By: Divorce and Family Law Attorney Christina M. Fulton, Esquire. Associate Attorney of Musulin Law Firm, LLC
CHILD SUPPORT LAW - REDUCTION OF CHILD SUPPORT FOR DISABLED PARENT
Gilligan v. Gilligan , 428 N.J. Super. 69 (Ch. Div. 2012)
The New Jersey Superior Court of Ocean County recently published a decision that could have significant impact on how the Court treats requests to reduce child support when a parent is disabled. In the case of Gilligan , the Court found that a parent asking for a decrease in child support because of being disabled has an obligation to produce medical records and prove an inability to work. Prior to this decision, a letter from the Social Security Administration stating the parent is disabled was generally considered sufficient proof and child support would be reduced. The decision in the case of Gilligan has not been reviewed by a higher Court, so other judges are not required to follow it. However, if other judges or Courts in other counties follow this approach, the process of reducing child support on the basis of disability will become much more involved.
ALIMONY LAW - LEGISLATION
Senator Sean Kean (R-Monmouth) has drafted legislation that will establish a panel to study New Jersey's existing alimony laws to determine whether any reforms are warranted. Senator Kean believes that the current statute does not establish adequate limits on the length and amount of alimony or for adjustments as a result of changes in the financial circumstances of the former spouse's. See the following link for more details:
ALIMONY LAW - TRUST INCOME
Tannen v. Tannen , 208 N.J. 409 (2011)
During the parties' marriage, the wife and her parents established a trust with wife as the sole beneficiary. The trust owned the marital home and was utilized to pay certain expenses, such as the children's private school tuition and the real estate taxes. The Court held that, as the trust could not be considered an asset held by wife or in her control, it could not be considered a source of income for her in making a determination as to alimony in the divorce. The expenses previously paid by the trust, however, could be taken into consideration in determining the wife's need for alimony.
DOMESTIC VIOLENCE LAW - ALLEGATIONS
J.D. v. M.D.F. , 207 N.J. 458 (2011)
In this domestic violence matter, a woman sought a Final Restraining Order against her former boyfriend who was found taking photographs of her at her home in the middle of the night. She cited the photographs as the reason for the Restraining Order in her Complaint. When she appeared in Court, however, she raised allegations of past abuse that were not stated in her Complaint. The Court found the past abuse could not be taken into consideration because it was not stated in the Complaint. The woman's boyfriend was given no advanced notice that he would have to defend against allegations of past abuse, in violation of his due process rights.
PARENTAL RELOCATION - SHARED CUSTODY
Morgan v. Morgan , 205 N.J. 50 (2011)
Prior Court decisions address what factors the Court must consider when a parent wants to move out of state with a child. If the parents have a truly shared custody arrangement, the parent who wishes to move must also prove that a change of custody is best for the child. In this decision, the Court explained that the amount of time each parent spends with the child is not the only consideration to determine if shared custody exists. Of greater significance is each parent's responsibility for the child's needs, including doctor's visits, homework, etc.
PALIMONY LAW - UPDATE
Botis v. Estate of Kudrick , 421 N.J. Super. 107 (App. Div. 2011)
A previous amendment to the law made it clear that palimony, support for a party by an ex-boyfriend or girlfriend, is only available where the parties had a written, signed contract for such support. This amendment went into effect as of January 18, 2010. In this case, the Court determined that the amendment cannot be applied to any case in which a party filed an application for palimony before the amendment went into effect. The Court has not yet published a decision about whether the amendment applies to cases in which the relationship began before it went into effect, but the Court application was filed after.
DOMESTIC VIOLENCE LAW - RELATIONSHIP TO ROOMMATE
S.Z. v. M.C. , 417 N.J. Super. 622 (App. Div. 2011)
Protection is available under the Prevention of Domestic Violence Act for a person who has been the victim of domestic violence by a spouse, former spouse or present or former household member. This application for a Restraining Order involved unwelcome sexual advances, including peering into the bathroom window, by a co-worker the victim had previously let stay in his home for a period of several months. There was never any romantic relationship between them. The Court determined the co-worker could be considered a "former household member" as required by the Prevention of Domestic Violence Act, despite the fact he had no personal relationship with the victim.
COLLEGE EXPENSES - GRADES AND RECORDS
Van Brunt v. Van Brunt , 419 N.J. Super. 327 (Ch. Div. 2010)
The issue raised in this case was whether the Court can require a college student to submit to a parent proof of his/her college enrollment, grades and credits in light of the student's right to privacy under the Family Educational Rights and Privacy Act (FERPA). The Court found that the student can be required to submit the documents as a condition of receiving support and contribution from the parent to college expenses. If the student chooses to exercise his/her privacy rights and withhold the documents, it may be a basis for declaring the student emancipated. It is important to note that this case was not reviewed by the Appellate Division or New Jersey Supreme Court. Therefore, judges are not required to abide by its findings.
DIVISION OF MARITAL PROPERTY - ESTATE
Kay v. Kay, 200 N.J. 551 (2010)
During the course of the divorce proceedings, the husband passed away. As a result, the wife, the surviving spouse, would have been left with an inequitable portion of the marital assets. The New Jersey Supreme Court decided that the husband's estate should be permitted to make a claim against the surviving spouse for an equitable distribution of the marital assets. This decision is similar to a decision previously made by the Court in the case of Carr v. Carr , 120 N.J. 336 (1990). Unlike Kay, Carr dealt with a situation in which the estate would have been left with a significant portion of the marital assets. The surviving spouse in Carr was permitted to seek equitable remedies against the estate of the deceased spouse.
CHILD CUSTODY LAW - ARBITRATION
Johnson v. Johnson, 2010 WL 5018581 (December 10, 2010)
This New Jersey Supreme Court decision addressed what record is necessary for the Court to review a custody decision rendered by an arbitrator. As determined in Fawzy v. Fawzy , 199 N.J. 456 (2009), parents have the right to select an arbitrator to decide their custody issues, rather than litigate the matter before a judge. Fawzy also determined an arbitrator's decision can be reviewed by the Court if a party shows that the decision threatens harm to a child. In Johnson , the New Jersey Supreme Court decided a verbatim transcript of the arbitration is not necessary. The arbitrator in this case did not provide a transcript. The Court found, however, that the record provided by the arbitrator was sufficient because it included detailed record of all evidence and interviews, as well as a complete explanation of the basis for the decision.
CHILD CUSTODY LAW - ARBITRATION
Fawzy v. Fawzy, 199 N.J. 456 (2009)
A unanimous decision by the Supreme Court of New Jersey in the case of Fawzy has expanded the use of arbitration to include custody and parenting time disputes. Prior to this decision, parties involved in family litigation could choose to utilize the services of an arbitrator as an alternative to trial to decide issues such as alimony, child support, and distribution of property. The Fawzy decision now makes it clear that parties can select a private arbitrator to resolve custody and parenting time disputes. As with arbitration for any other issue, the decision of the arbitrator is binding.
Please select the link entitled " Family Law Arbitration " to learn more about the arbitration process and retaining the services of Musulin Law Firm to act as an arbitrator in your matter.
ALIMONY LAW - MODIFICATION OF AMOUNT OF YEARS TO PAY ALIMONY
Gonzalez-Posse v. Ricciardulli , 410 N.J. Super. 340 (App. Div. 2009)
In this Appellate Division decision, the Court made it clear that it is more difficult for a party to modify the length of time alimony is to be paid than it is to modify the amount of alimony to be paid. To modify the amount, a party must be able to demonstrate a change of circumstances. To modify the time period, however, a party must be able to demonstrate unusual circumstances. In this case, the Court did not consider it to be unusual circumstances that the husband's work visa was invalidated and he was deported to Argentina, thus reducing his former $150,000 per year income by more than seventy-five percent. Rather, the Court found this to be a simple case of diminished earning capacity.
DIVISION OF MARITAL PROPERTY - PETS
Houseman v. Dare , 405 N.J. Super. 538 (App. Div. 2009)
Prior to the decision in Houseman , the law treated pets as any other piece of property that may be subject to distribution in a divorce or breakdown of a relationship. Although pets are still treated as property under the law, this case recognized that pets often have some worth to the owner beyond their monetary value. As a result, if a pet is withheld from a party in violation of an agreement, the Court is not limited to only financial restitution; the return of the pet can be ordered.
Please see Christopher Musulin's article entitled " I Want a Divorce. And I Want the Dog! " for a more in-depth look at how pets are treated by the law .
Christina M. Fulton, Esquire. is an Associate Attorney with Musulin Law Firm, LLC. A former English teacher, she now handles matters of divorce, custody, parenting time, child support and domestic violence. She is a graduate of The College of New Jersey and Rutgers University School of Law, and a member of the Burlington County, New Jersey State and American Bar Associations. She has also served as a judicial law clerk in the Family Division of the Superior Court of Burlington County.