Multiple Family Child Support Obligations

On December 19, 2013, the Superior Court of New Jersey – Appellate Division issued a combined opinion in two cases argued by Morgenstern & Rochester partner Andrew Rochester that changed the law for how child support is calculated when one person is paying child support for more than one family.

In those cases, Harte vs. Hand and T.B. vs. Hand, (http://www.judiciary.state.nj.us/opinions/a5430-11a5431-11.pdf), the paying father was under an obligation to pay child support to two children of two prior families under two separate court orders while supporting a third child who was living with him. The lower court had set the child support for each of the two prior families as if the other did not exist, thus requiring the father to pay two high support obligations on top of his obligation to support the child living with him. Basically, the lower court used the same income to pay more than one support order. The lower court did not look at the combined effect of the three obligations. As Andrew later argued before the Appellate Division, the lower court “lost sight of the forest for the trees.”

Morgenstern & Rochester was hired after the lower court issued the support orders and after the lower court had denied a request to correct the orders to file an appeal to the Appellate Division.

After filing lengthy and detailed legal briefs and after a protracted appellate argument, the Appellate Division agreed with Morgenstern & Rochester that the lower court should have considered all of the father’s support obligations simultaneously. They directed that support be recalculated to treat all three of the children equally and fairly. The Appellate Division then adopted Morgenstern & Rochester’s approach that each support calculation for each family must consider the support obligations to the other families. The Appellate Division then set forth a detailed formula for doing so.

This opinion takes on special significance as it is a “Published Opinion.” What this means is that it not only binds the parties to the case, it binds all similarly situated people in the State of New Jersey. Only a small fraction of appellate decisions are deemed important enough to be “published.” This case marks Andrew Rochester’s seventh such published opinion. His other opinions have been in the areas of domestic violence, child support in high income cases, division of pensions in divorce, the effect of bankruptcy on divorce and the disposition of cryo-preserved human embryos in divorce.

If you are paying support for multiple families and want to know if your support is calculated properly, please contact Andrew Rochester, Esquire, at (856)489-6200 to schedule a consultation.

Posted in Child Support | Tagged , , , , , , | Leave a comment

Alimony Reform – What You Need to Know – Part 2

By Andrew L. Rochester, Esquire

In the last article, I wrote about some of the more well-known aspects of the proposed alimony reform law in New Jersey. This article addresses the other proposed changes to alimony that have not gotten as much attention.

One significant change to the alimony statute applies to rehabilitative alimony. Rehabilitative alimony is alimony for a certain period of time to allow a spouse to obtain training or advance in their career to reach self-sufficiency. This modification of the alimony statute is not well publicized but its effects can be far reaching. The proposal would require that rehabilitative alimony awards, except in certain unusual circumstances, be limited to a maximum of five years which can only be extended in very limited circumstances. For most people, five years would be enough time to obtain a GED and an undergraduate college degree. There is no explanation in the law for this proposal but the majority of rehabilitative alimony awards right now are shorter than five years anyway.

One other significant but not widely understood change to the alimony law in the proposal is to define more clearly what is meant by “cohabitation”. Generally, alimony awards now are subject to modification or termination should the person receiving the alimony cohabit in a marriage-like relationship with another party. There are very few concrete guidelines as to what is meant by cohabitation under current law. Right now what happens in a cohabitating relationship is a very case specific, fact sensitive matter. Normally the paying spouse would file a Motion with the Court asserting that their former spouse is living with another person in a marriage-like relationship. If they can make an initial showing that this happening, the Court will then schedule the matter for a trial first to prove that the cohabitation is occurring and then to determine whether or not there is a financial benefit to the party receiving the alimony of the cohabitation. Right now it is the burden of the paying spouse to prove that there is cohabitation and it the burden of the recipient spouse to prove that there is not a financial benefit of the cohabitation.

The first thing that the proposal does is define “cohabitation” and it requires there to be at least three months of continuous cohabitation. For there to be cohabitation, the Court must find there to be a stable, permanent, mutually interdependent relationship with economic benefit to the spouse receiving the alimony.

It is unclear whether or not the proposed law intended to change the burdens of proof between the parties but the proposed law does do so. Under the current law, the paying spouse must show that there is cohabitation and the recipient spouse must show that there is not a financial benefit of the cohabitation. If the recipient spouse cannot prove that there is not economic benefit, the alimony is reduced or terminated. The proposed law will now require the paying spouse to prove both the act of cohabitation and prove that there is a financial benefit to the recipient spouse of the cohabitation. Although the purpose of the law was to simplify alimony, it may actually have made the law of cohabitation much more difficult and contentious.

While the purpose of this blog is not to argue for or against the proposed alimony reform, a few things are clear. Although the proponents of alimony reform want the public to believe that they are creating a clear alimony formula, they are not. There is still a lot of wiggle room especially when it comes to arguments regarding the length of the alimony. In addition, while providing some much needed clarity in the areas of rehabilitative alimony and cohabitation, the proposal does not turn those areas of law into fill in the blank check-off lists as advertised. There still will be a need for legal advocacy and preparation. That is where your choice of attorney becomes paramount. More than ever, you will need an attorney with substantial trial experience as we have here at Morgenstern & Rochester. You will need an attorney who is well versed in all of the ins and outs of both the current and proposed alimony statutes.

At Morgenstern & Rochester we have almost fifty combined years of matrimonial litigation experience and we are here to help you. If you have any questions, please contact Morgenstern & Rochester at (856)489-6200 to schedule a consultation.

Posted in Alimony | Tagged , , , , , | Leave a comment

Alimony Reform – What You Need to Know – Part 1

By Andrew L. Rochester, Esquire

Many of you may have seen in the news that there is an effort afoot in New Jersey to dramatically change the alimony statute. At present, a Court can award four types of alimony either individually or in combination based upon a review of thirteen factors. Alimony at present can either be permanent, limited duration (for a set period of time), rehabilitative (for a set period of time to allow a supported spouse to obtain education or training), or rehabilitative (a very rarely used type of alimony to allow a spouse to be compensated for contributing to the other spouse’s education).

While the current alimony statute provides thirteen factors for a Court to consider, there is no formula for either the length or the amount of the alimony. This is the most significant proposed change to alimony.

Many argue that courts now are too willing award alimony and that alimony awards are too long. This is a widely shared belief. The people who believe this do not fit into political categories or any particular set of demographics. Pending in both the State Assembly and Senate are Alimony Reform bills sponsored by both Republicans and Democrats. These bills, which at present have a very good chance of becoming law, make several significant and perhaps unintended changes to current alimony law. Alimony reform is generally opposed by family law attorneys although there is a vocal minority who do support reform.

The purpose of this two part article is to let you know what is coming.

The most well-known aspect of alimony reform is the elimination of what is known as permanent alimony. Generally, this is alimony until retirement absent some unforeseen substantial changed circumstance. Sometimes it extends even beyond retirement. The proposed alimony reform as it exists now creates a sliding scale for the duration of alimony and it includes a range for the calculation of alimony. Regarding the amount, it indicates that alimony should not exceed a recipient’s actual need for support or 30%-35% of the difference between the parties’ gross incomes. For those of you who are expecting a clear, hard and fast formula, there is not one. Just determining what constitutes “gross income” can sometimes require the assistance of accountants. The proposed law includes ten reasons to modify the percentage awarded for alimony so yes you still may need an attorney.

Regarding the duration of alimony, the proposal sets guidelines based upon the duration of the marriage. For example, should the marriage or civil union be five years or less, limited duration alimony would be permitted for up to one-half of the length of the marriage measured in months. As the marriage gets older the duration of alimony increases. For a marriage of fifteen to twenty years, the proposal would allow for an alimony award of up to 80% of the duration of the marriage measured in months. Thus, for a twenty year marriage, the alimony could be anywhere from zero to sixteen years. So again what many believe is a formula is really more of a set of guidelines. What the proposal does do for marriages of greater than twenty years is to allow for a Court to award “indefinite alimony,” which is very similar to what is now referred to permanent alimony.

One important change that this proposal does make with respect to all alimony awards is that it makes the alimony, except in unusual circumstances, terminate when the paying spouse reaches Social Security full retirement age, which at present is 66 years of age. Under current law, a paying spouse can argue that actual retirement constitutes a changed circumstance warranting a modification. Normally the modification would be either a total elimination of alimony or a substantial reduction should the court find the retirement to be in good faith. What the proposal does is to terminate alimony at Social Security full retirement age regardless of whether or not the paying spouse actually retires. As with everything else in the statute, the statute does allow exceptions to the rule and so again this is not a plug-and-play formula as many of the proponents of the bill make it seem.

In the next blog entry, I will discuss the other proposed changes to the alimony law. Please remember that every case is different and there are always exceptions to the rule. To speak with an experienced matrimonial attorney please contact Morgenstern & Rochester at (856)489-6200 to schedule a consultation.

Posted in Alimony | Tagged , , , , , | Leave a comment

What Rights Do Grandparents Have? – An Update

In a previous blog entry, I discussed the rights that grandparents have to visitation with their grandchildren. Under New Jersey law, grandparents do not have the right to force visitation with their grandchildren unless denial of visitation causes harm to the child or if the grandparents have become what is known as a “psychological parent,” meaning that they have effectively become another parent to the child. We have gotten a lot of feedback about this prior article. Well, we have an update.

On May 14, 2013, the Appellate Division in New Jersey issued a ruling in a grandparents’ rights case litigated by Morgenstern & Rochester. In this particular case, Koeppel vs. Pierson, the Appellate Division upheld the right to visitation where the grandmother had raised the child for many years because the biological parents could not due to drug addiction.

When the biological father was later able to assume the parental role, residential custody was transferred to him. He then tried to cut the grandmother out. The trial court sided with the grandmother. The biological father then appealed, and that is where Morgenstern & Rochester got involved. Morgenstern & Rochester secured the right of the grandmother to custody every other weekend by successfully arguing that the grandmother was the child’s psychological parent, and thus she stood as an equal to the father in the eyes of the law.

For a grandparent to stand as equal to a biological parent requires the grandparent to prove four facts: 1) that the biological parent consented to a parent/child-like relationship between the grandparent and grandchild, 2) that the grandparent and the child lived together in the same household, 3) that the grandparent assumed the obligations of parenthood and 4) that the grandparent held a parent-like relationship for an extended period of time to establish a parent-like bond with the child.

In the Koeppel case, because the grandmother had custody of the child for an extended period of time, had assumed the duties of parenthood and formed a bond with the child like a parent would have, the Appellate Division found that the grandmother was a psychological parent. The Appellate Division held that, “A biological parent and a grandparent with psychological parent status stand in parity to one another.”

While every case is different, this case does give some hope to grandparents who are forced by circumstances to take over care for their grandchildren. If you think that your case might be similar, please contact Morgenstern & Rochester at (856) 489-6200 to arrange a consultation with one of our attorneys.

Posted in Uncategorized | Tagged , , , , , , | Leave a comment

Important Considerations When Selling Your Home During a Divorce

If you are contemplating a divorce or are already a party to a divorce proceeding, and you can’t agree on who will get the marital home, or you know that neither of you will be able to afford the marital home after a divorce, the best course of action may be the sale of your home. The sale of your home to your spouse may also be the most effective way to deal with the real property of your marriage.

First, determine whether there is any equity in your home, as well as whether there is a market for your home. If you borrowed heavily against your home before the recession hit, there is a good chance that your mortgage is “upside down” or “underwater,” meaning the amount you owe the bank is more than the price you can get for the home. If that is the case, you generally have two options: seek to refinance your home so that it is no longer underwater, or seek permission from your lender for a “short sale” of your home, where the bank will let you sell for market value, even if it is less than what you owe (and will forgive the balance).

You may want to consider holding the property jointly after the divorce, until such time as the market turns around, but this is an extremely risky proposition. You will want to make certain that your lawyer puts provisions in place that protect your interests.

If your home is not underwater, your first step should be to get a professional appraisal of its value. Your attorney should be able to refer you to a qualified appraiser. You will want to work closely with your divorce lawyer, so that the profit from the sale of the home is accurately reflected in any property settlement. If you are transferring the marital home to your spouse as part of the divorce settlement, you want to make certain that new mortgage or financing agreements are drafted that name only your spouse as being obligated on payment. There should be a closing, just as in any other type of real estate transaction.

Contact Morgenstern & Rochester

At Morgenstern & Rochester, our two partners have almost 50 years of combined family law experience. We are a boutique family law firm that takes a hands-on approach. When you hire us, you will always work directly with one of our partners, never with an inexperienced associate or a paralegal.

To arrange a confidential meeting with an experienced Cherry Hill family law attorney, contact us online or call our office at 856-489-6200.

Posted in Divorce | Tagged , , , , , , | Leave a comment

Understanding Alimony or Spousal Support in New Jersey

Alimony or spousal support is available in New Jersey on a case-by-case basis. The court has options when considering a request for alimony, and can issue an order for:

  • Alimony pendent lite, or temporary alimony, which provides some level of support while divorce proceedings are pending
  • Limited duration alimony, granted until such time as you are self-supporting
  • Permanent alimony (extremely rare), usually granted in cases where the parties have been married for a long time and the receiving spouse forfeited career or educational opportunities to care for family, or to help advance the other spouse’s career
  • Reimbursement alimony, available to a person who supported a spouse through higher education and anticipated enjoying the benefits, but was denied because of divorce or separation
  • Rehabilitative alimony, designed to provide a level of support while the recipient gets training or education necessary to become self-supporting

The Factors the Court Considers When Granting Alimony

In New Jersey, the court will look at a broad range of factors, including:

  • The needs of the party seeking alimony, as well as the ability of the other party to pay
  • The age and health of the parties
  • The length of the marriage
  • The standard of living to which the parties were accustomed during marriage
  • The respective earning capacity of each party
  • The extent to which one party may need to take care of minor children of the marriage
  • The division of marital debts and assets
  • The length of time, if any, that the party seeking alimony has been out of the job market

Whether or not alimony is granted, the type of alimony granted, and the amount of spousal support are all at the discretion of the court.

Contact Morgenstern & Rochester

At Morgenstern & Rochester, our two partners have almost 50 years of combined family law experience. We are a boutique family law firm that takes a hands-on approach. When you hire us, you will always work directly with one of our partners, never with an inexperienced associate or a paralegal.

To arrange a confidential meeting with an experienced Cherry Hill family law attorney, contact us online or call our office at 856-489-6200.

Posted in Alimony | Tagged , , , , , , , | Leave a comment

Moving Forward after Divorce or Legal Separation

Even though divorce may be the right thing for you, it will seldom be easy. Untangling the legal, financial and emotional bonds will simply take time. As you go through the process, there are many things to remember:

  • To protect your legal interests, it is essential that you retain an experienced lawyer—You may be concerned about spending the money. You may simply want to be done with the past. Unfortunately, there are many pitfalls that await you if you either ignore your rights or try to handle everything yourself. An experienced attorney can help you work out custody and visitation arrangements that are in the bests interests of your children, and that allow you to play a meaningful role in their growth and development. Your lawyer will make certain that support payments are fair, and that your rights are protected in the property settlement.
  • Your attorney can also help you take basic steps to minimize the financial impact of a divorce. You may also want to work with a financial planner or consultant, someone who can help you move in the direction of self-sufficiency.
  • The emotional impact of a divorce is often the most devastating. For most people involved in divorce, it is a form of grief. The companionship and shared experiences you have come to rely on are gone. The vision you had for your life will necessarily be different. Here are some important things to remember:
    • Grieving is okay—It is normal to feel a sense of loss, and it doesn’t mean you are doing the wrong thing.
    • Talking about your feelings is usually better than not talking about them—Whether it’s a friend or a professional counselor, it is important that you verbalize how you are feeling, and that you get different perspectives on your situation.
    • Try to keep moving forward—This may not always be easy, or even possible, but try to set yourself some goals to move toward. Don’t be alarmed, though, if you go through stages where you can’t or don’t feel like moving forward. Change can be exhausting.
    • Spend time with people you trust, who support and value you—Change brings uncertainty. Seek support from people who know and love you.

Contact Morgenstern & Rochester

At Morgenstern & Rochester, our two partners have almost 50 years of combined family law experience. We are a boutique family law firm that takes a hands-on approach. When you hire us, you will always work directly with one of our partners, never with an inexperienced associate or a paralegal.

To arrange a confidential meeting with an experienced Cherry Hill family law attorney, contact us by e-mail or call our office at 856-489-6200.

Posted in Divorce | Tagged , , , , , , , | Leave a comment

What Rights Do Grandparents Have? – Part 2

Another situation where grandparents can prevail, and in some circumstances even establish rights equal to the parents, is if the grandparent becomes what is known as the “psychological parent” to the child. In other words – if the grandparent effectively becomes another parent to the child. This only occurs in situations where a grandparent has been given custody of a child for an extended period of time. This oftentimes happens when parents are incapable of parenting due to drug addiction or medical infirmity for a substantial period of time and the grandparents step in. If a grandparent can meet the requirements of New Jersey law to be deemed a psychological parent, legally they stand as equals to the actual parents. Even if the actual parent regains custody of the child, that grandparent still has legal rights including the right of visitation.

Litigation of grandparents’ rights cases requires an attorney who is intimately familiar with New Jersey law and who has experience in New Jersey’s family courts. At Morgenstern and Rochester, we have experience in handling grandparent visitation cases both in family court and in New Jersey’s appellate courts. If you are a grandparent and have questions about what your rights are, or if you are a parent who has concerns about the role of grandparents in your children’s lives, contact our firm and schedule a consultation and we will assist you through this complicated area of New Jersey family law.

Posted in Child Custody | Tagged , , , , , , , , , , | Leave a comment

What Rights Do Grandparents Have? – Part 1

One question that comes up a lot is what rights do grandparents have to visit their grandchildren if the parents object. This is an area of law that has caused a good deal of confusion because the law keeps evolving. At present, the answer to the question is that grandparents do not have many rights but they do have some.

New Jersey has a grandparent visitation statute which allows grandparents to petition the Court to compel visitation with their grandchildren. New Jersey is not alone in having such a law. The United States Supreme Court has determined that open-ended statutes that allow grandparents to seek visitation over the objection of the parents generally infringe on the parents’ rights to raise their children as they see fit.

At first glance, this would seem to be the end of grandparents’ rights. However, the Supreme Court left some room for state courts to maneuver. New Jersey Supreme Court has actually been quite active in this regard giving grandparents as much rights as possible within the confines of what the United States Supreme Court ruled. In New Jersey, the general rule still is that grandparents do not have the right to demand visitation but there are exceptions.

The most common exception is if the grandparents can show that a denial of visitation will cause harm to the child. The question then becomes what is meant by harm to the child. Generally this refers to psychological harm to a child if a deep bond has been forged between that child and his or her grandparents. Often times this will require a psychologist to testify. An example where such a bond could be formed is if a grandparent provided daily day care with the grandchild for several hours per day. This raises the grandparent above a normal grandparent who occasionally sees the child to a permanent fixture in the child’s life. In a situation like that, it can be possible to show harm to the child.

Posted in Child Custody | Tagged , , , , , | Leave a comment

The Relocation Process

New Jersey custody law does not restrict either parent from moving from one place to another in the state. It does, however, prevent a custodial parent from relocating out of state with a child unless:

  • The parents both agree in writing
  • The parent gets the courts agreement to relocate

Relocating and the Child-Parent Bond

The New Jersey family law courts agree that a strong parent-child bond with both parents is of great benefit to the child. In many situations, a request for relocation begins with a “good faith basis” analysis. This is followed by a review that determines whether the move is harmful to the child’s best interests.

This review requires an analysis of 12 factors:

  • What are the reasons for the move?
  • What are the reasons for opposing the move?
  • What is the past history of dealings between both parents in regard to the reasons put forward by each for either supporting or opposing the move?
  • Will the child receive educational, health and leisure opportunities at least equal to what is available here?
  • Are there any special needs or talents of the child that require accommodation and is the accommodation its equivalent in the new location?
  • Can a visitation and communication schedule be developed that allow the noncustodial parent to maintain a full and continuous relationship with the child?
  • What is the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed?
  • What will the affect of the move be on extended family relationships here and in the new location?
  • If the child is of age, what is his or her preference?
  • Is the child entering his or her senior year in high school? If so, case, they should generally not be moved until graduation without their consent.
  • Does the noncustodial parent have the ability to relocate?
  • Are there any other factors bearing on the child’s interest?

Relocation in Shared Parenting or De Facto Shared Custody Situations

If there is a shared parenting situation or a “de facto shared custody” situation, the method of review is completely different. The standard applied in that case is the standard applied to changes in custody, which ultimately is a “best interests of the child” standard. This is a much higher burden of proof.

Cherry Hill, NJ, Law Firm Focused on Family Law

At the law office of Morgenstern & Rochester, in Cherry Hill, New Jersey, we have a combined 50 years’ experience helping parents solve complex legal issues like these.  Our two-partner law firm focuses exclusively on family law matters that include relocation, child custody and parenting time, modifying an original divorce decree, equitable division of marital property and debt and support matters.

Get Answers and Advocacy From an Experienced Relocation Attorney

Whether you are seeking to relocate or want to prevent relocation, it is important to access a skilled, caring lawyer who can help. Arrange a meeting with one of our Morgenstern & Rochester’s lawyers at our Cherry Hill, NJ, law firm by calling: 856-489-6200 or send us an email.

Posted in Child Custody | Tagged , , , , , | Leave a comment