______________________________________________________________________________ YUDES CONSUMER GUIDE TO A NEW JERSEY DIVORCE ______________________________________________________________________________ By: James P. Yudes, Esq. Certified Matrimonial Lawyer © James P. Yudes, PC 2004 MEMBERS OF THE FIRM James P. Yudes started the firm in 1978. He is certified by the Supreme Court of New Jersey as a matrimonial attorney and is a Fellow of the International Academy of Matrimonial Lawyers and the American Academy of Matrimonial Lawyers. He has served as a Trustee of the New Jersey Bar Association and as Chairman of its Family Law Section. He has been selected to teach the preparatory course for the Supreme Court Matrimonial Law Certification. Mr. Yudes is the author of the ICLE publication, the Yudes Family Law Citator. He has been involved in many reported decisions which have had an impact upon New Jersey law and has sat on numerous Supreme Court Committees where he has authored Rules of Court and Statutes dealing with Family Law. Kevin M. Mazza has been a member of the law firm since 1983. A partner with the firm, Mr. Mazza has been a member of the American Bar Association, as well as the New Jersey and Union County Bar Associations; he has also been a member of the Association of Trial Lawyers of America. Mr. Mazza was appointed by the court and currently serves as a panelist in the Union County Early Settlement Program. Mr. Mazza has been a contributing author of the ICLE publication, the Yudes Family Law Citator, and has written numerous articles in the area of family law. He has been involved in several reported decisions that have had an impact on the articulation of legal principles and precedents in New Jersey. Mr. Mazza is licensed to practice law in the states of New Jersey and Pennsylvania. Karen Tichenor Willitts has been a member of the firm since 1999. Prior to joining the firm, she served as the law clerk to the Honorable Amy Piro Chambers, Presiding Judge of the Civil Division of Middlesex County. Ms. Willitts graduated from Rutgers University (Douglass College) with High Honors in 1993. After college, she worked as a financial analyst at Goldman Sachs & Co. in New York. She graduated from Rutgers Law School in Newark, New Jersey in 1998. Ms. Willitts has been a contributing author of the ICLE publication, the Yudes Family Law Citator. Allison E. Holzman has been a member of the firm since 2002. Prior to joining the firm, she was employed at the law firm of Connell Foley in Roseland, New Jersey. Ms. Holzman graduated from the University of Michigan in 1998. She graduated from Fordham Law School in New York City in 2001, where she was a member of the International Law Journal. Ms. Holzman has been a contributing author of the ICLE publication, the Yudes Family Law Citator. She is licensed to practice law in New Jersey and in New York. Jason L. Rogers joined the firm in early 2004. Mr. Rogers graduated from the University of North Carolina. He graduated from Seton Hall University School of Law in 2001. Mr. Rogers served as a judicial law clerk to the Honorable Nancy Sivilli, J.S.C. until August 2002. He has been in private practice since the expiration of his clerkship. INDEX CHAPTER I Alimony .....................................................................1 Determining Alimony ............. .......................................4 Earning Capacity ........................................................5 Post Judgment Application for Alimony ......................................6 Modification of Alimony ........... .......................................6 Anti-Modification Clauses ................................................11 Alimony and Child Support ...............................................12 Extension of Alimony ............................................. ......13 Protecting the Dependent Spouse ..........................................13 Marital “Fault” and Alimony ..............................................14 Domestic Violence ................................................ ......15 Antenuptial Agreements .................................................15 Jurisdiction ............................................................16 CHAPTER II Child Support ...............................................................17 Obtaining an Initial Support Order .........................................17 Filing for Child Support in Non-dissolution cases .............................18 Filing for Child Support During Divorce ....................................19 Criteria Considered by the Courts ..........................................20 Child Support Guidelines .................................................20 Modifying the Support Award .............................................23 When Child Support Will Terminate ........................................24 Paying for College ................................................ ......26 Emancipation ..........................................................27 Enforcing the Child Support Order When the Other Parent Does Not Pay ...................................................28 Uniform Interstate Family Support Act ......................................30 Filing the Proper Forms ............................................ ......32 i CHAPTER III Custody/Visitation Rights .....................................................34 Factors the Court Considers During a Custody Determination .................................................34 A Non-custodial Parent’s Role ............................................36 Steps to Take When Filing for Custody ........... ...........................36 Custody in Non-dissolution Cases ..........................................37 Guardian Ad Litem ......................................................37 Assessments Made by the Court of the Parents ................................38 More than One State .............................................. ......38 More than One Country ..................................................40 Modification ...........................................................41 Moving to a New State ............ ......................................42 Moving to New Jersey ...................................................43 Visitation .............................................................44 Visitation with Grandparents ..............................................46 Visitation with Step-parents and Partners ....................................47 Visitation in Non-dissolution Cases ........................................47 Termination of Visitation .................................................47 Adoption .............................................................48 Foster Care ............................................................48 Kidnaping .............................................................48 Termination of Parental Rights ............................................49 Conclusion ............................................................49 CHAPTER IV Marital Torts ...............................................................50 Battered Women’s Syndrome .............................................52 Assault and Battery ............................................... ......54 Intentional and Negligent Infliction of Emotional Distress ............................................ ......56 Fraudulent Conveyance ..................................................60 Wire Tapping ..........................................................62 Interference with Custodial Rights .........................................64 Malicious Abuse of Process/Malicious Use of Process ................... .....................................67 Trial by Jury ...........................................................68 ii CHAPTER V Equitable Distribution ........................................................71 Categories of Assets .....................................................74 Property Subject to Equitable Distribution ...................................75 Mental Capacity ........................................................77 Equitable Distribution and Support Obligations ...............................77 Death and Equitable Distribution ..........................................77 Distribution of Assets Pursuant to a Divorce ............................ ......78 Enforcement of the Judgment of Divorce ....................................79 Settlement Agreements ..................................................79 Modification ...........................................................79 Reconciliation .........................................................80 “Mid-marriage Agreements” ..............................................81 Ante-nuptial Agreement .................................................81 Marital Debt ...........................................................82 Bankruptcy ............................................................83 Lottery Winnings .......................................................83 Professional Degrees .............. ......................................84 Pensions ..............................................................84 Severance Package ......................................................86 Goodwill .............................................................86 iii YUDES CONSUMER GUIDE TO A NEW JERSEY DIVORCE CHAPTER I ALIMONY Alimony is the term used for payments made by one spouse to the other spouse after a marriage has been dissolved. It is an antiquated notion that only wives may receive alimony. The Supreme Court has held that pursuant to the Equal Protection Clause of the Constitution, husbands and wives are both entitled to receive alimony. Alimony is distinguishable from the equitable distribution of marital property. Equitable distribution looks retrospectively at what property the parties acquired during the marriage and involves decisions about how the parties will divide the “marital pot.” Alimony, on the other hand, is prospective and is used to balance the inequities in the parties’ earning capacities. Alimony is not designed to punish the payor spouse nor is it a reward to the payee spouse. Rather, the purpose of alimony is to permit both parties to continue to live, to the extent possible, according to the standard of living to which they became accustomed during the marriage due to their combined efforts, both inside and outside of the home. Parties are not taxed by the government on the equitable distribution of marital property. Alimony payments are, however, tax deductible by the payor spouse and taxable income to the payee spouse. Although alimony and equitable distribution are defined differently, the two concepts are inter-related. For example, the courts try to avoid “double dipping” when determining the amount of alimony. Retirement benefits such as pensions acquired during the marriage are considered marital assets subject to equitable distribution. If those retirement benefits are equitably distributed at the time of the divorce, those benefits cannot then also later be considered for alimony purposes because that would be double dipping. The New Jersey statute governing equitable distribution states: “When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.” (N.J.S.A. 2A:34-23). Yudes Consumer Guide to a New Jersey Divorce James P. Yudes, PC 1 Consequently, if a spouse receives an asset for his or her share under equitable distribution, the same asset cannot be used again to determine cash flow in calculating alimony. According to the New Jersey Supreme Court in Miller v. Miller 160 NJ 408 (1999), alimony is also related to equitable distribution because income may be earned by the investment of an asset, and the income that one spouse could or did earn on an asset may be considered part of the alimony calculation as well. Before the final judgment of divorce is entered, the court may order that the supporting spouse pay an interim form of support during the litigation, commonly referred to as pendente lite alimony. This form of alimony is modifiable at any time up to the final judgment of divorce. Sometimes in this phase of the case the court orders the supporting spouse to pay pendente lite support, but does not distinguish between alimony and child support, making it unallocated interim support. Pendente lite alimony is distinguishable from alimony received as part of divorce judgment or settlement. The goal of pendente lite support is to attempt to maintain the status quo. The goal of alimony as part of a divorce is generally to permit the dependent spouse to live a lifestyle that is at least reasonably comparable to the marital lifestyle, to the extent possible. As part of a divorce, there are several different types of alimony that the family court can award. One type is called permanent alimony. This is alimony that is paid to the dependent spouse without any final term. It ends when the dependent spouse dies or remarries, or if the supporting spouse dies. Permanent alimony is particularly common in long-term marriages where there is unequal earning capacity between the spouses, and the dependent spouse is unable to earn sufficient income to maintain a reasonably comparable marital lifestyle. This form of alimony may be modifiable based on a change in circumstance. In recent years, the Legislature chose to modify New Jersey’s alimony statute to permit an award of limited duration alimony, which is also sometimes called term alimony. This is alimony that is payable only for a specific term or period. This form of alimony is particularly useful where alimony seems appropriate or necessary but the marriage was not of such a duration that an award Yudes Consumer Guide to a New Jersey Divorce James P. Yudes, PC 2 of permanent alimony is appropriate. It is generally not appropriate in long term marriages. Like permanent alimony, it may be modified if there is a change in circumstance. However, while the amount may be modified, it is more difficult to obtain a modification of the term of alimony. Like limited duration alimony, rehabilitative alimony is payable for a specific term. However, the purpose of this form of alimony, is to provide support to a dependent spouse while he or she acquires education or training to permit him or her to obtain employment that would allow this spouse to be self-sufficient. If, however, at the end of the term the dependent spouse seeks to extend alimony, this spouse must demonstrate what efforts were made to become rehabilitated and why those efforts failed. Unlike limited duration alimony, rehabilitative alimony may be awarded in combination with permanent alimony. Rehabilitative alimony normally does not terminate if the supported spouse remarries. Reimbursement alimony compensates a spouse for economic sacrifices made during the marriage, where that spouse’s sacrifices helped to enhance the other spouse’s earning capacity. In general, the courts do not embrace the concept of spouses reimbursing one another because marriage is widely considered akin to a partnership, a joint enterprise. However, if one spouse supports the other so that he or she can obtain a professional degree with the understanding that both spouses will materially benefit from one spouse having obtained that degree in the future, the court may find it unfair for the spouse with the degree to retain not only the degree, but all of the financial benefits the degree has brought. The reimbursement generally covers all financial contributions toward the former spouse’s education, including household expenses, educational costs and any other contributions made to help the supported spouse earn his or her degree. Reimbursement alimony does not terminate if the supported spouse remarries. In some cases, the parties may agree that alimony will be paid in a lump sum instead of specific payments made over a period of time. The purpose of alimony remains the same, but instead of receiving periodic payments, the present value of the future stream of payments is calculated and this value is paid to the dependent spouse presently. Yudes Consumer Guide to a New Jersey Divorce James P. Yudes, PC 3 Under the Rules of Court, alimony payments are to be paid through the Probation Division of the county. However, direct payments to the dependent spouse may be made instead if “good cause” can be shown. If a payor spouse cannot obtain a money order or certified check, he/she may make direct payment. Determining Alimony It is important to understand that in calculating the amount of alimony, the family courts have a fair amount of discretion. The Supreme Court has established specific guidelines and formula for calculating child support based on the parties’ incomes, but when it comes to alimony, there are no such guidelines or formulas. New Jersey has case law and an alimony statute that requires the courts to consider specific factors when calculating alimony, so there are some guidelines and objective standards for the courts to consider, but there is no specific formula for the family court to calculate alimony. In general, New Jersey case law states that the courts must consider the marital lifestyle, the supporting spouse’s ability to pay, and the dependent spouse’s ability to contribute to his/her own support. The alimony statute, N.J.S.A 2A:34-23(b) states that the court must consider the following thirteen specific factors: the actual need and ability of the parties to pay; the duration of the marriage; the age, physical and emotional health of the parties; the standard of living established during the marriage and the likelihood that each party can maintain a reasonably comparable standard of living; the parties’ earning capabilities, education and employability; length of absence from the job market; parental responsibilities for the children; the time and expense needed to acquire education or training to enable a dependent spouse to obtain appropriate employment; the financial and non-financial contributions of each spouse to the marriage; equitable distribution; income available through investment of any assets; the tax consequences of alimony; and any other factors which the court deems relevant. As previously stated, the purpose of alimony is to permit the dependent spouse to live a lifestyle after the divorce that is reasonably comparable to the marital lifestyle. It should be Yudes Consumer Guide to a New Jersey Divorce James P. Yudes, PC 4