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GOVERNOR CHRISTIE SIGNS New Jersey ALIMONY REFORM LAW

9/15/2014

 
Earlier this summer, I reported on the compromise reached by the New Jersey Senate and Assembly on the provisions of an Alimony Reform measure which had been debated in the state legislature over the course of the past several years.  On September 10, 2014, without comment, Governor Christie signed the new law.

The following is a summary of pertinent provisions of the new law:

1.  Although there is no schedule for the duration of alimony based on duration of the marriage, the new law will provide that in marriages or civil unions of less than twenty years, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.  This provision is not retroactive to cases already settled or adjudicated.

2.  The terms “permanent alimony” or “indefinite alimony” are replaced with the term “open durational alimony” and applies to marriages or civil unions of more than twenty years in duration.  This change in language itself will likely not have a significant effect on alimony determinations in cases involving marriages or civil unions in excess of twenty years.  However, a new provision (discussed below) which creates a presumption that alimony terminates upon the payor reaching full retirement age, will certainly impact the duration of alimony in many “open durational” alimony cases.

3.  In determining the type of alimony, the majority of the factors to be considered by the Court remain the same.  However, there are several notable changes.  In factor number four, which provided for the Court to consider the likelihood of the parties to maintain a reasonably comparable standard of living as existed during the marriage or civil union, the new law has made it clear that “neither party has a greater entitlement to that standard of living than the other”.  The Court would also be required to consider the support that had been paid during the litigation.  Finally, the law has made it clear that in evaluating alimony, all factors are to be considered and no factor is to be elevated in importance over any other factor unless the Court makes specific written findings in that regard.

4.  There are three notable changes in the new law’s provisions regarding modification of alimony awards.  Alimony could now be subject to modification or termination upon the prospective or actual retirement of the obligor.  This provision is aimed at resolving a problem that has been faced by alimony payors as they approach retirement age.  Under existing law, the payor often faces a dilemma as to whether or not to retire, without knowing the effect of retirement on his/her alimony obligation.  Under the Alimony Reform law, the payor can make an application to the Court in anticipation of retirement to determine whether alimony will be terminated or modified upon retirement.  The Statute also establishes a “rebuttable presumption that alimony shall terminate” upon the payor attaining “full retirement age”.  This means that when the payor reaches full retirement age (presently considered to be the age of 67), it is more than likely that alimony will be terminated, unless the recipient is able to demonstrate good cause for continuing alimony beyond that age.  If the payor desires to retire prior to full retirement age, then an application can still be made.  However, in those cases, the payor maintains the burden of demonstrating that the retirement is reasonable and made in good faith.

5.  Also under the law’s provisions, alimony may also be modified upon “an involuntary reduction in income”.  Under existing case law, Courts can only modify alimony if an alleged reduction of income is “permanent”.  Under the new law, the Court will be able to assess a temporary remedy in cases where the reduction of income is temporary.  If an alimony payor demonstrates that he/she has been unemployed for three months, alimony can be reduced or terminated.  The Court could also schedule periodic reviews to assure fairness and equity to both parties.

6. Finally, the reform law provides for greater rights to modify alimony in cases involving cohabitation.  Significantly, the emphasis is no longer on a requirement that the alimony recipient live with his/her significant other on a full-time basis.  Rather, the Court can consider “the frequency of contact” with the significant other.  The Court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.

Although one of the purposes of the alimony reform movement was to simplify the divorce process, it appears that since there are no set schedules for alimony duration or amount, for those contemplating separation or divorce, it is essential that they consult with an experienced matrimonial attorney to gain an understanding as to how the new law effects their rights and obligations.  Further, for those who are already receiving or paying alimony, it is important that the terms of the Settlement Agreement or the Court's Judgment be reviewed to determine the extent to which the new law's modification provisions may affect their rights and obligations.  

N.J. Alimony Reform Compromise Reached

7/2/2014

 

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Domestic Violence and Divorce Proceedings in New Jersey

4/25/2014

 
Much is written about the physical and emotional harm that is caused to victims and children as a result of domestic violence.  The purpose of this article is not to address the severe and horrific cases that have resulted and the need for New Jersey’s Prevention of Domestic Violence Laws.  Rather, this article will address New Jersey law as it pertains to domestic violence matters involving complaints of “harassment” and how domestic violence restraining orders can affect the parties’ rights and obligations in divorce litigation.  

When a domestic violence complaint is filed, a judge will consider the testimony of the alleged victim and determine whether there is a sufficient basis to enter a Temporary Restraining Order.  This hearing is conducted without the presence of the defendant and usually without notice to the defendant.  When a Temporary Restraining Order is issued, a final hearing, with the presentation of witnesses and evidence, is scheduled within ten days.  Defendants are given a copy of the Temporary Restraining Order and there is no discovery prior to the hearing.  Thus, important rights can be affected in a very short time period and in many cases, parties are not properly advised when appearing before the Court.  

New Jersey’s Domestic Violence Statute defines the various criminal offenses which constitute an act of domestic violence.  Acts of assault, stalking, burglary, terroristic threats and criminal trespassing are fairly well defined by this State’s criminal code.  Yet, by far, the most often asserted basis for litigated domestic violence matters involve complaints of “harassment”.  Although N.J.S.A. 2C: 33-4 provides three alternate definitions of harassment, each of these definitions contain ambiguous descriptions which often lead to subjective interpretations and inconsistent results.

According to the Statute, “harassment” is an offense if a person acts with “purpose to harass another”.  This means that in determining whether an act of harassment has occurred, New Jersey Courts must determine what was the intent of the actor.  The problem is that one party’s intent may be to intimidate and seriously annoy, while another party’s intent may be a reaction to the stresses of marital discord or conduct that is commonly exhibited by both parties.

Further, one of the subsections of the Statute defines harassment as a communication in “offensively coarse language, or any other manner likely to cause annoyance or alarm”.  Clearly, what is offensive to one party, may be quite common to another.  Similarly, a communication which may cause annoyance to one party, may be typical to another party’s relationship.

These subjective definitions have led to considerable litigation and New Jersey Appellate Court review.  Our Courts have made it clear that domestic violence cannot be found in cases involving only “marital contretemps”.  Rather, the alleged victim’s claims of domestic violence must be evaluated in light of the previous history of domestic violence between the parties, including previous threats, harassment and physical abuse and whether immediate danger to a person or property is present.  Our Appellate Courts have repeatedly indicated that domestic violence is ordinarily more than an isolated act.  Rather, a court must find that the victim needs the protection of the Domestic Violence Statue because the victim’s safety is threatened.

Notwithstanding this Appellate Court guidance, frequently Temporary Restraining Orders are granted based upon incidents or behaviors which do not meet these standards.  Unfortunately, as well, because of the subjective nature of domestic violence complaints based upon “harassment”, Final Restraining Orders have been entered in an inconsistent manner.

There are numerous serious consequences resulting from domestic violence matters which can greatly affect the parties’ rights and obligations in the event of divorce.  First and foremost, a domestic violence restraining order will result in the removal of the defendant from the marital residence.  This will cause substantial disruption and, in many cases, financial hardship and significant disadvantages in settlement negotiations and divorce proceedings.

Second, a finding of domestic violence will have an effect on rights of custody and parenting time.  In fact, our law provides a presumption that when a party is found to have committed an act of domestic violence and a restraining order is issued, it is in the best interests of the children, that custody, at least on a temporary basis, be granted to the victim.  This presumption can be extremely difficult to overcome in future divorce and custody proceedings.  Further, the Defendant can be subjected to multiple evaluations, including psychological evaluations, substance abuse evaluations and risk assessments.

Third, domestic violence orders can result in problems with employment and difficulties involving professional licenses, law enforcement qualifications and disqualification for future employment opportunities.

It is for these reasons, and others, that there is no question that any party, whether victim or defendant, should consult with experienced matrimonial counsel if a domestic violence complaint is filed or even if a domestic violence complaint is being contemplated.  During a consultation, experienced matrimonial counsel should provide a party with guidance as to how best to present necessary evidence in support of the domestic violence complaint or in response to a domestic violence complaint.  There should also be a discussion as to whether the party should consider resolving the domestic violence matter by consenting to similar restraints pursuant to a Civil Restraining Order which could be entered pursuant to a divorce, custody or support matter.  In many cases, the civil restraints can be mutual and applicable to both parties.  Further, during a consultation, an attorney may advise the victim that there are deficiencies in the victim’s domestic violence complaint that require immediate amendment before a final hearing.  Similarly, a defendant in a domestic violence matter can be advised to file a cross-claim against the plaintiff, if there are allegations that the defendant has also been subjected to acts of domestic violence.  Finally, if it appears that a trial is necessary, a litigant must be advised as to the court procedures, including the potential of producing or subpoenaing witnesses.

In summary, although domestic violence proceedings are meant to deal with protecting victims and providing them with easy access to the judicial system, the potential far-reaching effects on the parties’ rights and obligations demand consultation with counsel at the earliest possible time.

Defining Cohabitation Under New Jersey Family Law

3/27/2014

 

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NJ Alimony Based on Imputation of Income

3/24/2014

 

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    Barry Chatzinoff, Esquire

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