Divorce & Family Law Insights

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

One of the greatest concerns to individuals who are divorcing or contemplating divorce is the possibility that their spouse is hiding or dissipating assets.  While such conduct may be the exception rather than the rule such actions on the part of one spouse can have extreme financial consequences to the detriment of the other.

In those cases where there is a basis for suspicion, as experienced matrimonial attorneys we at Lindabury can take the initial steps to investigate whether a spouse is attempting to hide marital assets.  In those divorces were the suspicion is confirmed, we may recommend the use of a forensic accountant, investigative expert, or an “IT” (information technology) professional to discover the extent to which this conduct has occurred.  Lindabury’s Family Law Group has decades of experience advocating on behalf of clients involved in contentious divorces.

KNOW THE SIGNS:  Hiding marital assets can be an attempt by one spouse to gain the upper hand in a divorce.  Some of the more common signs are regular and consistent withdrawal of cash from a checking account or at an ATM, unexplained travel expenses, payments to unknown parties or friends or relatives for no plausible reason and the payment of debt for reasons of which you are unfamiliar or unaware.

Tax season is now descending upon all of us and for individuals either planning to file for divorce, or those who are presently in the midst of divorce litigation, understanding how your current marital status can impact your tax liability is of significant importance. While each individual’s specific circumstances are unique, this article intends to provide general guidance to assist you in your decisions. By highlighting several areas where Divorce and Tax Law intersect you can make informed choices that will help to ensure that you’re not paying more than your fair share of taxes owed.

For individuals contemplating separation or divorce, tax planning prior to these events can often result in significant savings during the divorce process. Consulting a tax professional to discuss the pros and cons of filing joint or separate tax returns is always advisable for individuals who plan to divorce in the coming months. With respect to previous year’s tax filings, regardless of whether they were filed individually or jointly, gathering copies of these documents today will expedite the discovery phase of your divorce case and help to reduce your overall divorce costs.

Do you and your spouse own your own business? In situations where a business operates as a cash business it is important to collect and maintain information as to the businesses’ monthly income. This information will be important for the valuation and eventual equitable distribution of marital assets. Depending upon your particular circumstances, pre-planning and consultation with your attorney and accountant can often result not only in tax savings but ensuring your overall financial protection.

By: James McGlew

The perils of getting married without a prenuptial agreement were made clear this week with the news of the divorce of billionaire Harold Hamm.  Mr. Hamm, Chief Executive Officer of Continental Resources, was ordered to pay nearly $1 billion to his now ex-wife in one of the largest US divorce judgments ever.  The order requires Mr. Hamm to pay his ex-wife one-third of the settlement, about $320 million, by the end of 2014 and the remainder to be paid in monthly installments of at least $7 million.  This award will help to make the former Ms. Hamm one of the 100 wealthiest women in the United States.

As I'm sure you can tell by now, Mr. and Mrs. Hamm had no prenuptial agreement.