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child support not enough

Let’s face it – New Jersey is expensive. We have addressed in this series what child support covers, but there are some things that child support does not cover that is a daily part of a child’s life.  One of these items are what we call extraordinary extracurricular activities.  Such as horseback riding, gymnastics, travel sports and so on.  The child support guidelines do not cover these type of activities, but there is an answer to the question.  Payment of extraordinary expenses can be negotiated between the parties.  The parties can agree between themselves what type of extraordinary activities their children are going to participate in and how the cost of those activities will be shared.  The parties can also agree between themselves as to whether or not the child is going to get a car at 17; and if so who is going to pay for it and cover the child on their auto insurance.  The child support guidelines are just that – a guideline.  Everyone’s case is a little different and there is a solution to each and every issue that arises.

If you have any questions regarding child support and how it relates to your family we are available to discuss your concerns with you, please call our firm at 908-879-9499.

 

 

child support (1)

Last week we addressed what child support was. This week we are going to address what sources of income the Court looks at to determine a parent’s gross income.  Child support under the New Jersey Child Support Guidelines is based on both parents being responsible for the financial needs of their children.  The child support guidelines use the combined net income of both parents to determine the child support amount.  Generally, net income is gross income minus mandatory taxes, mandatory union dues, mandatory retirement, previously ordered child support orders and if appropriate a theoretical child support amount for other dependents.  Gross income can come from employment, business income, real estate gains, interest and dividend income, rental income, alimony and other sources as well.  For a party  who is not employed the Court may impute income to them – that is assign income to them that will be used in the child support guidelines.

If you have any questions regarding child support and how it relates to your family we are available to discuss your concerns with you, please call our firm at 908-879-9499.

whatarethechildsupportguidelines

 

First of all – What is child support? Why ask?  Everyone knows.  Right?  Maybe not.

Child support is not alimony. Although the person receiving the child support could be your ex-spouse, the actual support is not for them, but for the child.  Child support is paid from the non-custodial parent to the custodial parent.  In New Jersey guidelines were developed to assist litigants and the Courts in establishing fair and adequate child support awards.  Three basic premises of the New Jersey Child Support Guidelines are:  (1)  Child Support is the continuous duty of both parents (2) Children are entitled to share in the current income of both parents and (3) Children should not be the economic victims of divorce or out-of-wedlock birth.

The New Jersey Child Support Guidelines seek to determine what percentage of an intact family’s income is used toward the children and recreate that same percentage in a separated two-parent home. With that being said, it’s acknowledged that raising children between two households is very different than raising children in one.  The child support amount can often seen out of touch with the reality of the situation.  Nevertheless, the child support guidelines pursuant to Court Rule must be used as a rebuttable presumption in all cases that are establishing or modifying child support.  The types of cases can range from domestic violence matters, temporary support orders while the divorce is pending, interstate support cases, foster care, public assistance matters and post-judgment divorce cases.  Understanding the child support guidelines is an essential part of any child support case.

If you have any questions regarding child support and how it relates to your family we are available to discuss your concerns with you, please call our firm at 908-879-9499.

iandoli & edens, llc

Can I Retire?

            Can I retire?  This is a question most of us are going to ask at some point. Followed by:   When do I want to retire?  Where do I want to retire to?  Have I saved enough to do that?  What is my retirement income going to be?  Divorced couples have an extra question or two.  Such as:  Can I retire and still pay my alimony obligation?  Or, do I still have to pay my alimony obligation if I retire?  Or from the other side:  What happens if my ex retires and my alimony is reduced or terminated?  Divorce adds an extra layer of stress and questions to the whole retirement issue.

If you are paying alimony you can retire and have your alimony obligation reduced or terminated.  However, you might not be able to retire as early as you want to.  “Alimony may be modified or terminated upon the prospective or actual retirement of the obligor.”  N.J.S.A.22A:34-23(j) There is a rebuttable presumption that alimony shall terminate at the time the obligor spouse reaches full retirement age.  Currently, in order to be eligible for full social security benefits you have to be 66 years and 2 months for people born in 1955, with it gradually rising to 67 for those born in 1960 or later. So, if you are 65 and you want your alimony to terminate it will not happen automatically.

Even if you are 66 your alimony may not terminate because the presumption that it shall is rebuttable. That means that the receiving spouse can argue against termination based upon the facts of the case.  The factors the court considers in that instance are:

(a) The ages of the parties at the time of the application for retirement;

(b) The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

(d) Whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

(e) The duration or amount of alimony already paid;

(f) The health of the parties at the time of the retirement application;

(g) Assets of the parties at the time of the retirement application;

(h) Whether the recipient has reached full retirement age as defined in this section;

(i) Sources of income, both earned and unearned, of the parties;

(j) The ability of the recipient to have saved adequately for retirement; and

(k) Any other factors that the court may deem relevant. N.J.S.A.22A:34-23(j)(a-k)

After the court reviews the factors it may decide the presumption that the obligor spouse can retire has been overcome. At that point it will apply the alimony factors discussed in Week 1 of our Alimony 101 Series.  The court will then determine whether modification or termination of alimony is appropriate.

The court will also address changes or termination of alimony in cases where the obligor spouse has not yet retired; or is seeking to retire prior to obtaining full retirement age. This is typically a more challenging request.  However, there are circumstances that might make such a request completely reasonable and acheivable.

As with almost every aspect of alimony (and family law in general) all of the court’s analysis is fact specific. In connection with a request for a reduction or termination of alimony the moving party must file a current Case Information Statement as well as the Case Information Statement that was filed at the time of the entry of the original alimony award.  Once again the court reviews numerous factors to determine if the application is made in good faith.

If you wish to retire and are currently paying alimony consultation with a family law attorney is a smart move. The application which would need to be filed with the court is very detailed and fact specific.  Some of the facts that need to be referenced were your circumstances at the time of the divorce which could be 5, 10, 15 or more years ago.  If you have any questions regarding retirement and alimony and how it relates to your case we are available to discuss your concerns with you, please call our firm at 908-879-9499.

iandoli & edens, llc

New Love. Old Alimony.

            As we discussed last week alimony is subject to modification based upon changed circumstances.  Often the changed circumstance is a new relationship.  Do new relationships affect alimony?  As with so many issues in family law the answer is:  Maybe.

The supporting spouse entering into a new relationship does not affect alimony. The dependent spouse entering into a new relationship might – depending upon the seriousness of the relationship.  A dating relationship or even an engagement should not affect alimony.  However, co-habitation would.

“Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.”   N.J.S.A.2A:34-23(n)

The Court when determining whether or not cohabitation is occurring considered several factors:
(1)Intertwined finances such as joint bank accounts and other joint holdings or liabilities;

(2)Sharing or joint responsibility for living expenses;

(3)Recognition of the relationship in the couple’s social and family circle;

(4)Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;

(5)Sharing household chores;

(6)Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and

(7)All other relevant evidence.  N.J.S.A.2A:34-23(n)(1-7)

Another factor the Court may consider is the length of the relationship. The Court can find cohabitation even if the new couple do not live together on a full-time basis.

If you have any questions regarding alimony and how it relates to your case we are available to discuss your concerns with you, please call our firm at 908-879-9499.

 

 

 

 

 

iandoli & edens, llc

WEEK 4

Now What? Job Loss and Alimony

            Alimony is based upon the circumstances at the time of the divorce.  With respect to the amount of alimony a significant factor is the supporting spouse’s income and the dependent spouse’s income or imputed income.  However, as we know life brings changes.  Unfortunately, a common change people face is a loss of a job.  This raises difficult questions:  What happens if the supporting spouse loses their job?  Are they still required to pay the same amount of alimony?

The answer to the second question is yes – temporarily at least. If the supporting spouse works for someone else and is terminated they can make an application to the Court for a reduction or termination of alimony based upon the loss of employment.  However, they can only make that application after 90 days.  During those 90 days the supporting spouse is expected to make all support payments.  The Court when it finally hears the application for reduction or termination of alimony based upon the job loss has the discretion to make the relief granted retroactive to the date of employment.  This means that the supporting spouse may be entitled to a refund of alimony payments or a credit on future payments if they continued to pay the full amount of alimony while unemployed.

There are several factors that the Court addresses when reviewing a reduction of alimony based upon loss of employment. Perhaps, the most significant factor is that the loss of employment is involuntary.  A supporting spouse cannot just quit their job because they are upset either with their job or with paying alimony and then request a reduction or termination.  The supporting spouse cannot avoid their alimony obligation by choosing to be un-employed or underemployed.  However, the Court will absolutely address an involuntary termination or reduction in income after the above-mentioned 90 day period.  The factors the Court reviews are contained in N.J.S.A.2A:34-23(k)(1-10):

(1) The reasons for any loss of income;

(2) Under circumstances where there has been a loss of employment, the obligor’s documented efforts to obtain replacement employment or to pursue an alternative occupation;

(3) Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;

(4) The income of the obligee; the obligee’s circumstances; and the obligee’s reasonable efforts to obtain employment in view of those circumstances and existing opportunities;

(5) The impact of the parties’ health on their ability to obtain employment;

(6) Any severance compensation or award made in connection with any loss of employment;

(7) Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;

(8) The reasons for any change in either party’s financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party’s financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;

(9) Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner;

and (10) Any other factor the court deems relevant to fairly and equitably decide the application.

As can be seen from the above-factors the Court not only reviews the change of circumstances of the supporting spouse, but of the dependent spouse as well. Courts frequently review alimony awards based upon all sorts of changed circumstances, not just loss of employment.  As we will address in the coming weeks new relationships and reaching retirement age are often considered changed circumstances that can affect alimony.

If you have any questions regarding alimony and how it relates to your case we are available to discuss your concerns with you, please call our firm at 908-879-9499.

 

 

 

iandoli & edens, llc

Is all alimony the same? Yes, to the extent that money paid and received is just that: money.  However, different types of alimony serve different purposes.

There is pendente lite alimony.  This is support that is paid prior to the divorce being finalized.  It’s paid during the litigation process.  It is a temporary financial solution to maintain the status quo until such time as all of the issues in the case can be resolved and the Final Judgment of Divorce is entered.

There is open durational alimony and limited duration alimony. These two types of alimony serve the same purpose but for different durations.  It is to help the financially dependent spouse maintain, as much as possible, a comparable lifestyle after the marriage that they enjoyed during the marriage.  It is assumed under such an award that the financially dependent spouse is never going to be able to reach the same level of earnings at the supporting spouse and that alimony is necessary.  Whether it’s open duration or limited is discussed in the previous blog in this series.

There is rehabilitative alimony. This form of alimony is paid to a dependent spouse in hopes that he or she will be able to increase their earning capacity after a period of time; and ultimately become less dependent on the supporting spouse.  In order to be awarded rehabilitative alimony the dependent spouse should provide a plan that shows the “the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur.” N.J.S.A.d. Rehabilitative alimony can be modified based on changed circumstances or the nonoccurrence of certain circumstances the Court thought would occur at the time the award was made.  All forms of alimony, except for reimbursement alimony which is addressed below, are modifiable as to amount.

The final form is reimbursement alimony. “Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. An award of reimbursement alimony shall not be modified for any reason.”  N.J.S.A.e.

If you have any questions regarding alimony and how it relates to your case we are available to discuss your concerns with you, please call our firm at 908-879-9499.

 

iandoli & edens, llc

This week’s alimony lesson is about duration.  An often asked question is:  How long will the alimony award last? The length of the alimony award is dependent on the statutory factors that were addressed in last week’s blog.  A Court is compelled to consider and make specific findings of fact based on evidence related to all of the statutory factors.  That means that every alimony award, both in amount and duration, is specific to the facts of your case.  An award of alimony involves the application of all the statutory factors to the realities of your life.  The Court is pursuant to statute to consider “the practical impact of the parties’ need for separate residents and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto.”  N.J.S.A. 2A:34-23(c)  The Court in determining an alimony amount is given an almost impossible task – It is supposed to take the same amount of money and divide it between two households so that both parties can enjoy the same standard of living.  It’s also given the task that is the focus of this blog – For how long should an alimony award last?

We know that pursuant to N.J.S.2A:34-23, the New Jersey Alimony Statute, that barring exceptional circumstances that the duration of your alimony will not exceed the duration of your marriage if you’ve been married less than 20 years. Those exceptional circumstances are:

  • The ages of the parties at the time of the marriage or civil union and at the time of the alimony award.
  • The degree and duration of the dependency of one party on the other party during the marriage or civil union.
  • Whether a spouse or partner has a chronic illness or unusual health circumstance.
  • Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner
  • Whether a spouse or partner has received a disproportionate share of equitable distribution.
  • The impact of the marriage or civil union on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child.
  • Tax considerations of either party.
  • Any other factors or circumstances that the court deems equitable, relevant and material.

If the marriage is less than 20 years in duration determining the appropriate length of an alimony award takes careful review of the all of the alimony factors mean and how those factors are applied to your case. You certainly do not have to be married for 20 years to qualify for alimony – alimony might be appropriate when the parties have been married only a very short time.  The duration of the marriage is only one of the 13 statutory factors the Court considers.  If you have any questions regarding alimony and how it relates to your case we are available to discuss your concerns with you, please call our firm at 908-879-9499.

iandoli & edens, llc

There have been many articles and blogs recently about how alimony is going to change under the new tax law (known as the 2017 Tax Cuts and Jobs Act).  We thought it might be time to do a quick recap of what alimony is.  Often professionals, including family law attorneys, forget that the terms that we use every day are not so familiar to others.  So here is your crash course.

Alimony in its simplest terms is the payment of support from the paying spouse to the receiving spouse.  If there is a significant disparity in income between the two parties then alimony is likely.  Many misconceptions about alimony exist.  For example, that alimony is always paid by the husband to the wife.  Or that if one party had an extra-marital affair that the other party does not have to pay alimony.  Or if you have a job of your own you won’t receive alimony.  None of these are true.  The most important thing to remember is your alimony award is specific to your case.  Alimony under N.J.S.2A:34-23, the New Jersey Alimony Statue, is based upon 13 individually identified factors plus anything else the Court may deem relevant.  The identified factors are:

  • The actual need and ability of the parties to pay.
  • The duration of the marriage or civil union.
  • The age, physical and emotional health of the parties.
  • The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other.
  • The earning capacities, educational levels, vocational skills, and employability of the parties.
  • The length of absence from the job market of the party seeking maintenance.
  • The parental responsibilities for the children.
  • The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income.
  • The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities.
  • The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair.
  • The income available to either party through investment of any assets held by that party.
  • The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment.
  • The nature, amount, and length of pendente lite support (temporary support with the divorce is pending) paid, if any.

Determining what these factors mean to our client’s cases is a big part of how we spend our time. If you have any questions regarding alimony and how it relates to your case we are available to discuss your concerns with you, please call our firm at 908-879-9499.

MegaWith the Mega Millions Jackpot climbing to $970,000 million as of yesterday we couldn’t resist asking what would you do with your winnings?  A question you may have for us is would I have to share my winnings with my spouse?  As with so many things in life – timing is everything.

If you win the Mega Millions prior to filing a Complaint for Divorce the winnings are subject to equitable distribution – this means you have to share with your spouse.  How much you have to share with your spouse varies from state to state.  Under the Windfall legal theory your Mega Millions winnings would be shared equally.  The idea being you won the Mega Millions as the result of plain old good luck and not the effort of either party, therefore the winnings should be shared equally.  This is not the legal theory followed in New Jersey.  New Jersey addresses lottery winnings just like any other unearned income or asset.  It does not mechanically divide assets equally.  New Jersey reviews a series of equitable distribution factors and divides assets based on the actual needs of the parties.  Every case is unique.  However, you would still have to share.

If you win the Mega Millions after the filing of the Complaint for Divorce you should be in the clear as far as sharing the winnings.  Although your alimony obligation might go up because you would be potentially earning millions of dollars a year in interest income.

If you have any questions regarding lottery winnings, equitable distribution or alimony in New Jersey please call the attorneys at Iandoli & Edens at (908) 879-9499.

So back to the original question:  What would you do with your Mega Millions winnings?

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