child support

OPEN DURATION CHILD SUPPORT

March 5, 2021 | Kevin M. Mazza, Esq.

In 2014, the New Jersey divorce statute, NJSA 2A: 34-23 as it pertains to the issue of spousal support or alimony was substantially modified. One such modification dealt with the vexing question of what the duration or term of the obligation to pay alimony should be. While a prior amendment to the statute had afforded courts the ability to award “limited duration” alimony, the lack of specific standards of under what circumstances this would apply, or for how long, versus an awarding of “permanent” alimony, led to divergent interpretations and applications by the courts. The Legislature sought to bring clarification to this issue when it included the following language to NJSA 2A: 34-23(c):

“For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.”

Hence, for a marriage of over 20 years, the duration of a possible alimony award was left “open”, and subject to the discretion of the trial court, applying the statutory factors and other legal principles to the facts and circumstances of a given case. Hence the development of what has been come to be known as “open duration alimony” for marriages in excess of 20 years.

Parenting Is A Team Sport

December 2, 2020 | The Law Office of James P. Yudes, P.C.

As I sit here this morning working from home because I have a sick 23-month-old that cannot attend daycare, I find myself reflecting a lot about this experience that is being a working mom. It is most definitely nothing like what I could have possibly imagined two years ago when my husband and I were patiently awaiting the arrival of our first child. But as the cliché goes, right on his due date he made his appearance (he gets his punctuality from his father) and everything changed.

pexels-august-de-richelieu-4262414-200x300 I knew being a working mom would be hard, but I also imagined having it mostly together – continue my career, breastfeed exclusively until my child turned one, take him to activities like My Gym, baby music classes and Mommy & Me swim to get him engaged early, read him a different story every day, make healthy meals and exercise, and have everything together for the next day before going to bed each night. Arrogant, I know, but hadn’t my mom and my grandmothers done it? Hadn’t they taken care of all the childcare stuff while still working because that is what we are supposed to do? And everywhere I looked it seemed there were working moms who had it all together. I wanted to handle it the way I thought they were handling this working mom thing. If you are a working mom or just a woman in general, you probably know what I am talking about. Women tend to imagine the women around them are doing everything right, while we are barely keeping it together. We tend to romanticize the women in our lives that we have looked up to and idealized.

When I think about it now, I usually find myself smiling, sometimes even laughing at these crazy ideas I had. And sometimes, I am still hard on myself and think that if I tried a little harder I could have it more together the way I thought I would. My days mostly fall somewhere on the scale of organized chaos to outright chaos. I have learned that most of the things I thought would be easy are actually really hard. I have learned that many of the women that seemed to have it all together are going through the same experience as me. So too I have come to realize that we almost never do it alone. Despite what I remembered, my mom and my grandmothers did not do it alone (it was, after all, my father who drove me to the skating rink at 6:00 in the morning and built pinewood derby cars with my brothers). I can still very vividly recall a female Judge telling me not long after I had my son, to make sure I let my husband help – you will succeed, he will succeed, and your children will succeed if you work together. Her point – parenting is a team sport. This is true no matter the status of your relationship. Parenting is a team sport whether you are married, divorced, living together or separated.

Is a Parent or Spouse Who Does Not Work Available Overtime Hours Underemployed For Purposes of Calculating Child Support Obligations in New Jersey?

June 15, 2020 | Karen T. Willitts, Esq.

When calculating child support obligation, the courts first look to the Child Support Guidelines established by the Supreme Court of New Jersey. The Guidelines factor in income from all sources of both parents in order to determine the parents’ respective child support obligations. However, when it comes to income that is available for support purposes, what is important to consider is not merely what someone’s actual, earned wages are, but what the parents’ income capacities are. If a parent is voluntarily underemployed or unemployed and earning less than what he or she is capable of earning, the Child Support Guidelines allows the court to impute income to the parent who could or should be earning more. Child support would be calculated based on what a parent is capable of earning, rather than what the parent is actually earning.

It is not, however, always clear what a person is capable of earning or whether a person is voluntarily underemployed. Some people have sporadic or variable income. Some people earn income from second jobs or from overtime hours.

In the recently published case of the Superior Court of New Jersey in Ferrer v. Colon, FD-2392-07 (Ch. Div. 2020), the family court assessed whether to impute income to a parent for child support purposes because overtime hours were available to her that she did not utilize. Should the court impute income to her based on income available to her even if she did not take advantage of all of those hours?

New Jersey Appellate Division Clarifies Standard for Support When a Litigant is Disabled

May 14, 2020 | Karen T. Willitts, Esq.

This month, the Appellate Division approved for publication the case of Gormley v. Gormley, A-1428-18, (App.Div. 2019) which addressed the standard to apply in determining the income of a litigant who has been determined by the Social Security Administration to be disabled and whether the Court should impute income for someone who has been adjudicated disabled and does not work.

In this case, the parties married in 2000, had one child, and the plaintiff filed a Complaint for Divorce in 2015. The Defendant had already been diagnosed with multiple sclerosis at the time of the marriage. In 2002, also during the marriage, the Social Security Administration determined that the Defendant was disabled by multiple sclerosis. As such, she did not work and was receiving $2,023 per month in social security disability benefits. The Plaintiff was employed full-time and earned a commission based income. In the two years before the trial, he had been earning approximately $150,000 per year. However, in the year of the trial, he was working fewer hours in order to represent himself at trial, and to study psychology and parental alienation. As such, he was earning approximately $112,000 per year.

The family court judge imputed $240 per week of earned income to the Defendant even though the Social Security Administration had determined that she was disabled and had been paying monthly social security disability benefits since 2002. The judge reasoned that she did not visibly observe Defendant exhibit in court disabling symptoms from multiple sclerosis such as fatigue, bladder issues, tremors , difficulty in concentration or any other difficulties that the judge felt would prevent her from working. No income was imputed to the plaintiff.

Are Alimony And/Or Child Support Obligations in New Jersey Modifiable During the Coronavirus Pandemic?

April 24, 2020 | Karen T. Willitts, Esq.

After years of a booming economy, the coronavirus pandemic has wreaked havoc on our state and national economies. Non-essential businesses have been forced to close and millions have become unemployed. Many others who have held onto their jobs have had their hours or pay reduced. The pandemic has caused households to struggle financially and many are worried about how they will pay their bills and trying to determine how they can reduce expenses. What are the options to modify alimony and/or child support obligations if one or both parties has experienced a reduction in income or a loss income due to the coronavirus pandemic?

If one or both litigants cannot resolve the issue on their own, a lawyer and/or mediator can offer up assistance to resolve the matter. A resolution is going to require both parties to be reasonable and understanding. The person receiving support may need to be understanding of the obligor party’s financial distress and worry. The person paying support may need to understand that alimony and child support may represent all or most of the receiving party’s income and that party cannot apply for unemployment benefits to replace lost support. The matter is more significant when there are children that have to be cared and provided for, and that is paramount.

If the parties cannot come to an agreement, can the court offer relief? The courts have not been having hearings but for emergency matters, and financial disputes are generally not considered emergent. However, the courts in New Jersey have risen to the occasion and applications to modify support can be filed electronically. A Family Division judge can decide the matter based on the review of the papers alone if that is requested, or the judge can conduct oral argument, settlement conferences and the like via telephone and/or video conference. The courts are still open to conduct family law business.

RESOLVING DIVORCES DURING THE PANDEMIC: PRACTICAL CONSIDERATIONS

April 17, 2020 | Kevin M. Mazza, Esq.

It goes without saying that the impact of the coronavirus pandemic has been widespread and devastating. It has been dramatic and sudden. It has reached every corner of the globe. It has affected virtually every institution – political, economic and social. It has touched every community, every family and every person in some way. For those already going through the personal upheaval of divorce, it’s emotional and financial consequences have only served to make a difficult situation even more stressful and complicated. Even though the vast majority of divorce cases will end up being resolved by the parties by way of a negotiated agreement, the pandemic’s impact has clearly had a drastic effect upon the parties’ ability to negotiate a resolution of their cases at this juncture.

Front and center on our website is the quote from Justice Brandeis: “Nothing is settled until it is settled right.” The pandemic has certainly put this to the test. Until six to eight weeks ago, we were in the midst of a period of sustained economic prosperity. Unemployment was at historic lows. Incomes and wages were up. Businesses were flourishing. The stock market and other investments were at record highs. The real estate market had finally rebounded from the impact of the recession years earlier. One of the biggest keys in trying to negotiate a resolution of a divorce case is having some sense of stability in regards to the family’s financial picture now and of its predictability into the future. When it comes to issues of support, a payor spouse’s willingness to commit to an amount to pay is not only tied to what he or she is earning then, but the reliability of these earnings going forward. When it comes to the division of assets, determining what allocation or distribution of same would be fair and equitable depends not only on being able to identify and value those assets at that time, but some level of predictability of what will happen with those assets into the future. Until recently, that task seemed fairly easy. However, the pandemic has swiftly turned this process on its head.

Record employment has turned to record unemployment in a matter of weeks, largely the consequence of the government’s policy to shutdown “non-essential” businesses in an effort to blunt the spread of the virus. Twenty-two million claims were made for unemployment in the past three weeks alone. Even if people didn’t lose their jobs, they may have suffered a reduction in hours or pay. Social distancing and stay home requirements have further curtailed many jobs and other economic activity. Many businesses have been closed or have seen their revenues drastically reduced. To make matters worse, no one has been able to predict with any level of certainty how long the shutdown will last – weeks, months, until there is a vaccine – or even what the impact all of this economic dislocation will have either short-term or long-term. Whenever it is over, will things simply return to the prior “normal” or will a new “normal” come into being? Will people get their old jobs back? Will there even be businesses or jobs to return to? How much will future earnings be impacted? Will the stock and financial markets rebound?

Are Federal Stimulus Checks Paid Due to the Coronavirus Pandemic Subject to Garnishment for New Jersey Child Support Arrears?

April 11, 2020 | The Law Office of James P. Yudes, P.C.

Due to COVID-19, New Jerseyeans, among others, are experiencing difficult financial times. While there has been action by the government to ease financial burdens such as staying evictions and forbearing mortgage payments, the fact of the matter is that ensuring the receipt of child support during this time is critical. Children need the financial support of their parents in good times and bad times. The coronavirus relief bill includes direct cash payments to help people through the crisis — but one red flag that can cost otherwise eligible Americans money is owing past due child support.

When a parent does not make child support payments on time, the overdue payments are called arrears. In order to collect arrears there are various measures that can be taken against a parent that owes child support such as the following:

Jail

Co-Parenting in a Pandemic: Help for Divorced or Separated Parents

March 29, 2020 | Karen T. Willitts, Esq.

Co-parenting children when parents are separated or divorced can be challenging in normal circumstances. One would agree, however, that times are not normal. The country is in the midst of a pandemic due to the COVID-19 virus. Governor Murphy has closed schools and many business, and he has directed that we engage in “social distancing” and stay at home for the indefinite future.

Families all over the State are concerned about their children’s health and well-being, not to mention family finances due to the number of people who have lost jobs, been furloughed or suffered from cuts in pay or hours. Existing arrangements for custody and parenting time were designed for normal circumstances, not necessarily for unprecedented times such as these.

Questions may arise as to how separated parents address custody, parenting time and child support issues. To what extent do existing orders have to be followed? Generally, many existing agreements or orders for parenting time can and should be followed. However, can a parent withhold or refuse parenting time? What happens if a parent or child is exposed to the coronavirus or is at heightened risk of exposure? What if a parent, child or family member begins to exhibit symptoms? How should parents accommodate a household that has an elderly family member or a family member with a health condition which makes COVID-19 particularly deadly? What if one of the parents lives out of state and the child has to travel some extended distance? What if the households do not have the same social distancing practices? Can both parents’ homes accommodate educating the children while school is closed? Should parenting time be modified to reflect that both parents are home more either due to having lost their jobs or they are working from home?

Paternity Support Reimbursement Claims? Asking the Internet Versus Asking a Lawyer

January 21, 2020 | Kevin M. Mazza, Esq.

Maury says you are NOT the father! Actually, after getting the results of a genetic or DNA test, you discover that you are not the father of the child you were led to believe was yours and had been supporting. Rather, the child you have been supporting was the offspring of an extramarital affair between your ex-wife and another man conceived during your marriage. Once you get past the shock of such a disclosure, you question to what extent you may have an ability to seek reimbursement from the biological father for the support you had already paid on behalf of that child.

If you turned to the internet for an answer to that question, you might not only have been led to believe you had no right to do so, but that you were a selfish, horrible and “grotesque” person for even raising the issue. This was essentially the exchange highlighted on my browser’s home page a few weeks back. As a lawyer, it is obvious that such “advice” would be legally erroneous, certainly under New Jersey law. However, I wondered how many people may have relied upon this response as opposed to discussing the matter with an attorney.

Before commenting on whether it is wise or prudent to rely upon “Ask the Internet” to get answers to significant legal questions, I will address whether under New Jersey law a claim for reimbursement of child support can be brought against one determined to be the biological father of a child. The applicable statute as well as our courts have answered yes. Situations such as these are governed by the provisions of the New Jersey Parentage Act, N.J.S.A. 9:17-38 to 59, enacted in 1983, and modeled after the Uniform Parentage Act 1973. The Parentage Act was intended to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide procedures to establish parentage in disputed cases, as well as to ensure that children receive their statutory right to financial support and to facilitate payment by fathers who refused to admit paternity and/or fail to pay. To that end, the Parentage Act not only provides all children with a judicially enforceable right to such support, regardless of their parents’ marital status, it affords to “any person” who has furnished financial support to a child the ability to institute a proceeding seeking reimbursement for reasonable educational, medical or other support-related expenses from the biological father where the existence of the father/child relationship has been declared or paternity is acknowledged or adjudicated. N.J.S.A. 9:17-55(a).

Lottery Winnings: A Dream Divided?

June 27, 2019 | Kevin M. Mazza, Esq.

“All you need is a dollar and a dream”. Mega Millions. Powerball. Pick-6. State lotteries all over the country encourage people to pluck down their dollars for the dream of possibly winning a fortune and being financially set for the rest of your life.

However, for one Michigan man that “dream” may have been considered more of a nightmare when he was directed in his divorce case to turn over to his ex-wife $15 million, nearly one-half of the Mega Millions jackpot he won in 2013. That decision was recently affirmed by the Michigan Court of Appeals in Zelasko-v-Zelasko (Docket No: 342854 decided June 13, 2019). Why the husband may have considered a lottery jackpot to be a “nightmare” included the fact that the parties married in 2004, separated in 2008, filed a divorce complaint in 2011 – almost two years before the winning lottery ticket was purchased – and where the wife had been the primary breadwinner, earning roughly three times what the husband earned. Why such a result? Most critically, under Michigan law “marital property” subject to equitable distribution in a divorce includes all property acquired from the date of marriage until the date of entry of the divorce decree. Hence even property acquired after a separation or after a divorce complaint is filed is considered marital property in Michigan. Since these parties’ actual divorce did not become final until 2018, the lottery winnings of 2013 were still considered marital property.

Among the other reasons this significant award to the wife was affirmed on appeal included: (1) that the determination was made by an arbitrator during a binding arbitration process which had been agreed upon by the parties, with the ability to challenge such rulings being statutorily limited; (2) the arbitrator’s ruling that such a division was fair and equitable, opining that the winning lottery ticket was probably not the first lottery ticket the husband purchased during the marriage and that as losses throughout the marriage were incurred jointly, winnings should also be shared jointly; and (3) that the dollar spent for the ticket was arguably marital money and as such a joint investment. Beyond this, the husband had not engendered much sympathy since he allegedly failed to contribute any money for the support of the parties’ three children.