Archive for the ‘Family Law’ Category

How do I get child support/alimony modified?

Tuesday, April 17th, 2012

Courts use a case called Lepis v. Lepis, and the factors contained in (called Lepis factors) in order to determine a modification in child support or alimony. Here are those factors:

In accordance with this general principle, courts have recognized “changed circumstances” that warrant modification in a variety of settings. Some of them include

(1) an increase in the cost of living.
(2) increase or decrease in the supporting spouse’s income.
(3) illness, disability or infirmity arising after the original judgment.
(4) the dependent spouse’s loss of a house or apartment.
(5) the dependent spouse’s cohabitation with another.
(6) subsequent employment by the dependent spouse.
(7) changes in federal income tax law.

Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred. In other words, temporary unemployment isn’t going to get you a modification.

The most annoying part of these standards is that courts do not apply them uniformly. There is a lot of variation at the edges where one judge might grant you a different result than the other. In these cases, although most of the motions are filed without an attorney, a consultation with an attorney might be the best way to increase your chances for success on a motion of this sort.

Do I Have to Live in New Jersey to File for Divorce in New Jersey?

Thursday, March 22nd, 2012

I have quoted the statute below that determines whether two people can get a divorce in New Jersey based on their residency.

1. When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action; except that no action for absolute divorce shall be commenced for any cause other than adultery, unless one of the parties has been for the 1 year next preceding the commencement of the action a bona fide resident of this State; or

2. When, since the cause of action arose, either party has become, and for at least 1 year next preceding the commencement of the action has continued to be, a bona fide resident of this State. (New Jersey Statutes – Title 2 A – Chapters: 34-8, 34.10)

Basically translated, this means that if one of the two spouses is a resident of New Jersey, and either has been for a year before the filing for divorce, or for a year before the “cause of action” arose (whatever is complained of to cause the divorce), then the divorce can be filed in New Jersey.

PSA Topics, Part 2

Saturday, February 25th, 2012

Here are some other topics you might see addressed in a PSA:

Health Insurance
Disposition of the Marital Home
Pension Plans
Tax Issues
Future Dispute Settlement

Health insurance becomes an issue if only one party has access to it, or if children are involved. Pension plans and tax issues are often dealt with in conjunction with the equitable distribution of property (see last post). Disposition of the marital home is sometimes a little trickier, because it is often the parties’ largest asset, and often one or both parties for many reasons do not want the home sold (for stability, or because it will continue to appreciate, or for children).

Among the most important provisions of a PSA is that of future dispute settlement. Divorcing couples will have disputes; that is often why they divorced in the first place. A well written PSA can minimize the number of times that those disputes end up in Court, where neither side is liable to get the kind of results they want, and lawyers will become expensive in a hurry. A PSA that notes a neutral third party and ways that the two ex spouses can address their complaints is one that will save the parties thousands in legal fees, and hours of headaches, down the line.

PSA Topics, Part 1

Saturday, February 25th, 2012

These are some of the issues you might see addressed in a property settlement agreement (PSA) in New Jersey:

Visitation
Child Support Payments Under New Jersey Law
Spousal Maintenance Under New Jersey Law
Property Division
Division of Debts

Visitation and child support are issues only relevant if you have children, obviously. Spousal maintenance may be an issue, especially if one spouse is the primary breadwinner (and the other one was at home taking care of children, or if the other spouse could not or did not work). Division of debts can also be important, if the couple has incurred large debts through credit cards, car loans, mortgages, or other debts.

The main issue in any PSA, though, is division of property. As I explained earlier, New Jersey follows an “equitable distribution” rule, which splits property fairly (although not necessarily equally). The Court can make the decision of how to split the property, but oftentimes the parties are much more satisfied (and spend much less on lawyers) if they can make the agreement themselves, and specify it here.

What is a Divorce “from Bed and board?”

Thursday, February 9th, 2012

There really is no formal proceeding to have a legal separation in New Jersey. There is an outdated legal proceeding called a “divorce from bed and board” that is similar to a legal separation. Basically, a divorce from bed and board is a legal proceeding that is not really a divorce, but it is more than a legal separation. A divorce from bed and board was very popular in the 50’s and 60’s. Many people believed that getting a divorce was a mortal sin. These kinds of beliefs were especially prevalent for people of the Catholic faith.

To address these concerns the courts developed a legal proceeding called a “divorce from bed and board.” In this type of proceeding, the parties are economically divorced but are still legally married. The parties receive a judgment that equitably distributes the assets, support awards are issued, and debts are apportioned. In these types of cases alimony is usually not awarded.

These proceedings are helpful in limited legal circumstances, such as if one spouse has a health condition and cannot get affordable health insurance. However, the parties are still legally married to one another, and that can cause all sorts of problems, especially if the parties are not civil to one another, and/or if they intend to remarry at some point in the future.

Insurance For Your Marriage: Why You Need A Premarital Agreement

Tuesday, January 3rd, 2012

This article was featured in a recent issue of the Mercer County Woman. It was written by Kimberly Pelkey Sdeo, an attorney with the firm.

You have insurance on your car in case of an accident and medical insurance in case you get sick.

Getting married is exciting. It’s also a good time to evaluate your personal financial circumstances and determine whether you need to insure your marriage. Premarital agreements help you to protect your assets and should be considered before you say “I do.”

In New Jersey, property acquired before marriage is called premarital property and will remain separate property unless commingled after the marriage. In New Jersey, premarital agreements are governed by a
law called the Uniform Premarital and Pre-Civil Union Agreement Act. N.J.S.A.§37:2-31 et seq.
The statute requires the Agreement to be in writing, signed by both parties with full disclosure of assets and liabilities to be enforceable. N.J.S.A. §37:2-33. Consider the following two hypothetical relationships:

Nick and Jessica

Jessica owns a house, which she bought five years ago for $250,000. After the wedding, Jessica and Nick move into her house and share the mortgage payment. Over time, they renovate the house and finish the basement where Nick creates his “man cave.” Five years later, Nick and Jessica divorce. The property is now worth $300,000 and the mortgage is $125,000. Since Nick has a marital interest in the equitable distribution of the house, Jessica must pay him $87,500 for his one-half net equity in the house. Jessica must refinance or sell the house to obtain the funds. If Jessica had a premarital agreement, she could have carved out the home and its equity as separate premarital property.

Reese and Ryan

Reese and Ryan meet at work, fall in love, get married and have two kids. Ryan stays home with their kids and turns to shopping online to comfort himself while Reese is off on her many business trips. Ten years later, Reese and Ryan call it quits. It is only after they split that Reese learns of Ryan’s credit card debt. Now the parties are separating and faced with $100,000 of debt.

Just like the equitable distribution of assets, upon a divorce, there is an equitable distribution of debts acquired during the marriage. Ryan hasn’t worked full-time in years and doesn’t have the means to pay the credit cards on his own, so Reese will absorb the credit card debt through making monthly support payments to Ryan.

If Reese had a premarital agreement, discussed finances and learned of Ryan’s habits before tying the knot, she could have stipulated that the debts in each party’s name remain his or her sole and separate liability in the event of a separation.

With a little foresight and planning, Jessica and Reese could have avoided these problems by insuring their marriages with a premarital agreement. Unsure if your marriage needs to be insured? Call me for a consultation.

As always, please feel free to leave comments or questions, and also check out our Facebook and Twitter feeds.

Child Support Basics – What Every Parent Should Know

Tuesday, December 6th, 2011

This article was featured in the most recent issue of the Mercer County Woman. It was written by two attorneys with our firm- Patricia Agoes and Kimberly Pelkey Sdeo.

Maggie meets Mike on a dating website, they instantly connect and ten months after their first date, they welcome baby Maxwell. Maggie cannot bear to leave Maxwell, but returns to work part-time and sends Maxwell to day care. Shortly after, Mike breaks up with Maggie. Mike and Maggie reluctantly accept the relationship is over. Mike moves out and visits the baby every other weekend.Not wanting to deal with lawyers and the Courts, Mike agrees to pay one-half the day care costs, but doesn’t think he should pay child support. Mike works a mechanic making $1,200 a week gross.

Soon, Mike stops paying for one-half of Maxwell’s day care. Maggie returns to work full-time as a nurse earning $900.00 gross per week, but it’s hardly enough to keep up with the monthly day care bill of $1,000.

Mike and Maggie argue about money every time they see each other and it upsets Maxwell. Maggie runs into a friend and tells her how hard it is to be a single mom with no support. Maggie’s friend gives her the name of a local family law attorney to call. Her friend tells her that a consultation doesn’t cost too much and she deserves to know her rights and options.

Maggie schedules an appointment with the attorney, who sat with her for over an hour. Maggie learned that child support is based upon the New Jersey Child Support Guidelines. The Guidelines approximate the costs to raise children based upon the income of each parent. The Guidelines include housing, clothing, food and activity costs. Even medical insurance premiums and child care can be included as additional child support.

A request must be made to the Court asking for support. Once support is established, the County Probation Department can collect directly from the parent’s paycheck. If payments stop, Probation can enforce child support in Court, take tax refunds and even suspend a driver’s license. Child support cannot be eliminated through bankruptcy. Regular income, side income and overtime are used to determine child support. Income can be imputed if a parent does not work. Job loss does not automatically decrease child support and an increase in income can be a basis for a recalculation of child support.

Maggie learns that the Guidelines calculate child support to be $260 per week, including day care. Maggie’s attorney files the request with the Court to establish the child support obligation. A week before the court date, everything gets resolved by exchanging financial information and using the Guidelines without ever stepping foot in the courthouse. Attorneys for Mike and Maggie prepare a written agreement and submit the Court Order to establish the child support obligation and create the Probation account to collect the child support.

By seeking legal advice, both Mike and Maggie know the Court has established a fair amount for Maxwell’s support.

Are you having trouble with child support matters? Do you need to establish child support? Contact us to schedule an appointment today to discuss your rights and options.

As always, please feel free to leave comments or questions, and also check out our Facebook and Twitter feeds.

A Holistic Approach to Representing Juveniles and Young Adults

Tuesday, April 14th, 2009

As a former social worker and police officer, I have alot of experience with troubled youth.  There is no single prescription for helping them turn things around, but my experience has shown me that young men and boys in trouble tend to lack the psychological self-awareness necessary to understand the roots of their behavior and learn to  control their impulses.  

My fundamental belief is that all adolescents can benefit from professional counseling, even those not in trouble.  But, for those who have behavior problems that get them in trouble at school or with police, counseling is imperative.  The main challenge, of course, is to get young men and their parents to “buy in” to therapy as an opportunity for growth, not as a symbol of personal or parental failure. 

It is my firm belief that when teenagers and young adults engage in behavior that leads to police involvement, the behavior should be viewed as a cry for help.  I also believe that police, prosecutors, and judges want to believe the same thing.  But they also know that some kids and young adults simply do not have the kind of support necessary to answer the cry.  When that is the case, the State will step in to fill the void — one way or another.  It is my job to help convince judges and prosecutors that the family and the individual know what they need to do and are taking the necessary steps to correct misbehavior so the State can turn to those truly in need of intervention.

From an attorney’s persective, simply defending the case does not answer the young person’s cry for help.  Even if I get the case dismissed, without counseling and other life-changes, the problem is likely to recur.  Therefore, I believe in taking a “holistic approach” to each case, which is designed to create a positive overall experience out of a negative incident.  While the “heavy lifting” must still be done by the young person and his family, I try to use the incident as a motivator and opportunity for real change.

The first step is to engage support services soon after an arrest has occurred.  Strategically, judges and prosecutors appreciate that a defendant has decided to take positive action before being ordered to do so.  But even if the young person is 100% innocent, and the case could be dismissed or won at trial, the young person needs to appreciate the gravity of the situation and learn to examine past misbehavior or unhealthy friendships in productive ways.  

In sum, I try to help families “treat the patient, not just the symptom.”  A professional counselor will provide a safe, confidential environment for the young person to discuss life with an adult who is skilled at creating a relationship of trust.  Only good can come of that.

If your child or a young person you know is in trouble, call Peter Paris at Maselli Warren, PC to discuss ways to approach the case itself as well as ways to create positive change.