, to assure payment of reasonably foreseeable medical and educational expenses. Upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with any such order, the court may award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just; or the performance of the said orders may be enforced by other ways according to the practice of the court. Orders so made may be revised and altered by the court from time to time as circumstances may require.

The court may order one party to pay a retainer on behalf of the other for expert and legal services hen the respective financial circumstances of the parties make the award reasonable and just. In considering an application, the court shall review the financial capacity of each party to conduct the litigation and he criteria for award of counsel fees that are then pertinent as set forth by court rule. Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a  decision is rendered on the other issue then before the court and shall consider the factors set forth in  the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party. The court may not order a retainer or counsel fee of a party convicted of an attempt or conspiracy to murder the other party to be paid by the party who was the intended victim of the attempt or conspiracy.

a. In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) 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 or experience for appropriate employment;

(5) Need and capacity of the child for education, including higher education;

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

The obligation to pay support for a child who has not been emancipated by the court shall not terminate solely on the basis of the child's age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent. The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent. However, in assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in this section, the child's eligibility for public benefits and services for people with disabilities and may make such orders, including an order involving the creation of a trust, as are necessary to promote the well-being of the child.

As used in this section "severe mental or physical incapacity" shall not include a child's abuse of, or addiction to, alcohol or controlled substances.

b. In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: [permanent] open durational alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, the following factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;

(13) The nature, amount, and length of pendente lite support paid, if any; and

 (14) Any other factors which the court may deem relevant.

In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.

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.

c. In any case in which there is a request for an award of [permanent] alimony, the court shall consider and make specific findings on the evidence about all of the statutory factors set forth in subsection b. of this section [above factors. If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded].

For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.

Determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of the statutory factors set forth in subsection b. of this section. In addition to those

factors, the court shall also consider the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto.

Exceptional circumstances which may require an adjustment to the duration of alimony include:

(1) The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;

(2) The degree and duration of the dependency of one party on the other party during the marriage or civil union;

(3) Whether a spouse or partner has a chronic illness or unusual health circumstance;

(4) Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;

(5) Whether a spouse or partner has received a disproportionate share of the marital estate;

(6) The impact of the marriage or civil union on either party’s

ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;

(7) Tax considerations of either party;

(8) Any other factors or circumstances that the court deems equitable, relevant and material.

An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.

In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.

d. Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur. An award of rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award.

This section is not intended to preclude a court from modifying [permanent] alimony awards based upon the law.

e. Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. An award of reimbursement alimony shall not be modified for any reason.

f. Except as provided in subsection i., nothing in this section shall be construed to limit the court's authority to award [permanent] open durational alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case.

g. In all actions for divorce or dissolution other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just. In all actions for divorce, dissolution of civil union, divorce from bed and board, or legal separation from a partner in a civil union couple where judgment is granted on the ground of institutionalization for mental illness the court may consider the possible burden upon the taxpayers of the State as well as the ability of the party to pay in determining an amount of maintenance to be awarded.

h. Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution. The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party

h. Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution. The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party.

i. No person convicted of Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide, N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a substantially similar offense under the laws of another jurisdiction, may receive alimony if: (1) the crime results in death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing party; and (2) the crime was committed after the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy. Nothing in this subsection shall be construed to limit the authority of the court to deny alimony for other bad acts.

 i. No person convicted of Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide, N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a substantially similar offense under the laws of another jurisdiction, may receive alimony if: (1) the crime results in death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing party; and (2) the crime was committed after the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy. Nothing in this subsection shall be construed to limit the authority of the court to deny alimony for other bad acts.

 

 

******************************************************

 

The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.

 

9/18/14


Wednesday, September 17, 2014

Cohabitation - What's New in New Jersey Divorces

Cohabitation - What's New in New Jersey Divorces

Allan Weinberg - Attorney at Law -  
 100 Craig Road,  Suite 102  Manalapan, NJ 07726
 732 80 NJ LAW (732) 806-5529
 AllanWEsq@GMail.com 
www.AllanWeinbergEsq.com
Twitter:       AllanWEsq      
FaceBook:  Allan Weinberg   
LinkedIn: AllanWeinberg                                                                                                   
                                                                          
                                                  
Cohabitation
     - What's New in New Jersey Divorces
          Previously >> For years, New Jersey was a State, that absent an agreement to the contrary, generally allowed the alimony receiving spouse to continue to receive alimony from the paying ex-spouse even with cohabitation unless there was proof of an issue of economic interrelationship of  the alimony receiving spouse and the new partner AND the alimony paying spouse first had to prove the actual Cohabitation!     
 
          Now >>  There is a new statute in New Jersey. The new statute generally provides for the termination of alimony where there is a romantic relationship akin to remarriage even if no remarriage (while preserving the receipt of alimony where there is not cohabitation akin to remarriage) and there exists factors, among others, related to economic interrelationships.
    So, the new statute provides for a balancing of interests, a clear/clearer path to an application to the Court and allows for a definition of Cohabitation.
          The advice of an experienced attorney can assist you. I welcome and invite your trust in me to positively assist you.
Statute
n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves 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.
When assessing whether cohabitation is occurring, the court shall consider the following:
(1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
(2) Sharing or joint responsibility for living expenses;
(3) Recognition of the relationship in the couple’s social and family circle;
(4) Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
(5) Sharing household chores;
(6) Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and
(7) All other relevant evidence.
In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis
******************************************************
The information contained in this communication is similar to ordinary telephone conversations and does not reflect the level of factual or legal inquiry which would be applied in the event a formal opinion was rendered by this firm. The information may also be confidential and privileged. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. Nothing in this communication is intended to constitute a waiver of any privilege of the confidentiality of this message. If you have received this communication in error, please notify the sender immediately by return e-mail or telephone and delete the original message and any copy of it from your computer system. This firm accepts no responsibility for any loss or damage from the use or receipt of this message and/or any attachments hereto, including any damage caused by virus.
9/16/14

Tuesday, September 16, 2014

Retirement and Alimony == New Statute

 This week, New Jersey adopted a new Alimony statute. I will discuss various aspects of the law in ensuing blogs. However, one notable aspect of the new statute is the "Retirement"  provision.
     Previously, the paying spouse possessed an ability to seek a reduction in Alimony upon retirement. Accepting that a full exploration of all that was encompassed in such an application is beyond the scope of this comment, suffice it to say that such an application by the paying spouse was complicated, burdensome and expensive and without a clear direction of the proof and circumstances, let alone metrics, necessary to measure success, the likelihood of success or the path to success. Issues to previously contemplate were the expectation at some time then past of the likelihood and timing of a prospective retirement coupled with the affect of retirement upon the payee spouse. Further no age as to retirement was applicable. Thus, if at a typical  retirement age, the paying spouse was not even sure that she/he could retire in the eyes of the law.
     Now, the new statute provides for a balancing of interests, a clear/clearer path to an application to the Court and allows for a definition of an age of retirement.
     The advice of an experienced attorney can assist you. I welcome and invite your trust in me to positively assist you.
Statute
j. Alimony may be modified or terminated upon the prospective or actual retirement of the obligor.
(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 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 shall apply the alimony factors as set forth in subsection b. of this section to the parties' current circumstances in order to determine whether modification or termination of alimony is appropriate. 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 documents 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 retirement by the obligor 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 recipient 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 retirement by the obligor 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.
==========
As used in this section:
“Full retirement age” shall mean the age at which a person is eligible to receive full retirement for full retirement benefits under section 216 of the federal Social Security Act (42 U.S.C. s.416). (cf: P.L.2009, c.43, s.1)
******************************************************

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9/13/14


Saturday, December 7, 2013

Happy Thanksgiving From Allan Weinberg, Attorney At Law News

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Friday, December 6, 2013

Happy Chanukah From Allan Weinberg, Attorney At Law News

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Tuesday, October 29, 2013

The Appellate Division held (in Tobasco, an Unreported Decision):

"We need only briefly observe that continuing alimony and child support obligations do not violate the constitutional prohibitions on slavery, as plaintiff asserts. "


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Archived Posts

2021
April
March
February
January
2020
December
November
October
September
August
July
June
A Reasoned Decision Denying Wife’s After-Divorce Demand For A Change In Alimony Is Upheld
Defaulting In Your Divorce Can Financially Harm You (Alimony, Child Support and Equitable Distribution) Even If The Wrong Decision Occurred
A Spouse That Recklessly Spends money And Does Not Adhere To Court Obligations During A Divorce Can Have a Constructive Trust Imposed
A Parent Has A Right To Custody Even If They Owe Child Support
A Pre-Marital Asset Can Be Distributed To The Other Spouse If That Spouse Undertook Efforts As To The Pre-Marital Asset
A Parent Has A Right To Custody Hearing As To Their Child As Opposed To A Relative
Legitimate Income Diminishment Prevents Income Imputation At A Higher Previous Marital Income Capacity
Mortgage Payments After A Divorce May Allow A Party To a Full Credit Rather Than Just A Mortgage Principal Reduction Credit Depending On The Divorce Agreement
An Expert’s Letter As To Child Related Matters Is Not A Substitute for Expert Testimony
Disparaging a Romantic Partner’s Business On Social Media May Not Constitute Domestic Violence
College Contributions After A Divorce May Allow For A Different Allocation Depending On The Divorce Agreement
A Fragile Child Can Be In The Company Of One Parent
A Court Can Elicit Or Assist A Victim’s Testimony In A Domestic Violence Matter
It Was Domestic Violence For A Parent To Follow The Car Of The Other Parent
Child’s Best Interests May Alter Parenting Time
Murdering Your Husband Does Not Allow You To See Your Children When The First Psychiatric Evaluation Deemed Such Visitation to Be Harmful And There Has Been No Change in Circumstances
May
Refusing a Court-Ordered Psychiatric Evaluation Can Result In Dismissal Of Pleadings And Limit Testimony And Limit Cross-Examination
Irrelevant And/Or Disjointed Testimony Does Not Defeat Domestic Violence
An Unexpected Or Inadvertent Payment On Account Of Child Support Arrears is Entitled To Be Retained By The Recipient
A Premarital (Prenuptial) Agreement Is Valid With Full Financial Disclosure
A Party Who Does Not Comply With A Requirement To File A Case Information Statement And Is Defaulted Cannot Undo Default By Later Filing CIS
The State To Determine Child Custody Is Not Based Upon An Agreement Of The Parents But Upon Jurisdiction (UCCJEA)
A Wife Victim Is Entitled To Properly Computed Damages From Husband If Domestic Violence
Repaying A Loan To A Parent Is Not Dissipation Of A Marital Asset In A Divorce
Violating a Domestic Violence Order Can Be As Simple As A Telephone Call
Lack of Physical Abuse Does Not Bar The Finding Of Domestic Violence
A Half-Sibling Relationship Exists If Half-Siblings Sometimes Reside In The Same Home In A Domestic Violence Proceeding
A Social Security Determination Of Disability Creates a Presumption of Disability In A Divorce Action
A Court Can Divide A House In A Domestic Violence Proceeding
A Dating Relationship Exists If Only Text Messaging In A Domestic Violence Proceeding
Extra Child Support was Awarded When the Father Earned Significant Income
Even Exempt (Pre-Marital) Property Can Be Marital Property
A Court Can Appoint An Attorney-In-Fact To Sell a House Because a Parent Refused to Act
Corporate Assets of Husband Can Be Marital Property
Hiding Income From Your Wife Allows a Court To Determine Husband’s income For Child Support Purposes
Taking Exempt (Pre-Marital) Property And Placing It In The Name Of Your Wife Makes It Marital Property
A Divorced Husband Is Entitled To Retire And Reduce His Alimony To His Ex-Wife
A Court Is To Provide Adequate Findings of Fact And Conclusions of Law In A Domestic Violence Proceeding
April
Physical Acts are Not Required For Domestic Violence
Retirement Assets That Were Acquired With a New Wife Are Not Considered Income For A Determination of Alimony Based Upon Retirement.
A Court Should Include In A Judgment Of Divorce That Which The Parties Agreed
Retirement Assets That Were Distributed at the Divorce Are Not Considered Income For A Determination of Alimony Based Upon Retirement.
A Reduction Of Child Support Must Have A Basis
Retirement May Not Fully Reduce Your Alimony Obligations
Sole Custody Or Joint Custody
Grandparent Visitation
Pre-Marital Agreement Wife Signed Under Previous Statute May Not Be Enforced if A Court Later Determines That It Is Unconscionable
Continued Child Support and College Contribution Issues Required a Trial
Walking On The Street Of Your Ex’s Residence In Combination With Other Factors Can Be Domestic violence
Cohabitation Of An Ex-Spouse Warranting A Change in Alimony Is Subject To A Change Of Circumstances Standard
A Mother and Children May Not Have To Return To Qatar In The Event of Domestic Violence
A Son Can Get A Domestic Violence Order Against His Mother
A Parent Can Take A Child Out Of State To NYC For Broadway Shows And In The Country for Brief Vacations Within The Country
A Child In College Was To Receive Child Support And Not In A Joint Account With Father
Husband Cannot Retire Early And Seek Relief Under “New Statute” If Divorced Under “Old Statute” Must Consider Wife’s Circumstances / Ability to Save For Her Retirement
A Child Can Be Unemancipated If The Need And Circumstances Warrant
Access to Weapons Can Present a Basis to Fear A Perpetrator of Domestic Violence
March
A Live-In Family Care-Giver Can Be A Perpetrator of Domestic Violence
Mother Who Moved To Another State With Child Lost Custody To Father
Access to Weapons Can Present a Basis to Fear A Perpetrator of Domestic Violence
Being Provoked Did Not Justify Domestic Violence
You Can Owe Child Support Arrears Even If You Are Not The Father
Husband’s Threat To Kill Wife Warranted a Domestic Violence Order
No Basis to Claim That Being Provoked Justified Domestic Violence
You Can Owe Child Support Arrears Even If You Are Not The Father
Social Security Disability Creates a Presumption of Disability
A Grandparent Cannot Have Grandparent Visitation Unless To Avoid Harm To The Child
A Baby’s Name Does Not Include the Father’s Name
Fraudulently Claiming Health Problems And Residing In a Samaritan’s home Constitutes Household Member for Domestic Violence
A Consent Order May Be Later Challenged As Improper
An Agreement to Mediate and Arbitrate With The Same Person In Both Roles Can Be Enforced
Conceiving Children And Residing With Those Children In New Jersey Was Sufficient To Support Specific Jurisdiction
Quitting A Job Instead Of Getting Fired Does not Allow You To Reduce Support Payments
A Divorce Agreement That Does Not Obligate A Party To Contribute To Their Child’s College Costs Combined With A Delay of Three (3) Years In Seeking Payment Denies A Claim For College Contribution
A Divorce Agreement That Does Obligate A Party To Contribute To Their Child’s College Costs Is Enforceable And If Unclear The Court Will Determine The Expenses
Marital Lifestyle Is To Correlate To Alimony
Custody Was Not Changed Because A Mother’s New Boyfriend Presented Concerning Behavior
Ambiguous Provisions In A Divorce Agreement Required a Hearing
Wife Who Feared Her Husband And Was Abused Was Entitled To A Domestic Violence Order
January
2019
December
November
October
September
August
July
June
May
April
March
If New Jersey Acquires Jurisdiction It Can Determine Emancipation Even If Another State Previously Determined Child Support
Failure to Provide Discovery Can Act as a Bar to Relief
Domestic Violence Did Not Occur In Cross Country Texting
27 Year-Old Child with Mental Health Problems May Not Be Emancipated
Divorce Agreement and Not the Statute that Established an Outer Limit of Age 23 Controlled the Time of Emancipation
Frivolous Litigation To Sue On A Settled Matter
Restricted Stock Vesting Post-Complaint May not Be Subject to Equitable Distribution
The Court Can Reasonably Sanction a Party to Enforce Litigant’s Rights
A Mediated Settlement Is Enforced Even If You Do Not Like It Or Think It Is Fair
To Change Custody in and to New Jersey from Another State, New Jersey Must Have Jurisdiction.
Child Support Is Based Upon Needs of the Child Where Husband’s Income is Great
A Motion For Reconsideration Is Timely If Filed on the 20th Day
Installing a GPS Tracker on Spouse’s Car Can Be Domestic Violence
To Sue in New Jersey for Interfering in a Parent’s Rights as to a Child, the Party Sued Must Have “Minimum Contacts” with New Jersey.
Change in Child’s Residence Can Require Change in Child Support Regardless of a Focus on the Income of the Parties
“Imputed Income” Must Have a Basis to Exist in a Case
Father’s Act to Daughter Impacted By Credibility of Siblings and Parent at a Domestic Violence Trial
Emancipation Did Not Exist Upon the Absence of Evidence of the Child’s Graduation from College
No Cohabitation When You Live With Another as a Care-Giver And You Had During the Divorce Lived With That Person.
Many Written Communications Over a Few Months Constituted Harassment For Domestic Violence When There Had Been Previous Bars to Communication
Due Process Required at a Domestic Violence Trial
Replacing Waived Military Pension (Because of Disability) as Equitable Distribution Not Permitted But May Be Replaced by Alimony as a Changed Circumstance
Husband Cannot Relitigate Fraud Issues With Wife
College Expense Obligation Must be Properly Determined By The Court
Cohabitation Exists Where Residence is the Same and Interlocking Life Aspects and Financial Dependence And Failure to Produce evidence Exists
Failure to Object and Failure to Timely Appeal Deny a Litigant a Basis to Complain as to Relief Granted
2018
December
November
October
September
August
July
May
April
March
February
January
2017
December
November
October
September
August
July
June
May
March
February
January
2016
December
November
October
September
August
July
June
May
March
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2015
2014
2013


 



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200 Highway 9, Suite 400, Manalapan, NJ 07726 | Phone: 732-806-5529
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