MEETING OPTIONS DURING THE CORONAVIRUS: The Law Offices of Peter Van Aulen understands your concerns regarding the spread of the Coronavirus, and now offers different meeting options to our clients and those seeking legal representation. All meetings, including initial consultations, can be handled either through the phone, FaceTime, Zoom, or in person.

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THRESHOLD ISSUE: IS THE MARITAL RESIDENCE AN ASSET THAT IS SUBJECT TO EQUITABLE DISTRIBUTION?

In most New Jersey cases the home is considered joint marital property and will be subject to equitable distribution at divorce. How do we determine if the home is marital property? The main issue we look at is when the property was purchased.Typically, if the marital residence was purchased during the marriage, it is likely to be considered a marital asset.

If the house was purchased before the marriage by one spouse, it may be considered separate property and may be awarded solely to the spouse who purchased it. The reason we have to use the word ‘may’ in this context is that there are special circumstances under which property that would otherwise be considered separate property may become joint property. If there are questions about who the owner(s) of the marital home are, it is best to discuss the issue with an attorney.

OPTIONS FOR DISTRIBUTION OF MARITAL RESIDENCE

Once it is determined that the marital residence is an asset that is subject to equitable distribution, the question becomes how to distribute it. With things like bank accounts it is easy to divide the asset into parts and give some of it to each former spouse. With real property however, it is trickier. Below are three options for the equitable distribution of a marital residence in New Jersey. Continue Reading →

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Family law cases are complex legal matters that often involve mountains of paperwork. Just as one party to a case will have reams of papers on his or her case, family law judges are often inundated with paperwork of their own. Motion papers make up a significant portion of the paperwork on a judge’s desk, and having enough information on paper to make a determination of a particular motion can be challenging for a judge. For that reason, plenary hearings are often ordered in family law cases. A plenary hearing occurs when a judge needs more information to rule on a matter than he or she has in the paperwork for the case.

WHY HOLD A PLENARY HEARING IN A FAMILY LAW CASE?

Why would a judge order a plenary hearing? New Jersey case law has held that the family part has the discretion to determine whether the motion papers are sufficient enough to rule on a motion, or if more information in the form of testimony is required. Because of this, New Jersey courts are reluctant to rule on motion cases based solely on written statements in motion documents when there is an opportunity to hear testimony in addition to the written statements.

WHEN IS A PLENARY HEARING REQUIRED?

A plenary hearing is required when the material facts of a case are in dispute by the parties, and the judge feels that hearing testimony of the parties would allow the court to resolve the factual issues. As you may imagine, two former spouses may offer different version of events or facts relating to their case. Hearing the testimony of the parties may often allow a judge to better determine where the truth of the matter at hand lies. A recent New Jersey family law case dealt with disputed facts in a divorce and support case. Continue Reading →

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Approximately one in three spouses — 31 percent, according to Business Insider — confess to lying to their partners about money. Whether this occurs before or after divorce begins looming on the horizon is unclear, but it’s safe to say that financial trust is not absolute in marriage. You might get away with concealing an asset or income while your marriage is healthy, but your financial dealings will come under a microscope when one spouse files for divorce.

The act of initiating divorce proceedings gives the court jurisdiction over your property. In other words, the judge has the final say regarding what happens to it. Even if you and your spouse reach a property settlement agreement, that agreement must be approved and signed off on by a judge before it is incorporated into a final judgment of divorce.

You might therefore think it’s OK to sweep an asset under the carpet in advance of filing for divorce, before the court takes jurisdiction. This can be a bad idea for a number of reasons. Continue Reading →

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Those receiving child support or alimony payments rely on that money to pay for their living expenses. Even if the person who pays those support payments (called the payor) always pays on time, a question arises of what will happen to the recipient of those funds in the event of the untimely death of the payor. Life insurance policies are useful in this situation, and are often required, to ensure that the support recipient will continue to receive adequate compensation if the payor dies.

Life Insurance and Alimony

In New Jersey, alimony payments are often secured so that there is a mechanism in place to cover the payments if the payor alimony dies. The rationale is that alimony is awarded because the recipient needs it, and the untimely death of the payor should not unduly affect the financial life of the support recipient.

Amount of Life Insurance Needed to Cover Alimony Payments

The amount of life insurance needed to secure alimony payments can be calculated by multiplying the payment amount by the duration of the alimony payments. Alimony is often ordered to be paid for a limited time rather the indefinitely, either for a set number of years or until a specific event occurs (remarriage of the supported spouse, for example). Since alimony is taxable, you need to deduct the amount of tax to determine the appropriate amount. Continue Reading →

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Whether you divorce by settlement agreement or a judge orders divorce terms after a trial, the resulting judgment is a legally binding court order. Your settlement agreement is incorporated into your judgment. If your ex doesn’t abide by its terms, either for custody or child support, you have a few options.

Problems With Child Support

If your ex isn’t paying child support, your easiest remedy is to sign up for your state’s child support services. State services collect from your ex, often through an income withholding order, so it’s more difficult for to fall behind with his payments in the first place. His employer must deduct his support from each of his paychecks and forward it to the state. The state then transmits the payments to you and keeps track. If your ex falls behind for such reasons as being out of work, the state may intercept his tax refund, report to the credit bureaus, or place liens against his property.

But state services can be slow because they often labor under a huge caseload. If you want your money sooner rather than later, you can take your ex back to court yourself. Your ex will have to appear before a judge and explain why he hasn’t paid. The judge may work with him if he’s suffered some financial hardship that genuinely prevents him from paying child support. This doesn’t mean the judge will vacate or erase the support terms of your divorce judgment so you won’t get paid. It means he’ll put a plan in place by which your ex can eventually catch up with his arrears (the unpaid balance he owes you) and get back on track. Continue Reading →

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Final Restraining Orders (FRO’s) are permanent in the State of New Jersey, which means that they do not have an expiration date. Without going to court to request a change in the FRO, it will continue to be valid indefinitely. In order to remove, modify, or dissolve a FRO the victim (the person who is being protected by the FRO) or the defendant (the person the FRO is entered against) must go before the court and request that such a change be made.

Once a motion is made to dissolve a FRO, a judge will review the court documents that led to the issuance of the FRO in the first place, and then it will inquire about the current state of the parties relationship to determine whether or not to dissolve the FRO.

The Carfagno Factors

The judge will look to several factors to determine whether there is a good reason to dissolve the FRO. The 11 factors contemplated are taken from the 1995 New Jersey case Carfagno v. Carfagno. Continue Reading →

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The calculation of alimony payments upon divorce can be a tricky undertaking. In New Jersey, a family court judge will look at the financial lives of both spouses, and then apply an appropriate set of factors to determine an appropriate payment amount. Of course, the judge must have access to the most accurate information in order for the calculated amount to be fair and reasonable. What happens if one of the parties under reports his or her income? What if one of the parties quits his or her job, or takes a lower paying job for the purposes of avoiding the payment of alimony? Unfortunately those situations happen in some divorce cases. State law and case law provide us with guidance on how New Jersey family court judges should handle these cases.

Elrom v. Elrom

In the case of Elrom v. Elrom, the court decided a case that involved a spouse’s underreporting of income. In that case, the Defendant reported his income from work as a software engineer and technical writer as $120,000 per year, and the Plaintiff reported $80,640 in previous income per year for her work as an attorney. The parties each alleged that the other party either did earn, or could have earned more than the reported income.

The Plaintiff’s reported income of $80,640 was the salary she made at a New Jersey law firm working as an associate. Prior to having children, the Plaintiff had made substantially more, $175,000 per year, working at a New York City law firm. After having children, the Plaintiff left work for a time to take care of her children, and then worked part-time (approximately 26 hours per week) for $67.50 per hour. Then, she took on a full-time job at the New Jersey law firm making $80,640 per year. She was unemployed at the time of the trial. Continue Reading →

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Under New Jersey law, emancipation of a child occurs when the dependent relationship between the parent and the child ends. The term emancipation is used largely in the context of child support, as the emancipation of a child signals the end of the requirement of a parent to pay child support. In the 2015 case of Llewelyn v. Shewchuk, the court answered the question of whether a child is emancipated when she chooses to live independently from either legal parent.

The facts of the Llewelyn case are interesting, as we typically see the parents as the parties bringing this type of litigation, but here we have the child as the “appellant” in this particular case and the child’s father as the defendant. In 1994 James Shewchuk (the defendant) adopted two-year-old Adrianna (the appellant) when he married her mother (who is the plaintiff in this case). Continue Reading →

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Arbitration is increasing in popularity in New Jersey divorce cases due to its ability to significantly reduce the cost and length of the legal process. New rules that were adopted in 2015 ensure that New Jersey courts are able to review and enforce arbitration awards in divorce cases.

COURT RULE 5:1-5 ARBITRATION

The New Jersey Supreme Court enacted a new rule, Court Rule 5:1-5 which provides rules for the arbitration of divorce matters. Adopted on September 1, 2015, Rule 5:1-5 applies to all agreements to arbitrate and consent orders to arbitrate any family law matter, with the following exceptions:

(a) the final judgment of annulment or dissolution of relationship;

(b) actions involving the Division of Child Protection and Permanency;

(c) domestic violence actions;

(d) juvenile delinquency actions;

(e) family crisis actions; and

(f) adoption actions.

SOURCE OF RULE 5:1-5 – FAWZY V. FAWZY
Continue Reading →

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Perhaps you and your partner are having major issues in your marriage, or maybe the two of you just want to work on your communication skills. In either case, it might be advisable to reach out to a marriage counselor for help. Many people begin looking for a counselor via an online search, and the results all show offers of support, understanding, and help. They all seem sincere, so how do you choose a marriage counselor that is right for you and your spouse?

Choosing a marriage counselor is a big decision. This is a person with whom you will discuss sensitive issues, and you will likely feel vulnerable, so it’s important you feel comfortable with that person. Many couples wait too long to begin counseling. For many, it is a last resort before filing for divorce. It doesn’t matter if your problems are big or small; you need a marriage counselor who is competent and works in the best interest of both parties.

Here are four tips to help you find the right marriage counselor for you:

Choose an actual marriage counselor. There are many different types of mental health professionals, but only marriage and family counselors have special education, training, and experience in helping couples. Any counselor can offer marriage advice, even if their background is in social work or counseling individuals, or even if their experience was as a school psychologist. Those without specialized training often try to use individual therapy techniques or try to diagnose one of the partners as being “the problem” instead of helping the couple as a team. Continue Reading →

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