Recent Blog Posts

• Can You Retire If You Have An Alimony Obligation? One of the most common divorce myths involves the assumption that permanent alimony, which is typically awarded in divorces where the parties have been married for many years, will continue indefinitely.  In New Jersey, it is well settled law that an alimony obligation is modifiable based upon a showing that a substantial change in circumstances has occurred since the time that a divorce was entered.  Examples of a “change in circumstances” that may warrant a modification of an alimony obligation include an increase or decrease in either party’s income, cohabitation of the alimony recipient tantamount to remarriage,  receipt of an inheritance, loss of employment (if it is not voluntary), and good faith retirement.   The termination of an obligor’s alimony obligation occasioned upon the payor’s retirement is not automatic.  It is up to the obligor to file an application with the Court for a modification or termination of their ....
• A Decrease in Salary, Standing Alone, Does Not Warrant a Reduction in Alimony In a recent New Jersey divorce case (Bonaventuro v. Bonaventuro), the Court refused to lower the ex-Husband’s alimony obligation, even though he had been laid off from his job. The facts are as follows: The ex-Husband was laid off from his position with a consulting company which involved projects for banks and broker dealers. He had earned approximately $150,000 per year.  Pursuant to a prior Court Order, he was paying monthly alimony in the amount of $2,850. The ex-Wife had worked part time as a clerk at a bank; however, her position had also been recently eliminated.    In September 2010, the ex-Husband filed a motion to suspend his alimony obligation until he obtained full time employment. He also requested that the accrual of arrears be stayed (or stopped) during that time. His only source of income was unemployment compensation of $390 a week. He asserted that he applied for 181 different jobs and established a professional profile on a networking site.  ....
• Should a Post-Complaint Rise in Income be Considered in Determining Alimony? In determining alimony, we are compelled to take into consideration the 13 factors set forth in our statute. Of utmost importance is the actual need of one spouse and ability of the other spouse to pay, along with the duration of the marriage and the standard of living established during the marriage. In a recent case (Dudas v. Dudas, decided on April 11, 2011), the Defendant/Husband earned between $40,000 and $59,000, towards the end of the marriage. A Complaint for Divorce was filed in 2008, and the case was tried in 2011. Over those years, the Husband’s income increased wherein he earned $64,000 in 2009, $76,000 in 2010 and $68,000 in 2011. The Defendant argued that his post-Complaint income should not be considered in any alimony calculus and that only the income he earned up to the date of the Complaint should be considered, since the parties’ standard of living was based on his pre-Complaint income. While the standard of living established during the marriage is a ....
• The Future of Alimony in New Jersey Divorce Cases The obligation to pay alimony to one’s former spouse is a long-standing tenet of New Jersey statutory and decisional law. From time to time, various efforts have been made to reform and, in some cases, eliminate alimony which have proven unsuccessful. A new challenge has been mounted by New Jersey Alimony Reform, an organization founded by Thomas Luesek, a biology professor at Rutgers University, who was ordered by a Union County Court to pay permanent (i.e. indefinite duration) alimony to his former wife who he claims is capable of self support and does not need alimony.  Mr. Luesek’s organization seeks no less than the elimination of permanent alimony, a position supported by Assemblyman Sean Kean (R-Monmouth) who has introduced a bill to set up a blue ribbon panel to examine such changes and thereby “bring New Jersey into the 21st century”. Such efforts will provoke discussion, of which this article is an example, but will likely bear little fruit. ....
• Must Complete IRS Form 8332 for Dependency Exemption in a Divorce Case Internal Revenue Code Section 152 defines a dependent for tax exemption purposes. If parents are divorced or separated with a written Separation Agreement, or live apart during the last six months of the calendar year, and if a child or children are in the custody of one of the parents for more than one-half of the calendar year, that parent may take the dependency exemption for each of those children. In many cases, parties who are divorcing reach an agreement as to who may take the dependency exemption for their children in any given year. Sometimes they split the dependency exemptions between them if there are two or more children. For any divorce or agreement entered into from 2009 onward, if the custodial parent (parent having the children for the greater portion of taxable year) agrees to give the other parent an exemption in any given year, the custodial parent must sign a written declaration that the custodial parent will not claim such child as a dependent for said taxable ....
• Broken Engagements May Give Rise to Money Damages In a recent unpublished trial court decision, a Trial Judge granted a motion for summary judgment requiring a man to reimburse a woman for the non-refundable portions of deposits spent on wedding vendors when the defendant broke off the engagement. In this particular case, the Defendant proposed to the Plaintiff in July of 2003, and the couple began planning a wedding schedule for September 2004. The Plaintiff entered into contracts with and paid the deposits for several wedding vendors, including the limousine, wedding gown, reception venue, photographer, entertainment, etc. However, in September of 2003, the Defendant broke of f the engagement. While the Plaintiff was able to recoup a portion of the deposits she paid to the various vendors, she was unable to obtain the full value of all of her deposits. In total, the Plaintiff alleges that she lost a total of approximately $20,500 in non-refundable deposits as a result of the broken engagement. Thereafter, the Plaintiff and Defendant ....
• How College Education Savings are Affected by Divorce In New Jersey, both parents are responsible for the support of their children, including contributions toward college education. Many times, parents begin saving for college education while their children are young by investing in 529 College Savings Plans or Custodial Accounts.    It is important to note the differences between these two types of accounts since it may affect the vehicle you chose if you are getting divorced.   Custodial accounts are accounts established at a financial institution for the benefit of a minor child. Generally, one of the parents is named as the custodian for the benefit of the child under the Uniform Transfer to Minors Act (previously the Uniform Gifts to Minors Act). These accounts belong to the child, not the parent. By establishing this type of account, the parent(s) made an irrevocable gift to the child. While the parent, as custodian, may make the decision as to how the money will be invested and spent (until the child is 21), the ....
• New Jersey Woman to be Prosecuted Over Fake Facebook Profile In a case of first impression, a New Jersey woman can be prosecuted for identity theft for allegedly creating a fake Facebook profile for her ex-boyfriend, and posting inflammatory comments about him online, a Judge has ruled.   DT (full name redacted) is accused of creating the fake profile of her ex-boyfriend, a Northern New Jersey narcotics detective, where she allegedly posted comments about him to the effect that he had herpes, frequented prostitutes, was “high” all the time, as well as allegedly confessing, “I’m a sick piece of scum with a gun,” while posing as him on the fake profile.   This case could have wide ramifications for cyberspeech in New Jersey and other states.  At issue is a New Jersey statute which makes it illegal to impersonate someone “...for the purpose of obtaining a benefit for himself or another, or to injure or defraud another.”  DT’s attorney attempted to have the charges dismissed on the ....
• Judge Orders Divorcing Couple to Swap Facebook and Dating Site Passwords A Connecticut Judge has ordered a soon-to-be ex-husband and ex-wife to exchange their Facebook and dating website passwords in connection with their pending divorce.   According to the husband’s divorce attorney, his client saw incriminating messages on the computer he shares with his wife at home which made him suspect there would be more evidence in her social networking accounts, including how she feels about her children and her ability to take care of them, which would be relevant in the pending divorce case. During a deposition, the husband’s attorney asked the wife for her Facebook, E-Harmony and Match.com passwords. After initially refusing, she was instructed by her lawyer to disclose them [note: questionable legal advice]. It then appears that the wife immediately texted her friend and asked the person to change the passwords and delete some messages. Upon learning of this, the husband’s attorney obtained an injunction that the wife not delete any ....
• The Timing of Your Final Judgment of Divorce Could Have Tax Implications As another year is winding down, it is important to consider whether or not you should hold off with the entry of your Final Judgment of Divorce until calendar year 2012. I know that many of you are reading this and thinking that another day married to your soon-to-be former spouse is one day too long to handle – however, there could be significant tax benefits to filing jointly one last time.   First, it is important to note that the Internal Revenue Service does not permit you to file under a “married” status unless you were legally married on the last day of the previous calendar year. However, your case does not have to stall and negotiations to resolve your matter can continue, as you are permitted to have an executed Marital Settlement Agreement prior to the end of the calendar year.  If the end of the year is approaching and you have an executed Agreement, it is common to petition the Court to adjourn the Final Judgment of Divorce hearing. While the ....
• Equitable Distribution in the Declining Real Estate Market On October 25, 2011, the Appellate Division of the New Jersey Superior Court decided that the case of B. v. B. (names redacted for privacy) and recognized the significant decrease in real estate values in implementing the parties’ divorce settlement.   The current economic downturn had not been contemplated in the parties’ Marital Settlement Agreement which was entered into in 2007.  When one party sought to enforce the Agreement based upon 2007 values, the trial court agreed.  The Appellate Division, however, reversed that ruling and concluded that a reasonable construction of the Agreement, coupled with principles of fairness and equity, required a different result. The Court stated that although the parties’ Agreement contained no reference of the possibility of reduced fair market values for their three parcels of real estate, the Court has the inherent authority to insert such a provision even though either party had anticipated it or it had been ....
• Equitable Distribution and Domestic Partnerships in New Jersey There is no such thing as a right to equitable distribution of property during the dissolution of a domestic partnership. This right only accrues to individuals who have entered into marriage or a civil union. However, as dissolution of domestic partnerships occur in the Chancery Court, equitable principles are applied and joint property or property to which both parties contributed during the partnership, may be subject to partition, i.e., division.    This issue was upheld on appeal in June 2008, wherein The Honorable John Tomasello, J.S.C. in Gloucester County, New Jersey awarded the division of a summer home the domestic partners had shared. The Order specified that interest in a house constituted the division of assets based upon equitable principles, and was not equitable distribution of property.    If the partners in the foregoing matter had converted their partnership to a civil union upon enactment of same in New Jersey, equitable distribution of property ....
• The Difference Between Civil Unions and Domestic Partnerships in New Jersey Before the enactment of civil unions in New Jersey, the only option available to same sex couples was a domestic partnership, which provided limited benefits. Following the enactment of civil unions in New Jersey, the Domestic Partnership Act was revised such that these partnerships only became available to persons age 62 or older. Same sex couples who had entered into domestic partnerships prior to enactment civil unions in New Jersey had the option to maintain their domestic partnership status, or convert same to a civil union.    Civil unions provide the same rights and benefits to same sex couples as marriage does to heterosexual couples. This includes a wide range of benefits including alimony, child support, and equitable distribution in the context of a divorce. If a couple with a domestic partnership does not convert the partnership to a civil union, they are not entitled to the rights and benefits, which would accrue as if they had a civil union.    If you ....
• Equitable Distribution Agreements Will Not Be Adjusted by a Court Even if There Are Changed Circumstances Due to a Poor Economy In a recent New Jersey divorce case (Crimi v. Crimi), the parties entered into a Property Settlement Agreement on March 25, 2005, whereby the Wife was to receive the net proceeds from the sale of the marital home. In that Agreement, the Husband guaranteed her a minimum of $7 million less certain agreed upon deductions. If the sales price exceeded $7 million, the Wife would receive a greater amount.   In 2004, the house was appraised at $7,250,000. During 2005, the real estate value dropped and the listing price of the house was periodically reduced (from a high of $8 million to $6.5 million). The Wife agreed to modify the parties’ Property Settlement Agreement stating she would receive $6.5 million (less certain agreed upon deductions) instead of $7 million.     The real estate value continued to plummet, and, in October 2009, the Husband filed a Motion with the Court to be released from his obligation to guarantee the Wife $6.5 million (less deductions). He had ....
• Income Tax Liability in Divorces: Innocent Spouse Relief Generally, husbands and wives file joint tax returns while married. As joint filers, both parties are jointly and severally liable for any taxes, penalties and interest due as a result of those filings.    When parties are divorcing, one of the spouses may raise an issue with regard to the truthfulness of previous tax returns filed. For example, the wife may say that her husband owns a business, was in charge of all the finances, and she does not know whether he had reported the correct income on previous tax returns. If the IRS audits a return that was filed jointly and finds that there was an underreporting or an incorrect deduction taken of income, thereby causing an assessment of taxes, interest and penalties, the wife may be eligible for Innocent Spouse Relief.    In order to obtain Innocent Spouse Relief, the wife (or husband as the case may be) must file IRS Form 8857 to request the relief, which could be requested for more than one tax year.    The ....
• In a Divorce, Are Retirement Accounts Subject to Equitable Distribution? I have found that many of my clients who are going through a divorce have a lot of misconceptions regarding the division of their retirement accounts they established before their date of marriage. My clients’ initial impressions have been mixed. During initial consultations, some clients have informed me that their spouse would be entitled to 50% of the total retirement account, while others seem to believe that their retirement account is not subject to equitable distribution because it originated before their marriage.   I am hopeful that the following two scenarios offer some clarification. Scenario 1 – Retirement Account Is Not Subject To Distribution: The account would need to be established prior to your marriage with no contributions made during the period extending from your date of marriage through the date of complaint. The most common scenario would be that you have a 401(k) or a rollover IRA from a previous employer that was established before your ....
• Divorced Parents and College Expenses In a recently published Opinion, a New Jersey trial court issued two rulings of significance to divorced parents of college students. The issues in question have vexed family law attorneys for some time since cogent arguments existed on both sides.   The first issue is whether a Court Order which requires a college student to provide proof of attendance, credits and grades to his or her divorced parents as a condition for payment of college expenses violates the student's right to privacy under the Family Educational Rights and Privacy Act (FERPA).   The second and collateral issue dealt with the question of when a non-custodial parent is paying child support and/or college expenses, is the responsibility to provide that parent with the above information that of the student, the custodial parent or both?   In the case of VB v. VB (names of parties have been redacted) the Court was faced with these issues based on an assertion by the parties' daughter that she had ....
• Quick Tips: Sale Of The Marital Residence In A Divorce With the seemingly endless cycle of bad news surrounding the real estate market these days, the issues arising from the sale of a marital residence in a divorce proceeding are becoming more complicated with every month that passes. I cannot promise that the exercise of selling your former residence within the confines of divorce litigation will be a painless process.  Hopefully you can limit the stress level by adhering to the following quick points: Make sure both parties are clear as to the definition of “net profits” to be divided upon the closing of the property.  Does your agreement call for the parties to be equally responsible for the closing costs, realtor commissions, outstanding utilities and taxes...etc?  In my experience, the smoothest transactions are the ones that spell out the responsibilities of each party regarding these settlement liabilities before the house is listed. Select a mutually agreed upon real estate professional to market your ....
• PALIMONY: Claim for Support Between Unmarried Persons Must be in Writing Palimony is a claim for support between unmarried persons. In 2010, legislation was passed which mandated that palimony agreements had to be in writing and signed by the parties in order to be enforceable. Prior to that date, there was no legislation regarding palimony, and we only had case law to guide us.   New Jersey case law recognized a claim for support between unmarried persons if those persons had formed a marital-type relationship, and one person promised to support the other person, whether express or implied. In the recent case of Botis v. Estate of Kudrick v. Wells Fargo, an issue arose as to whether the legislation regarding palimony, effective January 18, 2010, was retroactive and therefore governed this case which had been filed prior to the effective date of the statute.   The facts are as follows:  The Plaintiff began living with the decedent in 1976. She asserted that in 1984 she invested $17,000 from the proceeds of the sale of her house into ....
• Current Trends in Custody Evaluations John S. Eory, Shareholder and Co-Chair of Stark & Stark’s Divorce Group, authored the article, Current Trends in Custody Evaluations, for the June 13, 2011 New Jersey Law Journal’s Family Law Supplement. The article discusses the recent trend among matrimonial attorneys, forensic experts and family judges who employ alternatives to the standard custody and parenting time evaluative model. Mr. Eory reviews Focused Evaluations which are designed to explore specific areas of concern, such as the appropriateness of overnight parenting time, allow for the isolation and resolution of primary issues. A growing recognition of age-appropriate parenting time is another development wherein the emphasis is on the quantity and frequency of parenting time is based on the developmental age of the child. Additionally, Mr. Eory discusses the growing recognition and use of Custody Neutral Assessments, including the pros and cons from the psychological, legal and judicial perspective. You ....
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