LAWYERS, FEES, RETAINERS

Q: Do I need to hire an attorney for my divorce?

A: No. However, while you are not required to retain a lawyer for your divorce, or any other matter, matrimonial law is a nuanced area of the law in New Jersey that can be difficult to navigate without the help of a trained professional by your side. Yearing Law, L.L.C. can help simplify what might otherwise be a complex and overwhelming experience.

Q: How much will my divorce cost?

A: It is often said that the two biggest variables in determining the cost of a divorce are the parties themselves. Thus, parties that are able to move past the emotional component of the divorce and instead focus on resolving the outstanding issues in a timely manner are likely going to experience a less costly divorce, as litigating issues can be expensive and costs increase as time goes on. Every case is different, though, and presents unique facts that can affect the total cost for the divorce. In this regard, you should be wary of comparing your situation and cost with that of your neighbor or friend as their experience is not yours and they do not have your spouse as their adversary.

Q: What is a retainer agreement and retainer fee?

A: When you hire an attorney, they will most often have you signed a contract that details the terms of the legal representation. It should include a statement of how your case will be billed and what your rights and responsibilities will be during the pendency of the representation. You should read it carefully and ask the lawyer any questions you may have regarding the terms contained within. This retainer agreement, once signed, is a binding contract between you and the firm for legal services. While you always have the ability to end the legal representation at any time, the firm is entitled to payment for work performed on your behalf. To begin a case, the firm will also require that you make payment of a retainer fee. This is an amount paid up-front and against which the hourly work on your case will be billed. The amount of the retainer fee may vary based on a number of factors, such as the anticipated complexity of your case, which your attorney should discuss with you at the initial consultation. In family law, lawyers are prohibited by Court Rule from accepting contingency based payment, except in highly specific circumstances. Thus, a lawyer generally cannot begin work on your case without first receiving a deposit on the retainer fee.

Q: I have limited income, can my spouse pay my legal fees?

A: It is possible that, depending on your financial circumstances, you may be entitled to receive money from your spouse to be used toward your legal fees. This is often the case when there is a large disparity in incomes, such as where one party is the primary breadwinner and has unfettered access to family funds, while the other is either unemployed, or is employed only part-time, and otherwise has limited access to marital accounts. In such situations, an application can be made to the court asking for the release of marital monies as and for legal fees for the benefit of the disadvantaged spouse and to “level the playing field” between the parties.

Q: What does Pro Se mean?

A:  When a party is represented pro se, they are acting as their own attorney and representing themselves. In short, it is the legal term for self-representation.

Q: What documents do I need to bring with me for my consultation?

A: The documents you need to gather and bring with you to your consultation will depend on the specific issues in your case. A good way to determine which documents to bring is to collect those documents that support each of your positions. This will help maximize the benefit you receive from your consultation with your attorney.

For post-judgment matters, a good starting point would be to include your Judgment of Divorce, the marital settlement agreement, any previously filed case information statements, and any existing post-divorce court orders. Where alimony and child support are concerned, your financial information such as  recent paystubs, tax returns, and other financial records will be important.

MEDIATION

Q: Should I mediate my case instead of hiring a lawyer?

A: Mediation requires both parties to willingly attend. If you do not wish to go to mediation, you are under no obligation to do so. Moreover, while you and your spouse are certainly free to negotiate a settlement with the assistance of a mediator or alternative dispute resolution (ADR) specialist, you will still need to file a divorce complaint to get a final Judgment of Divorce.  Moreover, mediation is an integral part of the divorce process in New Jersey. The benefit of engaging in mediation through the divorce process, as opposed to prior to seeking a divorce, is the benefit that with counsel present, the practicality and/or legal feasibility of any proposed settlement can be discussed immediately instead of learning of a problem down the road. Oftentimes as part of the divorce process, the parties, with counsel, will engage a third-party economic mediator to help sort through the financial issues of the marriage.  This kind of mediation can be of immense value in settling the case.

Q: Can my lawyer be the mediator?

A: It is generally a conflict of interest in New Jersey for your lawyer to serve as your advocate and as the mediator in a matrimonial matter. You and your spouse can use the same attorney if that attorney will be functioning as a neutral third-party mediator between you and your spouse. However, should the two of you be unable to reach an agreement and desire to move forward with litigation, you will each have to retain new counsel or pursue that litigation pro se.

DIVORCE

Q: My spouse has been unfaithful. Will this have any effect on the divorce?

A: Generally, no. With the “no fault” cause of action of irreconcilable differences, absent extreme circumstances, fault plays little to no role in the outcome of a divorce in New Jersey.

Q: My friend filed for divorce under “extreme cruelty.” Should I do that too?

A: Under the state’s divorce statute, N.J.S.A. 2A:34-2, in addition to irreconcilable differences, there are several other causes of action that support a Judgment of Divorce. These include:  1.) Adultery; 2.) Desertion; 3.) Extreme cruelty; 4.) Separation; 5.) Voluntary addiction to narcotics or habitual drunkenness; 6.) Institutionalization for mental illness; 7.) Imprisonment; 8.) Deviant sexual conduct. While any one of these causes of action properly before the court will permit you to receive a divorce, sometimes clients want to list multiple causes of action for divorce. While the inclusion of multiple “counts” is certainly acceptable, there can be strategy reasons to avoid use of additional counts when irreconcilable differences will suffice. You should discuss this with your attorney.

Q: Do I have to live in New Jersey to get a divorce here?

A: Not necessarily. The statute requires that at least one party be a bona fide resident of New Jersey at the time a cause of action arose and have been a resident for at least one year preceding the event that gives rise to the cause of action. This can be either you or your spouse, or both.

Q: What is a Divorce from Bed and Board?

A: Divorce from Bed and Board in New Jersey is not a final divorce from the bonds of matrimony. It does, however, sever the financial ties between the parties. Thus, the parties may enter a final agreement as to the distribution of assets and dissolve other financial components of the marriage. This mechanism is authorized by N.J.S.A. 2A:34-3 . Used sparingly today, a divorce from Bed and Board allows the parties to continue to maintain health insurances for one another.

Q: How long will my divorce take?

A: The length of time between filing the complaint and receiving the final Judgment of Divorce will depend on a host of factors. The two most important determining factors will be you and your spouse. Most cases in New Jersey settle. Only a handful goes to trial. Thus, the ability of the parties to work in good faith and collectively to resolve the outstanding issues related to the divorce will have the biggest effect in shortening the timeframe of the divorce process. The types of issues you need resolved also have a hand in the length of the process. Certainly a case where the only issue is the distribution of established retirement accounts will likely resolve sooner than a case where custody is an issue. Other factors that can complicate, and therefore, lengthen the time before a resolution is reached are where privately held businesses need to be valued, where there is sudden unemployment by one spouse, etc. Many times these issues will need the retention and assistance of a forensic expert to produce a report, which can take time.

Q: What is an unconstested divorce in New Jersey?

A: Where the parties have reached agreement on all of the issues relative to their divorce, such as custody, division of assets, alimony and child support, they can ask the court to schedule a hearing simply to enter the Judgment of Divorce. Because the parties have settled all of their issues, and neither party is contesting anything, this is known as an uncontested hearing. At the hearing, you will be asked to provide the court a copy of the agreement memorializing the terms of settlement, commonly called a Marital Settlement Agreement (MSA) or Property Settlement Agreement (PSA). The judge, or the attorneys, will ask the parties a series of questions regarding the cause of action for divorce and the nature of their settlement agreement, i.e. that the agreement is voluntary, that the parties understand the agreement, etc. Following this questioning, the judge will then generally grant a Judgment of Divorce.

PRE-NUPTIAL AGREEMENTS

Q: I signed a pre-nuptial agreement and now my spouse has filed for divorce. Will the agreement be enforceable?

A: In New Jersey, prenuptial agreements are fairly difficult to set aside provided that the procedural aspect of the governing statute is followed. All such agreements must be in writing, as must any modification or revocation of the initial agreement. Further, to be valid, New Jersey requires disclosure of the parties’ earnings in addition to the disclosure of property and financial liabilities. New Jersey also requires that both parties have the benefit of legal counsel prior to entering into a prenuptial agreement, or affirmatively waive the right to legal counsel in writing.

The scope of pre-nuptial agreement can be quite broad and parties are free to prospectively resolve any potential issues involving the distribution of assets and spousal support. Importantly, however, such agreements may not negatively affect any party’s obligation to pay child support.

The burden of proof for contesting enforceability rests on the party alleging that the agreement should be set aside. The alleging party must prove their case by clear and convincing evidence, which is a higher standard than the preponderance of the evidence standard found in most other areas of matrimonial law.

While the New Jersey courts have held that a prenuptial agreement would not necessarily be rendered voidable just because one spouse would receive a disproportionate amount of the assets as the result of the agreement, the court has noted that a finding of fraud, duress or overreaching would bar the enforcement of a prenuptial agreement. 

ANNULMENTS

Q: Does New Jersey allow annulments?

A: Yes, annulments are authorized in New Jersey under N.J.S.A. 2A:34-. Similar to divorce, an annulment terminates a marriage. Unlike a divorce, an annulment actually expunges the marriage as if it never existed. There are actually only a few circumstances in which an annulment will be granted, however. In order to be eligible for an annulment in New Jersey, there must have been some type of fraud or material misrepresentation that goes to the heart of the relationship.

Examples of grounds on which an annulment will be granted are as follows: 1.) Bigamy: You come to find your spouse was married to another at the time of your marriage and you were unaware of this fact until after the wedding; 2.) Duress: You were married under the threat of serious violence and this threat caused you to get married; 3.) Underage:  In New Jersey, no person under the age of 18 has the legal right to consent to be married; 4.) Incapacity: There was no informed consent at the time of the marriage because one party lacked the mental capacity (perhaps due to intoxication) that they are getting married ; 5.) Impotence:  If your spouse is either unable or refuses to consummate the marriage by engaging in sexual relations and this fact was unknown to you or concealed by your spouse. For women, this would apply if they concealed that they could not bear children; 6.) Incest: Marriage to a blood relative deemed impermissible under N.J.S.A. 37:1-1; 7.) Fraud: Any misrepresentation that affects the marriage. As the fraud must strike at the heart of the marriage, a common example is when one spouse lies about their desire, or lack of desire, to have children.

PENDENTE LITE RELIEF

Q: My spouse is not paying the housing costs or providing funds for the day-to-day expenses I incur. Can I force him/her to contribute to these expenses?

A: The period of time from the filing of the complaint through the entry of a final Judgment of Divorce is called Pendente Lite. It is a period in your case in which the courts may enter temporary support orders. These orders are often based on incomplete information and, thus, are subject to modification. Their goal from a financial perspective is to “bridge the gap” until a final agreement or trial decision can be entered. In this regard, the courts have noted that by their nature such orders are imperfect. Nevertheless, when the moneyed, or supporting, spouse refuses to maintain expenses for the marital home, or fails to provide funds for day-to-day expenses such as gas or groceries, the court can enter a pendente lite order compelling payment to the dependent spouse.

Q: What other types of relief can I seek pendente lite?

A: In addition to money, you can ask the court to address parenting time, the sale of a marital property, discovery issues and for other injunctive (prohibiting) relief.

Q: What is the Case Information Statement I was asked to fill out? Is it important?

A: As part of the materials your attorney should ask you to fill out, one of those will be the Case Information Statement (CIS). This document will ask you for a host of information related to you and your spouse’s incomes, monthly expenses, assets and liabilities. The purpose is to create a snapshot of the economic situation of the marriage. As this document is a vital resource for the court when trying to make temporary decisions on support it is important that it be as accurate as possible. Often this document, along with any initial motion application, are the first impression the judge will have of the case. It is important that, from a financial end,

COLLEGE EDUCATION

Q: Will I have to pay for my child’s college costs?

A: Under New Jersey case law, divorced parents are generally obligated to contribute to college costs. The amount that each parent might be obligated to contribute will depend on a host of factors ranging from the financial aid and student loans the child might qualify for, the child’s aptitude toward a particular form of higher education and the parties’ respective salaries at the time the child requires contribution for college expenses.

Q: My child has been accepted to an expensive private school and a more affordable state school, will I have to pay for the private school?

A: College choice, absent some agreement to the contrary or sole legal custody resting with one parent, is typically a significant life event that requires both parents’ input. Obviously affordability is a prime consideration and the selection of school should include a realistic understanding of what is affordable between the parties. However, while the state school might be more affordable on its face, your child may qualify for more financial aid from the private school. Affordability might also be only one factor that guides the choice of school.

If you and your former spouse, along with your child, cannot come to an agreement as to the choice of school, you can file an application with the court setting forth your reasons as to why one school is more appropriate and ask the court to issue an order. The court will look at what it perceives to be in the child’s best interests as well as what is financially doable by the parties in making its decision. As with many other aspects of family law, it is far easier and less costly to work through your differences with your spouse rather than involve the court in these highly personal decisions.

Q: My child is away at college, can I reduce my child support to my ex-spouse?

A: Not necessarily. In a recent published decision, the court addressed this very issue and found that a child’s attendance at college away from home did not automatically justify a reduction in support to the other spouse, and in some instances might even require an increase. The court noted that the analysis is highly fact specific and so depends on the unique qualities of any given case.

CHILD SUPPORT

Q: How much will I pay in child support?

A: In most instances, child support in New Jersey is determined by a formula known as the Child Support Guidelines. This algorithm was developed by the state and provides a means to calculate a support figure while incorporating a number of variables that can change, such as the parties’ incomes, overnight parenting time, contribution for health insurance, etc. Thus, child support is generally the result of accepting certain variables and running the calculation. Your family law attorney should have a version of the formula in a computer program and provide you sample “guidelines” to give you a rough estimation of what your obligation might be under certain conditions. The appendix to the court rules also provides instructions and tables by which you can perform the calculation by hand.

However, it should be noted that the guidelines are not mandatory and the parties or court can choose to deviate from what the guidelines calculate for any number of reasons, so long as they provide the rationale for the deviation. Also, the guidelines are  

Q: When will my child support obligation end?

A: If you have been divorced and entered into a settlement agreement, your agreement likely, but not necessarily, provides a mechanism to determine when child support terminates. If you and another share a child in common but have never been married, you may not have such a provision already entered as part of an enforceable court document. Typically, child support terminates when the child is deemed emancipated from his or her parents. The question of emancipation

ALIMONY

Q: How is alimony determined in New Jersey?

A: A family court has a fair amount of discretion to determine an alimony award. In New Jersey courts are obligated to consider very specific factors when calculating alimony. While there are some guidelines and objective standards for the courts to consider, there is no specific formula for a family court to calculate alimony.

The thirteen factors the court must address are found in N.J.S.A.2A:34-23(b). These factors are as follows: 1.)The 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.

Q: Will much alimony might I be entitled to?

A:  Alimony is the amount of money paid by one spouse in support of the other pursuant to court order or agreement between the parties. Alimony is intended to allow both spouses to maintain a lifestyle comparable to that which they enjoyed during the marriage, though this is not always possible. The calculation of alimony takes into consideration a variety of factors, with a goal of limiting the unfair economic effects that often come with divorce. Without alimony, the lower-earning spouse would undoubtedly struggle more than his or her higher earning former partner, which would leave that spouse at a significant economic disadvantage.

In New Jersey, alimony is not calculated on a fixed formula. Instead a number of statutory factors as set forth in N.J.S.A.2A:34-23(b) are taken into consideration in determining the amount to be awarded.

Q: Are there different “kinds” of alimony?

A: Yes. Temporary alimony , or pendente lite alimony, may be awarded during the divorce process. Its purpose is to preserve the financial status quo that existed during the course of the marriage. It is subject to the final divorce decree, meaning it is superseded by whatever final agreement is made between the parties or by final court order after trial.

Rehabilitative alimony is a support payment designed to allow the supported spouse to either update, strengthen or acquire marketable skills by way of education and training. The purpose of rehabilitative alimony is to assist lower earning spouses in rejoining the workforce by providing them with the skills with which to hopefully find gainful employment. Support of this type is generally short-term, such as the tuition for a certificate program, but can be more long term depending on the program .

Reimbursement alimony recognizes the contribution that one spouse made to the other spouse's career, education, or advancement by providing them a reimbursement for economic sacrifices made during the marriage that helped to enhance the other spouse’s earning capacity. This is most often seen where one spouse sacrifices and supports the other as they seek to obtain a professional degree or license, with the implicit understanding that they will both eventually benefit from this sacrifice.

What was once known as permanent alimony is now labeled as Open Durational. Under the recent revisions to the alimony statute, Open durational alimony may only be awarded where the marriage is longer than twenty years. This is not to say that an award of alimony automatically occurs where parties have met the twenty year threshold. Rather, it is typically awarded where there is a large disparity in incomes between the parties. The purpose of this form of alimony is to allow the party who is receiving the alimony to live a lifestyle reasonably comparable to that which he or she had enjoyed during the marriage.

Limited duration alimony, or term alimony as it is sometimes called, is just that, an alimony obligated for a fixed term. The start date and end date of a limited duration alimony award are fixed. Under the recent revisions to the alimony statute, marriages that lasted under twenty years may have limited duration alimony awarded, with the term of alimony not to exceed the length of the marriage. It provides for payments to be made for a specified number of months or years.

While one type of alimony may be best suited for your situation, it should be noted that different types of New Jersey alimony may be combined for varying periods of time. Additionally, there are typically tax advantages for the party making the alimony payments. For example—the spouse who is making the alimony payments can in many cases deduct alimony for tax purposes; however, since alimony is considered to be income in the State of New Jersey, the supported spouse generally pays taxes on any alimony that he or she has received.

Q: Can alimony ever be modified?

A: Yes. In general alimony can be modified upon a showing of “changed circumstances.” Changed circumstances have been shown to exist where there is: 1.) an increase in the cost of living; 2.) an increase or decrease in the supporting spouse's income; 3.) an illness, disability or infirmity arising after the original judgment; 4.) the dependent spouse has lost a house or apartment; 5.) where the dependent spouse has cohabitated with another; 6.) where there has been subsequent employment by the dependent spouse; 7.) where there have been changes in federal income tax law. This list is not exhaustive and various situations may qualify as a changed circumstance warranting a modification tio the alimony award.

Q: What is an “anti-Lepis” clause?

A: Lepis v. Lepis, 83 N.J. 139 (1980) is a New Jersey Supreme Court case that unequivocally establishes the court’s ability, and a party’s right to seek, modification of their support obligation based on a “changed circumstance.” Following the Lepis decision, practitioners began to include in certain agreements, where appropriate or bargained for by the parties, certain clauses stating that notwithstanding the holding of Lepis the parties were agreeing to make the support obligation non-modifiable. Such clauses colloquially came to be called “anti-Lepis” clauses.

DISTRIBUTION OF ASSETS/LIABILITIES

Generally:

Q: What assets will be subject to distribution?

A: In New Jersey assets deemed to be "marital" in nature are subject to property division, also called equitable distribution. Not every asset is subjected to distribution, however, and it is not uncommon as people marry later in life, after having established themselves financially, for many assets to be considered "separate" property. In some situations, assets that were acquired during the course of the marriage might be exempt from distribution. As such, your spouse may not be entitled to receive an interest in the asset during your divorce.

Many people mistakenly believe that property titled in their name alone, such as a bank account or deed, is not subject to distribution or division. This is false.  Even for assets acquired prior to the marriage, such as a retirement account, your spouse may be entitled to some portion of the value of the asset relative to the duration of the marriage. By way of example: Seven years before getting married you started a 401k plan and contributed to it every pay period. You get married and continue to make contributions to the plan. Your spouse has no retirement account of their own. Should you divorce, your spouse is likely entitled to a share of the value accrued from the date of the marriage through the date of the filing of the Complaint for Divorce. Note that the contributions and accrued value pre-marriage is your separate property, as are the contributions and associated value post-complaint.

Other assets typically subject to division include the marital home, vehicles, bank accounts, stocks, business interests, house contents and other personalty, as well as marital debt.

Real Estate:

Q: Should I keep the marital home?

A: This will depend on your finances following the divorce. While people are often emotionally attached to their homes and want to stay in familiar surroundings, one must look carefully at the finances of such an arrangement, as it may not be to your advantage.

Of initial concern is the whether there is actual equity in the property. In the wake of the real estate collapse of the last several years, many people have found themselves “under water” on their mortgages, meaning that they actually owe more on their house than it is worth. In this regard, offering to take on the house, while presenting problems of being able to qualify for a refinance to remove your spouse from the mortgage, is likely a windfall to your spouse as they will be relieved of a large debt.  Should this be the case, you should look to have your spouse assume other debts as an “offset” to the burden you would be agreeing to assume.

When a house has equity, the situation is different. If you want to keep the house, you will have to “buy-out” your spouse’s share of the equity (usually 50% if the home was purchased during the marriage and absent some unusual situation), which can likewise be done by “offsetting” the share against your interest in other marital assets.

In some cases recently, and recognizing the poor real estate market, parties have agreed to allow one party to remain in the house as a renter, or in lieu of some alimony, for a period of time and await more favorable conditions for sale. This can have the benefit of providing the supported spouse with a place to live for a period of time and possibly maximizing the financial return to both parties should the market improve.

Where there is a small mortgage on a property, it might make sense for the supported spouse to retain the house, as they might not be able to find comparable housing at an equivalent price.

Regardless of the specifics of your case, your decision on whether to keep the house should be based on financial reality and not emotion, as once you are in the home you will have to support the property without the assistance of your spouse.

Q: We have a vacation home and other secondary real estate properties. How will these be distributed?

A: When parties have multiple properties, if they were purchased during the marriage, or otherwise not exempt, they are subject to distribution. Parties can reach whatever agreement they want as to whether one party or the other will retain any particular property. They may also agree to list the propteries for sale and share in some proportion any equity or debt on the property. Lastly, the parties can choose of "offset" their interest in any given property against some other asset and retain the property itself. 

Businesses:

Q: My spouse owns his/her own business. Am I entitled to a portion of the business?

A: It depends on whether the business was owned during the marriage and whether it appreciated in value during the marriage. A business that was started during the course of the marriage is subject to distribution

Q: How can I determine the value of my spouse’s business?

A: Sometimes a spouse's interest can be estimated based on the financial information available tot he parties. In cases where it is too complicated or where there is a lack of trust or disagreement as to the value of a party's interest in a bsuienss, a forensic accountant can be hired to prepare an evaluation.

Stocks:

Q: My spouse received stock as part of his bonus, is this subject to equitable distribution?

A: If the stock is for work performed during the marriage, the stock will generally be subject to distribution.

Q: What are Restricted Stock Units (RSU's) and how are they distributed?

A: Restricted Stock Units, or RSU's, are sometimes part of a compensation package. The employee receives a particular class of stock in the company in lieu of additional monetary salary. Usually they vest on a schedule and are then cashed out to provide additional income. When parties divorce, those shares earned through the marriage may be distributed as an asset. For the period after the marriage, they may be classified as part of the employees salary and can be included for purposes of determining alimony.

Retirement Accounts:

Q: How do you divide retirement accounts in New Jersey?

A: Typically, your spouse's marital share of your 401K will be transferred directly from your 401K into an IRA account exclusively in your spouse's name. While this eliminates any tax penalties because it is incident to a New Jersey divorce, a Qualified Domestic Relations Order (QDRO) may be necessary in order to effectuate this transaction.

REMOVAL/RELOCATION

Q: I am the primary parent of my children and want to move to another state. Do I need court approval to do so?

A:  If Can I leave New Jersey to pursue

Q: I am the parent of alternate residence of my children and want to move to another state. Do I need court approval to do so?

A: No. However, to the extent a move will make any parenting plan unworkable, there may be the need to modify that schedule.

GRANDPARENT RIGHTS

Q: What are the rights of grandparents to see their grandchildren?

A: The right of a grandparent to petition for visitation is codified under N.J.S.A. 9:2-7.1. The statute sets forth eight factors for courts to consider in assessing applications for grandparents to have access to the grandchildren. Critical to any application is the ability to articulate an identifiable harm to the child should visitation be denied. This is necessary because by its nature, a successful grandparent’s rights application acts to supersede or interfere with a parent’s fundamental due process rights. In practical terms, a grandparent who has been the caretaker of a child or who has stood in locus parenti at some point prior to being denied visitation with the child is in the best position to establish the kind of bond that, if removed, could cause harm to that child. Unfortunately, most grandparents do not fit this mold. And while there is no doubt that they love and care for their grandchildren, these less involved relationships are not generally of a quality that will trump a parent’s presumptive right to raise their children as they see fit, including to whom the children have access

MODIFICATION

Q: If I lose my job and cannot make my support payments, can I seek to modify my obligations?

A: Modifications to support agreements are governed by the principle of “changed circumstances.” The courts have defined a number of events that can qualify as a changed circumstance and warrant review, and possibly modification, of a prior financial obligation. Unemployment itself is generally viewed as a non-permanent status, and thus, insufficient grounds to seek modification. However, involuntary reductions in income of the payor, the increased income of the payee, disability, good faith retirement may all justify a downward modification in your obligation.

Q: Can I seek to modify custody and/or parenting time?

A: Yes, custody and parenting time are governed by what is deemed by the court as in the best interest of the children.

Q: My spouse and I are divorced. What if an issue comes up that our settlement agreement does not address?

A: Where a prior agreement is silent on an issue, you can apply to the court and seek a modification to the agreement to incorporate the provisions you think necessary to address the new .

Q: My former spouse is earning significantly more money than he/she did at the time of the divorce, can I seek to modify alimony?

A: It depends on several factors. First, is this increase in income a return to levels earned during the marriage, just not at the time of the divorce, and commensurate with the lifestyle of the marriage? If so, and if your alimony is less than what would otherwise allow you to live a lifestyle similar to that enjoyed during the marriage, you may be able to argue that you should receive an upwards modification of alimony. Next, if your ex-spouse’s increase in income has occurred only since entry of the Judgment of Divorce, absent terms of a settlement agreement to the contrary, you generally do not have any claim to share in those increased funds.

Q: My former spouse is earning significantly more money than he/she did at the time of the divorce, can I seek to modify child support?

A: Yes. While alimony is based on the lifestyle of the marriage, children are entitled to share in the continuing good fortune of both parents. 

ENFORCEMENT

Q: The Court ordered certain relief in my favor but my spouse has refused to comply or to pay. What can I do?

A: After the Court enters an order or final judgment compelling the other party to take certain actions or to make certain payments, they are under a legally enforceable obligation to act accordingly. If they fail to perform, you may seek enforcement from the court. This is most often seen when one party fails to provide alimony or child support payments, or fails to maintain insurances.

Q: If I fail to make payment on my support obligations, can I be arrested?

A: There are many reasons a parent or former spouse may fall behind on child or spousal support payments. They may have lost a job or otherwise had a substantial change in income. They may be experiencing medical problems that keep them from working. In some cases, people blatantly choose not to live up to their obligations.

No matter the reason, falling behind on support payments is a violation of a court order. Support enforcement actions brought by the other party could lead to serious consequences including wage garnishment, loss of professional and driver's licenses, and jail time.

EMERGENT APPLICATIONS

Q: When is it appropriate to apply for an emergent application to the court?

A: Courts will assess whether emergent relief is warranted based on whether an imminent, irreparable harm would result absent intervention.