Disability determination does not eliminate child support obligation

Posted on August 17, 2012 by Sandy Durst

As highlighted in the New Jersey Law Journal, an important case regarding the impact of a finding of Social Security Disability on one’s obligation to pay child support was recently decided.  Child support obligations are subject to review upon a substantial change in circumstances.   In this case it appears as though the parent paying child support was in fact determined to be disabled by the Social Security Administration.  In turn, the disabled parent sought to have their child support obligation automatically terminated.  The court did not agree with the moving party and re-affirmed the requirement that in party claiming they cannot pay support shoulder the burden of proving they are unable to pay.

 

SOCIAL SECURITY DISABILITY HELD NOT TO DISCHARGE CHILD SUPPORT DUTIES
Just because a parent qualifies for Social Security disability benefits does not necessarily mean he or she is unable to pay child support, a New Jersey trial judge says. A declaration of disability by the Social Security Administration “cannot automatically be interpreted by the family court as a finding … that the party cannot work at all,” wrote Ocean County Family Part Judge Louis Jones in Gilligan v. Gilligan, FM-15-807-02. The ruling, approved Tuesday for publication, places the burden on parents claiming disability to prove that they are unable to pay anything and makes it clear that it is not enough just to brandish a disability award letter.

Posted in Durst Firm News, Durst on Divorce | Tagged , | Comments Off on Disability determination does not eliminate child support obligation

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.

Posted in Durst Firm News | Tagged , , , | Comments Off on Can I get my support obligations reduced?

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.   

 

Posted in Durst Firm News, Durst on Divorce | Tagged , | Comments Off on WHAT IS A MOTION FOR TEMPORARY RELIEF?

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.

Posted in Durst Firm News, Durst on Divorce | Tagged , | Comments Off on Do I get to keep the engagement ring?

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

 

 

Posted in Durst Firm News, Durst on Divorce | Tagged , , , , | Comments Off on Will a bankruptcy filing impact my divorce?