Going through a divorce is rarely an easy process. Most divorces are challenging to get through at the very least. Not only can things get emotionally messy, but there are often a lot of tricky legal matters involved as well. One decision that’s often quite contentious is what to do with the house. If you are getting divorced and own a home with your spouse, then the following are some of the options that you have when it comes to selling the house:

  1. Divide the profits of the house equally

If neither you nor your spouse wants to keep the house, or if neither of you can afford to keep it, then simply selling it and splitting the profit might be the best decision. However, it’s important that you understand that your divorce can affect how much money you end up pocketing. If you’ve lived in your house for a long time, then your profits may be affected by the capital gains tax.

Couples can exclude upwards of $500,000 in capital gains. If you sell your house for above that amount, any profit over that sum will be taxed. If the divorce is finalized before you sell the house, then you could end up losing more money towards capital gains tax due to the fact that unmarried individuals can only exclude up to $250,000 in capital gains. Continue reading

In New Jersey, family law cases always provide courts the opportunity to create new law, particularly when it comes to child relocation laws in NJ. One very recent case, Bisbing v. Bisbing, added an interpretation for what is necessary to establish “cause” to allow a child to permanently relocate out of state with the child, even if the other parent objects to the move.

The parties agreed in Bisbing v. Bisbing to a marital settlement agreement when they separated. The agreement included that the mother, Jaime, would have primary residential custody with their twin daughters. The agreement also mentioned a relocation provision, stating that “[n]either party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other.” About a year after the divorce was final, Jaime told her ex that she intended to marry another man, who lived in Utah. Significantly, the wife had been dating this gentlemen prior to the resolution of the agreement. She requested that her ex-spouse consent to the relocation of the children with her to Utah. Her ex-husband said she was free to go, but the children must remain in New Jersey with him.

Plaintiff in Bisbing v. Bisbing went to court, filing a motion under N.J.S.A. 9:2-2, requesting that she be allowed to permanently relocate to Utah with her children. In response, her ex-husband argued that she had negotiated the agreement in bad faith, knowing she was planning on relocating without telling him so he would agree to give her primary residential custody. Child relocation laws in NJ at the time, under the Baures standard, required the parent who is requesting relocation despite opposition from the other parent to show that there is a good-faith reason to move and that it will not negatively affect the child’s interests. At trial, the court agreed that the move was in good faith and the children would not be harmed by it, and granted plaintiff’s request. She promptly moved to Utah, and enrolled the children in school. Continue reading

In a recently unreported case, Hersch v Hersch, the court once again was called upon to interpret New Jersey alimony laws. The parties had been married 15 years when they decided to divorce in 2010. They had two children of the marriage, who, at the time of this final decision, were teenagers. The husband enjoyed a high-power job as an executive compensation and benefits specialist in finance. The wife also enjoyed a fairly good job, earning over $80,000.00 as a product manager at the time the parties divorced. After lengthy negotiations, aided by legal counsel, the parties reached a marital settlement agreement, including 10 pages concerning child support and alimony alone. In the initial agreement, the parties determined that the husband owed $704 each month in child support, and that he would also pay eight percent of any bonuses or stocks that he received from his job as additional child support, whether or not it was cash. On top of this, it was agreed that Mr. Hersch would pay his wife a base alimony for two years and three months in bimonthly installments of $1,125.00. The agreement included the calculation for how the parties arrived at these figures, as well as language accounting for any additional bonuses, commissions or extra compensation the Mr. Hersch may earn during the period which he owed alimony.

In between signing the final decree and the present suit, Mr. Hersch was laid off, re-hired, laid off and hired multiple times, usually earning slightly more at each new job than the last. He also often received large severance packages for each time he was laid off. If the severance packages were considered compensation, then he would owe additional alimony under the agreement. The issue then is, under the New Jersey alimony laws, are these severance payments also considered compensation to be factored into alimony payments?

The court first started by confirming that marital settlement agreements were contracts under the law, and they should therefore be interpreted as such, using contractual principles. The court reasoned that, under the plain language of the settlement, severance pay would be income for purposes of alimony, because the language was broad and excluded only the issuance of signing bonuses. Additionally, under the rules of the I.R.S., the court noted that severance pay is intended to be replacement income, rather than defendant’s characterization of the payment as releasing a specific damage claim. The essence of the agreement was that Mr. Hersch’s obligations are based on what he is required to report as earned income in any given year. In light of this language, New Jersey alimony laws, and the requirements of the IRS, the court held that such severance pay would be absolutely reportable as income earned on his federal tax return. In fact, Mr. Hersch actually did report his severance payment on his IRS returns, including them under the “wages, salaries, tips, etc.” category. Continue reading

A recent case out of New Jersey gives a great overview of the myriad child custody laws in NJ, particularly concerning jurisdictional aspects. The case, BG v LH, concerns three children. The eldest son has mental health issues, but lives in Israel and is now an adult. The younger son has extreme cerebral palsy. He has a wheelchair, cannot speak, and can communicate only using facial expressions, various noises, and a DynaVox. His physical disabilities are severe, and almost all of his daily functions are performed by someone else on his behalf. On June 30, 2014, the children’s parents were officially divorced upon the issuance of a Dual Final Judgment of Divorce (DFJOD), but prior to this, the court had entered a final judgment concerning the custody and parenting time issues, which the parties had consented to. Within this custody order, the mother had asserted that the father had agreed that she be allowed to relocate with her children to Massachusetts, specifically in the Boston/Newton area. She did move, and the parties continued to share custody and visitation of the children pursuant to the order.

However, in November 2016, the father picked up the younger son, then on the way back to New Jersey, traveled to Connecticut to retrieve his daughter who was at a school retreat. The daughter wanted to drive back with her friends and go visit her father from there, but the father refused, which of course, led to a confrontation. Although it was eventually resolved, the daughter’s anger discolored the entire weekend, and upon a week of returning the children to Massachusetts, the department of children and family received complaints, alleging that there was sexual and physical abuse upon the children by their father. Eventually, the complaints were said to be unsubstantiated, although the mother had already filed suit to amend custody in Massachusetts by that time, and the judge there restricted the father to have supervised parenting time only.

Courts interpreting child custody laws in NJ are bound to also follow the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, or NJUCCJEA. Essentially, the law provides that because New Jersey entered the initial orders concerning custody, that New Jersey can now be the only jurisdiction that is able to determine if it has lost jurisdiction. The children moved and currently reside in Massachusetts, so under the act, Massachusetts is the child’s home state. However, the court was required to go through a three-part analysis to determine whether it had appropriate jurisdiction to make custody determinations. Continue reading

The court in Sacklow v Betts very recently encountered the issue of a legal name change in NJ for a transgender child. In this case, the Plaintiff (Sacklow) petitioned the court to change their only child’s name from Veronica Betts to Trevor Adam Betts. The plaintiff argued that the name change was in the child’s best interest because the child is transgender, identifies as male and was undergoing treatment for gender dysphoria. Before puberty, Trevor had been a quintessential tomboy. But during puberty, he changed – he did poorly in school, began engaging in minor criminal enterprises such as vandalizing school property, and fighting. Given the drastic change in his behavior, Trevor was referred to a psychological team, who with their help, he announced that he was transgender and identified as male. At the age of 12, he began requesting that he be referred to as Trevor, rather than Veronica, and from that day forward, his wishes were respected. In fact, the only people who continued to call him Veronica were his father, his stepmother and his step-siblings. Because Trevor felt that this name better reflected his identity, he requested a legal name change.

The court in Sacklow v Betts provides a succinct overview in the procedural aspects of acquiring a legal name change in NJ for a child. An application must be filed by first filing a verified complaint which sets out the reasons why the child is requesting a name change. It should include the child’s date of birth, and also notify the court that the application is not filed in order to defraud creditors, avoid prosecution, or for other illegitimate reasons. The complaint should also include whether or not the child has been involved in some sort of delinquency. If they have, then the complaint needs to be clear on the nature of the crime and punishment. To that end, of course the complaint should include if the child is currently facing delinquency charges. There are additional requirements if the child is part of a family law action, or had been part of one within three years before filing the complaint. In the instant case, there were no errors on the face of the complaint. Continue reading

There is no shortage of cases concerning NJ Restraining Orders, and the most recent appellate case on this topic just came down on June 5. In T.M.S. v. W.C.P., the issue was whether the court abused its discretion by reinstating a final restraining order against the plaintiff, T.M.S, sua sponte, or on its own. The appellate court held that the lower court did in fact abuse its discretion and denied the defendant due process under the law. It reversed the court’s ruling. The (somewhat confusing) procedural facts are as follows:

A temporary restraining order (TRO) had been put in place due to domestic violence which TMS had admitted to. A final restraining order (FRO) was implemented, which TMS moved to vacate. He was denied. He filed again to dismiss the FRO, and WCP did not appear for the hearing, despite being properly served with notice. As a result, the court granted the unopposed application to vacate the FRO. With this victory, defendant then moved for relief from having to forfeit his weapons. At this hearing, there was a question of whether plaintiff was actually properly notified of the original dismissal of the FRO, and so, the court reinstated the FRO (and so, the weapons forfeiture matter was dismissed).

In determining whether a final NJ restraining order can be dismissed, the court relies on eleven factors from the Carfagno case if there is good cause for dismissal. The factors are: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing NJ restraining order because she wasn’t there – but the trial court did note that the defendant had never violated the order, defendant’s consistent sobriety, attended domestic violence counseling, and suffered from health problems that made it difficult for him to inflict any violence, even if he had wanted to. Therefore, on the basis of these factors, the judge determined that the FRO was no longer required to protect the plaintiff.

involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. Continue reading

Divorces can be expensive. You are splitting up your assets, and probably splitting a two-income home in half (or having to provide for two households at the least). You think you and your spouse can pretty much agree to anything, so you decide to file for divorce without consulting or hiring a lawyer in order to avoid the attorney’s fees. While people do this quite frequently, there are some massive, and incredibly expensive, pitfalls that can await you if you attempt to go it alone (or in legal-speak, pro se). The following is a list of reasons on why you should not file a divorce in NJ without a lawyer.

  • It could get expensive. I know you think that if you do not hire an attorney, you will avoid those expensive attorney’s fees. That is true. However, you should think of these fees as an investment. Doing property division on your own can be difficult, especially if your estate is particularly large or complex. Dividing up real property requires multiple documents and transactions. Trying to divide up your retirement uses multiple laws and procedures. Mishandling distribution of your retirement account can actually cost you huge fees or tax penalties that a lawyer would know to avoid. And these are just the property issues.
  • You could mess up your custody case. Even if you and your spouse agree to a custody arrangement that is fair, if you mislabel the agreement as shared custody instead of joint legal custody, this could have huge negative repercussions for you, resulting in a loss of parental rights in some respects. It is difficult and costly to modify orders after they are entered, and having a lawyer will make sure to catch any errors or misunderstandings before they become final. Lawyers can also give you advice on how to prepare your case for custody – including what not to do. Many parties think that talking to their children about the case, especially if they are older, is a good idea. A lawyer would guide you that it’s usually not a good idea – and if you want your child to state a preference as to who they would like to live with, a lawyer would be able to get this evidence in front of a judge through better venues than you speaking to your child. The opposing side could convince the court that you are trying to sway the child to like you more.

Adultery is one of the most common causes of divorce in New Jersey. It can also make divorce incredibly fraught and complex, with emotions ruling the day instead of clear heads and rational thoughts. Sometimes, parties who divorce want to use the court system as a way of ‘getting back’ at their spouse, and dragging all their dirty laundry out for all to see. However, there is another way to handle the issues of adultery and divorce in New Jersey – through a ‘no fault’ divorce.

A no fault divorce is basically telling the court that you and your spouse can no longer get along. No one has to take the blame for the relationship falling apart, and it can help things go quicker. But, this choice isn’t for everyone, and sometimes individuals just need their day in court to move on. In these cases, a ‘fault’ divorce might be more appropriate. In these cases, one party has to prove the other’s misconduct which caused the divorce. Along with adultery, abandonment, abuse, or substance abuse can all be used as grounds for a fault divorce. Of course, due to the heavier burden of proof, litigation will be more costly and lengthy, so it’s important to think about your strategy before filing your divorce petition.

Despite this, one of the big advantages in filing a fault case for adultery and divorce in New Jersey used to be that judges get to look at whose fault it was in the break-up of the marriage when determining things like alimony and property division. Alimony, or spousal support, is what one spouse might pay to the other upon separation or divorce to ensure the other party can support themselves. In the past, only a fault divorce would allow a party to request alimony; luckily, things have progressed, and now that most people file for a no fault divorce, courts will rarely look to fault when determining whether alimony should be awarded. In New Jersey, the court will only consider crimes that have resulted in the death or serious bodily injury to their spouse (or attempts to do so). In other words, if one spouse has tried to kill the other, they will not be awarded alimony. The other time courts will consider adultery and divorce in New Jersey when determining alimony is if this adultery negatively affected the couple’s economic estate. So, for example, if a wife purchased her boyfriend an apartment in the city, this would have been a wasting of the assets and could be looked at when determining whether, and how much, alimony should be awarded. Continue reading

Divorce is a painful experience that nobody wants to face, but there are ways to make the process easier on yourself. As you go through your divorce in NJ, remember these six keys that can help hold you together during this emotionally challenging time.

Get healthy.

Don’t allow yourself to ignore your physical health during your divorce. It can be tempting to retire to the sofa with a carton of ice cream, but you owe it to yourself to fight the urge. You can help yourself tremendously by eating right, getting plenty of sleep and keeping up with a regular exercise routine.

Pull in your friends. 

Now is not the time to isolate yourself. Turn to your best friends, your family or anyone else who is part of your support group. Make plans to meet friends for dinner or shopping, or just ask someone to come over and hang out. You need to spend time with people who lift you up.

Keep kids a priority.

It’s important to remember that children are not always open and clear about their feelings. If you have children, you need to spend plenty of time making sure that they are okay. Divorce in NJ can hurt kids if it’s not handled properly, and sometimes kids hide their fears and anxieties. If you can, get your kids into a counseling program just to make sure they aren’t suffering. Continue reading

Will my alimony obligation end upon retirement under New Jersey alimony laws?

On September 10, 2015, the Governor of New Jersey signed into law an amended alimony statute. Said amended statute made a number changes in regard to alimony and retirement. According to the amended statute, there is now a rebuttable presumption that his or her alimony obligation will end upon attainting full retirement age.

 How is full retirement age defined under NJ alimony laws?

The amended alimony statute defines full retirement age when a person can collect full Social Security benefits.

Can the presumption that alimony terminates upon reaching full retirement age be rebutted under the alimony laws in NJ?

Yes, it is a rebuttable presumption. A court will consider the following factors in determining if the presumption of terminating alimony at full retirement age should be rebutted:

  • The litigants’ ages at the time of the motion for termination or modification of alimony;
  • The litigants’ ages when they married and their ages when alimony was awarded;
  • The amount and duration of economic reliance by the payee upon the other party during the marriage;
  • Whether the litigant has exchanged something of value for a longer or larger alimony award;
  • The sum and period of alimony formerly paid;
  • The litigants health when the retirement application was made;
  • The litigants’ assets at the time of retirement;
  • Whether the payee has obtained full retirement age;
  • All sources of income of both parties;
  • The party who is collecting alimony capability to have saved adequately for retirement;
  • Any other relevant factor.

Continue reading

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