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.
|Factors in Establishing Marital Lifestyle:|
|• Marital Home||• Furnishings and Contents||• Household Help||• Landscaping/Gardening|
|• Accounting/Financial Planning Services||• Telephones||• Automobiles||• Clothing|
|• Furs||• Jewelry||• Collections||• Schools and Camps for Children|
|• Children's Allowances||• Children's Activities||• Expenditures for Holidays||• Medical and Dental Expenses|
|• Entertainment at Home||• Description of Marital Lifestyle||• Country Club||• Dining Out|
|• Entertainment||• Gambling||• Travel and Vacations||• Gifts|
|• Donations/Charitable Giving||• Savings and Investments||• Business Assuming Family Costs||• Loans and Debt|
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):
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):
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:
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
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)
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:
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
Providing legal assistance in divorce, custody, support and other family law matters.
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