New Jersey

Documenting Marital Lifestyle — In Light of the Crews Alimony Decision

On May 31, 2000, the New Jersey Supreme Court ruled on a request for a change in rehabilitative alimony in the case of Robert B. Crews vs. Barbara D. Crews (A-20-99), by stating that the parties must go back and establish the marital standard of living experienced during the marriage.

In any case in which alimony is appropriate, even where alimony is waived, the mediator should include in the MOU facts, which establish the statutory factors for alimony according to N.J.S. 2A:34-23 (b). For convenience, these are listed at the conclusion of this document.

In Crews, the Supreme Court reiterated the importance of courts establishing findings as to the standard of living during the marriage, one of the statutory factors. The marital standard of living is the “touchstone” for the initial level of alimony and for reviewing any later motions for modification based on changed circumstances. The Court noted that these findings are “equally important” in uncontested cases.

Additionally, the Crews case indicated that if the original spousal support is not consistent with the standard of living established during the marriage but that is all the paying spouse can afford at the time, then there should be some provisions to modify the award upwards when the paying spouse's financial condition improves.

Statutory Factors for Spousal Support (Alimony) according to N.J.S. 2A:34-23(b):

1. Actual need and ability of the parties to pay;
2. The duration of the marriage;
3. The age, physical and emotional health of the parties;
4. The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
5. The earning capacities, educational levels, vocational skills, and employability of the parties;
6. The length of absence from the job market of the party seeking maintenance;
7. The parental responsibilities for the children;
8. 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;
9. The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
10. 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;
11. The income available to either party through investment of any assets held by that party;
12. 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; and
13. Any other factors which the court may deem relevant.

New Jersey Statute: N.J.S.A. 2C:13-4(a)- Interference with Custody (including parenting time)

A person, including a parent, guardian or other lawful custodial commits the crime of interfering with custody if he (or she):

1. Takes or detains a minor child in order to conceal him or her and thereby deprive the child’s parents, of custody or parenting time; or
2. After being served with process or having actual knowledge of an action affecting the marriage or custody, but prior to the issuance of a temporary or final order determining custody or parenting time rights to a minor child, takes or conceals the child for the purpose of depriving the other parent of custody or parenting time, or to evade the court’s jurisdiction; or
3. After being served with process or having actual knowledge of an action affecting the protective service needs of a minor child pursuant to Title 9 of the New Jersey statutes in an action affecting custody, but prior to a temporary or final order determining custody rights, takes or conceals the child to evade the court’s jurisdiction; or
4. After the issuance of a temporary or final order specifying custody or parenting time rights, takes or conceals a minor child from the other parent, guardian or lawful custodian in violation of the order.

Interference with custody is a crime of the second degree if the child is taken, detained, enticed or concealed: (i) outside the United States or (ii) for more than 24 hours. Otherwise, interference with custody is a crime of the third degree, but the presumption of non-imprisonment set forth in subsection e. of N.J.S.A. 2C:44-1 for a first offense of a crime of the third degree shall not apply. A third degree crime may be punishable by a term of imprisonment of three to five years, or a fine of up to $15,000.00.

Noncompliance of a court order is covered by New Jersey Statute N.J.S.A. 2C:29-9, contempt of court, which is a fourth degree crime and which may be punishable by a term of up to eighteen months in county jail and a fine of up to $10,000.00.

New Jersey Rule of Court 5:3-7(a) – Custody or Parenting Time Orders

On finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided by R. 1:10-3, any of the following remedies, either singly or in combination:

1. Compensatory time with the children;
2. Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled visitation such as child care expenses incurred by the other parent;
3. Modification of transport arrangements;
4. Pick-up and return of the children in a public place;
5. Counseling for the children or parents or any of them at the expense of the parent in violation of the order;
6. Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
7. Participation by the parent in violation of the order in an approved community service program;
8. Incarceration, with or without work release;
9. Issuance of a warrant to be executed upon the further violation of the judgment or order; and
10. Any other appropriate equitable remedy.

The Uniform Child Custody JurisdictionAct

N.J.S.A. 2A:34-28 et seq.The Uniform Child Custody Jurisdiction Act has been enacted by New Jersey other states to establish standards governing which state should decide custody and/or parenting time issues in cases involving New Jersey and another state. Under this law, it is the child’s home state or the state with the strongest connection to the child that must decide custody. Another state can only act under emergency circumstances. This act does several things. It requires that every state enforce proper out-of-state custody orders, it establishes a federal system to assist in locating abducted children, and it makes interstate child abduction a crime.

By: Marc A. Rapaport, 350 Fifth Ave Ste 4400, New York, NY (212) 382-1600

Introduction:

Jurisdiction in interstate child custody cases is principally governed by the Uniform Custody Jurisdiction Act and the Parental Kidnapping Prevention Act of 1980. The Uniform Child Custody Jurisdiction Act (UCCJA) is codified in New Jersey at N.J.S.A. 2A: 34-28, et. seq. The Parental Kidnapping Prevention Act of 1980 (PKPA) can be found at 28 U.S.C 1738A. Under these laws, there are multiple grounds upon which the courts of New Jersey can exercise jurisdiction in a child custody matter. Some of the more common situations are discussed below.

Home State Jurisdiction:

Under N.J.S.A. 2A: 34-31(a)(1), the Superior Court of the State of New Jersey has jurisdiction to make a child custody determination by initial or modification decree if New Jersey is the home state of the child at the time of the commencement of the proceedings, or had been the child’s home state within six months before commencement of the proceedings and the child is absent from this state because of his removal and retention by a person claiming his custody, or for other reasons, and a parent or person acting as parent continues to live in this state.The mere fact that a child is physically present in New Jersey, or because the child and one of the contestants is present in this state, does not automatically confer jurisdiction on the New Jersey Superior Court . N.J.S.A 2A: 34-31 (b). Although physical presence of the child in New Jersey is desirable, it is not always a prerequisite for jurisdiction. N.J.S.A. 2A 34-31 (c).

Significant Connection/Best Interest Jurisdiction:

The New Jersey Superior Court also has jurisdiction to decide a child custody case if it is in the best interests of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. N.J.S.A 2A: 34-31 (a)(2)

Abandonment/Emergency Jurisdiction:

Under N.J.S.A. 2A: 34-31 (a)(3), the Superior Court of New Jersey may assume jurisdiction to make a child custody determination by initial or modification decree if the child is physically present in this state, and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.

Lack of Alternative Jurisdiction

Under N.J.S.A 2A:34-31, a fourth kind of jurisdiction is established under the UCCJA for cases in which no other state is interested in exercising jurisdiction.

The application of these laws in a particular case can involve complex factual and legal issues. These issues can be especially challenging if the parties have commenced separate custody proceedings in different states. The issue of who filed first may affect the ability of the court to proceed with a case. N.J.S.A. 2A:34-34. If you are faced with a child custody matter involving questions of jurisdiction, you should consult with an attorney who is experienced in the area of interstate custody matters.

By: Marc A. Rapaport, 1501 Broadway

In December, 2006, the state Assembly of New Jersey gave final legislative approval to a bill that allowed couples to obtain divorces based on irreconcilable differences. Previously, couples seeking a divorce had to either allege fault or wait out an 18-month period of separation. The new legislation added a new cause of action for "irreconcilable differences which have caused the breakdown of the marriage" for six months" and which "make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation." The bill had the broad support of the New Jersey matrimonial bar, including the State Bar Association.

Subsequently, in January, 2007, Section 2A:34-2 of the New Jersey Statutes, which sets for the causes of action for divorce, was amended to include the newly enacted provision. Section 2A:34-2 now has a subdivision (i), which provides that a divorce may be obtained when:

Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.

The New Jersey Legislature's bill, and the resulting changes to Section 2A:34-2, puts New Jersey at the forefront of the increasing number of states that have sought to enable spouses to pursue divorce without resorting to allegations of "bad behavior". Hopefully, this change in the law will enable more couples to avoid the vitriolic, personal attacks that typically serve little or no practical purpose, and that add to the already considerable pain faced by couples who have decided that their marital relationship cannot be salvaged.

As a matrimonial attorney with fourteen years of experience, I share the view expressed by many of my colleagues that the reduction of hostility in divorce matters will promote the best interests of both the litigants and the courts. Couples who seek judicial intervention to end their marriages do not benefit from artificial barriers designed to slow their divorces or limit their options. I believe that Section 2A:34-2(i) will assist in reducing needless emotional suffering, and increase the ability of the litigants, their attorneys, and the Courts to focus on the important financial, custodial, and other issues that must be resolved.

By: Marc A. Rapaport, Esq., 350 Fifth Avenue, Suite 4400, New York, NY 10118 All Rights Reserved.

New Jersey Appellate Division Upholds Trial Court's Refusal to Enforce Provisions of Premarital Agreement

There are relatively few reported decisions in New Jersey that provide guidance with respect to the enforcement of prenuptial agreements. For this reason, each Appellate Division decision relating to prenuptial agreements is a matter of some importance.

In April, 2007, the New Jersey Appellate Division upheld a trial judge's refusal to enforce certain terms of the parties' New Jersey prenuptial agreement that dealt with contributions by the former husband to his savings plan. The New Jersey divorce judgment provided that the ex-husband’s savings plan be subject to equitable distribution, despite language in the parties’ New Jersey prenuptial agreement that provided otherwise

The New Jersey divorce judge found that the husband's increased contributions to the savings plan during the marriage were not foreseeable at the time the prenuptial agreement was signed. On that basis, the trial judge ruled that the section of the prenuptial agreement relating to ex-husband's savings plan was unenforceable.Pattison v. Pattison, Jr., New Jersey App. Div., April 6, 2007.

By: Marc A. Rapaport, Esq.,
Divorce Lawyer in New York and New Jersey
http://www.RapaportLaw.com
Providing legal assistance in divorce, custody, support and other family law matters.