Can I get my support obligations reduced?

Posted on August 16, 2012 by Sandy Durst

In today’s challenging economy many people inquire as to whether or not they can have previously ordered or agreed to alimony or child support obligations reduced. As with many family law questions, the answer is “maybe”.

Support obligations may be reviewed and modified upon a showing of a substantial change in circumstances. Ordinarily, the change is either the loss of employment or a reduction in income. In order to qualify for relief the change must not be voluntarily incurred. You cannot quit your job or purposefully lower your income and expect the court to grant you relief. The change must also be long term. This means that you cannot seek relief in the days or weeks immediately following your termination. Many judges look for a period of unemployment continuing six months or more before granting relief.

During this waiting period it is important that you continue and document your job search efforts. A court will want to see a diligent effort at replacing the lost income. Keep copies of cover letters, online applications, rejection letters and your updated resume.

Presenting a modification request to the court can be a significant undertaking and the inherent delays in the system may certainly be stressful. If you believe your circumstances warrant a reduction in your alimony or child support, consult with an experienced divorce attorney as soon as possible to discuss your options and build your strategy.

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WHAT IS A MOTION FOR TEMPORARY RELIEF?

Posted on August 16, 2012 by Sandy Durst

WHAT IS A MOTION FOR TEMPORARY RELIEF?

 In New Jersey, the family court system is instructed to do all it can to resolve divorce cases within one year of the filing of a Complaint for Divorce.  Depending on a particular case, this can seem like a very quick or painfully slow timeframe.  Because of the length of time between the filing a complaint for divorce and scheduling of a trial, issues routinely arise that require immediate attention.  Issues such as spousal support, child support, payment of household bills, and parenting time can be addressed by the filing of a motion for temporary, or pendente lite, relief.  

These types of motions are very common and are done by filing a notice of motion with the Court which sets forth the specific relief requested and supporting certifications signed by the parties.  If a party is seeking financial relief of some sort, then a Case Information Statement (also referred to as a CIS) must be filed, if one has not yet been submitted.    The Case Information Statement is perhaps the most important document in your divorce.  The CIS shows current income, the prior year’s income, monthly expenses of the household, including shelter expenses, transportation expenses and personal expenses, as well as assets and liabilities.  You should also attach your last three pay stubs and prior years’ income tax returns.  The more information you can supply, the better informed the judge will be and the more likely you can prevail.

The Notice of Motion and the Response and Reply must be filed in accordance with the timeframes set forth in the New Jersey Court Rules.  Following the filing schedule allows the Judge to review these papers prior to the hearing date, and after hearing oral argument of counsel on the issues, will make a decision.    Since this is not a full trial on the issues, the Court relies heavily on the financial information submitted as well as the information provided in certifications.  

 

When raising a temporary alimony claim it is imperative to address all of the statutory factors as best possible.  Assets and liabilities are dealt with under the Equitable Distribution statute.   

Other  issues  that  may  be  heard  on  a pendente  lite or  a temporary  basis are  those  of college tuition expenses,  the sale of the marital residence, requests to restrain the  parties from liquidating or transferring marital assets, requests for continuation of medical insurance or life insurance, and requests for attorneys’ fees or expert witness fees.

These temporary orders of the court are temporary in nature and become void upon the entry of a judgment of divorce or property settlement agreement.   

 

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Do I get to keep the engagement ring?

Posted on August 14, 2012 by Sandy Durst

The question of who gets to keep the engagement ring when the relationship ends is one that I often get from clients.  Depending on the facts, my answer is sure to disappoint one party.  In New Jersey, an engagement ring is considered a conditional gift.  That is, it is a gift given conditioned upon the realization of a specific event.  In this context, the event is the marriage.  Simply put, if the engagement ends without the marriage taking place the condition has not been satisfied and the ring is to be returned to the giver.  This is true regardless of which party calls off the engagement. 

The outcome is completely different once the marriage has taken place.  Now, the condition has been satisfied and the engagement ring is now the property of the recipient.  Should the marriage end in divorce, the recipient would be entitled to keep the engagement ring.

Disputes over the engagement ring most frequently arise in a divorce when the engagement ring was a family heirloom.  While using a family treasure as an engagement ring is a romantic gesture, it can lead to problems down the road.  If you are using such a ring, you must be prepared for it to leave your family in the event of a divorce.

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Will a bankruptcy filing impact my divorce?

Posted on August 13, 2012 by Sandy Durst

Will a bankruptcy filing impact my divorce?

By: Sandy Durst, Esq.

       Lynch, Osborne, Gilmore & Durst

A difficult economy often leads to divorce.  Difficult financial times also result in an increase in bankruptcy filings.  It is important that both you and your attorney understand the interplay between divorce proceedings and bankruptcy proceedings.  Bankruptcy may be a viable, if not necessary, legal alternative for many people faced with  credit card debt, declining real estate values, and unmarketable of real estate combined with unemployment. However, it is important to keep in mind how bankruptcy can impact divorce proceedings and financial obligations such as alimony, child support, and equitable distribution.

Divorce proceedings take place in State Court while Bankruptcy cases are heard in Federal Court. The assets and liabilities that comprise the marital estate may also comprise the bankruptcy estate.  This overlap puts one pool of assets and liabilities under the jurisdiction of two courts.

Our legal system is structured in a way that the Federal Court and federal statutes take precedent over the State Courts.  This means that  although a divorce may be pending in the State Court and orders may have already been entered by the State Court, once a bankruptcy petition is filed many of the issues become subject to review and/or approval by the Federal Bankruptcy Court.

The Federal Bankruptcy Code imposes an “automatic stay” upon any other pending judicial proceeding.   This provision, for example, prevents a creditor from suing to collect their debt while the debtor is in the bankruptcy proceeding.  It also specifically stays the allocation  or  distribution  of  property  or  assets in  a  divorce  case  until  the  bankruptcy  is completed. Clearly, the automatic stay can have a severe impact on divorce proceedings. The automatic stay does not not stay the imposition or collection of alimony or child support, the issues of child custody or the dissolution of the marriage itself.   These issues may be decided by the State Court but no assets can be distributed without the permission of the Bankruptcy court..

          A bankruptcy allows the debtor to discharge certain liabilities.  Alimony and child support obligations are not dischargeable in bankruptcy and will remain an obligation of the debtor.

Significant problems can also arise if parties continue in joint ownership of property or remain jointly liable for debts after the divorce.

At a time when bankruptcy filings have reached unprecedented numbers, care should be taken in drafting the terms of the divorce settlement so that the terms comply with the law and meet the expectations of both parties

 

 

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Who pays for college after the divorce?

Posted on August 13, 2012 by Sandy Durst

WHO PAYS FOR COLLEGE AFTER THE DIVORCE

By:           Sandy Durst, Esq.

                Lynch, Osborne, Gilmore & Durst

 

The issue of who pays for the college education of unemancipated children after a divorce is often emotionally charged and financially stressful topic.  When a divorce occurs when the children are young it may seem to be premature to have the Judgment of Divorce address the issue of college education, and if a Property Settlement Agreement was entered into between the parties at the time of the divorce it generally states that the issue of who pays for college education will be determined at the time the children are applying to college.  While such an approach is common, the better practice is to make at least a minimal mention of the issue.  Even if the ultimate financial determinations cannot be made it would be wise to at least include a reference that the parties’ expect the children to attend college or not.

As with the other financial issues that comprise a divorce settlement agreement, it is always preferable if the litigants can arrive at their own settlement.  Whether the issue of college expenses is decided by agreement or by the judge, the guiding principles are detailed in the case of Newburgh v. Arrigo.  While the debate on whether or not divorced parents should be required to contribute towards the college expenses of their children when parents in an intact family do not, this case is still the controlling law in New Jersey.

                The issues for consideration as detailed in Newburgh are: In evaluating a claim for contribution towards the cost of college education, it has been held by the Supreme Court of New Jersey that the courts should consider all relevant factors including (1)whether the parent, if still living with the children, 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 owed 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 advise and guidance and (12) the relationship of the education requested to any prior training and to the overall long range goals of the child. 

When drafting a Property Settlement Agreement with

regards to college education it is common to require that if the unemancipated children of the marriage are capable of and have the ability to attend college, the Husband and Wife, to the extent that they may be financially able to do so, shall pay for or contribute to the college expenses of the child. It is prudent to define what expenses the parties include in the broad definition of “college expenses”.  Taking the time to do this when drafting the Agreement can save time and money down the road.  Examples of college expenses may include, but not be limited to, room, board, tuition, travel expenses to and from the custodial parent’s residence for major vacations, and all other miscellaneous fees.

The choice of a particular school is generally to be agreed upon between the Husband, Wife, and the child involved.  This was reaffirmed in the case of Gac v. Gac.  Failure to include the non-custodial parent in the selection process could relieve that parent from having to contribute.  Both parties should cooperate in filing any financial aid forms and/or applying for student loans or scholarship money.

Because the cost of college education these days is exorbitant, this issue presents a difficult problem for families that have been affected by divorce.

The Newburgh Factors do not provide any clear answers; they simply provide guidance to the parents and to the judge. It remains a question of fact as to what percentage each parent should contribute to the college education of their children based on a combination of objective and subjective criteria. The objective or concrete facts such as the incomes of both parties, the assets of both parties, and the financial resources of the child are easy to determine. The other factors dealing with goals, commitment of the child and the child’s relationship with the parent are more subjective factors which are not as easily ascertainable. However difficult to establish, all of these factors are to be considered by the court.

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