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During a divorce, coming to an agreement about custodial arrangements is often one of the most hotly contested issues between parties. Moreover, when subsequent changes need to be made to custodial arrangements because of changes in circumstances, things can get just as messy as they were when the arrangements were made in the first place. Before pursuing such changes, it is always important to consult with an experienced New Jersey family law attorney to ensure that you know your rights.

In a recent Superior Court of New Jersey Appellate Division decision, the court had to consider whether the defendant (Mother) would be allowed to take her children to visit extended family given their original custodial agreement. In the case at hand, the Mother moved to change her parenting time schedule so that she could bring their children to see their paternal grandparents. The plaintiff (Father) sought to restrain the Mother from doing this. The lower court sided with Father and denied Mother’s motion for reconsideration.

On appeal, the court stated that a party seeking to modify custody must demonstrate that the changed circumstances affect the welfare of the children. Furthermore, the appellate court found that the lower court erred in denying Mother an opportunity for reconsideration because she had met all of the requirements necessary for requesting a change by demonstrating a change in circumstances that would affect the welfare of her children. Because Mother demonstrated a change in circumstances, and Father failed to put forward credible reasons to bar his children from seeing their grandparents, the appellate court reversed the lower court’s decision.

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In a recent case before a New Jersey appeals court, the court considered whether the wife was entitled to the gains and losses on her share of the husband’s 401(k) from the date of the filing of the complaint until the date of distribution. In this New Jersey divorce case, the parties had been married for twenty-seven years before the wife filed for divorce. The parties agreed to have their disputed issues resolved through arbitration and mediation.

Through mediation, the parties reached an agreement on their disputed issues, and the arbitrator prepared a memorandum of understanding, which both parties signed. In the agreement, the parties agreed that the wife would receive half of the husband’s 401(k) balance, which was approximately $340,000. The parties agreed that the $170,000 would be applied to the husband’s equitable distribution obligation.

The wife later argued that she was entitled to the gains and losses on her share of the 401(k) account from the filing of the complaint until the date of distribution. The trial court disagreed, finding she was not entitled to the gains and losses, and she appealed. The appeals court agreed with the trial court, finding that the memorandum of understanding was clear regarding the distribution of the 401(k) account. It clearly stated that the wife was entitled to half of the account—$170,000. It also said that the sum would be paid by the husband towards the plaintiff’s share of the equitable distribution. There was no reference to the wife’s entitlement to credits or debits for any market fluctuations. It was also unnecessary to establish a formula to allocate shares because the parties had agreed on the amount of the wife’s share. Thus, the court found that the wife was not entitled to the gains and losses after the filing of the divorce complaint.

Like so many divorce lawyers, I have been asked these questions countless times, both by clients, friends, acquaintances, and sometimes, even fellow lawyers. Usually, the questions are asked with a sense of puzzlement as to why someone would voluntarily choose divorce law.

These questions, and their many variations, never fail to elicit a wry, knowing smile from me, as I managed to become a divorce lawyer by pure chance. In law school, I concentrated in criminal law classes and clinics and found this area of law very interesting and challenging. After law school, I was lucky enough to obtain a judicial clerkship with Judge Vincent LeBlon in Middlesex County, who, at the time, was assigned to the Criminal Part. Shortly before my clerkship began, I learned that Judge LeBlon was to be rotated to the Family Part; hence, I too was being rotated to the Family Part. My initial reaction was not entirely a happy one because, after all, how does one do that kind of nasty, distasteful work?

Initially, I found the work of a Family Law Clerk to be emotionally taxing. As time went on, it became less so and eventually, I gained a deep appreciation of how the Court struggled to bring calm and order to sometimes chaotic family situations. I got to know many members of the family law bar, most from Middlesex County, and developed a great deal of respect for many of them.

It is well settled law in New Jersey that divorced or separated parents may have an obligation to contribute to the cost of their child’s college, and even post-graduate, education. The leading case in this area, Newburgh v. Arrigo, 88 NJ 529, was decided in 1982 and sets forth a number of factors which the Court is to consider when determining whether, and how to, apportion the cost of a higher education. This post is not intended to present an exhaustive discussion of all of these factors, but instead, I want to focus on what I believe is the most significant (and overlooked) factor, a parent’s ability to pay.

In practice, it is almost always taken for granted that both parents will be contributing to the cost of college. While the Court is obligated to take into account the financial resources of the parents as well as their ability to pay, it has been my experience that short of complete and total destitution, a Court will almost always find an ability to pay. I have seen this happen in cases where the party from whom contribution was sought was earning in the $30,000.00 per year range. I have even seen this happen in a case where the non-custodial parent’s only source of income was Social Security Disability payments. I don’t believe that my experiences in this area are necessarily unique, but rather I think they are reflective of what is happening in Family Courts throughout this State.

While I can appreciate a Court’s unwillingness to casually or routinely accept an “I don’t have the money” argument, I believe the pendulum has swung too far in the other direction. Not only will a Court almost always find an ability to pay, but in my experience, the Court will almost always defer to the child’s choice of college, regardless of potentially less expensive schools which might be available.

The New Jersey Appellate Division, in an unpublished opinion decided on June 9, 2010 in the case of Fischer v. Fischer (A-0345-09T2), reaffirmed the general rule that unless a party to a post-judgment custody case can demonstrate a prima facie case of changed circumstances, then the Court need not hold a plenary hearing. The Court also noted that in custody matters, the decisions of family court judges will be given special deference given their special expertise in this area of law.

As a practical matter, the need for a plenary hearing in a particular custody case will often turn on the unique facts of that case, as well as the judge hearing it. What constitutes a “change of circumstances” is a subjective matter that might be decided differently from judge to judge. For example, in the reported case of Mackowski v. Mackowski, 317 N.J.Super 8 (App. Div 1998), the Appellate Division reversed the trial judge because a plenary hearing was not held in a case where, from the point of view of the Appellate Division, there did seem to be “genuine and substantial” issues regarding custody.

There are no shortage of arguments a party may try to muster to demonstrate a change in circumstances. A party may seek to argue that a child who once did well in school is now doing poorly, or that the child is now having behavioral problems that did not exist before. Sometimes, the relocation of the custodial parent, even within the State of New Jersey, might be deemed a change significant enough to warrant a hearing on custody. A litigant might attempt to argue that an ex-spouse’s remarriage has had a negative effect on the children. I have seen it persuasively and compellingly argued that the custodial parent is simply not up to the task of caring for the children. Courts are most willing to entertain plenary hearings when the best interests of the child are in question, or, put another way, where it seems that the custodial parent is not adequately protecting the child’s welfare.

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