NJ Attorney-Blog

Over the past several years domestic abuse and violence has increased dramatically causing breakdowns in marital unions and relationships.  In the 1980s, the legislature of New Jersey enacted the Prevention of Domestic Violence Act, established within N.J.S.A. 2C:25-17, et seq. The Act provides for the essential protection and relief for victims of domestic violence in an effort to combat against the rise in the number of domestic abuse and violence cases as well as provide for the necessary deterrence to prevent such acts from occurring. The following post will provide information for victims of domestic abuse in regards to their rights under the Act and the process by which to obtain a temporary restraining order and obtain a final restraining order.

It is crucial that a victim of domestic abuse understand his or her rights and further pursue action to prevent such conduct from an aggressor to continue.  Domestic violence occurs from acts of an aggressor upon a person protected under the Act. Such offenses may include the following: homicide, assault, terroristic threats, kidnapping, criminal restraint, sexual assault, criminal trespass, harassment, and stalking. To seek proper relief in the form of a final restraining order from the Court under the Prevention of Domestic Violence Act pursuant to N.J.S.A. 2C:25-17, et seq., a person must be one who is within the protected class under the Act. A relationship must exist between the offender and the victim to be within the protected class under the Act. The protected class under the Act consists of individuals who are an emancipated minor or at 18 years of age. An individual must be subject to domestic offenses from a spouse, an ex-spouse, or a past or present household member. Furthermore, an individual is part of the a protected class under the Act notwithstanding their age if the individual who is subjected to domestic offenses has a child, is pregnant, or is expecting to have a child. In addition, an individual whom is in a dating relationship and is subjected to domestic offenses may seek relief under the Act.

Should you be an individual of a protective class within the meaning of the Prevention of Domestic Violence Act pursuant to N.J.S.A. 2C:25-17, et seq. and have been a victim of domestic violence, you may seek a temporary restraining order by filing a complaint against the offender within the Superior Court, Family Division, of your county. If the transgression occurred during a time in which the Superior Court is you may seek immediate assistance from your local police department. After the temporary restraining order is entered, the Superior Court will schedule a final restraining order hearing within 20 days. Each party will have the opportunity to present their case in the form of testimony and evidence to the Superior Court Judge for final decision. The Superior Court Judge has discretion pursuant to N.J.S.A. 2C:25-29(b) to order relief in the form of restraining contact, monetary compensation, temporal custody of children, and a whole host of other relief.

If you have been experiencing troubles within your relationship resulting from certain offenses constituting domestic abuse or violence, it is important to pursue action as to stop such conduct from occurring again. If you need the assistance of counsel, it is important that you call and schedule a consultation with a New Jersey Domestic Violence Attorney to properly guide and represent you in your matter.

Family Law Attorneys in New Jersey understand how difficult it is for a parent or a spouse to come to the important decision to pursue divorce. Divorce involves high levels of emotion including stress, anxiety, disappointment and anger. However, all too often we meet with individuals who come into our office seeking an annulment based on a variety of reasons which include some of the emotions discussed stated able. Furthermore, we speak with individuals who seek an annulment of their marriage with their partner simply based on a short term marriage. However, obtaining an annulment is much more difficult than obtaining a divorce. A divorce terminates a marriage while an annulment voids the marriage with your partner all together. Whether or not your relationship lasted for a short period of time will not be the establishing factor to obtain an annulment for a divorce. This article will discuss certain factors to consider when contemplating pursuing an annulment of your marriage.

In order to obtain an annulment you must set forth certain proofs as per factors set forth by New Jersey statute. Annulment may be established as per causes for judgment of nullity set forth in N.J.S.A. 2A:34-1.  N.J.S.A. 2A:34-1 states that judgments of nullity of marriage may be rendered in all cases, when: either of the parties has another wife, husband, partner in a civil union couple or domestic partner living at the time of a second or other marriage; the parties are within the degrees prohibited by law; the parties, or either of them, were at the time of marriage physically and incurably impotent, provided the party making the application shall have been ignorant of such impotency or incapability at the time of the marriage, and has not subsequently ratified the marriage; the parties, or either of them, lacked capacity to marry due to want of understanding because of mental condition, or the influence of intoxicants, drugs, or similar agents; or where there was a lack of mutual assent to the marital relationship or duress or fraud as to the essentials of marriage and has not subsequently ratified the marriage; the demand for such a judgment is by the wife or husband who was under the age of 18 years at the time of the marriage, unless such marriage be confirmed by her or him after arriving at such age; and allowable under the general equity jurisdiction of the Superior Court. Annulment is established only when there is proof of extreme nature going to one of the essentials of marriage. V.J.S. v. M.J.B., 249 N.J. Super. 318 (Ch. Div. 1991). Annulment is difficult to obtain which is why such matters are scarcely seen pushed through. These factors should be considered by any individual who is seeking to obtain an annulment of their marriage.

We understand the complexities of handling a divorce matter. We also understand that there are a variety of reasons why an individual would contemplate and have come to the decision to pursue divorce. Some relationships have been separated for long period of time. Other relationships experience differences in which the parties are unable to reconcile. However, there may be certain circumstances which justify an annulment of a marriage and may be established as such. If you are unsure of whether or not an annulment of your marriage is appropriate, we strongly advise that you seek the consultation of an experienced New Jersey Divorce Attorney to help you with your matter.

Whether you are going through a divorce or separation the number one concern for a parent is their child. Parents have the responsibility of rearing and caring for their children. New Jersey and its Superior Courts understand the importance of continued relationship between a child and his or her parents. Parents are not only concerned over the health, well-being, and education of their child but also are concerned over the support provided for the care for their child. Whether you are in the process of divorce, are divorced, or were in a relationship that terminated for any one of many reasons, support and continued parental relationship are essential and in the best interest of a child. Often times when an individual pursues divorce or separation and children are involved, certain disputes can arise as to the support and custody of the child. Although hotly disputed, support and parenting time can be established in the beginning stages of your divorce or separation. If support and parenting time are not discussed and agree upon by the parents then the Court will make a determination based on several factors especially what is in the best interests of the child. However, certain events and actions by one parent may adversely affect the parenting time of the other parent. This article will further discuss removal of children from the state of New Jersey and the potential affects it can have on parenting time and the children themselves.

To understand a parent’s right to remove a child out of New Jersey or the right of a parent to have the child not be removed from New Jersey, it is important to understand certain rules set forth by the State of New Jersey. Pursuant to N.J.S.A. 9:2-2, the Superior Courts of New Jersey have jurisdiction over children whom are natives of New Jersey. Natives of New Jersey are individuals born in New Jersey or have resided in New Jersey for a period of five (5) years. Such children may not be removed from the State of New Jersey without their consent, if of suitable age, or if underage, without the consent of both parents. However, upon a showing of good cause, the Superior Court may otherwise Order that good cause has been shown as to authorize the removal of a child from New Jersey.

The Superior Courts of New Jersey do have the power as allow a parent to remove their child from the state. In Holder v. Polansky, 111 N.J. 344 (1988), the Supreme Court of New Jersey established certain criteria in its determination to grant removal.  First, the custodial parent must establish a good faith reason for the move. The Court will then consider whether the move is in the best interests of the child or will adversely affect the non-custodial parent’s parental visitation rights. If such a move would have substantial adverse affects on the non-custodial parent’s parental visitation rights then certain proofs must be provided as to the advantages and disadvantages of the move, the motives of the party behind the move, and a reasonable visitation schedule. The Court in Baures v. Lewis, 167 N.J. 91 (2001) has determined that the custodial parent has the initial burden of proof that there is a good faith reason for the move and that moving the child out-of-state will not result in the child suffering from such a move. The non-custodial may then in turn establish that the reasons for the move are not made in good faith and not in the best interests of the child.

Whatever the situation may be, the Court will consider several proofs in the underlying factors in their determination of authorizing the move of a child from New Jersey. There are certainly complexities that are involved for a custodial parent who wants to move their child out-of-state and complexities that are involved for a non-custodial parent who opposes such a move as it may adversely affect his or her parenting visitation rights. Should you be considering removal of your child out-of-state or are opposed to the removal of your child out-of-state, it is very important that you seek the advice and representation from a qualified and experienced New Jersey Family Law Attorney.

Over the past several years, the frequency of which parties have entered and voluntarily executed prenuptial agreements has increased dramatically. There are several advantages of entering into a prenuptial agreement. The most significant may be the protection of one’s assets from the possibility division of assets that may occur in the event of divorce. However, despite the many advantages and protections that a prenuptial agreement provides, the validity of a prenuptial agreement has been disputed. This article will discuss some of the advantages of executing a prenuptial agreement and the enforceability of a properly executed prenuptial agreement.

There are many reasons why a party may come to a decision that entering and executing a prenuptial agreement is the right thing to do. The factors that lead to the execution of a prenuptial agreement depends on the parties and facts and circumstances involved with their particular matter. The most common reason people enter into a prenuptial agreement is protect their valued assets such as real estate, businesses, investments and foreign assets, and much more. Some people tend to enter into prenuptial agreement as to avoid spousal support disputes that may arise upon the onset of a divorce proceeding should an individual choose to pursue that route. Other parties choose to enter and execute a prenuptial agreement so as to avoid any dispute that may arise as to the division and distribution of assets. These protections are available to deter the potential of highly disputed and often times litigated matters that can arise in the event of divorce. Despite these protections, some individuals do still dispute the validity of an executed prenuptial agreement. Often times the advantages of entering a prenuptial agreement outweighs the possibility of the prenuptial agreement being contested.

The enforceability of a prenuptial agreement executed by the parties can often times be highly disputed and very heated issue. There are important issues that the parties and counsel must understand in order for a prenuptial agreement to be properly negotiated and drafted in order to potentially withstand any disputes or contests to the validity and enforceability of the prenuptial agreement executed by the parties. The case of Marschall v. Marschall, 195 NJ Super 16 (Ch. Div. 1994) specifies certain criteria for the enforceability of prenuptial agreements. In order for a prenuptial agreement to be properly drafted it is necessary that both parties to the prenuptial agreement be represented by independent counsel. Secondly, the prenuptial agreement must not be unconscionable. See Newman v. Newman, 653 P.2d 728 (Colo.Sup.Ct. 1982). In essence fairness is the key. Thirdly, all assets and liabilities must be disclosed to the other party so as to avoid hiding or concealing assets. See D’onofrio v. D’onofrio, 200 NJ Super 361 (App. Div. 1995). Lastly, reasonable timing of the execution of the prenuptial agreement is a must. Complications can arise where duress or pressure are used as tactics to further the execution of a prenuptial agreement. See DeLorean v. DeLorean, 211 NJ Super 432 (Ch. Div. 1986).

If you are contemplating entering into a prenuptial agreement for any reason it is best that you seek the guidance and counsel from a New Jersey Divorce Attorney. An attorney can properly advise your and communicate with you any issues that are possible to arise. Furthermore, your New Jersey Divorce Attorney is best equipped with the knowledge and experience to negotiate and draft a prenuptial agreement on your behalf with your best interest in mind.

The courts in the State of New Jersey strongly favor parties amicably coming to an agreement within their divorce proceedings whereby a marital settlement agreement and a Final Judgment of Divorce can be concluded. However, parties who hold specific duties and obligations under a written agreement or Court Order do often times experience changes during their lives which may affect their ability to meet those specific duties and obligations. Sometimes changes occur within your needs which require additional support.  People can experience changes in their lives resulting from severe financial difficulty during a rough economic climate, an increase or decrease in financial earnings and an increased and decreased ability to pay, an increase in cost of living, employment or unemployment, or an increase in the need of support provided or awarded to a child or a party within a family law matter. Changes in our lives are continuous and for a variety of reasons a person may need help in seeking to modify his or her alimony or support agreement or order.

New Jersey courts have held that written agreements and Court Orders are subject to modification pursuant to a showing to the court that an individual has experienced changed circumstances that would justify a modification of a written agreement or Court Order. It is important that an individual seeking to modify a written agreement or Court Order be informed of the process and applicable factors that may allow for the modification of support.

Lepis v. Lepis, 83, N.J. 139 (1980) is a significant New Jersey Supreme Court case which provides for a decision that allows for modification of alimony and support. In Lepis, the former wife made an application within the Superior Court seeking modification of support and alimony provisions within an executed marital settlement agreement. The Superior Court denied the former wife’s application without requiring the former husband to disclose his actual earnings. The former wife appealed and the Appellate Court reversed and remanded the matter with instructions that would allow for the production of the former husband’s tax returns.  The Appellate Court stated that the denial of the former husband to provide discovery despite a showing of increased need by the former wife in effect denied the former wife an opportunity to prove her change of circumstances. The Supreme Court granted the former husband’s petition for certification. The Court held that the former wife established a prima facie showing of changed circumstances whereby the former wife’s needs and her children’s needs have increased due particularly to an increased cost of living.

Courts have the power to modify alimony and support orders. In Lepis, the Court cited to N.J.S.A. 2A:34-23 which provides courts with statutory authority to modify alimony and support orders.  In addition to statutory authority, the Court recognized that courts have remedial powers in a fair and equitable manner. The parties to this matter disputed over what constitutes changed circumstances as to allow for a modification of alimony and support order. The Court stated that other courts have recognized changed circumstances warranting modification which have included an increase in the cost of living, increase or decrease in the supporting spouse’s income, illness, disability or infirmity arising after the original judgment, the dependent spouse’s loss of a house or apartment, the dependent spouse’s cohabitation with another, subsequent employment by the dependent spouse, and changes in federal income tax law. The Court has also recognized that courts have consistently rejected modification due only upon temporary circumstances. Furthermore, the Court has stated that when children are involved, an increase in their needs whether occasioned by maturation, the rising cost of living or more unusual events has been held to justify an increase in support.

Should you or your child be experiencing an increased need for which a financially able parent can provide additional support it is important that you seek the counsel of a New Jersey Divorce Attorney. Should you be experiencing difficulties within your life which prevents you or disables you from meeting obligations set forth within a court order or written agreement it is important that you seek the assistance of a New Jersey Divorce Attorney. It is important that you stay informed and you understand your rights pertaining to your Family Law issues.

Divorce can be very emotional and stressful time for a spouse. Not only can divorce have a demanding and taxing effect on the spouse but the emotions and stressful time during the divorce proceedings may be exposed on the children of the family. If the parties to a divorce do have children, the children in most instances become a central importance to a spouse or both spouses. As such, disputes over child custody and child support may arise and often times can be heavily disputed. It is important that a party to a divorce not be left unmindful and unaware of the factors and procedures that are involved within their own divorce proceeding. If you have retained a divorce attorney, communication with your attorney is important as you will be in better position as to understand the basics of your divorce proceedings and the factors involved within certain disputes that may arise during your divorce proceeding. This article will discuss some basics factors you should be aware of regarding the Superior Court’s determination of a custody award.

It is the State of New Jersey’s public policy that both parents have continuing and frequent contact with their children and regard to public interest encourages parents to share the rights and responsibilities of raising their children. Should parties not be able to agree on any particular custody arrangements, the matter may very well be heard before the Superior Court Judge in the county your action was filed. The Superior Court Judge will determine the legal and physical custody of the children to be awarded.  In its determination, the Superior Court will examine and review several nonexclusive, statutory factors pursuant to N.J.S.A. 9:2-4.  Pursuant to N.J.S.A. 9:2-4, the court will assess and review the (1) parents’ ability to agree, communicate and cooperate in matters relating to the child; (2) parents’ willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse; (3) interactions and relationship of the child with its parents and siblings; (4) any history of domestic violence;  (5) safety of the child and the safety of either parent from physical abuse by the other parent;  (6) preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision; (7) needs of the child;  (8) stability of the home environment offered; (9) quality and continuity of the child’s education; (10) fitness of the parents; (11) geographical proximity of the parents’ homes; (12) extent and quality of the time spent with child prior to or subsequent to the separation; (13) parents’ employment responsibilities; (14) age and number of children.

The Superior Court will weight the interests and wishes of the parents and the child, the parents and child interaction with one another, the home environment, the factors listed above, and any other relevant information that the Superior Court will access and review in its determination of a legal and physical custody award. Although it is public policy that the parents have frequent and continuous contact with their child and encourage splitting parenting rights and responsibilities, the ultimate concern of the Superior Courts of New Jersey and the State of New Jersey is to establish a legal and physical custody award that is in the “best interests” of the child as is referenced in important cases such as Fantony v. Fantony, 21 N.J. 525 (1956), Terry v. Terry, 270 N.J. Super. 105 (App. Div. 1994) and Unger v. Unger, 274 N.J. Super. 532 (Ch. Div. 1994). There are many complexities that are involved within your divorce proceeding and it is very important that you have proper representation from a New Jersey Divorce Attorney, stay properly informed and aware of your divorce proceeding, and understand your rights.

The decision to pursue a divorce can be a very difficult one. A person may pursue divorce for a variety of reasons which may result in the impossibility of reconciling with your spouse. This time in your life can be stressful. Divorce can affect you and your loved ones emotionally. Divorce proceeding can be complicated, confusing, stressful, emotion, and highly disputed. It is important that your divorce matter is handled properly. It is also important that you are properly informed of certain basics that may part of your divorce proceeding.  It is safe to say that not all divorce proceedings move forward smoothly. Certain disputes do arise should parties not be able to agree on certain terms. If significant property is involved disputes may arise over the division and distribution of assets. If children are involved disputes over custody and support may arise. If alimony is sought by a spouse then disputes over an appropriate period and value of payments may arise. This article will dive just a bit into the basics of alimony and what you should know.

Should parties not be able to agree on any particular alimony terms, the matter will most likely be heard before a Superior Court Judge in the appropriate county where the action was filed. In its determination of an award of alimony, the court will review several nonexclusive, statutory factors pursuant to N.J.S.A. 2A:34-23(b) to come to its determination.  Pursuant to N.J.S.A. 2A:34-23(b), the court will assess and review (1) actual need and ability of the parties to pay; (2) duration of the marriage;  (3) age, physical and emotional health of the parties; (4) standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living; (5)  earning capacities, educational levels, vocational skills and employability of the parties; (6) length of absence from the job market of the party seeking maintenance;  (7) parental responsibilities for the children;  (8) time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, availability of the training and employment, and opportunity for future acquisitions of capital assets and income; (9) 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) equitable distribution of property ordered and any pay-outs on equitable distribution out of current income, to the extent this consideration is reasonable, just and fair; (11) income available to either party through investment of any assets held by that party; (12) 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.

An important case regarding an illustration of one of the factors set forth above can be found within the matter of Crews v. Crews, 164 N.J. 11 (2000). The Court in Crews discusses, among other issues, the martial standard of living. In this matter the former spouse sought review of a denial of her motion for modification of an alimony award. It is understood by the Courts the importance of establishing a marital standard of living when a spouse is seeking an award of alimony. The standard set forth in establishing a martial standard of living is whether the supporting spouse can maintain a lifestyle that is reasonably comparable to the standard of living enjoyed during the marriage. If the supporting spouse is unable maintain his or her lifestyle compared to the lifestyle established during marriage and the other spouse has the financial ability to provide the support to maintain such a lifestyle than the Court may come to a determination that an award of alimony if necessary and appropriate. It is essential that marital standard of living is established by the spouse seeking alimony so that the Court can properly make the determination of whether an award of alimony is necessary and appropriate.

It is important that you keep yourself informed throughout your divorce proceeding. Communication is key to the quality of your legal representation so we suggest that you have open and honest dialogue with your divorce attorney. Your New Jersey Divorce Attorney will guide and assist you through this process and provide you with the proper legal representation to conclude your matter with your best interest in mind.

It is the policy of the State of New Jersey that parents have the duty and responsibility to contribute and provide for the support of their children. However, some parents may disagree as to when this support should end. College expenses become an issue when parties are in dispute within their Divorce proceedings. So what duties does a parent have in contributing towards their child’s college education? What is taken into consideration when deciding if a parent should be responsible for the payment of their child’s educational expenses? Do parental contributions extend post-college education?

Newburgh v. Arrigo, 88 N.J. 529 (1982) is a seminal case that sets forth factors in which a Court will review and consider in its determination of whether or not the parent will hold the responsibility of  contributing to his or her child’s college costs. The following are factors that the court will take into consideration: (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child. Although these factors can seem specific this  list is non-exclusive and each case depends on the facts and circumstances that are before the Court.

As for parents who believe that they don’t have a responsibility to contribute toward their child’s graduate expenses, you may want to think again. A parent may or may not be obligated or ordered for lack of a better word to contribute towards their child’s graduate expenses depending on the facts and circumstances before the Court. Take the case of Ross v. Ross, 167 N.J. Super. 441 (Ch. Div. 1979), a parent was directed by the Court to continue support payments for their child until the child’s law school education is concluded.  There are different variables in play with this situation such as continuation of child support as opposed to being ordered to contribute directly towards graduate expenses. A discussion on child support extending past the age of majority for the benefit of a child’s college and graduate education will be reviewed in another post.

It is crucial that parents and children be properly informed of their rights and duties under the laws of New Jersey. There are facts and circumstances in which a parent may or may not have the duty and responsibility to pay for college expenses and post-college expenses. To be better informed, it is essential that you discuss your matter confidently and confidentially with a New Jersey Divorce Attorney so that you and your child are provided with much-needed information and assistance to help you through this matter.