Articles Posted by James McGlew II

The Tax Cuts and Jobs Act of 2017 (TCJA), enacted by Congress last December, has created jobs for many individuals. It has also created additional work related to the issue of alimony for family law attorneys.

As interpreted under our New Jersey divorce statute, one spouse may be obligated to support the other spouse by the payment of alimony. The payments made by one spouse to the other which met the Internal Revenue Code definition of alimony would be deductible by the payer on his or her federal income tax return and included as taxable income to the recipient. This remains the case for alimony agreements or settlements signed prior to the end of 2018.

However, beginning in 2019, Congress has changed the rules. Payments made pursuant to an agreement or Court Order reached or entered after December 31, 2018 will no longer be deductible by the payer nor will they need to be claimed as income by the recipient. This major change in the tax law will not change the tax treatment of any payments made pursuant to an agreement which was entered prior to the end of calendar 2018.

If you find yourself in a situation where you are contemplating divorce, there are several recommended steps you should take. The first of these is to consult an attorney who specifically practices in this area and devotes the majority of their practice toward divorce and family law matters. Contact the attorney to arrange for a consultation. You should not be put off by an attorney who charges an initial consultation fee. As with most things, you usually get what you pay for. Often times the consultation fee is a small initial investment in a major life changing event.

Next, if you are a parent, it is important to never involve the children in the marital discord. No child should be placed in the middle of divorcing parents or the issues one of the parents may have with the other.

If you are not already, become knowledgeable about your family‘s finances. Try to secure copies of relevant financial documentation including, but not limited to, prior tax returns, W-2 and 1099 statements and paystubs, bank account, investment and credit card information pertaining to both you and your spouse. While you and your attorney will be entitled to obtain and review this documentation during any litigation, there is a cost savings involved when you can provide as much information as possible to your attorney.

Divorce mediation is a cost-effective and time saving process to utilize in what is an emotional and often contentious proceeding between parties. The mediation process can be utilized whether or not the parties are in the process of divorcing, contemplating divorce, or examining issues which remain or have arisen after their divorce.

For individuals considering divorce / family law mediation, it is essential they understand that the State of New Jersey does not require licensing or any type of certification for someone to become a mediator in private practice. Because of this, there are many mediators offering their services who lack the requisite background and specific knowledge of the important legal issues you are facing. When in this situation, it is important to select an experienced family law attorney and one who has been “approved to act as a mediator” by the New Jersey Supreme Court. To meet the Court standard for such qualification, a mediator must have completed a minimum of 40 hours in a Court-approved mediation course, possess a minimum of a bachelor’s degree, and have five years of professional experience in the field of expertise in which they are to conduct mediations.

Whether the issue is custody, time-sharing, alimony, child support, the distribution of property, investments or retirement accounts, or any other issue encountered in a divorce, a mediator who has the specialized training and experience is best equipped to assist the parties in resolving their differences. Some individuals find mediation to also be beneficial before they get married when they need to discuss and negotiate pre-nuptial agreements.

In all cases of divorce or separation where children are involved, the issue of time-sharing (previously referred to as “visitation”) is a significant issue to be addressed. Unless the parents have agreed to an equal shared custodial arrangement, an appropriate schedule of time-sharing is particularly important for all those involved: the custodial parent, the non-custodial parent, and the children.

Determining a schedule of time-sharing with the children is sometimes resolved between the parties. However, in those cases where the parties are unable to do so, the Court will order mediation in an attempt to resolve the issue. If the mediation is unsuccessful, the Court will (and has the authority to) determine the time-sharing schedule which will be binding on all involved.

Traditionally, time-sharing consisted of alternate weekend overnights for the non-custodial parent, a division of legal and religious holidays, extended time during the summer, and perhaps one evening per week for dinner. Recently, time-sharing schedules have become more flexible with non-custodial parents demanding (and receiving) more time with their children. Busy work schedules for the parents and academic and activity schedules for the children demand a more fine-tuned approach to time-sharing.

One of the most contentious issues faced by many divorced parents has always been whether the custodial parent has the right to relocate with the parties’ children out of state. In an increasingly mobile society this has become an issue for many parents. Often custodial parents decide that they cannot continue to reside in New Jersey. They need to explore job opportunities in other states and/or move back to a state where they were raised and may have a family-type support system in place. They may have started a relationship with someone who resides out-of-state or may be contemplating marriage with that person who has an established career in another state. For years, the custodial parent could not permanently remove the children from the state of New Jersey without the written consent of the other party or a court Order. If there was no agreement, the party wishing to move would petition the court for permission. Over the past several decades the standard our Courts have used to make this determination has evolved. For more than 15 years, the standard has been that the prospect of moving the children out of state would be granted unless it was “inimical to the child’s interest.”

Last month, the New Jersey Supreme Court changed the standard that lower courts are to utilize when determining whether or not a custodial parent may relocate the children out of New Jersey. It was also determined that this new standard would apply whether or not the party seeking to move has been the child’s primary residential parent. This ruling represents a significant departure from existing law by changing the standard a court is obligated to interpret. It also gives the noncustodial parent considerably more input and seeks to protect the rights of both parents.

When examining the issue of relocation our courts are now charged with determining whether there is “cause” (to be interpreted under the existing statute) to authorize a child’s relocation out of New Jersey. To do so, courts are now obligated to weigh many factors including, but not limited to: “the parents’ ability to agree, to communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preferences of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of children.”

Unfortunately, at the time a divorce is finalized an individual can encounter new and unanticipated financial obligations.  Any debt that was incurred during the marriage and will not be paid off at the time of divorce needs to be addressed in the parties’ settlement agreement.  It is important that any written settlement reached between the divorcing parties be thorough and clear as to which of the parties is responsible for a particular debt and how and when that person will satisfy that debt. Unfortunately, at the time a divorce is finalized an individual can encounter new and unanticipated financial obligations.  Any debt that was incurred during the marriage and will not be paid off at the time of divorce needs to be addressed in the parties’ settlement agreement.  It is important that any written settlement reached between the divorcing parties be thorough and clear as to which of the parties is responsible for a particular debt and how and when that person will satisfy that debt.

The entry of a divorce judgment does not alleviate the joint responsibility for a joint debt.  As an example, should one party agree to pay the balance due on a joint credit card debt in its entirety, and then fail to subsequently do so, the credit card company can pursue its claim against both of the individuals named on the account. The creditor is not bound by any agreement made between the divorced parties.

Additionally if payments are late or not made, the Lender or the bank that provided the credit can report negative information to the credit reporting companies. This can affect not only the credit rating of the party who was responsible to make the payments but possibly the other party as well.

Many couples who are contemplating divorce or separation believe that litigation is their only option. The truth is that many couples can utilize mediation as a means of resolving their marital issues. Additionally, many couples who have been divorced but are dealing with issues which have arisen after their divorce settlement can use mediation as a cost-effective means of achieving a resolution. Mediation is a fair, unbiased and less confrontational alternative to the parties returning to Court. Many discover they have more individual control in the mediation process than when utilizing the Courts. Divorce mediation offers the possibility to avoid the lengthy and costly process of litigating disputes.

Mediation is a private process for discussing and resolving the parental and financial issues that are part of your divorce or the issues that often arise after your divorce has been finalized. Instead of choosing to pursue the resolution of their disputes through the court system, couples voluntarily agree to work out issues between themselves with the assistance of a neutral third party (an accredited family law mediator).

In some cases one spouse sees the advantages in mediation while the other party is reluctant; mistakenly believing that mediation is a form of marriage counseling. This is not the case. Mediation is a completely non-binding process where the parties attempt to resolve the issues that arise in a separation or divorce or where issues have come about after the parties are divorced (e.g. a party’s loss of employment, a child’s emancipation or their selection and cost of college, relocation of children out-of-state, compliance with Court Orders). Mediation does not include any form of therapy or counseling.

In New Jersey, there are two basic concepts of child custody. The more familiar concept is “physical” custody which refers to where and with whom the child will live. When parents share “joint physical” custody, the child lives with each parent for a certain amount of time during the year. A parent with whom the child spends most of their time is designated as the Parent of Primary Residence (“PPR”) or the primary caretaker. The parent with whom the child has time-sharing is designated as the Parent of Alternate Residence (“PAR”) or secondary caretaker. Generally, unless there is a concern that the parent of alternate residence will harm the child, parenting time or visitation rights will not be withheld.

The less familiar but equally important concept is “legal” custody which refers to a parent’s right to make decisions concerning their child, such as medical treatment, selection of healthcare providers, education, engaging in what might be considered hazardous activities and other significant decisions. In most cases, parents will have joint legal custody of a child and share the decision-making responsibilities. In some instances, however, the judge may award sole custody where only one parent has legal and physical custody. This is a relatively rare occurrence that is ordered only when the other parent is absent or legally unfit. A parent may be unfit if he or she has engaged in child abuse or neglect or is struggling with an addiction to alcohol or drugs. Absent such circumstances, a joint legal custodial relationship among parents is the preferred arrangement since it is likely to foster the best interests of the child.

A recent Court decision restated that “the prime criterion for establishing a joint legal custodial relationship between divorced or separated parents centers on the ability of those parents to agree, communicate, and cooperate in matters relating to the health, safety, and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other. The ability of parents to put aside their personal differences and work together for the best interests of their child is the true measure of a healthy parent-child relationship.”

Parents who are either currently going through a divorce or were divorced many years ago often ask “at what point do I no longer have to pay child support for my children?” It surprises some parents to learn that there has been no specific age at which time parents are no longer obligated to pay child support.

Parents who are already divorced should review their settlement agreement which usually spells out the conditions which must be met for the child to be deemed “emancipated.” It is at the time of emancipation when parents no longer are financially responsible to support their children.

A recent change in New Jersey law provides more certainty. As of February 1, 2017, unless otherwise specified in a Court order or judgment, the obligation for a parent to pay child support stops without a Court Order on the date of a child’s marriage, death or their entry into military service.

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.