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The Bisbings entered into a Marital Settlement Agreement (MSA) that contained specific provisions about relocation of the children. The provision was quite detailed, including specifics about proximity of local relocation distance limits as well as out of state relocation requiring agreement of the parties or court order. The parties considered relocation for employment purposes, though not for re-marriage. At the lower court level, the parties agreed that the children’s quality and style of life are equally provided by both parents.

The lower court allowed relocation of the children, to Utah, with the mother. There was no hearing whatsoever on the issue of relocation. The lower court made a further order for a parenting plan, again, with no hearing whatsoever.  The father appealed. The Appellate Division of the New Jersey Superior Court’s decision returned the case to the lower court to hear the matter and apply the appropriate standards in so doing. Unfortunately, it did not return the children to New Jersey while the matter was pending.

One of the pivotal issues in this appeal was whether the wife had acted in good faith in the negotiation of a settlement agreement, including custody and a non-relocation provision. Looking at the timeline of events, it is clear why that was an issue. Here are the basic facts: Continue Reading →

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Criminal Coercion, in its simplest terms, is a threat of some sort of harm for the purpose of compelling someone to act in a way they would not otherwise act. The person threatened is the victim of the criminal coercion. Think in terms of someone threatening to harm your children if you do fail to do something demanded. You take this action only to protect your children from the harm threatened. It is not just the threat that is necessary for criminal coercion, but that you complied with the demands to prevent the threat from being carried out.

A recent Superior Court case, J.L. v. A.C., defined coercion and its application pursuant to the new addition to the Prevention Against Domestic Violence Act (the “Act”). The Court interpreted the new addition to the act as including acts of intentional intimidation, or intent to intimidate, by threatening to harm a child or other loved one. Continue Reading →

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When your divorce is the result of a cheating spouse, it can often be difficult to accept. Too often, the faithful party accepts the blame and responsibility for their spouse’s infidelity. It’s important to recognize that cheating is a choice your spouse made. It was not your idea. You will ask yourself lots questions after your divorce. Why did he or she cheat? Does he or she feel bad about what they did? When is this terrible feeling going to end? Although most people ask these kinds of questions, they are not helpful to the healing process.

How to Begin the Healing Process

You want your life back, but accomplishing this takes some determined effort. You must accept that you are divorced, on your own, and responsible for your happiness. Take control of everyday responsibilities. If you have children, be sure they know they are safe and secure even though their time is shared between parents. Take a few small steps each day toward creating the new life you envision. Trying to win back a spouse is an emotionally unhealthy activity. Never use your children to try and make the ex-spouse feel guilty. If you have no children, there is absolutely no reason to have any association with your former spouse. It’s time to concentrate on building a life that is satisfying and rewarding.

Taking Control of Your Life

Some professionals say it can take six months to a year of recovery for each five years of marriage. Your divorce issues will not disappear overnight, but you can take control of your life immediately. One part of taking control includes allowing yourself time to grieve when anniversary, birthday, and other holiday celebrations arrive. You must get through them before you can move forward. There is no weakness involved in mourning a loss. It is healthier than getting up each day angry and spiteful. The first year of your divorce is a journey, and only you can decide what direction it will take. Your future is in your hands, don’t give it back to someone who has already moved on. Continue Reading →

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New Jersey legalized same-sex marriages in 2013 after a tumultuous start. Superior Court Judge Mary Jacobson ruled in September of that year that same-sex couples could marry. Not so fast, said Governor Chris Christie. He filed an appeal. The New Jersey Supreme Court allowed Jacobson’s ruling to stand pending the appellate process, and Governor Christie ultimately withdrew his appeal. Same-sex marriages became legal in the state effective October 21, 2013.

Same-sex couples are now granted the same rights and are held to the same responsibilities as heterosexual couples, so it might stand to reason that there should be no great difference when couples divorce. But same-sex marriages have some unique considerations.

When Same-Sex Spouses Have Children

When same-sex spouses adopt a child together, issues of custody fall into place much the same as for heterosexual couples. Frequently, however, one spouse is the child’s biological parent, and this can create a wrinkle. Ideally, the other parent will adopt the child similar to situations where a stepparent adopts. This can help cover all bases. Otherwise, the situation can become complex and may require the help of an attorney to advocate for the non-biological spouse’s parental rights. Continue Reading →

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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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