Entries Tagged as 'Divorce Mediation and Law'

Alimony Reform: Changes to NJ Alimony Law

On September 10, 2014, NJ Governor Chris Christie signed Public Law 2014, Chapter 42 into law.  This law makes changes to NJ’s alimony statues.  The legislature had been discussing this issue for several years and finally was able to come to consensus between the factions who wanted a formula (similar to child support) and those who liked the old law, which left a lot more flexible (and thus open to interpretation).  This law applies to both marriages and civil unions, though I will use the term marriage to represent both in this post.

Here are the major changes:

  • The term “permanent” alimony was replaced by “open duration” alimony.
  • Where the law mandates that the parties maintain the standard of living during the marriage, added to it was a clause that states that no one spouse has a greater entitlement to that standard of living.  In most cases, creating two households from one means that neither side can afford to maintain the existing standard of living.
  • A new factor is added that allows the court to look at the nature, amount and length of pendente lite ordered (the alimony ordered during the pendency of the case and before a final judgment of divorce is ordered).
  • The court is supposed to give equal relevance to each of the 14 alimony factors unless the court deems otherwise.  If that happens, the court must put into writing why that is.
  • For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage.
    • What are these exceptional circumstances?
      • The ages of the parties at the time of the marriage and at the time of the alimony award;
      • The degree and duration of the dependency of one party on the other party during the marriage;
      • Whether a spouse has a chronic illness or unusual health circumstance;
      • Whether a spouse has given up a career or a career opportunity or otherwise supported the career of the other spouse;
      • Whether a spouse has received a disproportionate share of equitable distribution;
      • The impact of the marriage on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;
      • Tax considerations of either party;
      • Any other factors or circumstances that the court deems equitable, relevant and material.
  • An award of reimbursement alimony may not be modified for any reason.
  • The court shall also consider the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage, to which both parties are entitled, with neither party having a greater entitlement thereto.
  • Alimony may be modified or terminated upon the actual or prospective retirement of the obligor.
    • Where the obligor seeks to retire prior to attaining the full retirement age, the obligor shall have the burden of demonstrating by a preponderance of the evidence that the prospective or actual retirement is reasonable and made in good faith.
    • When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith retirement age.
    • Full retirement age is defined as that in the federal Social Security laws.
  • When a non-self-employed party seeks modification of alimony, the court shall consider the following factors:
    • The reasons for any loss of income;
    • Under circumstances where there has been a loss of employment, the obligor’s documented efforts to obtain replacement employment or to pursue an alternative occupation;
    • Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;
    • The income of the obligee; the obligee’s circumstances; and the obligee’s reasonable efforts to obtain employment in view of those circumstances and existing opportunities;
    • The impact of the parties’ health on their ability to obtain employment;
    • Any severance compensation or award made in connection with any loss of employment;
    • Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;
    • The reasons for any change in either party’s financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party’s financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;
    • Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and
    • Any other factor the court deems relevant to fairly and equitably decide the application.
  • No application shall be filed until a party has been unemployed, or has not been able to return to or attain employment at prior income levels, or both, for a period of 90 days. The court shall have discretion to make any relief granted retroactive to the date of the loss of employment or reduction of income.
  • When a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, then that party’s application for relief must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.
  • When assessing a temporary remedy, the court may temporarily suspend support, or reduce support on terms; direct that support be paid in some amount from assets pending further proceedings; direct a periodic review; or enter any other order the court finds appropriate to assure fairness and equity to both parties.
  • Cohabitation can suspend or end alimony.  Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage but does not necessarily maintain a single common household.
    • Cohabitation factors:
      • Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
      • Sharing or joint responsibility for living expenses;
      • Recognition of the relationship in the couple’s social and family circle;
      • Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
      • Sharing household chores;
      • Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and
      • All other relevant evidence.
      • The length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

The law took effect upon signing.  The changes in essence also do not automatically kickoff changed circumstances for existing agreements or orders.

Despite all the verbiage above, there is not much substantive change in the law.  Most of what is above was already in place through case law.  While the reform law falls short of true guidelines, there is certainly more statutory guidance for those who are divorcing or dissolving a civil union.

Should you have questions about divorcing or alimony, please contact me to discuss mediation.

How do I get a Pre-nup?

When some couples or people think about getting married, they want to protect their assets in case things don’t work out.  To accomplish this, they execute a pre-nuptial agreement or a pre-nup.  Such an agreement pre-specifies things such as assets protected from equitable distribution, limits to equitable distribution, limits on alimony and more.  Negotiating a pre-nup is similar to negotiating a divorce, except the couple in a pre-nup is in a far different place.  They are in love (hopefully!), looking forward to spending the rest of their lives together and really can’t ever see pulling the pre-nup out.  After all, who enters a marriage expecting it to fail?

An article in the Business Insider discusses Getting a Pre-nup.  The highlights:

  • Have a conversation instead of issuing demands.
  • Be upfront about your reasons and fears.
  • Try not to get worked up.
  • Really listen, and ask questions.
  • Consider trying again later.

A mediator trained in pre-nups can help bridge those gaps.  Each spouse-to-be should be represented by independent counsel, whether or not a mediator is used.

If you are thinking about a pre-nup, please contact me to discuss.

Name Change in a Divorce in NJ

New Jersey law allows either spouse in the divorce process to change their name.  N.J.S.A. 2A:34-21 reads in pertinent part:

The court, upon or after granting a divorce from the bonds of matrimony to either spouse … may allow either spouse … to resume any name used by the spouse … before the marriage …, or to assume any surname.

But what happens if a couple is only being granted a divorce from bed and board or a limited divorce?  A trial court recently addressed this issue in a recently published case (Leggio v. Leggio, FM-16-1229-04).  In short, Mrs. Leggio asked for a name change some 10 years after their divorce from bed and board was granted by the court.  The court denied her name change request, not because of the time elapsed (which wasn’t an issue — an earlier case [Olevich v. Olevich, 258 N.J. Super. 344 (Ch. Div. 1992)] indicates no time bar for that kind of request), but because the state does not recognize a divorce from bed and board as a dissolution of a marriage.  In the eyes of NJ, the Leggios are still married.  Mrs. Leggio could go through the more lengthy regular name change process if she wants or convert her divorce to a full divorce.

Contact Marvin Schuldiner at Sanns Mediation if you want to find out more about mediating your divorce.

Power-of-Attorney Restricted in Divorce Cases

A Superior Court Judge in Ocean County ruled that unless a person has been declared incompetent and needs the assistance of a guardian, that person must appear in court for a divorce in person.  In a case of first impression, Judge Lawrence Jones made his ruling in Marisco v. Marisco (FM-15-1152-13-N).  The decision was made a year ago, but was published this week.

The litigants are both octogenarians and wed in 1978.  While they have no children, the husband (defendant) has an adult daughter from a previous marriage.  He appointed her as his Power-of-Attorney-in-Fact, including authority “to institute, prosecute and defend any actions or proceedings brought in any court.”  When the defendant responded to the complaint filed by the plaintiff, his daughter signed the certification as his POA.  Plaintiff objected, which led to this ruling.

The court ruled: Nonetheless, for the foregoing [legal] reasons, there are significant concerns about a party utilizing a POA in a contested divorce. Accordingly, the court denies without prejudice defendant’s request to appear in this proceeding by power of attorney through his adult daughter. [Daughter] is not judicially authorized to sign pleadings, affidavits or certifications, or otherwise testify in writing or verbally on defendant’s behalf. [Daughter] may, however, testify as a witness in her own right on relevant matters within her personal knowledge, if called as a witness by either party.

After the judge issued his ruling, the husband began to personally participate in the divorce process and the parties settled their divorce.

If you want to learn more about mediating your divorce in New Jersey, please contact me.

HT: NJ Law Journal

 

Expectations During a Divorce

One of the biggest causes of anxiety for people considering a divorce is the unknown expectations about the process.  Elinor Robin explains in this Huffington Post article about some expectations to have:

  1. Expect the courts to move in strange ways — it’s not like TV portrays court.
  2. Expect that divorce will take you into uncharted waters where you will need extra support.
  3. Expect to enter a bizarre time warp — not everyone is at the same place at the same time emotionally or with decision making.
  4. Expect to feel like you are at a disadvantage — largely due to the relative speed of movement caused by #3.
  5. Expect change and expect more of the same –
  6. Expect that dislike for your soon-to-be-ex will be difficult to conceal.
  7. Expect a sense of failure (as to the failed relationship and the “wasted” years) and a sense of loss (of clarity, identity, connection and self-control).
  8. Expect that your children will be impacted by your divorce — mediation can help to minimize that.
  9. Expect that you’ll make mistakes — especially parenting and dating mistakes.

If you want to learn more about mediating your divorce, please contact me.

Mediating Difficult Divorce Situations

On May 9, 2014, I was honored to serve on a panel to discuss mediating difficult divorce mediation scenarios at the NJAPM Annual Divorce Seminar.  We talked though (and encouraged audience participation) situations including nesting, reimbursement requests for breast enhancement surgery just prior to the divorce, threats made by one party against the other in mediation and more.  Thanks to Joan Geiger for leading the panel and to my fellow panelists Pamela Zivari and Gabrielle Strich.

New Year’s Resolutions for Divorced Parents

The Huffington Post has a nice article on New Year’s resolutions for divorced parents.  Some are obvious, but not everyone may be thinking about these things.

Happy New Year to all my clients and readers!

 

Divorce from Bed and Board

New Jersey has a law on its books from 1907 that allow a divorce from bed and board, also called a limited divorce.  The law was intended to allow couples to legally divorce without also receiving a religious divorce if their religion prohibits divorce (such as Catholicism).  In essence, the law allows a couple to break their economic bonds and go their separate ways while at the same time they remain married and they are not allowed to re-marry.  Since NJ does not recognize legal separation, this is the closest the state comes.  This also could potentially be used by couples who want to divorce, have no plans to remarry and want to remain on their spouse’s medical insurance (note: some insurance companies may look at limited divorces as a perpetuation of a fraud — consult an attorney before attempting this).

There is a downside: either spouse can have the limited divorce decree converted to a standard divorce decree without notice to the other party.  Also, both parties must agree to the divorce from bed and board.

A limited divorce gives people more options, but it is important to understand all the nuances.  If you are interested in pursuing a mediated divorce, please contact me.

NJ Civil Unions, Federal Law and Taxes after United States v. Windsor

On June 26, 2013, the United States Supreme Court issued their opinion in United States v. Windsor.  In this case, a woman married in Canada to another woman was denied the same death (estate) tax benefits that married couples receive.  The benefits were denied under a federal law called the Defense of Marriage Act (DoMA) passed in 1996.  DoMA’s Section 3 defined a marriage for federal purposes being solely between a man and woman — hence why the federal government denied Edith Windsor the death tax benefits in her marriage. In a 5-4 ruling, the court declared that Section 3 of DoMA is unconstitutional.

New Jersey does not allow for same sex marriages but does have a civil union statute that resulted from Lewis v. Harris.  In that 2006 case, the NJ Supreme Court unanimously declared that prohibiting same sex unions violates the equal protection clause but in a 4-3 decision left it up to the legislature to determine how best to give same sex couples equal rights of married couples.  The legislature chose civil unions.  I’ve covered this topic previously here and here.

Yesterday, the Internal Revenue Service updated their policies to reflect the invalidation of DoMA Section 3 in Revenue Ruling 2013-17.  In a nutshell, the ruling mandates that legally married same sex couples must follow the same procedures as heterosexual marriages, regardless of where they live.  So if a same sex couple marries and resides in a state that does not recognize same sex marriages, they will have to file as unmarried for state taxes and married for federal — ironically, the exact opposite of how it previously worked for same sex couples in a state that did recognize their union.  Same sex married couples can also refile their taxes covering the last three years if beneficial to them.

For NJ (and other states) couples in civil unions, the ruling does not recognize a civil union (or domestic partnership) as equivalent to a marriage and thus for federal tax purposes civil union partners are not married. See the IRS’s FAQs.  While it is not explicitly stated, presumably other aspects of federal tax law will not extend to civil unions.  In a dissolution, this can impact equitable distribution of assets and liabilities (a tax free event for married couples but gift taxes may apply to civil unions) and alimony (where it may not be tax deductible for couples formerly in civil unions).

Post-Windsor, Garden State Equality filed an updated case against the state of NJ seeking a declaration that civil unions do not provide the same equality as marriage (see Garden State Equality v. Dow).  This IRS Ruling certainly helps that case, and I would expect to see amended filings shortly.

If you are seeking to dissolve your civil union, be sure to find a mediator who has expertise in this area as it is quite different from a heterosexual divorce.  Feel free to contact me with any questions.

Changing a Child’s Name After Divorce

The NJ Supreme Court recently gave a decision in Emma v. Evans. In this case the divorced parents shared legal custody of their two children but mother Jessica Evans was the parent of primary residence.  The children’s father, Paul Emma, discovered through school records that the mother had changed the children’s surname from Emma to Evans-Emma.  Competing motions ensued, escalating to the Supreme Court.

The Court ruled unanimously as follows:

In a dispute to rename a child of divorced parents, the party seeking to alter the surname jointly given to the child at birth bears the burden of proving by a preponderance of the evidence that the change is in the child’s best interest. Irrespective of whether the parents were married at the time of the child’s birth, the best-interests-of-the-child test should be applied in a renaming dispute without a presumption in favor of the custodial parent’s decision to change the jointly given surname of the child.

Applying the best-interests-of-the-child test in the context of a dispute over whether to change a child’s name requires a fact-sensitive analysis. Each case should be weighed on its merits. Some factors to consider are: the length of time the child has used his or her given surname; identification of the child with a particular family unit; potential anxiety, embarrassment or discomfort that may result from having a different surname from that of the custodial parent; and the child’s preference if the child is mature enough to express it.