Entries Tagged as 'Divorce Mediation and Law'

Balancing the Right to Make a Divorce Agreement Under Domestic Violence

Public policy in New Jersey has long favored the ability of parties to resolve their disputes (including elements of a divorce and parenting) on their own, so long as the agreements are fair and equitable.  But what happens when domestic violence is part of the relationship?  Often the victim in those relationships can not fairly negotiate under the threat of violence.  So which interest takes precedent?

A recent published appellate decision gives some guidance.  In O.P. v. L.G.-P. (A-0835-13T4), the court looked at two elements of a Property Settlement Agreement (PSA).  One dealt with some child support issues, which I will not deal with in this article.  The other dealt with a PSA provision requiring mediation before returning to court.  Subsequent to the finalization of the PSA, a final restraining order (FRO) under the Prevention of Domestic Violence Act (PDVA) was entered prohibiting the parties from direct communications.  Could the parties continue to mediate?

The court said no.  The court cited the PDVA itself (N.J.S.A. 2C:25-29(a)), which prohibits mediation when an FRO has been entered.  The court further quoted Lerner v. Laufer, 359 N.J. Super. 201, 216 (App. Div.), certif. denied, 177 N.J. 223 (2003), which stated, “”Mediation is now an accepted process in the resolution of family disputes except where an order has been entered under the [PDVA].” (emphasis added).

 

Divorce via Facebook? Yes, in New York State

“You’ve been served!”  Most of us are aware of that TV phrase.  For most cases, that is how a complaint is “legally” given to a defendant.  It is the official way of putting them on notice they are being sued (including for a divorce) and giving them an opportunity to respond.

But what happens when you can not locate the person to be served? There are accepted alternate ways of serving someone, but a court in New York State has allowed for a new one.  A judge in Manhattan has allowed a woman to serve her husband for a divorce via private message on Facebook.  The circumstances are somewhat unique to this particular case, but it is not the first case to allow service via Facebook.  This ruling does not open the flood gates for Facebook service — rules would need changing for this to occur.

The wife claims she is not seeking money and just wants a divorce to move on with her life.

 

Understanding Family/Divorce Mediation

From the other side of the Atlantic Ocean is a nice presentation on divorce mediation.  Please note that divorce mediation is not free in NJ.

 

Civil Union Dissolution and Irreconcilable Difference

Today in a published trial court case, the NJ Superior Court addressed an issue dealing with a difference in the law regarding civil union dissolutions.  After Lewis v. Harris directed the state to create an equivalent to marriage for same-sex couples, the legislature created the civil union statute and mandated that civil unions be equivalent to marriage.  While that statute’s effective date was pending, the state also passed the irreconcilable differences law, which allowed married couples to divorce without proving fault.  Given the timing, irreconcilable difference was not included as an equivalent cause of action to dissolve a civil union — likely as an oversight.  All other causes of action for divorce/dissolution were replicated (adultery was not identically replicated since adultery is an extramarital sexual relationship).

In Groh v. Groh, the court said that “under the most reasonable interpretation of existing statutory law, the family court has authority to dissolve a civil union based upon on the no-fault ground of irreconcilable differences.”

Changing Your Name When Divorcing — Professional Issues

Pursuant to a divorce, either spouse is eligible for a name change.  Traditionally, many women take the husband’s last name upon marriage.  Upon divorce, some women want to change back to their maiden names or hyphenate.  There are a number of factors that go into name changes upon marriage or divorce and this Harvard Business Review article looks at some of the professional issues.

Divorce and Child College Costs

New Jersey children suing their parents for college costs have been in the news frequently in recent months.  Many parents are unaware of the law in New Jersey which derives from a 1982 NJ Supreme Court case called Newburgh v. Arrigo, 88 N.J. 529 (1982).  The case creates factors a court should look at when determining whether the divorcing parents of a child are responsible for paying for college.  Here are pertinent quotes from the decision regarding the reasoning behind divorcing parents funding college:

In general, emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child.

Generally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated “necessary education” as a flexible concept that can vary in different circumstances.

In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone.

Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students. In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education such as law school.

The case most recently in the news involves Caitlyn Ricci suing her divorced parents to pay for her college expenses.  The court awarded her payment for community college and she now heads to Temple University.  Payments for Temple’s $16,000 costs were not decided by the court.  This case is heartbreaking not only in that a child is suing her parents but that the parents are also at odds with the grandparents who are supporting Caitlyn.  I hope for all involved, they are able to work out their differences.  Life is too short.  Perhaps therapy or family mediation would be helpful to the Riccis.

The other notable recent case was the Canning matter.  Rachel Canning sued her still married parents for college expenses after she moved out of the parent’s house.  The court denied her claim for immediate assistance.  She later reconciled with her parents, dropped her lawsuit and is attending college on scholarship.

These are issues we discuss during a divorce mediation, when appropriate.  If you want to consider using mediation to save time and money during your divorce, please contact me.

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