The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com This is part 1 of  6

1. Can alimony be modified?

Alimony can be changed. However, it is not easy to convince a court to reduce alimony. Alimony only defines spousal support obligations of a spouse in the present. Spousal support duties are always subject to review and a modification of a “change of circumstances.” The seminal case that defines what is a “change of circumstances” is Lepis v. Lepis, 83 N.J. 139 (1980).

Many of my clients mistakenly believe that once their divorce is over, then their problems are over. Unfortunately, these clients are sadly mistaken. More than one half of the cases pending in the courts concerns post-judgment applications. The courts are flooded with applications by disgruntled former husbands that request a reduction and/or a termination of alimony.

Many former husbands make it a personal “jihad” or a “holy mission” to reduce or terminate their alimony. It is not uncommon for a former husband to file an alimony reduction motion once a year, or every other year. The bottom line is that men hate alimony with a passion. Alimony is as equally unpopular as taxes are. It is very expensive to live in New Jersey. Many men after they have taxes, child support and alimony garnished from their paychecks have no money to live on. Moreover, it is very difficult for men to have any disposable money to spend on dating if their entire paycheck is being garnished. Consequently, many men become obsessed with reducing alimony. Many men mistakenly believe that reducing alimony is “their way out.” The sad truth is that many men move out of New Jersey if their efforts to reduce alimony are not successful. Many men move to Florida or down south. This makes it much easier for a person to escape the stresses of living in New Jersey, and from the constant threat of being arrested for being delinquent in paying child support and alimony.

Many couples spend countless years litigating over alimony. After many years of litigation, many former wives’ really start to question whether receiving the alimony is worth all of the aggravation, and all of the legal fees that they had to incur. Some give up, and are they forced to consent to a reduction or a termination of alimony. Some less fortunate former wives’ must fight for their economic survival, and fight “tooth and nail” to keep their alimony.

2. Can a person request alimony after the divorce is over?

In many divorces, neither party receives any alimony. This is because the dependent spouse has sufficient income to support herself, and to maintain a reasonable standard of living. However, unforeseen circumstances may arise after the divorce to justify alimony. (ie., Serious illness and an inability to work) In cases such as these, the sick spouse will file an application for alimony even though the judgment of divorce does not provide for any. If the case has merit, then the court will schedule a plenary hearing to determine if an award of alimony should be made. This type of hearing is also called a Lepis hearing. The court will examine the financial situation of both parties, the standard of living enjoyed during the marriage, the sick spouse’s current prognosis, and any other relevant factors.

3. What is the standard of law to modify alimony?

Alimony can always be modified upon a showing of a “change of circumstances.” The party who is seeking a modification of alimony bears the burden of proving that there is a “change of circumstances.” The party must show how the changed circumstances have impaired his ability to earn a reasonable living.

4. What is all the fuss about that Lepis case?

The Lepis holding is the major case that the family courts use to analyze alimony reduction applications. These types of hearings are often called Lepis cases. The court in Lepis v. Lepis, 83 N.J. 139 (1980), listed the following as some of the changed circumstances that courts have recognized as grounds to reduce alimony;

1. An increase in the cost of living.
2. An increase or decrease in supporting spouses’ income.
3. Illness, disability, or infirmity after the divorce.
4. The loss of a house or apartment by the wife.
5. The former wife’s cohabitation with another man.
6. Unemployment by the payor/husband.

5. What constitutes a “change of circumstances” to warrant a modification in alimony?

There is no clear cut answer to what constitutes a “change of circumstances.” The most common scenarios are: 1) A reduction in a party’s income; 2) Illness; 3) A spouse is cohabitating/living with an adult member of the opposite sex; 4) Retirement; 5) Refusal or inability to find employment; 6) The receipt of a large inheritance; 7) Support of an ex-wife by her companion.

6. Who has the burden of showing a “change of circumstances” to seek a modification of alimony?

The spouse who seeks a modification of alimony has the burden of showing “changed circumstances.” If a party shows a change of circumstance then the court will grant the parties limited discovery. Basically, the parties will then exchange tax returns, pay stubs, and a CIS. The moving party must also prove that the changed circumstances have substantially impaired his/her ability to support himself or herself.

If the court believes that the motion to reduce or increase alimony has merit, then it will schedule the case for a plenary hearing. An alimony plenary hearing can be just as complicated and draining as a divorce case. The court will also issue a discovery order. Alimony reduction cases always seem to last forever. These cases are not as carefully scrutinized as the divorce cases are. It is not uncommon for a Lepis alimony case to be adjourned five or more times. The courts are overwhelmed and they really can’t handle all of their volume of cases.

However, before a court will grant a moving party a Lepis hearing, the moving party must convince the court that there are significant life events that warrant reducing alimony. This is certainly not an easy burden to satisfy. The courts do not take alimony reduction motions lightly. There must be compelling reasons to justify reducing alimony.

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This article was written by New Jersey Lawyer  Theodore Sliwinski, Esq.

1. Why is life insurance such an important consideration in a divorce case?

One of the main considerations in any divorce case is life insurance. If a father or a mother dies then how can the child support be paid. Moreover, if a dependent ex-wife relies on alimony to survive, it can be disastrous if her former husband dies. One of the main considerations in dealing with the possibility of a party’s dealt is life insurance protection. Often family courts require the parties in divorce proceedings to obtain life insurance to guarantee the continuation of payments ordered by the court for alimony, child support, or to pay for the college education for the children.

The amount of life insurance that the court may require depends on the financial condition of the parties. In my experience the court requires relatively poor families to obtain $100,000 worth of term life insurance for each child. For a middle class family the normal range is $150,000 worth of term life insurance for each child. Finally, for the more affluent families the courts require $500,000 worth of term life insurance for each child.

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The following article about New Jersey Divorce is featured on New-Jersey-Lawyers.com The below article has 31 topics and is a continuation of the the last article. We are posting topics 19-31today. You can read the entire article on New Jersey Lawyers Child Custody FAQ’s

By Theodore Sliwinski, Esq.

25. Does a child still have to have visitation his parent, if he does not want to see them?
When a child does not want to see the other parent, there are a few factors to consider in pursuing visitation. If the child is 16, then the child is old enough to make an intelligent decision as to whether he/she wants to visit with their parent. However, a custodial parent has a legal duty to encourage visitation with their former spouse. In short, a custodial parent should never bad-mouth their former spouse to their children, and try to poison their relationship. If the children are young, then the courts are inclined to force the child to have visitation with their parent, even if they do not want to. It must always be remembered, that a parent has a constitutional right to have visitation with his/her child. It is very unlikely that a court will terminate visitation entirely. Most courts believe that it is in the child’s best interest to have two parents jointly raise him or her.

26. Do grandparents have visitation rights?
In many divorces, the parties hate each other so much that they try to get back at each other by refusing to permit the grandparents to visit with the children. For many of our senior citizens, seeing their grandchildren is the most cherished part of their life. In my opinion, in most cases the courts will grant grandparents visitation rights even if the custodial parent objects. Grandparent visitation is a very rapidly expanding field of law. The courts are very reluctant to deny a grandparent the right to visit with their beloved grandchildren. In general, grandparents must apply for visitation with grandchildren. The grandparent must file motion of complaint for visitation with the court. The court will then refer the case to custody mediation. At the mediation, a court-appointed mediator will try to get the parties to agree on a visitation schedule. If the mediation session is not successful, then the case will be referred to a judge. The court will then formulate a reasonable visitation schedule. In only the most extreme cases will grandparent visitation be denied. In most cases, it is in the best interests of the children to have visitation with all of their grandparents. Once a visitation schedule has been established, it must be modified like any other visitation schedule.

27. Does a stepparent have a statutory right to have visitation with their stepchildren?
Currently, there is no statutory right for a stepparent to have visitation with their stepchildren. However, each application for a stepparent to have visitation with their stepchildren is decided on a case be case basis. If a stepparent has formulated a relationship with the stepchild, and it the application is made in good faith, then in most cases the application for visitation will be granted. The stepparent has the burden to demonstrate to the court that there is a relationship between him/her and the child which includes reliance for financial support or love and comfort.

28. Can a parent’s visitation rights be terminated completely?
In New Jersey a parent has a constitutional right to have visitation with their children. Therefore, only in the most rarest of circumstances will visitation be terminated completely. The only possible cases where visitation will be terminated is if the parent is a habitual drug offender, or a sex offender. The court may terminate visitation because they do not want the children to be corrupted or harmed.

29. Can a parent’s new spouse adopt her child?
In many cases, a woman remarries after she gets divorced. Thereafter, she may lose contact with her prior husband, and the father of her children. Unfortunately, in many cases the non-custodial parent does not pay any child support, and he fails to develop any type of relationship with his children. A parent’s new spouse may only adopt the stepchildren if the former father’s rights have terminated. Termination of a spouse’s parental rights may be done by consent of the former father or by a court order.

30. What happens if a parent kidnaps a child by taking him out of state?
In many cases, a distressed parent may “kidnap” a child by taking him/her out of New Jersey. If this happens, then New Jersey courts have jurisdiction. A New Jersey court has parens patriae jurisdiction over the custody and maintenance of the children who have resided in New Jersey for five years or more. If the children have lived most of their lives in New Jersey, then a New Jersey court would exercise jurisdiction is such a case. The public policy behind such a rule precludes the removal of children from one state to another without any prior judicial recourse.

31. How can a parent’s rights be terminated?
The termination of parental rights makes the parent and child relationship obsolete. It severs all of the legal ties between the parent and the child. To terminate a person’s parental rights, a petition to the court must be filed based upon the best interests of the child. The petitioner must prove that; (1) the child’s health and development have been or will continue to be endangered by the parents; (2) that the parent is unable or unwilling to eliminate the harm; (3) that there have been attempts made to correct the circumstances; and (4) that termination will not do mare harm than good. These four criteria must by proven by clear and convincing evidence. In most cases, applications to terminate parental rights must be made by DYFS.  

To Read the balance of this article or find a New Jersey Divorce Lawyer visit www.New-Jersey-Lawyers.com or go to NJLawFirms.net for more listings of NJ Divorce lawyers.

The following article about New Jersey Divorce is featured on New-Jersey-Lawyers.com The below article has 31 topics and is a continuation of the the last article. We are posting topics 19-25 today We will publish the balance of topics in proceeding days. Or you can read the entire article on New Jersey Lawyers Child Custody FAQ’s

By Theodore Sliwinski, Esq.

19. What type of visitation rights does a parent have in New Jersey?
In the State of New Jersey a parent has a constitutional right to see his/her children. Before any parent can be denied of visitation rights, it must be shown that having the child in the parent’s presence would cause physical or emotional harm to the child. Moreover, it must be proven that there are no other alternatives than completely terminating visitation.

20. What type of visitation schedules are available in New Jersey?
There is an endless amount of different types of visitation schedules. Each couple can arrange a visitation schedule that can suit their own lives and their work schedules. The standard visitation plan is for the husband to have visitation every other weekend, and on Wednesday evenings. The visitation on the weekend normally starts on Friday at 6:00 p.m. and ends on Sunday evening at 6:00 p.m. The visitation on Wednesdays usually starts and 6:00 p.m. and ends at 9:00 p.m. A new trend in family law is to have shared residential custody. This means that the children live with both parents. In my opinion this is really a scam that is used by many ex-husbands. This type of shared custody is primary a ploy by ex-husbands to reduce their child support obligations. The more overnights that the husband has will translate into a lower child support award. I always recommend to all of my clients to reject a shared parenting plan. Furthermore, I always advise my clients to permit the non-custodial parent to see their children as much as possible. However, I don’t permit my clients to agree to a shared parenting plan because in most cases it is just a ploy by husbands to pay lower child support.

21. What is supervised visitation?
In some cases it may be appropriate for a parent to have supervised visitation with the children. In some cases, the parent may have a drug or alcohol problem, and if they have visitation with the children alone, then they could corrupt them. Moreover, in some cases, the non-custodial parent may have a conviction for a sex-related charge. In these types of situations, the courts will often order that all visitation must be supervised. Supervised visitation can take place at the locate county court house. The Sheriff Department will supervise visitation normally on the weekends. The courts only order court supervised visitation in the most extreme cases. There are only so many sheriff offices, and there are a limited amount of cases that they can supervise. Therefore, in the vast majority of the cases, the court will order that a parent or a relative of the non-custodial parent be appointed as the supervisor. Basically, this means that the non-custodial parent can’t visit their children unless that supervisor is present.

22. My ex-spouse is now living with another person, can I request that visitation be modified so that the new companion cannot spend the night where the children are located?
When a parent starts a new romantic relationship, the former embittered spouse often tries to have the visitation modified so that the new companion cannot spend the night with the children. The former spouse will argue that the children are too young to understand the new situation, and that it will cause emotional harm to them. The court will then analyze the emotional impact to the children if they visit their parent with his new girlfriend or wife. The court will also consider the stability of the new relationship, the ages of the children, and the relationship of the children with the new companion in making this determination.

23. What can a person do if they continually fight with their former spouse during the pick up and drop off of the children?
In many cases, the parties actually have physical fights when they drop off and pick up the children during the visitation. This type of scenario is especially enhanced if the wife moves in with another boyfriend, or if the husband shacks up with a new girlfriend. Given the high cost of living in New Jersey, this type of situation occurs all of the time. If the parties can’t control their emotions, then the court will order that the pick up and the drop off of the children must occur at the local police station. However, in many cases the people are still berserk, and they still engage in violence even though they are in the police station. In my opinion, people are generally nuts. Having the children picked up and dropped off at a police station really is in many cases the only avenue available to prevent the parties from killing each other. Nonetheless, a nasty visitation dispute is a great way to ruin a kid’s childhood.

24. What can be done if a party fails to comply with the visitation schedule?
A common problem with visitation is that one party fails to comply with the visitation schedule. Visitation schedules are derived from court orders, or judgments of divorce. Therefore, if a person consistently fails to comply with a visitation schedule then they can create a real mess for themselves. A court can sanction a parent with fines if they consistently fail to comply with a visitation schedule. In some cases, an embittered former wife becomes so enraged that she does everything within her power to deny the husband visitation rights. This type of scenario often occurs when the ex-husband leaves his former wife for another woman. The world is a nasty place, and this scenario happens quite frequently. The embittered spouse often convinces the kids that dad is a reincarnation of “Satan.” It must be emphasized that a former husband has the right to visit with his children, regardless of the circumstances that led to the dissolution of the marriage. In some extreme circumstances, the court will even transfer custody if a parent is consistently denied visitation rights. This measure is only used as a measure of last resort

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The following article about New Jersey Divorce is featured on New-Jersey-Lawyers.com The below article has 31 topics and is a continuation of the the last article. We are posting topics 13-18 today We will publish the balance of topics in proceeding days. Or you can read the entire article on New Jersey Lawyers

 Child Custody FAQ’s

By Theodore Sliwinski, Esq.

13. What is the Hague Convention?
On October 25, 1980, an international convention was held at the Hague. Here, numerous resolutions were adopted that concerned the wrongful removal of children from their home country. The resolutions of the Hague Convention was ratified by the United States in 1988. A parent has one year, as per United States law, to apply under the Hague for the wrongful removal of a child. Under the Hague Convention, a parent may also oppose the return of a child. The parent has the burden of establishing, by clear and convincing evidence, that one of the following exceptions apply. 1. The person was not actually exercising custody rights at the time of the removal or retention or had acquiesced to the removal or retention; 2. There is a grave risk that his or her return would expose the child to physical psychological harm and place the child in an intolerable situation; 3. The child objects to being returned.

14. What if a spouse has consent from the other spouse to move to another country, is it still possible for one spouse to compel the other to move back to the United States?
The party who remains in the United States can apply to the court for a modification of the custody agreement. However, before this application can be made, the person must satisfy the four requirements of the Hague Convention. The party who still resides in the United States must prove that: (1) both countries participate in the Hague Convention; (2) that the child was a habitual resident of the United States immediately before the removal; (3) that the child is under the age of 16; and (4) that the removal of the child was wrongful. If the person who still lives in the United States can prove these four requirements, then he can make an application in the foreign country where the child is now residing for custody.

15. When will a New Jersey Court recognize a foreign country’s decision regarding custody?
A New Jersey court will recognize a foreign country’s decision regarding custody, provided that the foreign country had adequate jurisdiction over the case, the New Jersey spouse had adequate notice, and the other country considered the “best interests” of the child.

16. How can a custody arrangement be modified?
Once a custody arrangement is established, then either party can make an application to modify the custody arrangement if there is a “change of circumstances” which has occurred from the time of the original custody decision. The party who applies for a change in the custody arrangement has the burden to prove that there is a sufficient change of circumstances to justify granting the application. It is important to emphasize that a person must have credible evidence to convince a court to change custody. It is insufficient evidence to base a change of custody based a person’s beliefs that he or she could raise the child better. The party who is making the application for a change of custody will have to prove to the court that something significant has happened which the court has not considered when it made the original custody decision. The courts are much more liberal when it considers applications for an increase in visitation time. In most cases, if there is a bitter visitation dispute, the case is referred to custody mediation. The courts are also much more reasonable in considering applications to modify visitation schedules. The courts will do everything they can to try to have the parties cooperate and formulate a reasonable parenting plan.

17. Can a custodial parent move out of the State of New Jersey with the child?
When a custodial parent wants to move out of New Jersey, that parent must either have the consent of the other non-custodial parent, or obtain the court’s permission. If the non-custodial parent does not consent to the relocation, then the court becomes involved. If the non-custodial parent does not consent to the child’s relocation, then the custodial spouse must file an application to the court to relocate. If the custodial parent moves without first obtaining the court’s permission, then he/she could be breaking New Jersey law.

18. What must be proved to obtain court permission to remove a child from the State of New Jersey?
To obtain court approval to remove a child from the state of New Jersey, a person must be able to show (1) a good faith reason for the move; (2) that the move will not adversely affect the non-custodial parent’s visitation, and (3) that it is in the best interest of the children to remain with the custodial parent and move out of the state. Additionally, if moving to a new state would affect the existing custody arrangement, the party seeking to remove the child must also show it is in the child’s best interest to move. In my experience, the courts mostly grant relocation motions. However, the custodial parent must insure that the parent who still lives in New Jersey has adequate visitation rights. Quite often, the courts will require that the moving parent be required to pay for any transportation costs for the child to go back to New Jersey to visit with the other parent. In many cases, there is just no solution to resolving a relocation motion/application. Initially, the court will refer a relocation application to custody mediation. Custody mediation is not binding on the parties. If the parties still can’t agree on a reasonable settlement, then the relocation application will be set down for a plenary hearing. This type of plenary hearing is called a Holder hearing.

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