New Jersey Lawyers Blog

The New Jersey Lawyers Directory Blog

Archive for category Divorce and Family Law

Alimony Reduction part 3

Mar 12

Posted by admin in Divorce and Family Law | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com part 3 of 6

17. What other considerations must a court consider for modifying alimony if there is cohabitation?

In an alimony cohabitation case, the court also must apply a needs-based test as well. In the case of Gayet v. Gayet, 92 N.J. 149 (1983), the New Jersey Supreme Court adopted the following test for reducing alimony if there is cohabitation;

  1. Whether the new companion contributes to the former wife’s support.
  2. Whether the new companion resides in the former wife’s home without contributing anything toward the household expenses.

Basically, a court will make an assessment if the former wife still needs the alimony support to survive. Many former husbands become obsessed when their former spouse resides with another man. Many former husbands mistakenly believe that they have hit the jackpot when their former wife moves in with another man. In many cases, they are sorely disappointed when their alimony reduction case is summarily dismissed. The family courts do not want to impoverish women.

In my experience, most judges will only reduce alimony based on cohabitation. Most judges will not permanently terminate alimony based on cohabitation. Relationships are always fluid. It would unreasonable to permanently terminate an alimony award based on a former wife’s new relationship a companion. As we all are aware, people break up all of the time. A court does not want to terminate alimony when there is a real possibility that the former wife could break up with her companion in the foreseeable future.

18. If a spouse retires does this constitute a “change of circumstances” to justify a termination of alimony?

If a husband/payor has a good faith retirement at the age of 65 then this event may constitute a “change of circumstances” to justify a modification of alimony. The court will also consider several other factors such as; the age of the parties; how the pensions and retirement assets were divided during the marriage; whether the retirement was reasonable; and was the retirement motivated to reduce alimony. Our New Jersey courts have held that when a person retires at the age of 65, he is entitled to a plenary hearing to reduce alimony based on a “change of circumstances.”

If a payor spouse retires before the age of 65, then he is subject to a more stringent standard to have alimony terminated. The court will then balance the benefits to the payor spouse against the disadvantage to the payee spouse. Only if the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse will the court view the retirement as a legitimate change of circumstances which would justify a modification of alimony.

Some other factors that a court considers when it rules on a Lepis application to terminate alimony on the grounds of retirement are: the age and health of the party; his or her motives in retiring; his or her ability to pay support; and the ability of the other spouse to provide for herself.

19. I have just retired and my income has been cut in half. Can I now make an application to reduce my alimony obligations?

The retirement of the payor/husband may be sufficient grounds to constitute a change in circumstances to reduce or terminate alimony. However, it must be emphasized that retirement alone is not an automatic grounds to terminate alimony. The key issue is whether the payor/husband is retiring voluntarily or mandatorily, and whether his retirement is being taken at the ordinary retirement age, at an eligible early retirement age, or at some other time for some reason. Some basic questions, once answered, will shed some light on the voluntariness of the retirement.

20. What is the key case that analyzes whether a husband’s retirement constitutes a “change in circumstances?”

The key case that analyzes whether a husband’s retirement constitutes a “change in circumstances” is Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992). In the Deegan case, the husband elected early retirement, and he sought to modify his alimony obligations based on a change of circumstances. The court held that in determining whether to modify alimony based upon retirement as a changed circumstance under Lepis, the pivotal issue was whether the advantage to the retiring spouse substantially outweighed the disadvantage to the recipient spouse. The court concluded that only if the answer was in the affirmative should the retirement be viewed as a legitimate change of circumstances to justify a reduction of alimony.

In any alimony reduction case based on a retirement, the court must assess whether the husband’s retirement was in good faith and otherwise reasonable. The court will also have to assess whether under all of the circumstances it was reasonable for the supporting spouse to retire. The court considers the age, health of the party, the motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement, and the ability of the other spouse to provide for herself.

21. What is the legal test that the court uses to assess whether an early retirement constitutes a “change of circumstances” to reduce alimony?

Another key case is Dilger v. Dilger, 242 N.J. 380 (Ch. Div. 1990). In the Dilger case, a former husband, who had a pre-existing alimony obligation to his former wife of 30 years, voluntarily retired at the age of 62 ½ years. The husband sought to reduce his alimony based on this changed circumstance. The court found that the former spouse’s voluntary retirement at the age of 62½ was not made in good faith, and it was unreasonable under all of the circumstances presented. The court noted that a reasonable retirement age would, in most cases, be 65.

In denying his application the court considered the following criteria:

  1. Whether the retirement was made in good faith.
  2. Whether, in light of all of the surrounding circumstances, it was reasonable for the supporting former spouse to elect an early retirement.
  3. What were the reasonable expectations of the parties at the time of the agreement.
  4. Whether the supporting spouse was planning retirement at a particular age.
  5. What opportunity was given to the depended spouse to prepare to live on the reduced support.

22. Can my deteriorating health condition constitute sufficient grounds to justify a termination of alimony?

The most common grounds that men use to support a motion to reduce/terminate alimony is a major illness or deteriorating health. The key issue in any alimony case based on illness is the severity of the illness, and it’s impact on the payor/husband’s ability to earn an income.

In most cases, if the payor/husband has filed sufficient moving papers, then most family courts will grant him a Lepis plenary hearing. These hearings can be extremely expensive to litigate because the applicant will have to produce a doctor(s) to verify his medical condition or illness to the court. Please keep in mind that medical records are hearsay. A lawyer can’t introduce the medical records unless they are substantiated by a medical professional. An applicant has two options that he can choose to pursue in a Lepis case based on the grounds of illness or a medical condition. The applicant can retain one doctor to review all of the medical records. Thereafter, this doctor can prepare an expert’s report, and testify at court. Alternatively, the applicant can subpoena their treating physician, and compel their appearance at the Lepis plenary hearing. Unfortunately, the later option has its drawbacks. Doctors like to be paid. Moreover, they also don’t like to spend their days in court. The doctor may become so upset by being subpoenaed that he/she may drop the applicant as a patient.

In summary, in any Lepis case that centers around a “change in circumstances” based on an illness or medical condition, then medical professionals must be brought in to testify. The doctor will have to prepare an expert’s report, and also be willing to testify about his/her findings at the Lepis plenary hearing. In my experience most doctors require a $2,500 to $5,000 retainer to prepare a report of this nature, and to appear at trial. Nonetheless, if the alimony obligation is oppressive, then the high retainer fees to the evaluating physician may well be worth. In my experience, it is almost impossible for an applicant to prevail in an alimony reduction case based on an illness or medical condition, unless a qualified medical expert is brought in to testify at the Lepis hearing.

23. I was declared to be disabled by the Social Security Administration. Does this event constitute a “change of circumstances” to warrant a termination of alimony?

If a person is declared disabled by SSA, then this event constitutes a change of circumstances to justify a reduction or termination of alimony. In the case of Golian v. Golian, 344 N.J. Super. 337 (2001), the court held that a declaration by the Social Security Administration (SSA) that the wife was disabled and eligible to receive social security benefits was prima facie proof of a disability. Moreover, the court held that a declaration of eligibility to receive social security also constituted a change of circumstances to enable the application to receive a Lepis hearing.

24. Can a person insert an anti-modification of alimony clause into the property settlement agreement?

In many cases, the parties will insert a clause in the property settlement agreement that would prevent any modification of alimony even if there is a potential chance of circumstances in the future. This type of clause is known as an Anti-Lepis clause. These types of clause have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.

25. Can alimony be extended?

In most cases no. However, some property settlement agreements provide that a spouse may be entitled to alimony after a certain number of years. A dependent spouse will have to file an application for an increase in alimony. The dependent spouse will have to prove a “change of circumstances” to justify an extension of alimony. The courts analyze these applications on a case by case basis. The court will make this determination based on the payor’s ability to pay, both parties’ respective income’s, and the dependent spouses needs. Additionally, rehabilitative alimony can be extended beyond the expiration date as specified in the property settlement agreement. The standard once again is whether there has been a “change of circumstances.”

26. Can my former spouse bankrupt his alimony obligations?

If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree is not dischargeable. In short, a husband can’t wipe off an alimony obligation in a bankruptcy case.

27. I am a lawyer and my business is going down the tube. What are my chances to prevail if I file a motion to reduce my alimony?

Every case stands on its own merits. A recent case is Donnelly v. Donnelly, A-2389-07. The main point of the Donnelly case is that the court offered a simple warning: Don’t take on a lifestyle you can’t pay for and then try to make your former spouse feel the pinch.

Here, Gregory Donnelly, of Wayne, N.J.’s Donnelly and Warner, had a law pracice that focused on commercial and residential real estate, personal injury and matrimonial work. During his 2003 divorce, his annual income was estimated at $185,000 based that was averaged on a five year basis five years. The parties eventually settled. The PSA required him to pay $1,000 a week in alimony to his wife Elizabeth and $350 a week in child support for their three children.

In 2005, Mr. Donnelly applied to Superior Court Judge before the well respected Michael Diamond in Passaic County for a reduction in payments. He argued that that his income was reduced to $80,000 a year. His income had in fact been falling before the divorce, from $301,705 in 1978 to $130,000 in 2002. He alleged that the reason for the reduction of income was  the decline on increased competition, rising overhead, and a decrease in the firm’s personal injury and real estate practices.

At the motion Mr. Donnelly asserted it was “absolutely impossible” to maintain his practice and to pay other living expenses while paying alimony and support at the established levels. The court that Donnelly’s testimony unpersuasive and it denied the request. The court emphasized that his lifestyle didn’t seem to have suffered. He owned a new Lexus worth $58,000, sold property in Pine Lakes to pay down a $90,000 line of credit, and he bought a home in Wayne with a $600,000 mortgage. Moreover, Mr. Donnelly got remarried and spent $15,000 on his wedding and honeymoon. Judge Diamond opined that even though his business income declined he was still living a upper class lifestyle.

A year later, Mr. Donnelly once again applied for a reduction. In this motion he alleged that saying his income for that year would be only $50,000. He said he had sold his interest in the firm’s building for $175,000 in order to improve his personal finances. Judge Diamond once again denied the motion. The court held that Mr.  Donnelly continued to enjoy an upscale lifestyle and to finance it by borrowing.

The case was then appealed. The Appellate Division affirmed. The court noted that Mr. Donnelly “spent $11,354 per month on his shelter, transportation and personal needs, revealing no effort to modify the lifestyle he enjoyed with his new wife and new child despite the alleged deterioration of his law practice.” Basically, the Appellate Division noted that Mr. Donnelly chose to take on greater financial obligations than would be reasonable if his earnings were steadily dwindling.

In summary, the Donnelly case illustrates how difficult it can be to reduce alimony. If you have a reduction of income, then your CIS and your certification must illustrate that your life style has decreased since the original award of alimony was entered. Here, Mr. Donnelly on established one prong, and that was that his income went down. He failed to prove that he was unable to maintain the same standard of living.

…..click here to finish this article

For more information about  NJ Divorce Law or to find a New Jersey Divorce Lawyer.  Additional lists of NJ Law firms can be found here.

Tags: , , , , , , , ,

Alimony Reduction part 2

Mar 5

Posted by admin in Divorce and Family Law | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

7. What factors does a court consider to evaluate a motion to reduce alimony?

When a court considers a motion to modify or terminate alimony, the overriding consideration is whether there has been a “change of circumstances.” A court must then compare the parties’ lifestyles at the time of the divorce to their current lifestyles.

In the seminal case of Crews v. Crews, 164 N.J. 11 (2000), the New Jersey Supreme Court held that in all alimony reduction cases, the court must compare the standard of living that the parties enjoyed at the time of the divorce to their current standard of living.

8. If a spouse remarries does this event terminate his obligation to pay alimony?

If the spouse who pays alimony remarries, then this remarriage does not terminate his alimony obligation. If the husband/payor spouse remarries, and if he claims that he can no longer support his former spouse, then this factor alone is not a sufficient change of circumstances to just a decrease in alimony.

9. If a former wife remarries does this event terminate her legal right to receive alimony?

If the spouse who receives alimony remarries, then any permanent alimony award or term alimony will be terminated regardless of the parties’ financial circumstances. The rationale for this is because the supported spouse has entered into a new marital partnership, and the former spouse is not required to financially support this new partnership. If the supported spouse’s new marriage fails, then she can’t later petition the court to reinstate the first husband’s alimony obligation.

10. Can a spouse file a motion for an increase in alimony?

The courts will examine a spouse’s ability to pay alimony and the payee spouse’s need for alimony. Sometimes, a supported spouse will file an application for an increase of alimony. The grounds for the motion is that the supported spouse needs additional income to maintain a decent lifestyle. If the payee spouse is not receiving sufficient alimony to live a decent lifestyle, then a post-judgment increase in the payor’s spouse’s income may justify an increase in alimony. The party seeking to have alimony increased bears the burden of proof to demonstrate a change of circumstance. The courts will also examine the parties’ historical standard of living during the marriage.

11. Can a spouse file a motion for a decrease in alimony?

If a payor’s income decreases then he can file a motion to request that the court decrease or terminate his alimony obligation. The payor spouse must demonstrate that the decrease in income and/or salary was bona fide, in good faith, and not reduced in order to avoid and limit alimony. If a spouse is unemployed or underemployed then the court may impute income to him. The court may also analyze a payor’s/husband’s unearned income and assets to assess the merits of an alimony modification motion(s).

12. Can alimony be terminated if the former wife now cohabitates/lives with another man?

In some cases if a former wife cohabitates/lives with another companion then this may constitute a “change of circumstances” to justify a change of circumstances. If the supported spouse lives with another man, then the court may reduce alimony. However, cohabitation alone is not enough to reduce alimony. The cohabitation must also be coupled with some economic consequences in order to modify alimony.

The courts use the economic contribution test to determine whether an alimony award to a dependent spouse should be reduced. This test looks to see if the cohabitation is similar to a permanent house situation or a marital like relationship. If the dependent spouses’ new companion reduces her financial needs, then alimony may be reduced. Moreover, if the dependent spouse is using the alimony to support her companion, then the payor spouse has very strong grounds to reduce alimony.

The payor spouse has the burden to prove that there has been a prima facie showing of cohabitation. The fact of cohabitation triggers a finding of a change of circumstances. Thereafter, the court will schedule a hearing, and permit the parties to conduct limited discovery. The payee spouse then has the burden to prove to the court that there is no economic consequence from the fact that she is living with another man.

In many property settlement agreements there are some very specific clauses as to alimony termination if the former wife lives with another man. The New Jersey courts have enforced property settlement agreements that provide for a termination of alimony regardless of economic circumstances if the payee spouse lives with another man. The courts however will not uphold a property settlement agreement which attempts to control the former wife’s social activities through the suspension of alimony. If the property settlement agreement places unfair conditions on a former wife that has nothing to do with her financial status, then this agreement will be declared void.

13. If my former wife is now living with another man, will I automatically be able to have my alimony obligations reduced?

No, cohabitation only constitutes a change in circumstances if it is coupled with economic consequences. This means that the spouse must receive a real economic benefit by cohabitating/living with another person. If the dependent former spouse if being fully supported by her companion, then the ex-husband may qualify for a reduction or termination of his alimony obligations.

14. What if my ex-wife moves in with her boyfriend and she never remarries?

In order for cohabitation to be a sufficient ground to reduce/terminate alimony then there must be a permanent relationship. The cohabitation must be of a long-term or permanent nature. The ex-wife and her boyfriend must share living expenses. Staying overnight by either party a few times a month is generally not enough. This is a very touchy subject, because many times ex-wives will intentionally not remarry in order to keep getting support payments, even though they have found a new life long companion.

15. What is the process to make an application to terminate alimony based on the grounds of cohabitation/living together?

An application to reduce or terminate alimony based on the grounds of cohabitation is a two-part process. First, the applicant must prove to the court that there is a “change of circumstances” to justify discovery and a plenary hearing. Second, he must prove that there are grounds to justify a reduction.

It is important to emphasize that alimony will only be reduced, if the applicant can prove that his former wife receives a real economic advantage by living with her companion. The applicant must prove that their former wife receives real support from her new companion. In many cases, it is impossible for an applicant to prove that his former wife receives support from her new companion.

16. What is the main case on alimony reduction based on cohabitation?

The main New Jersey case that the courts use to analyze alimony reduction motions based on cohabitation is Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998). In the Konzelman case, a former husband sought to enforce a clause in a divorce decree that provided that his former wife would lose her right to receive permanent alimony if she lived with another man for four continuous months.

In the Konzelman case, the New Jersey Supreme Court held that the family courts must consider the following factors in any Lepis case based on the grounds of cohabitation;

  1. The establishment of a common residence;
  2. A long-term intimate or romantic involvement;
  3. Any Shared assets or common bank accounts;
  4. Joint contribution to household expenses; and
  5. The recognition of the relationship by the community.

…..click here to finish this article

For more information about  NJ Divorce Law or to find a New Jersey Divorce Lawyer.  Additional lists of NJ Law firms can be found here.

Tags: , , , , , , , ,

Alimony Reduction

Feb 27

Posted by admin in Divorce and Family Law | No Comments


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.

…..click here to finish this article

For more information about  NJ Divorce Law or to find a New Jersey Divorce Lawyer.  Additional lists of NJ Law firms can be found here.

All About NJ Family Court Motions

Oct 2

Posted by admin in Divorce and Family Law | No Comments


The following article was written by Theodore Sliwinski, Esq. and can can be found on New-Jersey-Lawyers.com

1. What is a motion?

A motion is simply an application to the family court. Motions can ask for an endless array of different types of relief. The most common grounds for relief are to increase or decrease child support, to emancipate a child, to compel the payment of health related expenses, and to reduce or terminate alimony.

2. When can a motion be filed?

All family court motions are filed with the Family Court Clerk in the local county court house. All family court motions are considered to be 24-day motions. See, R. 5:5-4(c). This simply means that the motion papers must be filed at least 24 days before the return date. Thus, your legal papers must be served on your ex-spouse and filed with the court at least twenty-four days before the scheduled court date. The motion hearing days are scheduled every other Friday. Some counties have hearings every Friday. To summarize, the motion papers must always be filed 24 days before the hearing date. Any cross-motion or opposition papers must be served and filed fifteen days before the court date. Finally, any reply papers to the cross-motion must be served and filed at least eight days before the court date.

3. What are the important parts of a motion?

A. Notice of Motion

The notice of motion is simply the part of the motion that requests from the court what type of relief you are asking for.The most common types of relief requested are to establish child support, to reduce support payments, to request emancipation, to compel the payment of family household expenses. The notice of motion should be as specific and clear as possible. Remember, the judge reads about 20 to 30 different motions every motion cycle. Thus, all of the motions tend to blur together. Your motion should be written in a clear, concise and punctual manner.

B. Certification(s)

A certification is simply a legal document that advises the judge exactly what you want and why you should get it. The certification should be detailed and organized. Moreover, the certification should also have relevant exhibits attached to it. Some important attachments may be tax returns, pay stubs, a current and past CIS, copies of day care bills, prior court orders, and a copy of the judgment of divorce. These exhibits should also be labeled as well. The page limit for a certification is 15 pages for filing of the initial motion, and 25 pages to reply to a motion.

C. Proposed form of Order

All family motions must have a proposed form of order attached to it. The court system is over worked. Therefore, the lawyers are required to prepare a proposed court order. It is very rare for a judge to simply sign the court order in the exact format that was provided. Instead, in most cases the judge will cross out and mark up the proposed order to conform to his or her court ruling. Quite often these marked up final orders are very difficult to read.….. click here to finish this article

To read other NJ Divorce and Family Law articles  or for other New Jersey Law articles. If you need a New Jersey Divorce Lawyer.   Additional Lists of NJ Divorce Law Firms and NJ Family Lawyers can be found here.

Tags: , , , , , , , ,

Domestic Violence FAQ’s – #2

Apr 21

Posted by admin in Divorce and Family Law | No Comments



The following article was written by Kamensky-Cohen & Associates and can be found on New-Jersey-Lawyers.com

Covered in this article:

What is considered abusive behavior?
What legal action can be taken against an abusive spouse?
What if I am accused of Domestic Violence and need legal defense?

What is considered abusive behavior?
Family Violence is a tragic reality for people of all backgrounds and income levels. Therapists who work with abused family members consider any means of maintaining power over another person is a form of abuse. Among the more common ways this behavior shows up is: 1) Emotional abuse-using comments to lower a partner’s self esteem or to make him or her feel bad; using mind games 2) Threats and intimidation-using fear to control; threatening to do harm to the children, others or him/herself 3) Economic abuse-withholding money; keeping a partner from getting or keeping a job………..To read the balance of this article click here

To read other NJ Divorce and Family Law issue or for other New Jersey Law articles. You can also find a NJ Divorce lawyer and Family Law Attorney. Additional Lists of NJ Divorce Law Firms and NJ Family Lawyers can be found here.

Tags: , , , , , , , ,

Martial Tort FAQ’s

Mar 13

Posted by admin in Divorce and Family Law | No Comments


The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com

1. What is a marital tort?
Basically, a tort is a civil wrong, for which the court will provide a remedy in the form of an action for damages. Torts may be intentional, negligent or reckless. They may result in any number of physical or emotion injuries and they also include injuries to property. Torts have increasingly become very relevant in New Jersey divorces. Many spouses now also sue their ex-husband for a marital tort(s), and it is then consolidated with the primary cause for the divorce.
In my opinion, a marital tort is basically a “shake down” tactic by a wife to obtain a distinct advantage in a divorce case. Examples of marital torts include: assault and battery; marital rape; Battered Woman’s syndrome; wrongful death, intentional infliction of emotional distress; false imprisonment; use of excessive; defamation; and wiretapping. Claims may also arise after the complaint for divorce has been filed. These types of claims frequently involve hiding money after a divorce case has started. These types of torts are called the dissipation of marital assets, fraudulent conveyance of marital assets, invasion of privacy, and interference with custodial rights.

In summary, marital torts is an emerging trend in New Jersey divorce law. The concept of inter-spousal immunity has been abolished in New Jersey. Therefore, the gates have been open to permit spouses to sue each other for individual torts. What a wonderful world we live in!

To read the balance of this article click here

You can find more information about NJ Divorce Law or find a New Jersey Divorce lawyer here.

Tags: , , , , , , ,

Comparing Rights To Alimony In New Jersey And Pennsylvania

Feb 2

Posted by admin in Divorce and Family Law | No Comments


Comparing Rights To Alimony In New Jersey And Pennsylvania


Written by
Lawrence Tomar, Esq. Partner, Kamensky♦Cohen

IN NEW JERSEY

Generally speaking, there is a presumption in New Jersey that a spouse married more than ten years, whose earnings or earning capacity is less than the other spouse, is entitled to alimony.  Under these circumstances, where there is a ten-year or longer marriage, a Judge must presume that alimony will be indefinite in nature, meaning that it will continue in effect until a change in circumstances for instance, an increase in the dependent spouse’s income or re-marriage or retirement or loss of employment by the spouse paying alimony. But, even for a less than ten year marriage, alimony may be indefinite, especially where there is a large disparity in income, particularly where the dependent spouse is the primary caretaker of young children

To read the balance of this article and other New Jersey Law articles dealing with NJ Divorce or to find a NJ Divorce lawyer. To find other New Jersey lawyers visit www.New-Jersey-Lawyers.com

Tags: , , , , , , , ,

Death & Divorce

Dec 16

Posted by admin in Divorce and Family Law | No Comments



The following article about New Jersey Death and Divorce is featured on New-Jersey-Lawyers.com

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.

 

 

To read the balance of this article or find a New Jersey Divorce Lawyer visit www.New-Jersey-Lawyers.com. 

 

For additional listings of NJ Divorce lawyers we suggest you also visit NJLawFirms.net.

Divorce and Child Custody – part 6

Jan 23

Posted by admin in Divorce and Family Law | No Comments


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.

 

Divorce and Child Custody – part 5

Jan 3

Posted by admin in Divorce and Family Law | No Comments


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

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