The Divorce Process
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Charles F. Vuotto, Jr. Esq. Tonneman, Vuotto, Enis & White, LLC 973-998-9040 cvuotto@tvelaw.com Scott A. Maier, CPA, JD Friedman, LLP East Hanover – 973-929-3684 smaier#@friedmanllp.com
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The Divorce Process
- 1. The Divorce ProcessThe Divorce Process Tonneman, Vuotto, Enis & White, LLC 1Copyright 2016 Charles F. Vuotto, Jr., Esq. Charles F. Vuotto, Jr. Esq. Tonneman, Vuotto, Enis & White, LLC Cedar Knolls – 973-998-9040 cvuotto@tvelaw.com Scott A. Maier, CPA, JD Friedman, LLP East Hanover – 973-929-3684 smaier#@friedmanllp.com
- 2. The presenters are only licensed in their various disciplines to practice in New Jersey (and New York for Mr. Maier). Therefore, the content hereof should not be deemed applicable to any other jurisdiction. Divorce laws vary from state to state. Further, the content in this presentation should not be viewed as legal, accounting or financial advice as to any specific matter, but rather as a general academic overview of the process and laws governing divorce in the State of New Jersey. Lastly, no professional relationship is created by viewing these visual aids and can only be created by formally retaining the panel members. DisclaimerDisclaimer Tonneman, Vuotto, Enis & White, LLC 2Copyright 2016 Charles F. Vuotto, Jr., Esq.
- 3. Settlement vs. LitigationSettlement vs. Litigation • Litigation • Complaint for Divorce • Discovery • Motion Practice • Settlement Negotiations • ESP • Trial • Arbitration • Private trial • Tailored process • Cost • Settlement • Mediation • Collaborative Divorce • 4-Way Conferences • 2-Way Conferences • Judicial Settlement Conference • Blue Ribbon Panels Tonneman, Vuotto, Enis & White, LLC 3Copyright 2016 Charles F. Vuotto, Jr., Esq.
- 4. LitigationLitigation • Fault Grounds • Adultery • Desertion • Extreme Cruelty • Addiction • Institutionalization • Imprisonment • Deviant Sexual Conduct Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 4 Causes of Action – Complaint for Divorce
- 5. LitigationLitigation • No Fault Grounds • 18 Months Separation • Irreconcilable Differences • Pros & Cons Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 5 Causes of Action – Complaint for Divorce
- 6. LitigationLitigation Tools •Interrogatories •Document Demands •Depositions •Requests for Admissions •Experts o Financial o Employment o Custody Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 6 Discovery
- 7. LitigationLitigation Relief Available During Pendency of Case • Restraints on Dissipation of Assets • Temporary Alimony • Temporary Child Support • Temporary Custody • Temporary Time-sharing • Insurance • Fees • Other Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 7 Motion Practice
- 8. 1. Understand what affects children’s mental/emotional adjustment due to divorce. 2. Avoid arguments in children’s presence 3. Reach agreement on how to advise children of divorce 4. Adjust what you tell children based upon children’s maturity 5. Have children write down their feelings Tonneman, Vuotto, Enis & White, LLC 8Copyright 2016 Charles F. Vuotto, Jr., Esq. Children’s issuesChildren’s issues Top10 PointsTop10 Points
- 9. 6. Explain living arrangements to children 7. Reassure children about things that will NOT change 8. Ensure stability and routine 9. Remember that children are entitled to contact with both parents unless contrary to their best interest 10. Educate yourself about the impact of divorce upon children Tonneman, Vuotto, Enis & White, LLC 9Copyright 2016 Charles F. Vuotto, Jr., Esq. Top10 Child-Related PointsTop10 Child-Related Points
- 10. Marital LifestyleMarital Lifestyle • The “standard of living enjoyed during the marriage” is a concept that certainly includes objective criteria, such as the actual amount spent for mortgages, real estate taxes, car payments, and food expenses. However, it also encompasses more subtle components such as the intervals between car purchases, whether there has been a preference for new or pre-owned vehicles, and the frequency of and nature of restaurants when dining out. Gnall, 2013 N.J. Super. LEXIS 115 at 25. Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 10
- 11. 1. Place emotions in check (once decision to divorce is made, determining the finances is merely a “business deal based primarily on fairness.”) 2. List goals (Wish List & Bottom Line) 3. Prepare detailed marital, employment and financial histories 4. Pre-litigation document gathering 5. Marital lifestyle (how did you live, how much did it cost and where did money come from) Tonneman, Vuotto, Enis & White, LLC 11Copyright 2016 Charles F. Vuotto, Jr., Esq. Top10 Financial PointsTop10 Financial Points
- 12. 6. Identifying and valuing of assets (don’t forget premarital, gifted, inherited and overlooked assets) 7. Classify assets as “active” or “passive” 8. Experts 9. Cost/benefit analysis 10. Economic Fairness and sustainability of financial resolution Tonneman, Vuotto, Enis & White, LLC 12Copyright 2016 Charles F. Vuotto, Jr., Esq. Top10 Financial PointsTop10 Financial Points
- 13. Overview Statutory Presumptions Statutory Factors Tonneman, Vuotto, Enis & White, LLC 13Copyright 2016 Charles F. Vuotto, Jr., Esq. Custody & Time SharingCustody & Time Sharing
- 14. Legal Custody: Who makes major decisions Physical Custody: Where children actually live Tonneman, Vuotto, Enis & White, LLC 14Copyright 2016 Charles F. Vuotto, Jr., Esq. Custody & Time SharingCustody & Time Sharing Overview
- 15. • Best interests • Statutory Factors Tonneman, Vuotto, Enis & White, LLC 15Copyright 2016 Charles F. Vuotto, Jr., Esq. Custody & Time SharingCustody & Time Sharing Court’s Considerations
- 16. • “[I]t is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage. . . “ • “[I]t is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” • N.J.S.A. 9:2-4. Tonneman, Vuotto, Enis & White, LLC 16Copyright 2016 Charles F. Vuotto, Jr., Esq. Custody & Time SharingCustody & Time Sharing Statutory Presumptions
- 17. 1. Parental communication & cooperation 2. Parental willingness to accept custody 3. Relationship of children with siblings, parents 4. History of domestic violence 5. Children’s and parent safety 6. Children’s ability to make informed decision 7. Needs of children Tonneman, Vuotto, Enis & White, LLC 17Copyright 2016 Charles F. Vuotto, Jr., Esq. Custody & Time SharingCustody & Time Sharing Statutory Custody Factors
- 18. 8. Stability of home environment 9. Quality and continuity of child’s education 10. Fitness of parents 11. Geographical proximity of parents’ homes 12. Quality of time spent with child prior to separation 13. Parents’ employment responsibilities 14. Ages and number of children Tonneman, Vuotto, Enis & White, LLC 18Copyright 2016 Charles F. Vuotto, Jr., Esq. Custody & Time SharingCustody & Time Sharing Statutory Custody Factors
- 19. • Removal of Children from the State • Parental Alienation Syndrome • Psychological Parent • Grandparent Visitation • Custody Upon Death of Custodial Parent Tonneman, Vuotto, Enis & White, LLC 19Copyright 2016 Charles F. Vuotto, Jr., Esq. Custody & Time SharingCustody & Time Sharing Other Custody Topics
- 20. Tonneman, Vuotto, Enis & White, LLC 20Copyright 2016 Charles F. Vuotto, Jr., Esq. Child Support OverviewChild Support Overview • Guidelines • Statutory Factors • Child Support Belongs to Child
- 21. Child Support GuidelinesChild Support Guidelines • Based on empirical data to simulate percentage of parental net income spent on children of intact families • Both parents’ net incomes are considered (including alimony payments) • Maximum combined net incomes under the Guidelines is $3,600 per week • May include day care costs, health insurance premiums costs and government benefits for the child • Takes into account parenting time arrangement Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 21
- 22. Example of Child SupportExample of Child Support Guidelines CalculationGuidelines Calculation • Husband earns $100,000 • Wife earns $50,000 • Husband pays Wife alimony of $16,000 per year • Two children, ages 3 and 6 • Husband pays health insurance premiums for the children of $100 per month • Child Support Guidelines amount equals $169 per week Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 22
- 23. • Child’s needs (i.e, food, clothing, activities, camps, education, etc.) • Parents’ standard of living • Parental income and assets • Parental earning ability • Child’s capacity for higher education • Age and health of children and parents • Child’s income, assets, earnings • Responsibility of parental support of others • Family debts and liabilities • Other factors Tonneman, Vuotto, Enis & White, LLC 23Copyright 2016 Charles F. Vuotto, Jr., Esq. Child Support OverviewChild Support Overview Support Factors
- 24. • Camp; • Health care expenses; • Tutors; • Private school; • Extracurricular activities and equipment; • College Tonneman, Vuotto, Enis & White, LLC 24Copyright 2016 Charles F. Vuotto, Jr., Esq. Other Child RelatedOther Child Related ObligationsObligations To be shared in addition to direct child support
- 25. “[I]n appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children.” “In general, financially capable parents should contribute to the higher education of children who are qualified students.” - Newburgh v. Arrigo Tonneman, Vuotto, Enis & White, LLC 25Copyright 2016 Charles F. Vuotto, Jr., Esq. CollegeCollege
- 26. • Overview • Statutory Factors • Other Alimony Topics Tonneman, Vuotto, Enis & White, LLC 26Copyright 2016 Charles F. Vuotto, Jr., Esq. AlimonyAlimony
- 27. Tonneman, Vuotto, Enis & White, LLC 27Copyright 2016 Charles F. Vuotto, Jr., Esq. AlimonyAlimony Overview •Goal of Alimony:
- 28. Tonneman, Vuotto, Enis & White, LLC 28Copyright 2016 Charles F. Vuotto, Jr., Esq. AlimonyAlimony Factors • Actual need and ability to pay • Duration of the marriage • Age and health of the parties • Standard of living (historical) • Earning capacity of the parties • Length of absence from job market • Training requirements • Financial contribution history • Equitable distribution ordered • Other factors
- 29. Tonneman, Vuotto, Enis & White, LLC 29Copyright 2016 Charles F. Vuotto, Jr., Esq. AlimonyAlimony Other Topics • Modification of Alimony after divorce • Imputed vs. Actual Income for Alimony Purposes • Cohabitation • Retirement (pre and post-enactment agreements) • Relevance of Parental or other Third Party Gifts
- 30. Changes to AlimonyChanges to Alimony under the New Statuteunder the New Statute • Does not modify the duration of alimony agreed to in an existing settlement agreement • Does not modify specifically bargained for contractual provisions in an existing settlement agreement Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 30 Who Does It Impact?
- 31. Changes to AlimonyChanges to Alimony under the New Statuteunder the New Statute • No longer have “permanent alimony” and in its place we have the concept of open durational alimony • There is now a rebuttable presumption that in a marriage of less than 20 years alimony shall be of a duration not to exceed the length of the marriage (but can rebut presumption based on factors) • Can be exceptional circumstances for open durational alimony even in a marriage less than 20 years Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 31 Duration of Alimony
- 32. Changes to AlimonyChanges to Alimony under the New Statuteunder the New Statute • There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age • Factors to consider in an application to terminate or modify alimony when the payor seeks to retire earlier than full retirement age • Modification based on loss of employment or reduction in income • Factors addressing termination or suspension of alimony upon a payee’s cohabitation Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 32 Modification of Alimony
- 33. Tonneman, Vuotto, Enis & White, LLC 33Copyright 2016 Charles F. Vuotto, Jr., Esq. Life InsuranceLife Insurance • Courts may “require reasonable security” assuring the payment of child support and alimony. • Most Matrimonial Settlement Agreements containing alimony and child support provisions mandate the payor spouse to maintain life insurance on his/her life for the benefit of the dependent spouse and children.
- 34. Tonneman, Vuotto, Enis & White, LLC 34Copyright 2016 Charles F. Vuotto, Jr. , Esq. Health InsuranceHealth Insurance All agreements or judgments of divorce should make some provision for the continuation of health insurance benefits for the spouses and children.
- 35. Tonneman, Vuotto, Enis & White, LLC 35Copyright 2016 Charles F. Vuotto, Jr., Esq. Equitable DistributionEquitable Distribution • Overview • Statutory Factors • Other Equitable Distribution Topics
- 36. Tonneman, Vuotto, Enis & White, LLC 36Copyright 2016 Charles F. Vuotto, Jr., Esq. Equitable DistributionEquitable Distribution • The distribution of property legally or beneficially acquired by either party during the marriage • Three-part approach: o Identify the assets subject to distribution; o Value the assets subject to distribution; and o Distribute the assets after consideration of all statutory factors Overview
- 37. Tonneman, Vuotto, Enis & White, LLC 37Copyright 2016 Charles F. Vuotto, Jr., Esq. Equitable DistributionEquitable Distribution • Duration of the marriage • Age and health of the parties • Income or property brought to marriage • Standard of living • Existence of written agreement prior to marriage • Economic circumstances of parties • Income and earning capacity of parties • Contribution to one another’s economic benefit Statutory Factors
- 38. Tonneman, Vuotto, Enis & White, LLC 38Copyright 2016 Charles F. Vuotto, Jr., Esq. Equitable DistributionEquitable Distribution • Contribution of parties to marital property • Tax consequences of property distribution • Present value of property • Need of custodial parent for marital home • Debts and liabilities • Need for health care and education of parties • Deferred career goals • Other factors Statutory Factors
- 39. Tonneman, Vuotto, Enis & White, LLC 39Copyright 2016 Charles F. Vuotto, Jr., Esq. Equitable DistributionEquitable Distribution 1. Valuation of businesses and other assets A. Standards of Value B. Approaches to Calculating Value C. Methodologies 1. Termination date for inclusion of assets 2. Transmuted or commingled assets 3. Personal Injury Awards 4. Pendente lite sale of assets 5. Prenuptial Agreements 6. Conditional Gift/Joint Venture Other Factors
- 40. Tonneman, Vuotto, Enis & White, LLC 40Copyright 2016 Charles F. Vuotto, Jr., Esq. Tax IssuesTax Issues • Mortgage interest and real estate deductions • Children’s exemptions • Head of Household status • Capital Gains • Deductions for alimony (final and pendente lite) • Carry Forward Losses • Tax deductions related to professional fees
- 41. Domestic ViolenceDomestic Violence • Homicide • Assault • Terroristic Threats • Kidnapping • Criminal Restraint • False Imprisonment • Sexual Assault • Criminal Sexual Contact Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 41
- 42. OTHER TOPICSOTHER TOPICS • Palimony • Same-sex Marriages • Civil Unions Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 42
- 43. LitigationLitigation • Wish List • Marital Settlement Agreement (“MSA”) • Settlement Conference (two- and four-way) o Custody, Timesharing, Child Support, Child Related Obligation, Educational Expenses, Emancipation, Alimony, Insurance, Equitable distribution, fees. o Standard “boiler-plate” language • Need for compromise Copyright 2016 Charles F. Vuotto, Jr., Esq.Tonneman, Vuotto, Enis & White, LLC 43 Settlement Negotiations
- 44. Charles F. Vuotto, Jr., Esq. Charles F. Vuotto, Jr., Esq. is the Managing Partner of the law firm of Tonneman, Vuotto, Enis & White, LLC with offices in Cedar Knolls and Matawan, New Jersey. He has dedicated his professional career of approximately 30 years to the practice of family law with the goal of resolving issues in a fair and expeditious manner. With that goal in mind, Mr. Vuotto not only litigates divorce in a strong and compassionate fashion, but also embraces alternative dispute resolution approaches. As such, he is trained as a family law mediator. He is also trained as an arbitrator of matrimonial issues by the Academy of Matrimonial Lawyers (“AAML”). Mr. Vuotto is certified by the Supreme Court of the State of New Jersey as a Matrimonial Law Attorney. He is a past Chair of the Family Law Section of the New Jersey State Bar Association (2009-2010). Since 2010, he has served as the Editor-in-Chief of the Family Law Section’s prestigious publication, the New Jersey Family Lawyer. Mr. Vuotto is a one of approximately 1,600 AAML Fellows across the nation and has been elected to the Board of Managers of its New Jersey Chapter. Mr. Vuotto lectures extensively to lawyers and judges and has authored over 90 articles on the practice of family law. Mr. Vuotto has been honored by the state’s Supreme Court by appointment to various committees including the New Jersey Supreme Court’s Family Part Practice Committee (2009-2011). He was also appointed to represent the New Jersey State Bar Association on the Ad Hoc Committee on the Arbitration of Family Matters. The report of this committee was ultimately accepted by the Supreme Court in 2015 and resulted in substantial changes to the Rules of Court regarding the arbitration of family law matters. Mr. Vuotto has been selected for inclusion in New Jersey Super Lawyers® list in 2005, 2006, 2008, and 2010-2016. He has also been selected by his peers for inclusion in the 2009-2016 editions of the Best Lawyers of America ® in the area of Family Law. Mr. Vuotto received a Martindale-Hubbell® Peer Review Rating of AV. He is a member of Matrimonial Lawyers Alliance (“MLA”). Mr. Vuotto received the 2013 Edward Schoifet Family Law Award on January 23, 2013 presented by the Family Law Section of the Middlesex County Bar Association. He is a Fellow in Litigation Counsel of America. Mr. Vuotto was awarded the Saul Tischler Award by the Family Law Section of the New Jersey State Bar Association at its annual dinner on April 19, 2016. The Tischler Award is presented for lifetime contributions to the achievement of family law in the State of New Jersey and is the most prestigious award to be presented to a family law attorney. Copyright 2016 Charles F. Vuotto, Jr., Esq. 44Tonneman, Vuotto, Enis & White, LLC
- 45. FRIEDMAN LLPFRIEDMAN LLP Scott A. Maier, CPA, ABV, ASA, JD Copyright 2016 Charles F. Vuotto, Jr., Esq. 45Tonneman, Vuotto, Enis & White, LLC Academic and Professional Credentials: Bachelor of Science (Accounting & Economics and Juris Doctor), Rutgers University Certified Public Accountant, New York and New Jersey Accredited in Business Valuation, American Institute of Certified Public Accountants Certificate of Education Achievement in Business Valuation, Certified in Financial Forensics, American Institute of Certified Public Accountants Position and Experience: Partner, Friedman, LLP, Certified Public Accountants Qualified as an expert witness on business valuation issues Memberships: American Institute of Certified Public Accountants - Designee of ABV accreditation New Jersey Society of Certified Public Accountants -Served as the Chair of the Matrimonial Accounting Committee New Jersey Society of Appraisers, Senior Appraiser American Society of Appraisers American Bar Association - Served as New Jersey Young Attorney delegate to national meetings New Jersey Bar Association -Young Lawyers Division Executive Committee (1993-1998) - Family Law Committee New York Bar Association Bar Association for the City of New York Former Member of Randolph, New Jersey’s Board of Adjustment
- 46. Thank You!Thank You! Copyright 2016 Charles F. Vuotto, Jr., Esq. 46Tonneman, Vuotto, Enis & White, LLC
Editor's Notes
- The following presentation is intended to give a brief overview of the process and laws relating to divorce in the State of New Jersey. Therefore, this presentation contains only a brief overview of most of the major issues in divorce and are not intended as an exhaustive summary of all divorce laws and issues.
- The amount parents argue after divorce strongly affects a child’s adjustment. The solution is to avoid arguing in front of children about money, parenting arrangements and parenting parameters. Thoroughly review and try to reach agreement with your spouse as to what will be said to children beforehand. Give children only enough information to explain the situation considering their ages and developmental stages. Encourage children to write down their feelings
- Explain to the children what will concern them the most – their future living arrangements. Constantly reassure children of all ages that their lives will not be ruined and that certain facts and feelings will not change. Children strive on stability and routine. Absent abusive or other limited circumstances, children need and are entitled to substantial contact with both parents. Seek out and read books on the impact of divorce on children to better understand these and many other issues.
- The amount parents argue after divorce strongly affects a child’s adjustment. The solution is to avoid arguing in front of children about money, parenting arrangements and parenting parameters. Thoroughly review and try to reach agreement with your spouse as to what will be said to children beforehand. Give children only enough information to explain the situation considering their ages and developmental stages. Encourage children to write down their feelings
- The amount parents argue after divorce strongly affects a child’s adjustment. The solution is to avoid arguing in front of children about money, parenting arrangements and parenting parameters. Thoroughly review and try to reach agreement with your spouse as to what will be said to children beforehand. Give children only enough information to explain the situation considering their ages and developmental stages. Encourage children to write down their feelings
- The amount parents argue after divorce strongly affects a child’s adjustment. The solution is to avoid arguing in front of children about money, parenting arrangements and parenting parameters. Thoroughly review and try to reach agreement with your spouse as to what will be said to children beforehand. Give children only enough information to explain the situation considering their ages and developmental stages. Encourage children to write down their feelings
- Custody is divided into two basic parts: Legal Custody: Defined as who has the legal right to make important decisions in the child’s life such as education, religion, health and other major events. Physical Custody: Defined as where and when the children physically reside with each parent.
- In custody cases, the court's primary consideration is the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317, 696 A.2d 556 (1997). The court must focus on the "safety, happiness, physical, mental and moral welfare" of the children. Fantony v. Fantony, 21 N.J. 525, 536, 122 A.2d 593 (1956). See also P. T. v. M.S., 325 N.J. Super. 193, 215, 738 A.2d 385(App.Div.1999) ("In issues of custody and visitation ‘[t]he question is always what is in the best interests of the children, no matter what the parties have agreed to.' ") (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479, 708 A.2d 1232 (Ch.Div.1997)). Custody issues are resolved using a best interests analysis that gives weight to the factors set fort in N.J.S.A. 9:2-4(c). V.C. v. M.J.B., 163 N.J. 200, 227-28, 748 A.2d 539, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).
- Expressly relying on the directive of N.J.S.A. 9:2-4, the Appellate Division in Mitchell v. Henry, No. 20-2-4042 (App. Div. June 18, 2003), has asserted that shared physical custody is the Court’s clear preference for custody decrees. The Mitchell Appellate Division emphasized the State legislative public policy mandate found in N.J.S.A. 9:2-4, which directs that a Court must give shared physical custody great deference in determining an appropriate custody arrangement. Id. at slip. op. 4. Specifically, N.J.S.A. 9:2-4 states, in pertinent part: The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
- 1.The parents' ability to agree, communicate and cooperate in matters relating to the child; 2.The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; 3.The interaction and relationship of the child with its parents and siblings; 4.The history of domestic violence, if any; 5.The safety of the child and the safety of either parent from physical abuse by the other parent; 6. The preference of the child when of sufficient age and capacity to reason so as to for an intelligent decision; 7.The needs of the child; 8.The stability of the home environment offered; 9.The quality and continuity of the child's education; 10.The fitness of the parents; 11.The geographical proximity of the parents' homes; 12.The extent and quality of the time spent with the child prior to or subsequent to the separation; 13.The parents' employment responsibilities; and 14.The age and number of the children.
- 1.The parents' ability to agree, communicate and cooperate in matters relating to the child; 2.The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; 3.The interaction and relationship of the child with its parents and siblings; 4.The history of domestic violence, if any; 5.The safety of the child and the safety of either parent from physical abuse by the other parent; 6. The preference of the child when of sufficient age and capacity to reason so as to for an intelligent decision; 7.The needs of the child; 8.The stability of the home environment offered; 9.The quality and continuity of the child's education; 10.The fitness of the parents; 11.The geographical proximity of the parents' homes; 12.The extent and quality of the time spent with the child prior to or subsequent to the separation; 13.The parents' employment responsibilities; and 14.The age and number of the children.
- 1.The parents' ability to agree, communicate and cooperate in matters relating to the child; 2.The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; 3.The interaction and relationship of the child with its parents and siblings; 4.The history of domestic violence, if any; 5.The safety of the child and the safety of either parent from physical abuse by the other parent; 6. The preference of the child when of sufficient age and capacity to reason so as to for an intelligent decision; 7.The needs of the child; 8.The stability of the home environment offered; 9.The quality and continuity of the child's education; 10.The fitness of the parents; 11.The geographical proximity of the parents' homes; 12.The extent and quality of the time spent with the child prior to or subsequent to the separation; 13.The parents' employment responsibilities; and 14.The age and number of the children.
- New Jersey Court Rule 5:6A provides as follows:The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the Court. The guidelines may be modified or disregarded by the Court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the Court. Use of the Child Support Guidelines as a Rebuttable Presumption - Appendix IX-A to the Rules provides as follows: ...these guidelines must be used as a rebuttable presumption to establish and modify all child support orders. The guidelines must be applied in all actions, contested and uncontested, in which child support is being determined including those involving pendente lite (temporary) support, interstate support (Uniform Interstate Family Support Act UIFSA)), domestic violence, foster care, divorce, non-dissolution, and public assistance (Temporary Assistance to Needy Families or TANF). A rebuttable presumption means that an award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the Court that circumstances exist that make a guidelines-based award inappropriate in a specific case. The guidelines may be disregarded or a guidelines-based award adjusted if a party shows, and the Court finds, that such action is appropriate due to a conflict with one of the factors set forth in sections 4, 7, 10, 13, 14, 15 or 20 of Appendix IX-A, or due to the fact that an injustice would result due to the application of the guidelines in a specific case.
- a. In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the Court in those cases not governed by Court Rule shall consider, but not be limited to, the following factors: (1) Needs of the child; (2) Standard of living and economic circumstances of each parent; (3) All sources of income and assets of each parent; (4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment; (5) Need and capacity of the child for education, including higher education; (6) Age and health of the child and each parent; (7) Income, assets and earning ability of the child; (8) Responsibility of the parents for the Court-ordered support of others; (9) Reasonable debts and liabilities of each child and parent; and (10) Any other factors the Court may deem relevant
- Camp; Uncovered health care expenses after the first $250 per child/per year; Tutors; Private school; Extracurricular activities and equipment not included in child support pursuant to Appendix IX-A(8) of the Child Support Guidelines; College
- In Newburgh v. Arrigo, 88 N.J. 529 (1982), the court recognized the child’s relationship to the paying parent, including mutual affection and shared goals, as well as responsiveness to parental advice and guidance, as a relevant factor in deciding the extent of that parental obligation for college. In evaluating the claim for contribution toward the cost of higher education, courts should consider al relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
- In Newburgh v. Arrigo, 88 N.J. 529 (1982), the court recognized the child’s relationship to the paying parent, including mutual affection and shared goals, as well as responsiveness to parental advice and guidance, as a relevant factor in deciding the extent of that parental obligation for college. In evaluating the claim for contribution toward the cost of higher education, courts should consider al relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.
- N.J.S.A. 2A:34-23(c) states as follows: “In any case in which there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the above factors. If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefore. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about the factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded. An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the non-occurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances. In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.” The new alimony statute also provides, among other items, that the court may award permanent alimony, limited duration, rehabilitative alimony or reimbursement alimony, separately or in any combination, as may be warranted by the circumstances in the particular case.
- 1. THE ACTUAL NEED AND ABILITY OF THE PARTIES TO PAY; 2. THE DURATION OF THE MARRIAGE; 3. THE AGE, PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES; 4. THE STANDARD OF LIVING ESTABLISHED IN THE MARRIAGE AND THE LIKELIHOOD THAT EACH PARTY CAN MAINTAIN A REASONABLY COMPARABLE STANDARD OF LIVING; 5. THE EARNING CAPACITIES, EDUCATIONAL LEVELS, VOCATIONAL SKILLS, AND EMPLOYABILITY OF THE PARTIES; 6. THE LENGTH OF ABSENCE FROM THE JOB MARKET AND CUSTODIAL RESPONSIBILITIES FOR CHILDREN OF THE PARTY SEEKING MAINTENANCE; 7. THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY SEEKING MAINTENANCE TO FIND APPROPRIATE EMPLOYMENT, THE AVAILABILITY OF THE TRAINING AND EMPLOYMENT, AND THE OPPORTUNITY FOR FUTURE ACQUISITIONS OF CAPITAL ASSETS AND INCOME; 8. THE HISTORY OF THE FINANCIAL OR NON-FINANCIAL CONTRIBUTIONS TO THE MARRIAGE BY EACH PARTY INCLUDING CONTRIBUTIONS TO THE CARE AND EDUCATION OF THE CHILDREN AND INTERRUPTION OF PERSONAL CAREERS OR EDUCATIONAL OPPORTUNITIES; 9. THE EQUITABLE DISTRIBUTION OF PROPERTY ORDERED AND ANY PAYOUTS ON EQUITABLE DISTRIBUTION, DIRECTLY OR INDIRECTLY, OUT OF CURRENT INCOME, TO THE EXTENT THIS CONSIDERATION IS REASONABLE, JUST AND FAIR; AND 10. ANY OTHER FACTORS WHICH THE COURT MAY DEEM RELEVANT.
- 1. THE ACTUAL NEED AND ABILITY OF THE PARTIES TO PAY; 2. THE DURATION OF THE MARRIAGE; 3. THE AGE, PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES; 4. THE STANDARD OF LIVING ESTABLISHED IN THE MARRIAGE AND THE LIKELIHOOD THAT EACH PARTY CAN MAINTAIN A REASONABLY COMPARABLE STANDARD OF LIVING; 5. THE EARNING CAPACITIES, EDUCATIONAL LEVELS, VOCATIONAL SKILLS, AND EMPLOYABILITY OF THE PARTIES; 6. THE LENGTH OF ABSENCE FROM THE JOB MARKET AND CUSTODIAL RESPONSIBILITIES FOR CHILDREN OF THE PARTY SEEKING MAINTENANCE; 7. THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY SEEKING MAINTENANCE TO FIND APPROPRIATE EMPLOYMENT, THE AVAILABILITY OF THE TRAINING AND EMPLOYMENT, AND THE OPPORTUNITY FOR FUTURE ACQUISITIONS OF CAPITAL ASSETS AND INCOME; 8. THE HISTORY OF THE FINANCIAL OR NON-FINANCIAL CONTRIBUTIONS TO THE MARRIAGE BY EACH PARTY INCLUDING CONTRIBUTIONS TO THE CARE AND EDUCATION OF THE CHILDREN AND INTERRUPTION OF PERSONAL CAREERS OR EDUCATIONAL OPPORTUNITIES; 9. THE EQUITABLE DISTRIBUTION OF PROPERTY ORDERED AND ANY PAYOUTS ON EQUITABLE DISTRIBUTION, DIRECTLY OR INDIRECTLY, OUT OF CURRENT INCOME, TO THE EXTENT THIS CONSIDERATION IS REASONABLE, JUST AND FAIR; AND 10. ANY OTHER FACTORS WHICH THE COURT MAY DEEM RELEVANT.
- Arising from the court’s inherent ability to “require reasonable security” assuring the payment of child support and alimony, most Matrimonial Settlement Agreements (hereinafter “Agreement”) containing alimony and child support provisions mandate the payor spouse to maintain life insurance on his/her life for the benefit of the dependent spouse and children. Section 2A:34-23 of the New Jersey Annotated Statutes states: Pending any matrimonial action brought in this State or elsewhere, or after judgment of divorce or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders, including, but not limited to, the creation of trusts or other security devices, to assure payment of reasonably foreseeable medical and educational expenses. While these obligations are consistent provisions in almost every Agreement, the manner in which these provisions are set forth varies from Agreement to Agreement. .
- All agreements or judgments of divorce must make some provision for the continuation of health insurance benefits for the spouses and children. Spouses: If a spouse’s health insurance is provided through the other spouse’s employment, there should be a provision to address the continuation of those benefits (through state conversion statutes or federal C.O.B.R.A. laws). Children: The party or parties who maintained insurance for the children during the marriage will likely be required to continue that coverage after the divorce. .
- All agreements or judgments of divorce must make some provision for the continuation of health insurance benefits for the spouses and children. Spouses: If a spouse’s health insurance is provided through the other spouse’s employment, there should be a provision to address the continuation of those benefits (through state conversion statutes or federal C.O.B.R.A. laws). Children: The party or parties who maintained insurance for the children during the marriage will likely be required to continue that coverage after the divorce. .
- Equitable Distribution refers to the distribution by the divorce court of the property legally or beneficially acquired by either party during the marriage based on factors (addressed hereafter). Subject to certain exceptions, assets brought into the marriage by either party, inherited or gifted to a party (excluding gifts from the other party) are exempt from distribution. When exempt assets increase in value during the marriage, a court must assess the reasons for the increase in value to determine what portion, if any, is subject to distribution. There is a three-part approach to equitable distribution: (1) identify the assets subject to distribution; (2) value the assets subject to distribution; and (3) distribute the assets after consideration of all statutory factors. .
- a. THE DURATION OF THE MARRIAGE; b. THE AGE AND PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES; c. THE INCOME OR PROPERTY BROUGHT TO THE MARRIAGE BY EACH PARTY; d. THE STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE; e. ANY WRITTEN AGREEMENT MADE BY THE PARTIES BEFORE OR DURING THE MARRIAGE CONCERNING AN ARRANGEMENT OF PROPERTY DISTRIBUTION; f. THE ECONOMIC CIRCUMSTANCES OF EACH PARTY AT THE TIME THE DIVISION OF PROPERTY BECOMES EFFECTIVE; g. THE INCOME AND EARNING CAPACITY OF EACH PARTY, INCLUDING EDUCATIONAL BACKGROUND, TRAINING, EMPLOYMENT SKILLS, WORK EXPERIENCE, LENGTH OF ABSENCE FROM THE JOB MARKET, CUSTODIAL RESPONSIBILITIES FOR CHILDREN, AND THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY TO BECOME SELF-SUPPORTING AT A STANDARD OF LIVING REASONABLY COMPARABLE TO THAT ENJOYED DURING THE MARRIAGE; h. THE CONTRIBUTION BY EACH PARTY TO THE EDUCATION, TRAINING OR EARNING POWER OF THE OTHER, i. THE CONTRIBUTION OF EACH PARTY TO THE ACQUISITION, DISSIPATION, PRESERVATION, DEPRECIATION OR APPRECIATION IN THE AMOUNT OR VALUE OF THE MARITAL PROPERTY, AS WELL AS THE CONTRIBUTION OF A PARTY AS A HOMEMAKER; j. THE TAX CONSEQUENCES OF THE PROPOSED DISTRIBUTION TO EACH PARTY; k. THE PRESENT VALUE OF THE PROPERTY; l. THE NEED OF A PARENT WHO HAS PHYSICAL CUSTODY OF A CHILD TO OWN OR OCCUPY THE MARITAL RESIDENCE AND TO USE OR OWN THE HOUSEHOLD EFFECTS; m. THE DEBTS AND LIABILITIES OF THE PARTIES; n. THE NEED FOR CREATION, NOW OR IN THE FUTURE, OF A TRUST FUND TO SECURE REASONABLY FORESEEABLE MEDICAL OR EDUCATIONAL COSTS FOR A SPOUSE OR CHILDREN; AND o. THE EXTENT TO WHICH A PARTY DEFERRED ACHIEVING THEIR CAREER GOALS; AND p. ANY OTHER FACTORS WHICH THE COURT MAY DEEM RELEVANT. .
- a. THE DURATION OF THE MARRIAGE; b. THE AGE AND PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES; c. THE INCOME OR PROPERTY BROUGHT TO THE MARRIAGE BY EACH PARTY; d. THE STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE; e. ANY WRITTEN AGREEMENT MADE BY THE PARTIES BEFORE OR DURING THE MARRIAGE CONCERNING AN ARRANGEMENT OF PROPERTY DISTRIBUTION; f. THE ECONOMIC CIRCUMSTANCES OF EACH PARTY AT THE TIME THE DIVISION OF PROPERTY BECOMES EFFECTIVE; g. THE INCOME AND EARNING CAPACITY OF EACH PARTY, INCLUDING EDUCATIONAL BACKGROUND, TRAINING, EMPLOYMENT SKILLS, WORK EXPERIENCE, LENGTH OF ABSENCE FROM THE JOB MARKET, CUSTODIAL RESPONSIBILITIES FOR CHILDREN, AND THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY TO BECOME SELF-SUPPORTING AT A STANDARD OF LIVING REASONABLY COMPARABLE TO THAT ENJOYED DURING THE MARRIAGE; h. THE CONTRIBUTION BY EACH PARTY TO THE EDUCATION, TRAINING OR EARNING POWER OF THE OTHER, i. THE CONTRIBUTION OF EACH PARTY TO THE ACQUISITION, DISSIPATION, PRESERVATION, DEPRECIATION OR APPRECIATION IN THE AMOUNT OR VALUE OF THE MARITAL PROPERTY, AS WELL AS THE CONTRIBUTION OF A PARTY AS A HOMEMAKER; j. THE TAX CONSEQUENCES OF THE PROPOSED DISTRIBUTION TO EACH PARTY; k. THE PRESENT VALUE OF THE PROPERTY; l. THE NEED OF A PARENT WHO HAS PHYSICAL CUSTODY OF A CHILD TO OWN OR OCCUPY THE MARITAL RESIDENCE AND TO USE OR OWN THE HOUSEHOLD EFFECTS; m. THE DEBTS AND LIABILITIES OF THE PARTIES; n. THE NEED FOR CREATION, NOW OR IN THE FUTURE, OF A TRUST FUND TO SECURE REASONABLY FORESEEABLE MEDICAL OR EDUCATIONAL COSTS FOR A SPOUSE OR CHILDREN; AND o. THE EXTENT TO WHICH A PARTY DEFERRED ACHIEVING THEIR CAREER GOALS; AND p. ANY OTHER FACTORS WHICH THE COURT MAY DEEM RELEVANT. .
- a. THE DURATION OF THE MARRIAGE; b. THE AGE AND PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES; c. THE INCOME OR PROPERTY BROUGHT TO THE MARRIAGE BY EACH PARTY; d. THE STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE; e. ANY WRITTEN AGREEMENT MADE BY THE PARTIES BEFORE OR DURING THE MARRIAGE CONCERNING AN ARRANGEMENT OF PROPERTY DISTRIBUTION; f. THE ECONOMIC CIRCUMSTANCES OF EACH PARTY AT THE TIME THE DIVISION OF PROPERTY BECOMES EFFECTIVE; g. THE INCOME AND EARNING CAPACITY OF EACH PARTY, INCLUDING EDUCATIONAL BACKGROUND, TRAINING, EMPLOYMENT SKILLS, WORK EXPERIENCE, LENGTH OF ABSENCE FROM THE JOB MARKET, CUSTODIAL RESPONSIBILITIES FOR CHILDREN, AND THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY TO BECOME SELF-SUPPORTING AT A STANDARD OF LIVING REASONABLY COMPARABLE TO THAT ENJOYED DURING THE MARRIAGE; h. THE CONTRIBUTION BY EACH PARTY TO THE EDUCATION, TRAINING OR EARNING POWER OF THE OTHER, i. THE CONTRIBUTION OF EACH PARTY TO THE ACQUISITION, DISSIPATION, PRESERVATION, DEPRECIATION OR APPRECIATION IN THE AMOUNT OR VALUE OF THE MARITAL PROPERTY, AS WELL AS THE CONTRIBUTION OF A PARTY AS A HOMEMAKER; j. THE TAX CONSEQUENCES OF THE PROPOSED DISTRIBUTION TO EACH PARTY; k. THE PRESENT VALUE OF THE PROPERTY; l. THE NEED OF A PARENT WHO HAS PHYSICAL CUSTODY OF A CHILD TO OWN OR OCCUPY THE MARITAL RESIDENCE AND TO USE OR OWN THE HOUSEHOLD EFFECTS; m. THE DEBTS AND LIABILITIES OF THE PARTIES; n. THE NEED FOR CREATION, NOW OR IN THE FUTURE, OF A TRUST FUND TO SECURE REASONABLY FORESEEABLE MEDICAL OR EDUCATIONAL COSTS FOR A SPOUSE OR CHILDREN; AND o. THE EXTENT TO WHICH A PARTY DEFERRED ACHIEVING THEIR CAREER GOALS; AND p. ANY OTHER FACTORS WHICH THE COURT MAY DEEM RELEVANT. .
- Mortgage interest and real estate tax deductions Children’s exemptions Head of Household status Capital Gains Deductions for alimony (final and pendente lite) Carry Forward Losses Income Tax Returns Previously filed joint returns Returns for years of pending divorce action Returns after divorce Indemnifications Tax deductions related to professional fees
- Entry of a Final Restraining Order In order for the Court to enter a Final Restraining Order, a Judge must determine first, that an aggressor committed one of the enumerated acts under the Prevention of Domestic Violence Act, as defined at N.J.S.A. 2C:25-19(a): · Homicide, · Assault, · Terroristic Threats, · Kidnapping, · Criminal Restraint, · False Imprisonment, · Sexual Assault, · Criminal Sexual Contact, · Lewdness, · Criminal Mischief, · Burglary, · Criminal Trespass, · Harassment, and · Stalking be denied.