Does child support get reduced when a child moves away to attend college? Maybe.

Posted on October 8, 2013 by Sandy Durst

Under NJ law, divorce parents have an obligation to financially support the children of the marriage until they are emancipated.  There is no age at which a child will automatically be declared emancipated and each case needs to be evaluated and decided on an individualized basis.  However, the general rule is that if a child moves out of the home to attend college then the child support for that child should be recalculated and most likely reduced.  But be careful: as the case summary below describes, the parties eliminated this “automatic” review due to the specific language in their settlement agreement.  Without reading the entire settlement agreement I cannot offer an opinion as to the overall reasonableness of the decision but still, it should serve as warning and illustrates the benefits of working with an experienced divorce attorney.

 

FAMILY LAW 20-2-1516 Gartenberg v. Gartenberg, App. Div. (per curiam) (7 pp.) Defendant appeals from an order denying his application to reduce child support based on his youngest child residing away from plaintiff’s home at college. Defendant argues that the motion judge erred in reading the PSA to preclude a reduction in child support due only to the change in circumstances of his youngest child. Absent the parties’ agreement to the contrary, attendance at college away from home is considered a change of circumstances calling for the recalculation of child support. However, here the parties clearly agreed on what would constitute a change of circumstances. The parents decided that child support would continue until their last unemancipated child graduated from college or was otherwise emancipated, as long as defendant did not lose his job. The appellate panel affirms, agreeing with Judge Tassini’s conclusion that the PSA removes this case from the general provisions controlling modification of child support.

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When a motion just won’t do!

Posted on October 6, 2013 by Sandy Durst

The first step in attempting to resolve a dispute that arises during a divorce is to file a motion with the court.  A motion is comprised of 2 parts: the first is the Notice of Motion which sets forth the specific requests the litigant is asking the judge to rule on.  The second part is the certification which is the client’s statements as to why they are entitled to the relief they are seeking.  The other side gets the opportunity file a certification responding to the allegations and putting forth their own arguments.  Sometimes the dispute can be resolved based solely on these competing certifications.  However, often these certifications can raise additional questions and fail to resolve the underlying questions.  In those situations, a plenary hearing is required so that the court can obtain more information.

 

FAMILY LAW
20-2-1471 Seligman v. Pellen, App. Div. (per curiam) (19 pp.) In this postjudgment matrimonial dispute, defendant-father and plaintiff-mother each appeal certain decisions rendered by the Family Part concerning child support, emancipation and counsel fees. The appellate panel remands this matter for a plenary hearing concerning the issue of emancipation of the parties’ older son and also for a re-examination of child support and counsel fees. In addition, regardless of how that emancipation issue is resolved after the plenary hearing, there are aspects of the child-support calculus that warrant closer examination. It is unclear whether the amount plaintiff receives through what is substantially guidelines-based child support is still appropriate, in light of the father’s sixfold spike in income and the children’s right to share appropriately in the benefits of such enhanced family resources.

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Evidentiary hearing required in custody disputes

Posted on October 4, 2013 by Sandy Durst

Custody and parenting time disputes often involve factual disputes based on conflicting allegations and accusations made by the parties.  It can often be difficult to resolve these disputes and plenary hearings can be time consuming and expensive. In an effort to re 

FAMILY LAW
20-2-1472 M.H.S. v. L.G.S., App. Div. (per curiam) (18 pp.) In this matrimonial case, defendant-wife appeals by leave from several interlocutory orders of the Family Part that granted unsupervised overnight parenting time to plaintiff-husband; temporarily transferred physical custody of the infant child to the husband; and denied the wife’s applications for a stay. She also appeals as of right from an order directing that she be held in custody for refusing to produce the child for unsupervised parenting time with the husband. The orders were issued without the court holding an evidentiary hearing to consider the wife’s contention that the child was at risk because the husband was allegedly obsessed with Internet pornography that contained incestuous themes. The appellate panel makes no determination here that the husband, in fact, viewed incest or any other kind of pornography, but concludes that the Family Part erred in discrediting the wife’s accusations and ordering changes in parenting time and custody without conducting an evidentiary hearing. Furthermore, although the panel makes no determination as to whether the wife or her sister violated any law in installing spyware and intercepting computer images, or in the effect of any such violation on this case, the manner of their obtaining the evidence should not divert the Family Part from its primary function of evaluating the best interests of the child. The panel reverses and remands for an evidentiary hearing and other proceedings before a different judge.

alize a timely resolution courts often try to avoid conducting evidentiary hearings.  However, as the case bellows reaffirms, evidentiary hearings are often necessary and should not be avoided.

 

 

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You’ll pay the price for filing repeated frivolous claims

Posted on October 2, 2013 by Sandy Durst

As an attorney I sometimes find myself having to advise clients against pursuing a course of action they believe they must take.  My recommendations are given not because I don’t’ want the client to win, but because I know the law and I know the likelihood of success.  I also know, and the decision below affirms, that a  judge can not only deny a frivolous request bit can also asses an award of counsel fees against the offending party.

 

FAMILY LAW
20-2-1473 Farzan v. Farzan, App. Div. (per curiam) (10 pp.) Defendant appeals from portions of a Family Part order that (1) denied his motion to terminate child support for his 18-year-old daughter; (2) reduced to judgment prior counsel fee awards in plaintiff’s favor, totaling $2,300; and (3) awarded plaintiff an additional $700 counsel fee by virtue of defendant having again filed a frivolous, repetitive and unsupported motion. The panel affirms substantially for the reasons expressed below, adding that defendant’s argument that he should no longer be required to pay child support for his daughter because she is 18 and has completed high school is contrary to existing case law and contrary to the parties’ PSA, and that the counsel fees were awarded after a finding of bad faith that is supported in the record, defendant did not appeal the awards, and there is no indication that the fees were unreasonable.

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One professional cannot serve as both mediator and arbitrator.

Posted on September 30, 2013 by Sandy Durst

There are several options for resolving your divorce in New Jersey.  Traditional litigation, mediation, and arbitration are three such options.  Each option has it’s own pro’s and con’s and you should chose an option after careful consideration.  Meeting with an experienced divorce attorney is the first step to get you on the right path.  Each method has limitations.  Once such limitation is detailed in the recently decided and published case summarized below. 

 

FAMILY LAW
20-2-1458 Minkowitz v. Israeli, App. Div. (Lihotz, J.A.D.) (55 pp.) This matter considers whether the arbitrator, having once mediated issues in dispute, can thereafter resume the role of arbitrator. On appeal, plaintiff challenges five separate orders confirming arbitration awards. She maintains each must be set aside under N.J.S.A. 2A:23B-23 or, alternatively, requests the final judgment of divorce be vacated pursuant to Rule 4:50-1, based on alleged procedural violations, the arbitrator’s bias and substantive errors causing an unconscionable result. We affirmed orders confirming arbitration awards incorporating the parties’ written mediated settlement agreements. Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., __ N.J. __ (2013) (slip op. at 10, 31). However, after concluding an arbitrator may not conduct arbitration hearings once he or she functioned as a mediator, we vacated orders confirming arbitration orders entered after the arbitrator exceeded his powers. N.J.S.A. 2A:23B-23a(4). [Decided Sept. 25, 2013.]

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