DV in NJ: Re-thinking Permanency of Restraints and Examining Newer Causes of Action

The New Jersey Prevention of Domestic Violence Act (PDVA) (N.J.S.A. 2C:25-17 et seq . ) provides two forms of relief to a victim of domestic violence: (1) civil relief, by obtaining a restraining order; and (2) criminal relief, by which a victim may file a criminal complaint. Here, we take a closer look at the civil side—the Final Restraining Order.

A restraining order is an order issued by the court pursuant to a complaint under the PDVA to protect a victim of domestic violence. Upon a finding at a hearing that an act of domestic violence occurred, the judge will determine whether to issue a Final Restraining Order (FRO) and what types of additional relief will be granted. An FRO is issued upon a showing that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship as defined by the PDVA. The victim must prove that a predicate act of domestic violence occurred and a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence. The standard of proof at a FRO hearing (“preponderance of evidence”) is lower than that required in a criminal trial (“beyond a reasonable doubt”), even though the sanctions for violating a FRO are criminal sanctions. MORE

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Can I Pay Less Child Support While I Go Back To School To Earn A Degree?

By Robert B. Kornitzer, Esq. and  Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Child support obligations are not set in stone, and courts have broad discretion to set aside or modify such obligations for several reasons, including simply because the circumstances of one or both of the parents have changed since the support order was originally entered. A parent losing their job or suffering a significant reduction to their income are likely good reasons for the court to modify a support order, but it is also well established that relief from support obligations should not be granted if a party is voluntarily unemployed. The same rule is also applicable in instances when a parent is voluntarily under-employed; for example, a highly skilled computer programmer who could earn $100,000 per year in that field choosing to work as a substitute teacher instead and earn just $30,000 per year.  Most would probably agree that a parent should not be permitted to escape their child support obligation because they made the decision not to work or not work up to anywhere near their full potential. Notwithstanding this general rule, consider the following: A husband and wife have a child; upon divorce, the parents enter a consent order requiring the husband to pay the wife an amount each month for child support; a few years later, the husband, who is still in only in his late-twenties and working two jobs, realizes that neither of his jobs have any opportunity for growth and he has no long-term future with either company; the husband concludes that if he is to establish a well-paying career and be a good provider for his child he must earn his Bachelor’s Degree; therefore, in order to better himself and provide a better future for his child, the husband decides to leave both jobs in order to attend college full time to earn a degree; the husband believes attending school full time, rather than keeping one or both jobs and attending school part time, is the better choice for himself and the child because he will be able to earn his degree much faster, and therefore be able to generate more income for the child’s benefit in a shorter period of time; accordingly, the husband asks the court to have his child support obligation substantially reduced while he is attending school and not working.

A request to have a child support obligation modified based on the above facts seems a lot more legitimate and genuine than when the same request is made by a parent who doesn’t want to be employed simply because they are lazy, unmotivated, or just don’t care. Perhaps many would agree that reducing child support on a short term basis in order to permit a parent to earn a college degree, which will likely result in that parent earning a much higher income, is actually in the child’s best interest, albeit for the long term.  After all, in this day and age it is very difficult to establish a well-paying career for one’s self without (at least) a Bachelor’s Degree, and having a higher income will be very helpful for paying expenses such as the child’s college education and other necessaries.   Recently, however, a court rejected, and the Appellate Division affirmed, an application to temporarily reduce child support based on very similar circumstances to the above hypothetical in the case of Zavaglia v. Bray. The trial court noted that the husband’s loss of employment while he would be attending college was not only voluntary, but also temporary, and therefore no modification of the support order was justified.

Overall, while one’s desire to better themselves and increase their earning potential for the benefit of their child is certainly commendable, based on Zavaglia, it does not appear that courts will permit parents to forsake their child support obligations, even on a short term basis, for this reason alone.

Courts Cracking Down on Bad Faith Negotiation of Non-Relocation Clause

By: Robert B. Kornitzer, Esq. and Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Physical custody of the children is often one of the most contentious issues that must be resolved during a divorce. The desire to be named the primary custodial parent is sometimes so great, unscrupulous litigants may negotiate the Marital Settlement Agreement (“MSA”) in bad faith and make false representations to the other parent in order to convince them to concede primary custody of the children. Along these same lines, a parent may only be willing to concede primary custody of the children under the condition that the other parent not relocate the children to a distant geographical location that makes regular visitation impracticable. Accordingly, a non-relocation clause will be included in the MSA.

Even if a non-relocation clause is included in the MSA, our courts realize that “life happens,” and the primary custodial parent may very well need to relocate with the children despite the agreement (i.e. they need to move to a different state for a new job). When an application to relocate by the primary custodian is made to the court, the court will generally permit the move to occur upon a showing by the primary custodial parent that: (1) there is a good faith reason for the move, and (2) the move will not be inimical to the child’s interest. Baures v. Lewis, 167 N.J. 116-17 (2001). However, if there is no good faith reason for the move, or if the non-relocation clause was not negotiated in good faith, the application must survive greater scrutiny, and the court must determine whether permitting the move would actually be in the child’s best interest (as opposed to simply not being inimical to the child’s interest). The former is a much easier showing for the primary custodial parent to make, and therefore there is a tremendous incentive to do whatever is necessary to be awarded primary custody of the children, and then just ask the court to permit the move later on, even if the parent secretly knew the relocation would be necessary and likely to occur all along during the negotiation of the MSA. This is exactly what happened in the recent unpublished case of Bisbing v. Bisbing.

In Bisbing, the Father agreed to let the Mother have primary custody of the children under the conditions that he have a great deal of regular visitation time with the children, and also that a non-relocation clause be included in the MSA – the Mother agreed to these conditions, and was granted primary custody of the children pursuant to the parties’ agreement. Just nine months after the Final Judgment of Divorce was issued, the Mother filed, and the court granted, a motion seeking to relocate the children to a far-away state so she could live with a man who would eventually become her new husband. Notwithstanding some very suspicious circumstances which would cause many to think the Mother planned on relocating all along, the trial court did not hold a plenary hearing[1] to determine whether the Mother negotiated the MSA in bad faith, and simply opted to apply the lenient analysis set forth in Baures.

On appeal, the Appellate Division reversed and remanded the matter for a plenary hearing, so a determination could be made as to whether the Mother had negotiated the MSA in bad faith, and set forth the analysis courts should use when an accusation of bad faith MSA negotiation is made. The Bisbing Court explained that the lower court must first determine whether the primary custodial parent negotiated the non-relocation clause of the MSA in bad faith. If so, a “best interests of the child” analysis must be conducted. Second, if bad faith is not demonstrated, the trial court must then consider whether the parent proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis. If the MSA was negotiated in good faith, yet the parent fails to satisfy her burden of proving a substantial unanticipated change in circumstances, the court must apply the same “best interests” analysis as required in the first step. Only if the noncustodial parent is unable to demonstrate that the custodial parent negotiated the MSA in bad faith, and the custodial parent is able to prove a substantial unanticipated change in circumstances occurred, should the custodial parent be accorded the benefit of the Baures analysis.

The Appellate Division’s holding is significant, as it provides valuable instruction on how trial courts should address colorable accusations of bad faith negotiations of MSAs, particularly non-relocation clauses. It is also demonstrative that this issue is now something our courts are on the lookout for, and will not tolerate. While it may be tempting to do so, divorce litigants should not attempt to game the system and trick their ex-spouse into giving up primary custody of their children based on bogus promises not to move out of the state.

[1] A plenary hearing is necessary when one party makes a motion and the court needs additional facts and information beyond what the parties have provided in their pleadings to make an informed decision.

Can I Pay Child Support Directly to My Child?

By Zachary Levy, Esq.
zlevy@pashmanstein.com

When children are involved in a divorce, determining an appropriate child support obligation for the non-custodial parent is a key function of Family Court judges. In cases where child support is necessary, the judge will typically order the non-custodial parent to pay a specific amount each month (or other predetermined amount of time) to the custodial parent to ensure that there are adequate funds available to meet the child’s needs. A recent opinion authored by the Honorable L.R. Jones, J.S.C., however, addressed an interesting alternative approach: if the child is over the age of eighteen, can the non-custodial parent can make child support payments directly to the child rather than to the custodial parent.[1]  It is called child support after all.

In the case of Kayahan v. Kayahan, the defendant/father (the non-custodial parent) requested that the court modify his child support obligation, and permit him to make payments directly to the parties’ daughter, who was over the age of eighteen and attending college at the time, instead of to the plaintiff/mother (the custodial parent). Although the father’s request to make payments directly to the child was ultimately denied in this case, Judge Jones noted that such a payment methodology could be permissible in certain circumstances, and identified three main factors that should be considered when determining if direct parent-to-child support payments should be permitted. The first factor is the child’s maturity and history of responsibility. Otherwise put, can the child be trusted to use the support money for its specific intended purpose? If the court feels that the child does not possess the requisite fiscal responsibility or would be too susceptible to the temptations typically associated with being eighteen years old and being away at college, direct payment to the child should not be permitted.

The second factor is the non-custodial parent’s history of paying timely child support. This factor is important because if the non-custodial parent fails make a support payment to the child, the child is far more likely to succumb to guilt or other pressures not to seek recourse for non-payment than the custodial parent would be. Finally, and perhaps most importantly, the court should consider whether there would be sufficient remaining child support funds for the custodial parent to continue reasonably maintaining the child’s primary home without significant economic hardship. In Kayahan, Judge Jones recognized that if the court were to permit a portion of the child support to be paid directly to the child, the remaining portion paid to the mother would not be enough for her to maintain the home and basic budget for the child’s benefit. This, of course, would not be in the best interest of the child, because even though the child was a college student, she was still dependent on her mother for support at this stage in her life.

At the end of the day, Family Court judges have broad discretion to fashion unique remedies based on the specific circumstances of the controversy before them. Although not the norm, direct parent-to-child support payments might be a worthwhile alternative option if appropriate based on the facts and circumstances of the case.

[1] Judge Jones’s opinion can be found here: http://www.judiciary.state.nj.us/decisions/kayahan%20%20opinion%20P.pdf

Recent Case Provides for Increased Child Support to Pay Motor Vehicle Insurance Premiums for Newly Licensed Teen Drivers

By Zachary Levy, Esq.
zlevy@pashmanstein.com

Every teenager dreams of the day they are able to get their driver’s license. On the other hand, parents may loath this day. While the cost of purchasing a new vehicle for a new driver can easily be avoided by simply sharing a car with their parents, the same is not true for motor vehicle insurance costs. In New Jersey, the State requires that all drivers carry a minimum level of insurance, and it is a crime to operate a motor vehicle without such insurance coverage. Insurance companies, wary of the new driver’s lack of experience behind the wheel, can charge tremendous premiums, sometimes approaching or exceeding $1,000 per year. Typically, parents subsidize or pay their children’s insurance costs, but the situation becomes a bit more unclear in instances when the child’s parents are divorced and a child support order is in play. More specifically, to what extent must the non-custodial parent, who is already paying guideline-level child support, contribute additional support to cover the cost of insurance for their child who is a newly licensed driver?

In Fichter v. Fichter,[1] the court was faced with a not unusual, but previously unaddressed situation involving this very issue. In that case, the plaintiff and defendant had two children at the time of divorce – one age seventeen and another age thirteen. The seventeen year-old already had his license, and support contributions were already being used to pay for his car insurance premiums. It seemed, however, that neither parent had contemplated that the thirteen year-old would also be getting her license in a few years, and there was no provision in the divorce settlement for this future expense. When the thirteen year-old turned seventeen and obtained her driver’s license; the custodial parent petitioned the court to increase the amount of support the non-custodial parent, who was already paying guide-line level support, needed to contribute in order to cover this new cost.

Interestingly, the State’s Child Support Guidelines (the “Guidelines”) expressly include “all costs involved with owning or leasing an automobile,” including costs related to “insurance,” among the expenses to be considered when crafting a support order. Based on this language, however, it is unclear if future motor vehicle insurance costs for a newly licensed driver would have been included in the award amount, or whether this is something that would warrant a support adjustment once the child obtains their license. Although a literal reading of the Guidelines would suggest that all motor vehicle insurance costs (current and future) would be accounted for in a Guideline support order, the Fichter Court rejected this interpretation, noting it would lead to the nonsensical result of the custodial parent receiving the exact same amount of support both before and after their teenage child obtains a driver’s license, irrespective of the sudden need to insure the driver and the related costs to do so. The court also noted that requiring an increase in support to pay for car insurance is in the best interest of the child, which is always the paramount consideration in child support determinations.

Alternatively, the court also explained that even if one were to interpret the Guidelines as already including future car insurance costs for a newly licensed driver in a support order, the Guidelines themselves also permit the court to deviate from the Guidelines in order to reach an equitable result based on the specific facts and circumstances of the case. Motor vehicle insurance costs are atypical from most other items on a family’s budget in that the law expressly requires it be had. Furthermore, the court touched upon important public safety concerns, noting that car insurance offers protection to members of the public at large who may be in the wrong place at the wrong time and fall victim to the new driver’s lack of experience behind the wheel.

Ultimately, the court required that the non-custodial parent’s support contribution be increased to cover fifty percent of motor vehicle insurance costs for the youngest child. Although foreseeable future expenses should always be considered when crafting a support order, Fichter provides important guidance on an issue that many divorced parents may encounter years later when their young children grow up and obtain their driver’s licenses.

[1] Opinion available at http://www.judiciary.state.nj.us/trial_court_opinions/Fichter-v-Fichter.pdf

Is Nesting Right For Your Family?

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

For anyone with children thinking about divorce, one of the most important issues to address is how time will be divided with their children, both during the divorce process and once the divorce is finalized. The most common way for parents to address parenting time is for one parent move out of the marital home and the children to go back and forth between their parent’s homes.  While this may be the most common time-sharing method; for some, due to their financial constraints, it may not be financially feasible for one parent to secure a separate residence during the divorce. In other circumstances, neither parent may be willing to move out of the marital home, for non-financial reasons. For example, both parents may want to maintain the home after the divorce; therefore, neither parent may be willing to move out.  Whatever the reason, parents may be forced to continue to live together and share parental responsibilities during the divorce proceeding.  Doing so, however, may result in heightened conflict in the home, which ultimately impacts the children.

There is, however, a middle ground between one parent moving out and transporting the children back and forth, and parents continuing to live together.  This option is known as “nesting” or a “bird’s nest co-parenting arrangement”. This arrangement is uniquely child-centered, as it involves the children remaining in the marital home full-time and the parents rotating in and out.  This arrangement is usually temporary, but it allows the children more time to adapt to having one parent care for them at a time, as well as the other changes in the family that stem from the divorce.  For those parents interested in minimizing the disruption to the children’s lives caused by divorce, nesting may be an option to consider.

In order to successfully implement a nesting arrangement, parents may live in separate areas within the home or, more commonly, in another location when they are not caring for the children.  Some parents share an off-site location, such as a studio apartment. Others stay with friends or family in order to avoid the expense of obtaining a second residence.

Nesting may seem extreme, however, this arrangement allows both parents to experience first-hand what it will be like for their children when they have to go back and forth between their parents’ homes.  This perspective may make it easier to relate with the children once the divorce is finalized and the family transitions to a more traditional parenting time arrangement.

Clearly, a nesting arrangement will not work for every family. In order for nesting to be successful, parents must make a significant sacrifice and truly be willing to place their children’s needs above their own. Anyone considering a nesting arrangement should consider the following tips:

  1. Determine if Nesting is right for your children: The children’s ages and maturity levels are of utmost importance. Parents should consider seeking the advice of a therapist to assist in determine whether nesting will benefit the children.
  2. Parents must be able to communicate with each other regularly about the children. Parents do not have to like each other or even get along to accomplish a nesting arrangement, they just need to act rationally (rather than emotionally) and put the children’s needs first.
  3. Develop a written agreement regarding time-sharing, household duties and payment of household expense. Parents must develop and agree on the parameters of the arrangement.  This agreement should include not only a schedule for when each parent will be at the family home, but also who will pay the bills, do the laundry, purchase groceries, transport the children to activities, etc.
  4. Secure an off-site location near the family home where you and/or your spouse will stay when you are not in the family home with the children. In order for nesting to work, it is best that the off-site location is near the family home. Parents should consider their finances and whether they can afford to rent a separate residence. Parents must also decide whether they will share an offsite location or if each will have his/her own space. Those who have family nearby have the option to use the home of family members as an off-site location. For others, the off-site location may be another part of the family home.

Divorce is very difficult even for mature and emotionally-healthy adults; therefore it goes without saying that it can be extremely difficult for children who do not have voice in the decision to divorce and do not have the life skills and maturity level to handle the significant changes that divorce inevitably brings.  For this reason, in certain cases, a nesting co-parenting arrangement should be considered when determining an appropriate time-sharing arrangement for the children. While nesting does not work for everyone, under the right circumstances, nesting may be an option that addresses the children’s needs, the parents’ financial constraints and/or other interests.

Cohabitation Facts To Consider – Part 2

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

Prior to the enactment of the alimony statute,  N.J.S.A. 2A:34-23(n), New Jersey Courts relied on the standards set by previous case precedent to determine whether a party was cohabiting and its impact on alimony.  Essentially, the new statute consolidates many of the standards developed in prior case law to simplify the inquiry as to whether a particular romantic relationship amounts to cohabitation.

The New Jersey Legislature defines cohabitation as a “mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union.” To further assist in determining whether a relationship fits the above definition, the new legislation identifies eight factors for Courts to consider in determining whether cohabitation is occurring:

  1. Intermingled finances, such as joint bank accounts and other joint holdings or liabilities;
  2. Shared or joint responsibility for living expenses;
  3. Recognition of the relationship in the couple’s family and social circle;
  4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
  5. Shared household chores;
  6. Whether the alimony recipient has received an enforceable promise of support from another individual within the meaning of subsection h. of R.S.25:1-5;
  7. The relationship’s length; and
  8. Any additional relevant evidence.

If you are paying alimony, after reviewing these factors, you may come away thinking, “How in the world am I supposed to prove most of these factors?  I have no idea if my ex-spouse shares a bank account or household chores with his or her significant other.”  Don’t fret, because if you believe that your ex-spouse is cohabiting, you only have to provide the Court with evidence that, at first appearance, suggests cohabitation.  This can come in the form of showing that your former spouse is spending most nights at the home of his or her significant other. In the legal field, this is called making a “prima facie” case. Once you have successfully done so, you will be given the opportunity to obtain discovery from your ex-spouse.  This discovery includes obtaining bank records, proof of living expenses, taking depositions of your ex-spouse, and other witnesses to determine the true extent of the relationship. It is in the discovery stage that you will be able to obtain the information to prove the foregoing factors.

If you are in a serious relationship and receive alimony, you should look closely at the eight factors and determine if any of them apply to you.  If you find that any of the above factors are applicable, your romantic relationship may have an impact on your entitlement to alimony.

Whether you are receiving or paying alimony, the issue of cohabitation can be tricky, as it is fact-sensitive and often not clear cut. You should contact an attorney to assist you in determining whether or not your current living arrangement or your spouse’s relationship may have an impact on your entitlement to alimony or your responsibility to pay alimony.

 

Holiday Parenting Time: Tips to Survive the Holidays During a Divorce

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

The holiday season brings a mixed bag of emotions.  Some people find it to be a time when they can slow down the normally hectic pace of everyday life, take a vacation, spend time with family, make great memories and enjoy traditions. Others find the holidays to be a time when stress is at its peak, as the holiday season often brings unwelcome guests, an exhausting list of demands; including shopping, parties, baking, cleaning and entertaining, to name just a few. No matter which camp you may belong to, going through a divorce will probably put a damper on the holiday season.

In New Jersey, when couples with children decide to divorce, one of the first issues which must be addressed is custody of their children, at least on a temporary basis until the divorce is finalized. After the parents agree or the Court makes a determination on custody of the child(ren), parenting time and visitation will also need to be determined. In some cases, parents reach a suitable agreement without having to battle it out in court. However, in other instances, a Judge must determine parenting time.

Among the many obstacles parents must overcome when going through a divorce, one of the more difficult challenges is often figuring out how to share time with their children during the holidays. This is particularly difficult if parents have spent years creating holiday traditions and routines, which have to be abandoned or modified when parents no longer live in the same household.   This challenge often leads people to overlook or ignore the issue until the last minute.  However, doing so can lead to even more stress and costly litigation.

As attorneys who practice family law know, the holiday season can be one of the busiest times in the profession. This surge in litigation is often due to last-minute disputes regarding holiday parenting time with children.  In 2013, I had to participate in a telephonic hearing on Christmas Eve to address Christmas Day parenting time for one of my clients.  This type of nail biting suspense is great at the movies, but created an extremely difficult and unpleasant experience for my client, who had to wait until Christmas Eve to find out if she would be able to spend time with her children on Christmas Day.

Unfortunately, these situations occur every year during the holidays, and make it very difficult for parents to plan activities and enjoy the holiday season with their children.   However, proper planning and communication can alleviate these issues and allow people to enjoy the holidays (as much as possible, given the circumstances). Here are my four tips on surviving, and even possibly enjoying, the holidays with your children during the divorce process:

1- Think Ahead-Discuss & Create A Holiday Time-Sharing Schedule With Your Spouse

People often wait until the last minute to make holiday plans.  We are all guilty of procrastination.  But, if you are going through a divorce, you no longer have this luxury. When parents reside in two different households, they must share time with the children and cannot simply make unilateral plans, as they may have done when the family was intact.

Many divorcing couples make the mistake of addressing their general time sharing arrangement when they commence the divorce process, but ignore the holidays, especially when holidays are relatively remote. I recommend that parents address holiday parenting time early in the divorce process, in conjunction with addressing their general parenting plan.  Failing to do so may result in one party enjoying the bulk of the holidays if there is only one general schedule in place.  This scenario leads to last-minute litigation.

If, after discussing holiday parenting time, the parents are unable to agree on a schedule, at least they will still have plenty of time to address the issue.  Parties can seek the assistance of counsel to negotiate a settlement or the assistance of a mediator to resolve these disputes.  If all else fails, they can file an application with the Court and request that a Judge make a final decision.

2- The Child(ren)’s Needs Come First

It is understandable that parents want to spend every holiday with their children; however, the holidays should not become a battleground.  When deciding how to share holiday parenting time, the children’s needs should be the first consideration.  If a parent has extended family coming to visit or a special event has been planned for the holiday, these scenarios should be taken into consideration when determining the holiday parenting time schedule. Placing the children’s needs above the parents’ desires may simplify the task of preparing a holiday time-sharing schedule.

3- Be Flexible and Don’t Focus on the Day

Which parent celebrates Christmas Day and Thanksgiving with the children seems to cause a lot of problems.  It is often recommended by family law practitioners that parties alternate holidays each year; for example, one parent will have Christmas in odd years and the other in even years.  However, the issue of who celebrates a particular holiday with the children during the first year is always a problem.

It may be helpful to view holidays as a season, rather than a particular day.  If there is a dispute over who enjoys Christmas with the children, think about celebrating Christmas (or any holiday) on a different day with your children. Family and traditions make Christmas special, not December 25th.  Once you are divorced, it is likely you will not spend every holiday with your child(ren) every year anyway; therefore, it is beneficial for you to plan ahead and develop alternate ways to celebrate the traditional holidays on different days.  Thanksgiving, Hanukkah and Christmas holidays often coincide with school recess, so there is ample opportunity to celebrate each holiday on a different day with your children.

4- Memorialize a Holiday Time-Sharing Schedule

Once a holiday time-sharing schedule has been agreed upon, it is important to memorialize it in a written agreement or consent order.  If the divorce is mutual and unhostile, it may seem tempting to ignore this tip, but I highly recommend that you do not do so.  Placing the schedule in writing will avoid misunderstandings and will prevent one parent from reneging on the previously agreed-upon schedule out of spite or animus later in the litigation, not to mention saving both parties counsel fees and costs incurred to re-address parenting time in the absence of a written agreement.

Holidays can be a stressful time for “intact” families.  For families going through a divorce or custody dispute, holiday stress can become intolerable.  Consulting a family law attorney to discuss the specifics of a situation can avoid adding additional stress to the holidays. We hope to hear from you so that we may help alleviate your anxiety during the divorce process and assist you in ensuring that you and your children enjoy the holidays.

If you have any further questions on this topic, please email Valerie at vmccarthy@pashmanstein.com.

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Considerations When Imputing Income to Determine Support

Robert B. Kornitzer, Esq. and Caitlin Dettmer
rkornitzer@pashmanstein.com

Courts consider a variety of factors when determining what amount of alimony is appropriate.  Among these factors are the actual needs of the person requesting the support, the financial wherewithal of each party, and the earning capacities of each of the parties.  N.J.S.A. 2A:34-23(b).  This last factor may require the court to consider what income, if any, should be imputed (assigned) to a spouse who is either not working or underemployed.  This “imputation of income” is important in determining the extent to which the party requesting support can contribute to his/her own support, as well as the ability of the other party to pay support.  For a party seeking alimony, a higher imputed income to her/him may result in a lower alimony award, so this issue is the subject of much litigation.

An interesting illustration of one way the courts approach imputation of income in the unreported (non-binding) 2014Maine v. Maine. This case discusses an alimony request by a spouse who has some vocational training, but who was not employed in that field  during the marriage.  The wife in Maine sought support and explained that during the marriage, her husband had been the primary financial provider, earning $68,000 a year while she earned only $10,000 a year as a part-time custodian.  The husband argued that the wife should have a higher income “imputed” to her because she was capable of earning more money ($32,400 according to the N.J. Department of Labor (“DOL”)), having trained as a medical assistant during their marriage.

The court determined that while it would impute income to the wife, it would not do so without further inquiry and blindly use the average income of a medical assistant as reported by the DOL.  Instead, the court took into consideration the time it may take the wife to find work at the average income level of a medical assistant, due to her minimal work history in the field.  The wife was assigned an income of $23,000 which the court found she could earn immediately if she were to work forty hours a week at her current hourly rate.  The wife was also given four months to demonstrate that she had sought and was unable to obtain employment at a higher income level, before the court would reconsider her imputed income.

While the DOL’s averages provide helpful guidelines for determining what income should be imputed to someone who has training in a particular field, they are not necessarily representative of the income that a court will impute to a spouse who has a spotty work history in that field.  The Court will examine all specific circumstances surrounding the spouse for whom income is sought to be imputed and will not solely rely on a government statistic offered in a vacuum.

Custody Evaluations: Are They for Masochists Only?

Divorce litigation, even for the most stoic litigants, is a gut-wrenching experience.  Family secrets, long buried and almost forgotten, become fodder for personal attacks.  Financial “indiscretions” in a cash business that resulted in under-reporting income on tax returns can result in the court notifying the Department of Treasury.  Politically incorrect statements (especially in written form such as texts and emails) are now captured for the court to demonstrate that one spouse is a racist or gender-biased.

But perhaps the worst experience a parent will be subject to during a divorce is the custody evaluation.  Simply put, when custody is at issue, a qualified mental health professional may be asked to prepare a forensic child custody report.  The conclusions of the expert are often used by a judge to decide legal custody, physical custody, parental time-sharing, holiday schedules and even rules about communicating with regard to the children.

The forensic expert gathers data using various “scientific” testing techniques, personal interviews of the parents, personal interviews of the children, and personal interviews of third parties (such as grandparents, teachers, therapists and many others).  The expert will observe each of the children with each parent.  The parents will forward to the expert for review any and all material that the parent deems relevant.  Around and around this process continues until the expert is satisfied that a comprehensive report can be issued.

The report will contain summaries of the data accumulated.  Some expert reports virtually regurgitate every allegation made by one parent against the other no matter how unfounded and embarrassing.  Some experts include in their report virtually all observations of the parents, no matter how remotely connected to assessment of parenting skills.  The testing is “graded”, observations are summarized and a psychological profile of each parent and child is written up.  The expert’s conclusions and recommendations follow.

Complicating matters, it is not uncommon for there to be a court-appointed evaluation by one expert and also additional evaluations requested by each parent, using their own evaluators.  So each individual including the children may be interviewed by numerous experts.  The above doesn’t include the possibility of the Court ordering a guardian ad litem (child guardian who reports to the judge) or an actual independent guardian for the children.

The only guarantee I ever give to clients is that nobody is ever smiling after a forensic psychological evaluation reveals every blemish an individual has.  Testimony at trial about personal hygiene, sexual eccentricities and violent outbursts will be humiliating.  By the end of a trial, a judge may be left to decide not which parent functions best, but which parent will do the least harm to the children.

My personal belief is that attorneys often do not fully drive home to their clients just how imprecise and dysfunctional the custody evaluation process can be.  A parent who truly cares about their child should try to avoid these evaluations and negotiate a fair compromise.  They should take a step back from the emotional reasons behind their custodial positions and understand that the process itself may create more problems than it resolves; especially to the child who will carry the experience into adulthood.