Divorce & Family Law Insights

One of the questions often asked by divorced individuals, particularly at the time of their retirement or the retirement of their former spouse, is whether or not they are entitled to receive Social Security benefits based on their prior marriage. The Social Security Administration interprets the law with the philosophy that a divorced person may deserve a personal benefit themselves if they were a long-term spouse of a member of the country’s workforce.

Generally, there are two sets of rules which the Social Security Administration applies to determine whether or not an individual will qualify. The first applies if your former spouse is living; the second applies if they are deceased. The interpretation of these rules can sometimes be complicated and is often necessary to have an experienced family law attorney review not only the rules applied by Social Security but the settlement agreement signed at the time of the divorce.

In the first scenario, where the former spouse is still living, the preliminary criteria which need to be met are: (1) your prior marriage lasted for 10 years or more; (2) you are not currently married; and (3) you are 62 years of age or older. Just as important is whether you are entitled to receive Social Security benefits based on your own prior work history. If you are, the amount which you are entitled to receive for your efforts must be less than what you are entitled to receive based on your prior marriage. No individual is entitled to collect both benefits.

Today’s current economic reality is one of great uncertainty, especially when it comes to employment. Employees who could count on receiving an annual cost of living adjustment or performance bonus no longer have that luxury, nor the security that their years of experience and training will translate into an equal or higher-paying position should they lose their job. These realities of employment cut across the entire New Jersey labor market, yet they have an even deeper impact when faced by divorced individuals with existing alimony obligations.

Alimony, which is sometimes referred to as spousal support or maintenance, is defined as the obligation upon one spouse to provide financial support to his or her spouse before or after marital separation or divorce. In 2014 the New Jersey Legislature passed, and the Governor signed, an alimony reform bill which “modernized” how alimony awards are to be calculated. One change in the new alimony statute deals with how judges can interpret cases where the payor of alimony attempts to lower or all together eliminate their alimony obligations due to job loss.

Recently, a Superior Court judge in New Jersey rendered a decision effecting thousands of divorced spouses in our state. The judge’s ruling confirmed for the first time that the 2014 alimony overhaul would not just apply to individuals divorced since the revisions were enacted two years ago, but to all divorced individuals currently paying or receiving alimony.

In New Jersey, child-support is defined as a financial payment from one parent to the other to provide for the needs of their child or children. Child support is the right of every child and neither spouse can waive this responsibility. All parents regardless of their marital status have an obligation to support their children until they are deemed emancipated.

In most instances, the amount of child support to be paid is calculated by using New Jersey’s Child Support Guidelines. Income information is exchanged between the parents and this data is used in combination with factors such as the number of children, percentage of non-custodial parenting time and other prior child support obligations, to determine the amount of child support that is to be paid weekly. The Guidelines take into account the amount of funds necessary between the two parents to cover the basic needs of the children including, but not limited to, their food, shelter, healthcare and clothing expenses.

Child support obligations will remain in place for many years. Child support is not terminated automatically and may continue longer based on extraordinary circumstances such as the special needs of a child. As such, a common aspect of many divorce agreements is an agreement between the parties for the use of a “COLA” which is an acronym for Cost-of-Living Adjustment. This procedure automatically raises child-support awards every two or three years, the specific details of which are negotiated and agreed to before any final divorce judgment is entered. The purpose of a COLA is to keep the child support award’s value current due to inflation. If child support is payable through the Probation Department, parents are often contacted directly regarding the implementation of a cost of living adjustment.

Whether you have been served with notice that your spouse has filed for divorce, or if you are contemplating filing for divorce yourself, there are important steps anyone facing this scenario should undertake.

The first is to stay calm. This is obviously easier said than done but it is important as many people do or say things while processing this major life change that they later come to regret.

If you have children, take whatever steps necessary to distance them from the proceedings you or your spouse are considering.  At this early stage of the process there is no benefit to advise them of the situation and they should not be involved in any discussions between you and your spouse.  Children should never be compelled to “choose sides” regardless of their age.

This September will mark two years since the New Jersey legislature made sweeping revisions to the state’s alimony statutes. The legislature amended the alimony statutes in order to address several pressing issues incluing:

• making it easier if to reduce alimony payments when a former spouse loses their employment;
• imposing new restrictions on individuals who cohabit with another while receiving alimony from their former spouse;

Domestic violence is a serious issue concerning all segments of our society. It affects couples, their children, friends, relatives and employers. New Jersey courts take allegations of domestic violence very seriously and have established protocols in place to protect victims.

In order for an act to be considered a domestic violence offense the incident must be committed against an individual designated under the law as a protected person. Generally it is assumed that domestic incidents occur between husband and wife. While this may often be the case, there are other situations and relationships that can qualify for protection under the law. In order for an individual to obtain court ordered protection from acts of domestic violence, the violent act must have occurred between two people who have or have had one of the following relationships:

• Current or former spouse

For many couples experiencing marital difficulties and facing the end of their relationship, divorce mediation can be an appropriate alternative to litigation. While mediation may not fit every situation, for couples who are prepared to address all of the issues related to their relationship, a mediator can often assist in achieving a resolution. In mediation there are no determinations as to who will be the “winner” and who will be the “loser” as the mediator has no interest in advocating the position of one party in favor of the other. A mediator’s role is to determine what common ground can be achieved between the parties.

Mediation can cover all divorce issues such as custody, parental time-sharing with respect to children, the amount and type of alimony, child support obligations, the disposition of the marital home, the division of pensions and other retirement benefits and the equitable distribution of marital assets.

Couples can avail themselves of mediation before either spouse files for divorce, while they are in the process of litigating their divorce and even after their divorce has been finalized. Some couples choose to take a step back and “pause” their divorce litigation and retain a mediator to assist in the process. Increasingly I see that divorced individuals are mediating the disputes that naturally arise in the years following their divorce. Ex-spouses will attempt to mediate such issues as responsibility for college costs for their children, the increase or decrease in alimony or child support based on a change in circumstances post-divorce, and the finalization of pension related issues.

Over the years there have been evolving standards used in judicial determinations as to what grounds will be sufficient to permit a parent to relocate out-of-state with their child. Presently, New Jersey has two different standards to apply when these types of matters come before the court. A determination first needs to be made by the court as to whether the parents have a traditional custodial relationship or whether the parents have a shared custodial relationship.

When one parent is clearly the primary custodian of the children (traditional custodial relationship), that parent must satisfy a two-step standard. He or she must demonstrate that they have a good-faith reason for their request to relocate and that their relocation will not be detrimental to the child’s best interest. If the parent can satisfy the Court that they have met the standard, the Court will then examine several factors as to whether or not to permit the relocation.

If the parents have a shared custodial relationship with their child, then the right to relocate with the child from New Jersey requires an actual change in the custodial agreement between the two parents. If this is the case, the parent seeking to effectively change or modify the existing custodial relationship with the child has the threshold requirement to show that there is now a substantial change in circumstances and that the best interests of the child are served by a change in the existing custody agreement.

Each spring thousands of New Jersey high school seniors undergo the process of applying to colleges and universities to continue their education. The cost of college tuition, room and board and related expenses can be exorbitant. While the financial strain of funding a child’s higher education to intact families is significant, it is often more of a burden for divorced parents of soon-to-be high school graduates. Over 30 years ago, the New Jersey Supreme Court determined that divorced parents could be held financially responsible for the college education of their children. In analyzing the reasonableness and level of such an obligation, the Court set forth a number of factors to be weighed by Judges. These factors include, but are not limited to:

• The amount sought by a child for the cost of such college education
• The financial ability of the parent or parents to pay those costs