Articles Posted in Divorce Cases

Couples with children who go through a divorce often bring up several points of contention that will need to be addressed in the final divorce order. Divorcing parents often request orders for child custody, visitation, child support, alimony, and property division, among other things. When circumstances change after a divorce is finalized, one of the parties may motion or petition the court to modify the divorce orders to more fairly incorporate those changes into the parties’ legal obligations. The Appellate Division of the Superior Court of New Jersey recently ruled on an appeal filed by a father, which sought to modify the custody and child support provisions of his divorce from his ex-wife.

The plaintiff in the recently decided case is a woman who divorced the defendant several years ago. At the time of their divorce, the parties shared a two-year-old daughter. To resolve their divorce, the parties entered into a settlement agreement, which gave the mother primary placement of the child, with the father having parenting time every other weekend and one weeknight per week. The parties also agreed on an amount of child support that the father would pay to the mother.

Since the entry of the final divorce order, the father has alleged that circumstances have changed and the order should be changed. For a New Jersey custody and support order to be changed, the moving party must show that there has been a substantial change in circumstances to justify the modification and that any changes would further the best interests of the child(ren) involved. The father argued that the mother’s move to a new town with her new husband affected his daughter’s quality of life, while also alleging that the mother took a higher-paying job with her new husband, and requesting support be recalculated with the parties’ updated incomes.

Divorce and separation are commonly predicated upon mental or psychological changes that one of the parties experiences during a marriage. In some instances, one party to a divorce may suffer from mental health problems that could inhibit their ability to participate in the divorce proceedings. While married persons should be entitled to seek divorce from their spouse at any time, a spouse who is suffering from mental illness must be protected throughout the proceedings. To protect a mentally ill spouse during a divorce, a family court may appoint a guardian to make decisions on behalf of the mentally incompetent party. The New Jersey Appellate Division recently addressed an appeal filed by a divorced woman who challenged a family court’s decision to appoint a guardian who negotiated a divorce settlement on her behalf.

According to the facts discussed in the appellate opinion, the parties to this divorce were married in 1985. After a long marriage, the plaintiff filed for divorce against his then-wife in 2016. Prior to the divorce, the defendant developed mental health issues, was hospitalized for psychiatric breakdowns several times, and was diagnosed with several serious mental health disorders. As part of the divorce proceedings, a guardian ad-litem was appointed to represent the interests of the defendant and negotiate a settlement on her behalf.

As part of their recommendations to the court, the defendant’s guardian ad-litem recommended that the parties’ adult children assume legal guardianship of the defendant, which was promptly effected. The parties, their counsel, and the guardians eventually reached a settlement agreement, which resulted in the defendant being awarded approximately $900,000 from the plaintiff in exchange for the marital property which he retained. After the divorce was finalized, the defendant was later adjudicated as mentally competent by another psychologist, and she challenged the settlement at the Appellate Division.

Although it is generally the case that the assets obtained by a couple during a marriage will be divided equally in the event of a divorce, not as many people understand how debts that are assumed during a marriage are to be divided. Generally, debts assumed by either party during a marriage are divided equally at the time of divorce. A New Jersey Appellate Court recently addressed a case where a divorced ex-husband failed to pay tax debts as agreed to in the divorce settlement.

The plaintiff in the recently decided case is a man who filed for divorce from the defendant. The parties agreed to a settlement without a divorce trial, which was entered during the Fall of 2020. According to the facts discussed in the appellate opinion, part of the divorce settlement involved the plaintiff liquidating certain retirement accounts and using the proceeds to pay off over $100,000 in unpaid taxes to the federal and state governments.

After the settlement was finalized, the plaintiff liquidated the retirement accounts and entered into a payment plan to repay the tax debts. The plaintiff then used some of the money from the retirement accounts to pay off delinquent medical bills for the parties’ son. Although the settlement agreement allowed the plaintiff to use retirement account proceeds to pay off these medical debts, the order was clear that the plaintiff needed to pay off the tax debts first.

When a person’s financial situation changes—either positively or negatively—it can impact other aspects of the person’s life as well. This may include being able to pay for groceries, rent, or even alimony. In a recent New Jersey case, the appellate court was tasked with determining whether a consent order signed after the ex-husband purportedly lost a majority of his income was enforceable. Ultimately, the court ruled the consent order was not conscionable considering it was entered under fraudulent circumstances.

In this case, the couple was married for more than thirty years before divorcing in January of 2011. The divorce settlement included an agreement that the ex-husband, who was the Chief Scientific Officer of a major company, agreed to pay the ex-wife $12,000 per month in alimony. A few years later, the ex-husband was let go from his job. He then filed a motion asking to reduce his alimony payments as he was disabled and unable to work at the time. The parties then settled and reduced the alimony payment to $3,200 per month in a consent order. However, the ex-wife later learned the ex-husband was re-employed and was not actually disabled to the point of being unable to work. She sought to vacate the Consent Order. The court below agreed with the ex-wife and vacated the Consent Order—thus reinstituting the ex-wife’s alimony payments of $12,000 per month.

The ex-husband argued that the lower court should not have reinstated the initial alimony payments by vacating the Consent Order. He explained that the ex-wife did not prove the consent order was secured by fraud—meaning him lying about being disabled and unable to work.

Although generally property a spouse purchases before marriage is not subject to equitable distribution, some assets purchased before the marriage are still subject to equitable distribution. A New Jersey appeals court recently issued a decision in a New Jersey divorce case in which it found that rental properties the wife purchased before the marriage may still have been considered as part of the marital estate.

In that case, the husband and wife were married in 1999, and the husband filed for divorce in 2018. Before they were married, the wife bought six residential properties in New Jersey with her own money. The husband later renovated the properties and maintained them. The couple bought many other properties together after they married. They earned rental income from the properties, and the wife eventually managed the properties full time. The husband maintained and repaired the properties, at least to some extent. The parties did not keep separate accounts for premarital and marital properties. At the time of trial, the rental properties were generating a rental income of about $12,000 per month.

The family court divided the properties purchased after the marriage evenly and equitably distributed two of the six premarital properties, which the court found were purchased in contemplation of the marriage. The court assigned the remaining four premarital properties to the wife. The husband appealed several issues, including that he was entitled to an equitable share of the premarital properties.

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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.

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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.

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.

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.

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.

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