Child Support Adjustments

Much Confusion has been circulating concerning the Law regarding the new presumption that Child Support ends at 19 but no later than 23 in certain instance where the custodial parent can show reasons why it should not terminate and that the child is not emancipated. NJSA 2A:17-56.67   Should the burden be on the custodial parent to prove that child support should not terminate or should it be on the payor parent to show that it should?  According to the Bureau of Labor Statistics, in October 2017, 66.7 percent of 2017 high school graduates age 16 to 24 were enrolled in colleges or universities.  Among persons age 20 to 29 who received a bachelor’s degree in 2017, 77.6 percent were employed. With those numbers it is clearly more likely than not that a child will attend college.   A child in College generally remains unemancipated if he or she relies upon his or her parents for support and is under their “umbrella”. There are many factors that are considered to determine if emancipated or not, but suffice it to say it is less likely for a child to be emancipated at 19 years of age.

The New Jersey State Bar Association’s Family Law Section proposed legislation to revise the Statute making the presumptive age 23, not age 19 and suggesting that the Statue relate only to the Probation department’s collection of child support such that the child can continue to receive support beyond the termination date by way of direct pay to the custodial parent. This makes sense in light of the fact that more children go on to college, some children complete school slower than others and not every child is on the same timeline for graduation. With the nearly 80% employment rate following a college education, it may very well be in the child’s best interest to complete college.

man and women wearing red and black academic gowns and black mortar boards

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Do I have a Palimony Case?

In New Jersey, the Statute of Frauds N.J.S.A. 25:1-5 presently requires the following when pursuing a claim for palimony:

“Promises or agreements not binding unless in writing. No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, upon which such action shall be brought or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized:

A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.”

While the Statute of Frauds requires that a person pursuing a case of palimony against another prove that there was an agreement to provide support that was in writing and that the parties had the advice of counsel, there are cases that address partial or full performance as an exception to the Statute of Frauds. See Lahue v. Pio Costa, 263 N.J. Super. 575 (App. Div. 1993) cert. denied 134 N.J. 477 (1993); Crowe v. De Gioia, 203 N.J. Super. 22 (App. Div. 1985), affirmed by 102 N.J. 50 (1986) ; Klockner v. Green, 54 N.J. 230 (1969). Therefore, courts will enforce agreements where the terms of the contract and performance thereof can be established by clear, definite, and unequivocal evidence. Delnero v. Serra, 2 N.J. Super. 350, 352 (Ch.Div. 1949); Lahue v. Pio Costa, 263 N.J.Super. 575, 599-600 (App. Div. 1993).This exception to the Statute of Frauds requirements should apply to palimony agreements.

In addition to the part or full performance arguments, promissory estoppel can also be applied  where application of the Statute of Frauds would result in a “hardship or injustice if such a promise were not enforced.” Pop’s Cones, Inc. v. Resorts Int’l Hotel, Inc., 307 N.J. Super. 461, 469 (App. Div. 1998). To assert a  promissory estoppel claim, the movant must demonstrate evidence of  facts establishing the  four elements: (1) a clear and definite promise by the promisor; (2)an expectation of reliance thereon; (3)  reasonable reliance on the promise, and (4)  a detriment due to reliance upon that promise.

Whether these or other equitable arguments will be successful  in the context of palimony agreements or in your case is not clear, (see Maeker v. Ross, 430 N.J. Super. 79, 82-83 (App. Div. 2013)) as there is a lack of definitive case law in the area of Palimony and each case is distinguishable by its own set of facts,  however, it may be argued that these well settled equitable principles should apply to all agreements including agreements between persons to support one another especially where there has been detrimental reliance or part performance of these promises.

Ask your attorney if the facts of your case can be considered an exception to requirement of a written agreement.  Every case is different and your attorney is likely in the best position to advise you as to your likelihood of prevailing going forward.

 

 

 

 

NEW JERSEY ALIMONY REFORM: A COMMON SENSE TRANSLATION

AlimonyBy Toni Ann Russo, Esq.

Even many attorneys are unsure as to what impact the New Alimony Laws are going to have on Alimony and Divorce Cases going forward.

The Law is being applied prospectively so that cases filed for the first time after the law’s effective date will be effected as well as older cases where one of the parties seeks modification of an existing alimony obligation should there be no property settlement agreement defining the parameters of a modification. Additionally the court redefines retirement, reduction in income and cohabitation which will be applied to all cases requiring such a determination.

The new law directs that for marriages less than 20 years, the “limited duration” of alimony cannot be for longer than the length of the marriage. (except in exceptional circumstances) If the marriage is 20 years or over, a party is entitled to what is known as “open durational alimony” which may turn out to be similar to the previous “permanent alimony”.

What about these “exceptional circumstances” that could impact on the duration of alimony? The new law provides that certain “exceptional circumstances” may result in a duration of alimony longer than the marriage Age, degree of dependency, illness, career sacrifices, disproportionate share of estate, impact of the marriage on ability of spouse to support himself/herself, tax considerations, or any other factors just and equitable.

The court is also free to consider the nature, amount and length of support payments made during the divorce in rendering an alimony award.

While the new alimony law places limits on the duration of alimony I expect the law to impact permanent alimony cases the most. Most of the temporary alimony cases in the past did not result in durations more than the term of the marriage anyway. And while a court may consider the payor spouses early retirement, full retirement age is now defined as that age which a person is eligible to receive full retirement benefits under section 216 of the Federal Social Security Act, such that it may still prove difficult to retire early and not pay alimony. In fact, the new law allows a party to apply before retirement for a ruling as to whether or not they will still have an alimony obligation should they retire. This provision is a welcomed addition.

If you would like a FREE INITIAL ALIMONY OR DIVORCE CONSULTATION call 201-343-2(LAW)529 or

contact us at http://www.toniesquire.com

The Trial Court Erred by Not Referring Case to Mediation

                                 

In the case of D.A. v. R.C. after reviewing the record developed before the Family Part in a custody matter where there were disputed issues of fact, the Appellate Court agreed with defendant’s arguments and remanded this matter for the trial judge to refer this matter to mediation as required under Rule 5:8-1. The Appellate Court stated that ‘If mediation fails to resolve the custody and parenting time issues raised by the parties, the judge shall then conduct a plenary hearing to resolve the factual disputes contained in the parties’ account of events, and thereafter place on the record his factual findings and conclusions of law as required by N.J.S.A. 9:2-4(f) and Rule 1:7-4(a). As part of this hearing, the judge must comply with the requirements of Rule 5:8-6 by either interviewing the parties’ now sixteen-year-old son concerning the custody and parenting time issues raised by his parents, or otherwise place on the record the reasons for his decision not to interview this child. In reaching this decision, the judge must consider the factors outlined in N.J.S.A. 9:2-4(c), including “the preference of the child,” given his age and capacity to reason.’

To read entire opinion go to: http://law.justia.com/cases/new-jersey/appellate-division-published/2014/a4030-12.html

To Post or Not to Post? It Can Be Court Ordered.

To Post or Not to Post? It Can Be Court Ordered.

This N.J. case is just one example of how a court can limit your right to post information about other people on Social Media Sites.  So if you find yourself asking ‘should I post this or not?’ about someone else, know that a court can order it down and restrain you from posting anything about that person.

ADOPTION LEGISLATION OPENS DOOR FOR CONTACT WITH BIOLOGICAL FAMILY

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Gov. Chris Christie announced Monday he would support a law enabling adoptees to obtain their birth certificates. A previous court decision had sealed adoption records since 1940.The governor however, has requested that the law not take effect until 2017, allowing parents time to decide whether they wanted to be found.60s.s views had changed, and that New Jersey needed to catch up. Once signed into law, New Jersey will be the 12th state to provide access to birth certificates in addition to Alabama, Alaska, Delaware, Illinois, Kansas, Maine, New Hampshire, Ohio, Oregon, Rhode Island and Tennessee.

The compromise legislation allows birth parents to submit a form to the state Health Department saying whether they want direct contact, contact through an intermediary, or no contact and their name redacted. Birth parents who surrendered a child before Aug. 1, 2015, would have until Dec. 31, 2016, to submit the form.

For adoptions finalized after Aug. 1, 2015, birth certificates would be available in their entirety, and birth parents would be able to submit a form indicating their preference. Under the legislation, a birth parent who requests no contact will be encouraged to provide the Health Department with updated family information every 10 years until age 40, and once every five years after that. In addition, the state will notify the adoptee when information is added.

Adoptees over age 18, their children, brothers and sisters, husbands and wives, or adoptive parents or guardians would be able to request a copy of the original birth certificate, the birth parents’ preference on how or whether to be contacted, and other pertinent family information.

 

 

Illegal Immigrants may get to legally Drive in New Jersey

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 Democrats have introduced a bill to the state Legislature that would allow unauthorized immigrants to legally drive in New Jersey.

Under the bill, the State of New Jersey would be required to issue photo “driving privilege” cards to residents who could not prove that they were in this country legally but were able to show they lived in the state.  The proponents of the bill see it as a step to increase public safety.  It is expected that the bill will face opposition by Republican lawmakers. Similar bills that were submitted in the past did not make the grade leaving the outcome of the present bill at best uncertain. However, the issue will no doubt spur debate as republican opponents believe a measure would make it easier for those here illegally to continue breaking the law. Under current state law, immigrants must at least have temporary visa status to get a driver’s license.

The bill proposes to charge officials who discriminate against card holders with deprivation of civil rights, punishable by up to three to five years in prison and a fine of as much as $15,000. Under the bill, the cards would be valid for one year and applicants would have to pay an increased fees for the first five years of the program.

New Mexico passed a similar bill and it resulted in air travelers having to produce passports because drivers licenses no longer provided proof of citizenship and immigration status.

Same Sex Marriage: Now Officially Legal in the State of NJ

In September 2013, Judge Mary Jacobson ruled that denying same-sex couples the right to marriage is unconstitutional and ruled in favor of approving same-sex marriage in the state of New Jersey beginning October 21, 2013.

This ruling ends a court battle in which 6 same-sex couples in civil unions brought suit against the state of New Jersey alleging they were being denied the same legal protections as same sex couples in civil marriages.

The State of New Jersey appealed this decision to the supreme court of New Jersey filing for a “stay” in order to stop the October 21’st order permitting same-sex marriage from going into effect in order the let the battle “play out”. However, after the Supreme Court denied the states application for stay, pending appeal, finding that the State of New Jersey had failed to prove it would supper irreparable harm if the lower court order were not stayed. The Supreme Court further stated, “…the State’s domestic partnership laws failed to bridge the inequality gap”. Since it became clear by the courts ruling that the State of New Jersey would not likely prevail on appeal, Governor CC withdrew the States appeal on Monday, October 21st, making the lower court ruling final if no other appeal is taken.

This is the first time in history, since the Supreme Court ruled DOMA as being unconstitutional, that the court system in a state made a court ruling on same-sex marriage instead of the state’s Political leaders.

Sunday night, at one minute past 12am, the first same-sex couples were legally married at the Newark Court House and were officiated by Senator-elect Corey A. Booker.

Shady Spouse, Hidden Money

The age old quote, “Money is the root of all evil,” unfortunately holds true when it comes to greedy spouses in the midst of a divorce. A recent article in Bloomberg, focuses on such spouses and the extremes they go to in order to rake in the dough.

Matters that couples tend to fight over include the division of assets, child support, child custody, spousal support, visitation rights etc. Yet some people will not only hide money right after the fact that getting a divorce has been decided upon, but even before there are troubles in paradise.

While this is typically a very hard thing to do if you work for a company that is not yours, due to set salary and taxes automatically being taken out every cheque, it is still possible. Also those who own their own business outright can be hiding their true income from not only their spouse but also from the Government. This not only reduces how much financial support the dependant spouse receives, but can also cause more trouble for both parties if the Government finds out and gets involved.

Hiding money from the IRS is tax evasion, and although there are laws that protect the innocent spouse, it is not foolproof. This is due to the fact that it can argued that the innocent spouse would have had to have known that money was being hidden or falsely reported due to red flags such as luxury items or outrageous mortgages when you’re supposedly living off a middle class income.

So if you see the writing on the wall, be smart enough to conduct your own investigation of all income and assets before going through with a divorce. This is to make sure that you are receiving the proper amount of child/ spousal support that you deserve and to make sure that you don’t get in trouble with the IRS if they find out and act upon it.

The Modern Soldier and His/Her Battle for Custody

On January 25th, Governor Christie passed a bill that protects Military men and women from loosing custody of their children due to being deployed/ receiving treatment post deployment.

The law protects these men and women from having the court make changes to their custody agreement while they are away, and up to 90 days after they return. They are not allowed to deem these men and women as unfit parents just because they are/ were away serving out of the country as long as they have a written notice of deployment or post-deployment treatments. The temporary guardian, of these children, must legally set aside time for the children to interact with their mother or father, such as over the phone or by video messaging.

However, this new law does not stop the court from changing the agreement, and potentially taking away custody, if it comes to the attention of the court that the child, or children, are considered in danger.

For more information: Source

Photo by: S Braswell

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