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In any divorce matter, the issue of retirement can be contentious. This is usually because it can be one of the largest assets in the marriage, particularly when the parties have been married long-term. When it comes to the division of military retirement, the regulations surrounding its division can be complex – especially when military disability is involved. The New Jersey Appellate division case of Fattore v Fattore discusses the various issues that can arise with military retirement and divorce.

The parties had been married over thirty-five years when they divorced in 1997. Their final judgment included a waiver of mutual alimony, which stated that they each waive alimony to each other now and in the future. Among other assets, each party’s pension was divided. Plaintiff, an operating room nurse, earned a modest pension, and she was to receive a one-half interest in the community portion of defendant’s pension, which had been offset against any equity she was going to receive in exchange for defendant keeping the marital resident (about $55,000.00). The defendant was a full-time member in the Army National Guard at the time of the divorce. A Qualified Domestic Relations Order (QDRO) was finalized in 1999. The defendant continued in his role in the Army for another three years until he became disabled in 2002. He was able to receive pension and disability without impacting his pension pay-out, and he was able to receive disability benefits, tax-free. A party opting for disability benefits in lieu of retirement payments are fairly regular occurrences in the context of military retirement and divorce.

The plaintiff never contacted the defendant to find out the status of the pension, and the defendant assumed that she had been receiving her share of the benefit. In 2010, the plaintiff contacted the Army and they responded that because a portion of the defendant’s pay is based on disability, it cannot be divided. It is an authorized deduction and so, there is nothing left for the property to be divided. She filed a motion to compel the defendant for compensation in 2016. At trial, the judge determined that although the situation was the fault of neither party, it was nevertheless unfair and appointed a pension appraiser to determine what her interest in the defendant’s pension would have been at the time of their final divorce judgment. In the interim, the defendant was required to pay her $1800 a month, which would be taken from any of his resources. This was not to be alimony, nor would alimony be required since both parties had waived their rights to it previously. Continue reading

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For a happy couple contemplating marriage and planning for the big day, a discussion related to divorce and death is usually not a top priority on the to-do list. However, consideration of a prenuptial agreement which can protect important property and financial interests requires that talk. Therefore, knowing what is a prenup and understanding its benefits are important to your financial future. A prenuptial or premarital agreement, also known as a prenup, is simply a written contract between two people planning to be married outlining use or disposition of property and distribution of debts in the event of divorce, the death of a spouse or other event.

Premarital agreements trace their origins back thousands of years when they were commonly used by royal families to protect their riches. A present-day misconception is that prenups are only necessary for the wealthy. In reality, prenups can be vital and provide benefits for people of moderate means.

Prenups are valid in all 50 states. More than half the states have adopted the Uniform Premarital Agreement Act drafted in 1983. States which have not adopted the act in whole have enacted statutes which mirror many of the law’s provisions. Continue reading

If a person requests a restraining order in NJ, they need to support enough evidence to show that it is more likely than not there is cause for concern that they could be the subject of physical violence. They must be a ‘victim of domestic violence,’ including someone in a dating relationship with the aggressor. Obtaining a NJ restraining order is, therefore, a question of fact to determine whether the applicant is in reasonable fear for their safety and whether they are in a dating relationship. The October 23, 2018 published trial court case of TM v RMW involved a heavy fact-intensive inquiry by the court in determining whether a restraining order was warranted.

The specific questions were, first: whether a plaintiff is a ‘victim of domestic violence’ as defined within a ‘dating relationship’ when the relationship consisted primarily of an intermittent sexual relationship but missing the traditional elements of a dating relationship defined in Andrews v. Rutherford. Next, the court examined whether a defendant can use the defense of consent when accused of simple assault and harassment by offensive touching when there was no dispute that the parties enjoyed consensual rough sex with each other.

The two individuals in question had known each other for several years. The female plaintiff was granted a temporary restraining order (TRO) alleging that they had a dating relationship, including a sexual relationship with the defendant that has lasted for 8 years. The incident which led to her request occurred during a session of consensual rough sex, wherein the plaintiff alleged that the defendant said he hated her and punched her with a closed fist. When she asked him about the punch, he laughed and punched her again. At the hearing for the final NJ restraining order, the parties represented themselves and had no other witnesses other than themselves. The parties had frequent sex during the first years of their relationship, followed by a three-year cessation of sex. But for the last year, the relationship had consisted of irregular encounters – about once every three months – which involved consensual rough sex. Continue reading

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Family law in New Jersey certainly revolves around the individual facts of each case. But what some individuals take for granted is how crucial a firm understanding of basic procedural rules of court can be to someone’s custody dispute. Of course, judges are not exempt from this requirement. But one recent case required an examination of whether a judge had properly followed child custody laws in NJ to ensure the correct decision had been reached.

In JG v. JH, the two parents in question were not married when their son, John, was born in 2012. At first, things were going well. In 2014, the court ordered the parents to share joint legal custody of their son, with the mother (Jane) having primary residential custody, and the dad (Joseph) having significant parenting time. The next year, the parents attempted to reconcile and so the consent order was vacated. It was not meant to be, and eventually, the parents grew apart, Jane entered a new relationship and became pregnant with another man, now her fiancé. Joseph claims he is a known drug user and is a convicted felon who has multiple prison sentences. As a result, Joseph filed an order to show cause under the original order (since vacated) asking for sole custody of John.

The court denied the order to show cause, stating that there was a failure by Joseph to show ‘actual imminent threat of harm’ to the child,’ and the court could not grant such emergency relief based on speculation. It did, however, grant temporary sole physical custody of the child to Joseph, pending a resolution on the application, because the court felt that there was the potential for violence in the mother’s home, which could negatively impact the child. Jane’s parenting time was also to be supervised by her mother. In turn, Jane responded with her own order to show cause, claiming that the child would suffer by his sudden separation from her. This was denied, with the judge again claiming there was no evidence for imminent harm supplied.  Continue reading

 

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If you and your partner are going through a divorce, it’s incredibly important that you take the time to talk with your child about what’s happening and to help them deal with their emotions. Depending on your child’s age, they may feel a variety of emotions. They might feel sad, relieved, frustrated, or scared. Your child might even feel anger. This is one of the most common emotions a child can experience when their parents are getting divorced. Fortunately, there are several things you can do dealing with divorce and children.

  1. Tell your child about the divorce right away

While you might be tempted to wait until things are almost finalized before you speak with your child, it’s important that you talk with them often and early. Your child will be able to sense that things are changing around the home and that family dynamics are shifting. Talking with your child will let them know you trust them and care about them. Don’t spring the divorce on them at the last second. Instead, once you and your partner have agreed to separate, sit down with your child and have an open and honest discussion.

  1. Answer your child’s questions

While you don’t need to answer all of your child’s specific questions, it is important that you address as many questions as you reasonably can. For example, your child doesn’t need to know about infidelity that led to the divorce. What you can say is that you and your partner have chosen to separate, but that both of you still love them. Focus on your child’s relationships with both of you and place an emphasis on the fact that you will still be a family. Do not say negative things about your spouse because it will increase their anger and damage them. Continue reading

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For long-term relationships, the question of alimony in NJ is often hotly contested in a dissolution of marriage case. In a recent New Jersey Case, Bermeo v Bermeo, the court decided whether or not to increase alimony payments after a property settlement agreement.

The parties got married in 1986. Their two children were both adults at the time of the divorce. The parties settled, and the final judgment of divorce incorporated the agreement. The alimony provisions required the defendant to pay plaintiff $4,000.00 each month based on his imputed income of $160,000.00, as well as various percentages of his supplemental compensation, such as bonuses, stock options, and commissions. Notably, the agreement also stated that the parties enter the agreement with the understanding that they will not be able to enjoy a similar lifestyle after the divorce, and waived a determination of the joint marital lifestyle.

The defendant had enjoyed high compensation during the marriage; however, he had received some pay cuts, which he discussed. Additionally, shortly after entry of the divorce, sought new employment for significantly less pay based on anticipated layoffs at his former place of work. Continue reading

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In a divorce, awards of stock are frequently the largest assets in the marital estate. It is no surprise then that how these accounts are divided can be controversial and highly contested. This kind of division of assets in divorce can often be complex, particularly if the stock awards have not yet vested and their value is as yet unknown. In one recent case of first impression, MG v SM, there was an issue of whether or not certain restricted stock, which would vest after the complaint of the divorce, would be subject to division in a divorce if the vesting is contingent upon the party in question’s employment efforts after the complaint.

The parties married in 1998, the plaintiff became a principal consultant for a major multi-national corporation. From August 2003 through August 2010, the employer gave plaintiff an annual stock award, which would vest in yearly clusters. By way of example, the plaintiff noted that in 2003, he received 490 shares. Starting in 2011, 174 shares each year would begin to vest. The same schedule applied to all subsequent stock awards. According to plaintiff’s testimony, this was so the company could ensure continuous high-performance of the employees. So, if in the year the stock award was going to vest and the employee had performed poorly, the company had the option to terminate their employment, along with their rights in the stock.

When the plaintiff filed his complaint for divorce in July of 2014, just three of his eight stock awards had fully vested. When considering the division of assets in divorce, the plaintiff’s position was that the stocks which had already vested should be eligible for equitable distribution to his spouse, but not the ones which had not yet vested. The court disagreed. The judge ruled that the defendant could share the stocks which had vested as of the date of filing as well as the awards which would vest after the complaint. Continue reading

When it comes to ending your marriage, divorce ranks right up there with getting your wisdom teeth pulled out. As author Mary Kay Blakely once said, “Divorce is the psychological equivalent of a triple coronary bypass.”

If children are involved, you may be in store for a lengthy adjustment period. Divorce and children are difficult to navigate. Learning to keep the peace would do wonders for both sides. Of course, that is easier said than done. Nonetheless, here are 10 tips for recently divorced couples who have children together:

1) Come up with a schedule, and stick to it

Remember, children thrive on routine and consistency. Your custody arrangement should take into account your children’s ages, the activities they’re involved in, and your work and personal schedule. Of course, there are times when life gets in the way, and you need to change things up a bit, which leads to the second tip.

2) When comes to divorce and children learn to say “yes!”

Does your ex-spouse need to tweak the schedule occasionally? Do they want to take the kids to see their parents during what is supposed to be your Christmas? If the other household’s requests are not unreasonable, then accommodating them could go a long way toward building up goodwill between the two families. In a perfect world, your ex will be just as accommodating and reasonable when you need some help. Whether that happens when the time comes is not the point, which is to create a happier, healthier environment for your children. Continue reading

It is becoming frequently common for couples to have children outside the marital relationship, for a multitude of reasons. Part of it has to do with delaying marriage – part of it has to do with the relaxing of stricter moral or religious codes regarding sex prior to marriage. Regardless, when children are born outside the marriage, both parents still have a duty to care and support their children. However, there are certain New Jersey custody laws for unmarried parents that these individuals should be aware of in order to preserve their parental rights.

Establishing Parental Rights

The mother is always presumed to be the mother of the child, whether married or not. But for fathers, the New Jersey custody laws for unmarried parents include a requirement to establish paternity before any orders can be issued concerning custody, visitation or support. There is a multitude of ways unmarried parents can establish paternity. If the parties never marry, then the father will need to sign a voluntary acknowledgment of paternity. A certificate of parentage can establish paternity and can be executed at the hospital during the child’s birth. The parents will need to meet with a birth certificate coordinator who will explain the provisions and significance of the form. Then, they will need to present valid identification and fill out the certificate. Their signatures must then be witnessed by the coordinator. Of course, if the parents do not fill out the form at the hospital, it can be completed later at either a local registrar’s office or county welfare agency.

He can also file a lawsuit to establish paternity, where a court will determine that he is the father. The couple can marry shortly after the child is born and sign a legitimization form, or the father can agree to his name put on the birth certificate and agrees to support the child. The father can also welcome the child into his home and openly hold out the child as his own. However, it is also best to get a court order or acknowledgment of paternity on file to get rid of any question as to the paternity of the child.  Continue reading

The child support guidelines of New Jersey are designed to provide consistency and certainty in family law matters. There is sometimes conflict between the parents, particularly if the parent paying child support believes that the recipient spouse is using that child support for frivolous things, like shopping trips or vacations. But the truth is, if the recipient parent is covering the essentials and expenses required by law, they can spend their money on whatever else they want. So, what does child support cover in NJ?

This question is basically asking, what does the child support I receive (or pay) cover, and what should be the other party’s responsibility to cover? It is important to understand what does child support cover in NJ to appropriately budget and ensure the child is taken care of. The guidelines apply to parents who earn a combined net income of up to $187,200.00. Any couples who exceed this amount will still have the guidelines applied, but an additional amount can be added, depending on multiple factors set forth under the child support statute.

Of course, child support covers the basics: food, clothing, and shelter are of course non-negotiable expenses when raising children. Food should be healthy and keep the children at an appropriate weight, but it does not necessarily allow regular meals at a fancy steak restaurant (unless the lifestyle of the child prior to the divorce incorporated these kinds of meals with some frequency). That is because if the parents can afford it, the court will consider the lifestyle to which the child had been accustomed to prior to the dissolution of the marriage when rendering child support orders. Clothing is another expense included in the calculation – which is a huge category. Clothing includes shoes, diapers, winter clothing, and accessories. It also includes maintenance of the clothing, such as cleaning sports uniforms or dance costumes. However, sports footwear is not included in the calculation. Shelter includes everything from the mortgage, rental payments, and utilities to keep a comfortable roof over the head of the children. If you are starting to think that some of these expenses are arbitrary, you would be correct.  That’s why the question, ‘what does child support cover in NJ’ is so commonly asked by parents involved in a family law matter.  Continue reading

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Peter Van Aulen is certified by the New Jersey Supreme Court as a Matrimonial Attorney.

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