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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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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Early settlement is an alternative dispute resolution program for married couples going through a divorce. The goal of the program is to allow the parties to reach a settlement on the issues in dispute early on in the divorce process to avoid the lengthy and expensive litigation process. As is the case with many legal issues, divorce is a much easier process if the parties can at least try to compromise and resolve their issues without going to court.

WHO ARE THE PANELISTS?

The early settlement panel (ESP) is comprised of experienced matrimonial attorneys. Each attorney must have at least 5 years experience in matrimonial law. The panel is usually made up of two to three panelists.

WHAT ISSUES DOES THE ESP ADDRESS?

Matrimonial issues related to finances and property are addressed by the early settlement program. More sensitive issues such as child custody and visitation require a more in depth process and thus are not decided on in the early settlement process. Continue Reading →

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The term “legal separation” is used nationwide, but the process can be different depending on your state — and sometimes even within the same state. Technically, New Jersey doesn’t recognize legal separation, at least by that name. You don’t have to file a complaint with the court if you and your spouse want to live apart. You can do so, however, if you want to.

The most common way of separating in New Jersey involves negotiating and signing a settlement agreement. The agreement can resolve issues of custody, parenting time, child support, and spousal support, setting the terms under which you and your spouse will live apart. The agreement becomes an enforceable contract when signed by both spouses. If you eventually decide to divorce, and if the agreement also provides for issues of property and debt distribution, you can ask the court to incorporate its terms in a divorce judgment as a property settlement agreement. You can have an easy, uncontested divorce. Otherwise, there’s no need to file the agreement with the court if your separation is open-ended.

New Jersey also recognizes another form of legal separation called a Divorce from Bed and Board. This option does involve filing a complaint with the court, and you must cite one of the same grounds for divorce that you would use if you were to file for an absolute divorce instead. You can then ask the court to decide custody, visitation, and support issues for you. You can still reach an agreement on these things and submit it to the court without actually ending your marriage. Both you and your spouse must both agree to this option. If you later decide to divorce entirely, you can ask the court to convert your judgment into one of absolute divorce. Continue Reading →

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Oftentimes when a divorce case is filed, a party desires a restoration of their maiden name or even a prior surname that may not be the last name she or he had at the time of her birth. There are a number of considerations to keep in mind when it comes to how to change a surname in a divorce case.

Prayer for Relief in Complaint for Divorce

If a party files for divorce, he or she needs to include a prayer for relief requesting a restoration of a prior name in the complaint for divorce. A prayer for relief is a legal request asking a court to take certain action. A party usually is entitled to have not only a maiden name restored but a prior surname that was lawfully used prior to the marriage at issue in the divorce proceedings as long as the party is not attempting to avoid creditors or criminal prosecution. . For example, if the party had been married previously, she theoretically could have restored the surname she used during that time. The same process applies to cases in which a partner in a same-sex marriage desires a name change. Same-sex divorce cases have only recently begun to work their way through the legal system. If a party is the respondent in a divorce case, i.e., the person being sued for divorce, she will request a name change in the response filed to the petition or complaint. Continue Reading →

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For many issues pertaining to child custody in New Jersey it is difficult to find straightforward answers to legal questions. When asking what are assumed to be easy questions, clients often hear from attorneys that “it depends on the circumstances of the case.” Attorneys give this answer not because the attorney does not know the answer, or because they are trying to put their client off, but rather because the way the law is written there is rarely an easy answer. Child custody laws, for example, often give judges guidelines for determining child custody issues, but they often allow the judge discretion to determine what is the best interest of the parties involved. It is rare when there are clear-cut answers to questions about child custody without knowing all of the facts of the case. In the case of child custody and religion, however, we have a very clear answer to the question of who determines the religion of a child.

NEW JERSEY CASE LAW ON RELIGIOUS UPBRINGING

New Jersey case law makes it clear that the child’s primary caretaker has the power to decide on the religion of the child. Also called the Parent of Primary Residence, this is the parent who spends more than 50% of time with the child. Even in cases where the parents have joint custody, the primary caretaker still has the power to make religious decisions for the child. The religion that the parents raised the child with before the divorce is irrelevant in the eyes of the courts; the sole power lies with the primary caretaker. Continue Reading →

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Parenting time, historically widely known as visitation, permits a noncustodial parent and a minor child the ability to maintain a meaningful relationship. When custody is established in a divorce or paternity case, a parenting time schedule usually is established for the noncustodial parent.

Unfortunately, there are instances when an issue can arise in regard to parenting time or visitation. One such problem is a noncustodial parenting arriving to pick up a child for parenting time who apparently is intoxicated.

Deescalate the Situation

The first step to take when a person arrives for parenting time intoxicated is to try to deescalate the situation. At the very least, a solid effort should be made to avoid inflaming the emotions of the parent who appears to be intoxicated.

Discuss Away from the Child

If at all possible, the state of affairs should be discussed away from the child. Addressing a parent’s intoxication in front of a child benefits no one and can actually be harmful to the child. The focus must always be kept on what is in the best interests of the child. Continue Reading →

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One of the first steps a court takes following the commencement of divorce proceedings is to issue what are known as temporary orders. Included in the temporary orders issued at the start of a divorce case is an order addressing the matter of child custody. A temporary child custody order designates which parent will have primary custody during the pendency of the divorce proceedings themselves.

Motion for Temporary Custody

The process of establishing temporary custody of a minor child during divorce proceedings begins with the preparation and filing of a motion for temporary custody. Typically, an attorney is hired to prepare this motion, along with the other documents that are filed at the start of divorce proceedings.

Some individuals do proceed with divorce cases without legal representation. In such instances, most courts in the United States maintain standard forms for divorce cases, including templates for a motion for temporary custody. Continue Reading →

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