New Jersey Divorce Lawyer Blog

New Jersey Court Upholds Support Obligation Despite Business Closure

September 17, 2021 | by Jeffrey R. Brown

A New Jersey appeals court recently considered a case regarding the modification of child support and alimony based on alleged changed circumstances. In that case, the husband and wife had married in 1993 and later had three children. They divorced in 2007 and agreed to a Matrimonial Settlement Agreement. In the agreement, the husband agreed to pay the wife $15,500 per month in alimony and $5,500 per month in child support. The Agreement was based on the husband’s earnings at the time, which were around $778,000 per year. In 2007, his business began to decline and by 2015, his income had reduced to about $120,000 per year. As a result, the parties amended the agreement in 2015 to reduce the alimony payment to $5,500 per month and the child support payment to $1,408 per month.

The husband then negotiated to leave his employment with a severance package of $100,000 and opened a restaurant. The husband fell into arrears on his child support and alimony payments. Two of the children had been emancipated and the youngest was in college. The husband’s restaurant closed and the husband began selling life and health insurance, allowing him to make about $100,000 to $140,000 per year. The wife filed a motion to enforce the husband’s obligations and the husband argued that the obligations should be modified based on a change in circumstances.

Modifications to Alimony and Child Support

New Jersey family court judges can modify alimony and child support orders based on the parties’ circumstances and the nature of the case. The party seeking to modify a child support or alimony obligation must demonstrate changed circumstances.

New Jersey Court Upholds Custody Decision to Attend Kindergarten in Mount Laurel, Where Father Lives

August 26, 2021 | by Jeffrey R. Brown

A recent decision from the New Jersey Appellate Division centered on the decision that a child attend the public school where the father lives in a contentious child custody case. In that case, the mother had filed for divorce, and the husband and wife agreed to temporarily share joint legal custody and to designate the mother as the parent of primary residence (PPR) and the husband as the parent of alternative residence (PAR). They worked out an alternating weekly parenting schedule. However, the parents had numerous issues in co-parenting the child, including deciding the child’s medical care, agreeing on how to share holidays and birthdays, and deciding on the method of communication between the parents. The parents also could not agree on where the child should attend preschool, and ended up having the child attend one preschool on Tuesdays and Thursdays (in the mother’s town of Moorestown) and another preschool (in the father’s town of Mount Laurel) on Fridays.

Three years after the mother filed for divorce, the court held a custody trial that lasted six days. The child was four years old at the time. The mother, the father, the mother’s parents, the director of one preschool, the father’s employer, and a police officer who was involved in a domestic dispute testified during the trial. At the conclusion of the trial, the judge decided to grant joint physical and legal custody to the parties. He declined to designate either parent as the PPR, finding it was not in the child’s best interests to do so. He also ordered that when the child was to begin kindergarten, that she be enrolled in the public school district where the father lived and where he worked as a guidance counselor. He noted that both Mount Laurel and Moorestown had good school districts. He also noted that the father planned to continue living in his town long-term, whereas the mother was not sure about her future living arrangements. The mother appealed the decision.

The appeals court upheld the decision of the family court. The court found that the judge’s decision was supported by the evidence in the record and the decision was within the court’s discretion. The court also noted that the father’s town had a full-day kindergarten program, whereas the mother’s town provided full-day kindergarten only at a significant cost. The court reasoned that the child spent “considerable time” with each parent and went to preschool in two different towns so that she was not so rooted in one community that the decision would uproot her life. Although the mother was the child’s primary caretaker up until the custody trial, both parents had spent significant time with the child.

New Jersey Appeals Court Rules Attorneys’ Fees Award from Custody Case Not Dischargeable in Bankruptcy

July 25, 2021 | by Jeffrey R. Brown

The Appellate Division of New Jersey recently issued a decision ruling that an attorney’s fees award arising from a custody case is not dischargeable in a bankruptcy proceeding—meaning that the debtor still owes the debt despite declaring bankruptcy. The case arose from a New Jersey custody dispute after a divorce. The mother and father divorced in 2014 when their twins were seven years old. The mother, who lived in New Jersey, wanted to relocate with her children to Utah. A family court judge held a hearing and found that, under New Jersey standards, relocation was not in the best interests of the children. The judge also awarded the father $425,000 in attorneys’ fees. The father later moved to enforce the attorneys’ fees award and the court later ruled the attorneys’ fees award was non-dischargeable under section 5 and under section 15. The mother appealed.

Bankruptcy generally allows a debtor to rehabilitate themselves by discharging their debts. However, there are certain debts that are non-dischargeable and remain as debts of the debtor. Here, the judge found the debt was non-dischargeable under 11 U.S.C. § 523(a)(15) (section 15) as a debt “to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit.” The judge also found the debt non-dischargeable under 11 U.S.C. § 523(a)(5) (Section 5), as a debt “for a domestic support obligation, finding the attorneys’ fees award was a debt for a domestic support obligation because it is “of the nature and substance of a domestic support obligation.”

The appeals court upheld the judge’s decision. Specifically, concerning Section 5, the court found that attorneys’ fees awards in matrimonial actions were “domestic support obligations” and were therefore non-dischargeable under Section 5. Considering relevant New Jersey case law, the appeals court found that it was non-dischargeable under Section 5 because it was a domestic support obligation and was “in the nature of support.” The court reasoned that the award arose out of a custody dispute concerning the father’s ability to see his daughters regularly and the funds could have been used to provide financial support to his daughters.

New Jersey Appeals Court Upholds Visitation Rights of Father After Three-Year Separation

June 29, 2021 | by Jeffrey R. Brown

The right to raise and maintain a relationship with one’s child is a fundamental right. In a recent case before the New Jersey Appellate Division, the court upheld the visitation rights of a father who had not seen his daughter in three years after an allegation of abuse. The mother and father in the case had divorced when the daughter was three years old. According to a settlement agreement, the mother was designated as the parent of primary residential custody, and the father was afforded parenting time.

After the divorce, the mother and father had a difficult relationship and filed several post-judgment motions concerning the father’s parenting time. At some point, there was an allegation that the father had inappropriately touched his daughter. However, law enforcement and the Division of Child Protection and Permanency did not find evidence to support the allegation. The mother later filed a motion for the recusal of the family judge. When the judge then scheduled a hearing, she requested an adjournment and then argued that she had appealed the decision on the motion for recusal and could not appear because the appeal was pending. The mother failed to appear for a scheduled hearing, and in her absence, the judge granted the father supervised parenting time. The court reasoned that the mother’s appeal was deficient because there was no decision on the motion, and thus, her failure to appear was unexcused. The father had filed a request for parenting time more than two years prior. The judge noted that the father and daughter had not seen each other in three years and found that the mother was purposely alienating the daughter from the father.

The mother appealed the decision, and the appeals court upheld the judge’s decision to grant the father supervised parenting time. The court reasoned that New Jersey law “favors visitation” and the right to visitation “is strong and compelling.” The court noted that the allegation against the father was not found to have merit by law enforcement or the courts, and the father and daughter had not seen each other in three years and thus upheld the judge’s decision.

New Jersey Court Dismisses Case After Claim of Invalid Marriage

May 27, 2021 | by Jeffrey R. Brown

A New Jersey appeals court recently dismissed a case after the defendant claimed the parties did not have a valid marriage. In that case, the plaintiff had filed a complaint about divorce in Middlesex County, and the complaint was subsequently dismissed. The plaintiff filed a second complaint for divorce in Essex County, and the defendant moved to dismiss, arguing that there was no valid marriage between the plaintiff and the defendant. The claim was dismissed without prejudice pursuant to a stipulation of voluntary dismissal executed by the parties’ attorneys.

After the second dismissal, the parties entered into a Settlement Agreement, which addressed the distribution of assets as well as custody and child support. Over two years after the Agreement was signed, the plaintiff filed a motion to reopen the divorce case and enforce the signed Agreement. The defendant argued that the case could not be reopened because there was no underlying divorce case.

The appeals court found that the plaintiff could not enforce the Settlement Agreement by reopening the divorce case, as the case had been dismissed. The court noted that the divorce complaint was dismissed without prejudice—meaning that another complaint could be filed—and thus the complaint could be refiled if a valid marriage existed. In addition, if the parties never had a valid marriage, the plaintiff could enforce the Agreement by filing a complaint in the non-dissolution docket. Therefore, the plaintiff’s motion to reopen his matrimonial case was dismissed.

Reducing Child Support Obligations in New Jersey

April 21, 2021 | by Jeffrey R. Brown

A person’s financial situation can constantly change, this may have a dramatic impact on other areas of their lives—this may include less spending money, needing to move, or reducing child support. However, proving child support obligations need to be reduced can be a complicated process overall. In a recent New Jersey appellate court case, the court was tasked with determining whether or not to recalculate the father’s annual earnings—and thus the amount he would pay in child support—after a dramatic decrease in his income.

In this case, the parties were married and had three children. When the parties were married, the father earned between $300,000 and $1.38 million per year; however, the father was diagnosed with leukemia. The father contends that the cancer diagnosis—along with the travel, stress, and time away from the family—impacted his yearly earnings. At the time of the divorce, the parties agreed to impute an annual income of $500,000 to the father and $35,000 to the mother; this would mean the father would pay $4,000 per month in child support for the three children. The father’s yearly earnings then dramatically declined to $82,000 and then $12,000 in the years following the divorce.

The father now argues that the court erred in calculating child support payments by overemphasizing his yearly income, along with not taking into account the health insurance premiums he paid for the children. Considering the oldest two children had also left to go to college, the father argued that this change in living circumstances should alter his monthly payments to a lesser amount.

Termination or Modification of Alimony in New Jersey

March 28, 2021 | by Jeffrey R. Brown

When life throws you a curve ball, your financial circumstances may change, so too may your ability to make alimony payments. Modifying, reducing, or terminating New Jersey alimony payments, however, can often be a tricky and complex legal situation. For parties considering such a change, it is crucial that you evaluate all of your options under state law to ensure the best chances of success.

In a recent Superior Court of New Jersey opinion, the court considered a case concerning the termination of alimony. The parties were married for nearly 13 years before getting divorced and agreeing to $100,000 a year in alimony, broken down into monthly payments. The plaintiff eventually moved to terminate alimony payments, arguing that an increase in the defendant’s income by $80,000 constituted a change in circumstances. The motion judge, however, found that the plaintiff failed to prove a change in circumstances warranting a modification of alimony. The judge further claimed that the plaintiff’s credibility was compromised and his arguments were unconvincing to warrant a change.

On appeal, the plaintiff argued that the judge failed to enforce the terms of the couple’s agreement and instead rewrote the parties’ contract. The Superior Court of New Jersey sided with the lower court’s decision on the issue and rejected the plaintiff’s argument that the judge rewrote the parties’ contract. Because the judge assessed the totality of the circumstances, including the negotiation of the parties’ agreement, the judge was both able to understand the context of the agreement but also the parties’ intent when crafting the language.

Court Must Address Doctor’s Opinion as Evidence In New Jersey Divorce Proceedings

February 26, 2021 | by Jeffrey R. Brown

An appellate court recently issued a per curiam opinion in a defendant’s appeal of a decision regarding his alimony obligation. During the parties’ New Jersey divorce proceedings, the parties agreed that the defendant must pay permanent alimony. The agreements did not contain an anti-Lepis provision, or any provisions addressing modifications because of a change in circumstances. The parties agreed that the plaintiff maintain a 29.25% interest in the defendant’s business.

About two years after the alimony agreement, the defendant argued that the plaintiff was cohabitating with her partner and asked the court to terminate his alimony obligation. The parties agreed to place a time limit on the defendant’s alimony obligations. Further, the negotiations addressed whether the court may terminate the defendant’s obligations because of disability. In addition, the order contained an anti-Lepis provision and barred any modification during 2019-2026, for any reason, except catastrophic physical disability.

Starting in 2019, the defendant failed to make alimony payments, explaining that he was experiencing financial difficulties. In response, the plaintiff filed a motion to enforce the alimony order. The defendant cross-motioned to vacate the order. In the alternative, he motioned to rescind the anti-Lepis provision, modify the obligation based on impossibility, and schedule a hearing regarding his capacity to consent.

Terminating Alimony Obligations in New Jersey

January 20, 2021 | by Jeffrey R. Brown

Alimony, otherwise known as financial support that a person must pay to their spouse following a separation or divorce, is a common part of many divorce settlements. However, when things change, and the party responsible for paying the alimony is no longer able to because of extenuating circumstances, what does the law say? If you are experiencing significant hardships or obstacles in meeting your New Jersey alimony obligations, are you able to terminate or modify your obligations?

In a recent Superior Court of New Jersey opinion, the court considered a case involving termination of alimony obligations in light of extenuating circumstances. In the case at hand, the parties divorced in 2006 after a 26-year marriage and negotiated a Property Settlement Agreement (the “Agreement”). Based on the Agreement, the wife agreed to pay her husband $300 per week in alimony. Several years after the divorce, the wife experienced many significant health and medical issues, including a brain tumor, which forced her to retire from her job. She ceased making alimony payments to her husband and moved to terminate her alimony obligation. The husband opposed the motion. Following oral arguments, the trial court terminated the wife’s alimony obligations, and the husband appealed.

On appeal, the court sided with the wife and affirmed the trial court’s decision. Because of the wife’s extenuating circumstances, such as her retirement and significant health issues, the court held that in light of her retirement and poor health, along with sufficient financial documents from the parties, the trial court had properly analyzed the dispute. Further, the wife was 66 years old, was at a good-faith retirement age, and her health was proof of further changed circumstances that would warrant a modification or termination of her alimony responsibilities.

New Jersey Appeals Court Reverses Sole Custody Award Due to Parents’ Agreement

December 11, 2020 | by Jeffrey R. Brown

An appeals court recently issued a decision in a New Jersey custody case concerning the appeal of a sole custody award to a mother, despite the parents’ agreement to the contrary. According to the court’s opinion, the parties were married for 11 years and had one child together who was 11 years old at the time of the trial. The husband filed for divorce and sought joint legal custody of the child and to be designated the parent of primary residence.

The parties attended mediation and prepared a custody agreement through mediation in which the wife was designated the parent of primary residence. The wife then filed a domestic violence complaint against the husband, and a judge found the husband had harassed the wife. The court later held a divorce trial, which focused on economic issues in the divorce and had little to do with custody. The wife advocated for primary residential custody and joint legal custody and the husband stated that he was fine with the shared custody agreement, though he would have liked full custody. Despite the parties’ agreement, the court awarded sole legal and physical custody to the wife, based in part on the domestic violence proceeding, a claim by the wife that the husband had improper conversations with the child, and the husband’s long work hours. The husband appealed the decision, arguing the award of sole legal custody was an abuse of discretion because it was contrary to the parties’ positions at trial and uncontested.

New Jersey Policy on Physical and Legal Custody

Under N.J.S.A. 9:2-4, New Jersey has a stated policy of allowing children to have frequent and continuing contact with both parents. The statute explicitly states that “it is in the public interest to encourage parents to share the rights and responsibilities of child-rearing in order to effect this policy.” The law further states that a court will respect custody arrangements agreed upon by the parents unless it is not in the best interests of the child. Physical custody refers to where the child physically resides. Legal custody refers to the authority to make major decisions in the child’s life and is often shared by both parents. Based on the state’s policy, courts often favor custody arrangements that provide for joint legal custody and joint physical custody.