New Jersey Divorce Lawyer Blog

How is child support calculated?

New Jersey calculates child support based on the Child Support Guidelines set forth in Appendix IX of the New Jersey Court Rules. The Guidelines are mandatory in every case that initially comes before the court. Keep in mind there are situations where the court will allow parties to deviate from the Guidelines, however, good cause must be shown for the deviation.

The Guidelines were established to provide a fair and standardized way to set support for every child in the state of New Jersey. They were based on the Consumer Expenditure Survey which contains national data on how families spend money and takes into account the location of families, their size and socio-economic characteristics. These guidelines were created to work for parents who have a net income of $150,800 or less. If both parents make more than this amount, the courts will use the Guidelines up to $150,800 and then impose additional financial responsibility based on any income that was not used in the original calculation.

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Divorce and Pensions

Pensions or 401k or any other retirement account is an asset subject to equitable distribution. The amount you are entitled to is the amount that was accrued during the course of the marriage (the date you were married through the date the Complaint for Divorce was filed). The Divorce Reform Act of 1988 created a way for non-participating spouses to obtain the benefits just as the participating spouse through a Court Order called a QDRO.

QDRO stands for Qualified Domestic Relations Order. Most companies have a separate legal department to handle the entry of these orders. They are quite complicated to complete and each employer may have their own form they require. You should consult with your attorney to have them handle the preparation of this special order.

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Marital Debt And Divorce: Who Pays?

It is fairly common for people to have credit card debt or loans to settle in their divorce. The vast majority of my clients blame their spouse for the debt he or she incurred. Most times you will be partially responsible for the debt incurred by your spouse during the marriage, whether you agreed with the purchases or not. New Jersey case law states that fault plays no role in equitable distribution except in cases of extreme levels of criminal or financial fault. Chalmers v. Chalmers, N.J. 186 (1974).

Several years later, another New Jersey court confirmed this ruling by stating that, “we are satisfied that the concept of "equitable distribution" requires that fault be excluded as a consideration. The court then gave two basic reasons for this holding. First, "fault may be merely a manifestation of a sick marriage," and only reflects how a person reacted to a marital problem which may not be of his or her making. Second, the court repeated the partnership or shared enterprise theory that each contributed to the marital estate and we are merely giving to each what really belongs to him or her.

You need to be aware of the debt your spouse is incurring in their own name, or in yours. It is important to understand that the court looks at marriage as a true partnership. Debt incurred by one partner will be shared by the other with a few exceptions.

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Who Pays When The Spouse Runs Up The Charge Cards?

Unfortunately, whether or not your name is on a particular credit account, New Jersey law states that both parties are responsible for the debt that was racked up during the marriage. But what counts as, “during the marriage”?

New Jersey case law states that “. . . the period of acquisition for the equitable distribution of marital property shall terminate the day the complaint for divorce is filed”. Painter v. Painter, 65 N.J. 196 (1974). This timing precludes either party from dissipating assets or accumulating debt which the other spouse would have to be responsible for. If one party wishes to have certain debts or assets subject to distribution after the filing of the complaint the burden of proving that such is subject to distribution shifts to the moving party. I just had a case with this very issue. After the Plaintiff filed for divorce, but before the ultimate settlement, she had charged up significant debt and was attempting to have her spouse pay for 50% of the bill. She testified at trial that the money was spent to feed and clothe the children, however, no bank or credit card statements were provided. The Judge ruled that the debt was not accrued during the marriage and Plaintiff did not prove that she had spent the money for marital purposes.

Bottom line, do not file for divorce and then rack up the debt, you will be responsible for it all on your own!

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Can I move out of state with my children?

Any child who is born in the state of New Jersey, or has resided here for a period of 5 years, may not be removed from the state without the consent of both parents or by Court Order. If you want to move out of state with your children and the other parent does not consent, you can file a motion with the Family Court to obtain a removal order. Recent case law has made it easier for parents to get permission to move out of state.

In Baures v. Lewis, the custodial parent looking to move must show that 1) a good faith reason for the move; and 2) the child will not suffer because of the move. The court also provided a list of factors to consider in these types of cases including:

a. reasons for the move;
b. reasons the other parent is opposing the move;
c. past history of the parties;
d. available health, education and leisure opportunities in the proposed place of residence as compared with current opportunities;
e. any special needs of the child
f. whether visitation and communication can be developed so that the non-custodial parent’s relationship with the child is not hindered
g. the likelihood that the moving parent will continue to promote the relationship of the non-moving parent;
h. the effect the move may have on extended family members;
i. the child’s preference (if of appropriate age)
j. whether the non-moving party can relocate
k. any other factor in the child’s best interest

Because we are now in an age where technology and travel has improved, the court’s are much more lenient in allowing custodial parent’s to move out of state. Generally, your request will be granted if you can show that you will compromise and make accommodations for visitation and communication with your former spouse.

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The Child's Names in a Divorce

There is no set answer as to what happens to the last name of the children. Both the father and the mother have the same right to use their last name, which means that the mother can have the name changed to her maiden name. Usually the test is the best interest of the child which is dicey at best when it comes to a last name. What is the analysis?

How long has the child used a surname?
Family unit identification?
Potential for embarrassment?
Child's preference?

The following are the important cases

Rossell Yacono, 196 N.J. Super. 109 (Law Div. 1984)
In re Fisher, 204 N.J. Super. 75 (Law Div. 1985)
M.D. v. A.S.L, 275 N.J. Super. 530 (Ch. Div. 1994)
Gubernat v. Deremer, 140 N.J. 120 (1995)

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Spousal Abuse

Can I sue my spouse for spousal abuse? The answer is yes but the answer is limited to physical abuse. In New Jersey the court established the right of a spouse to sue the other spouse on Tevis v. Tevis. The legal theory is no different than any assault claim. If a party causes you physical harm, intentionally or unintentionally, you have the right to pursue a claim but it must be done at the time of the divorce. It will be then be transferred to another court where you can get a jury trial.

The numbers are staggering

Between 1/3 and 1/2 of all adult women are beaten by their husbands or lovers at some time in their lives. 14% of American women acknowledge having been violently abused by a husband or boyfriend.

92% of physically abused women (by their partners) did not talk about these incidents with their physicians; 57% did not discuss the incidents with anyone.

1/2 of all violent crimes against woman are not reported to police

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Adultery and Domestic Violence.

Can you sue you spouse for either personal injuries from domestic violence or for emotional distress caused by non physical violence marital conduct. Yes.

New Jersey has a Tevis claim, The Supreme Court of New Jersey recognized in 1979 an abused spouses right to sue the the other spouse for personal injuries sustained at the hand of the other spouse (domestic violence). The theory would be the same as in any personal injury case. The spouse negligently or intentionally cause personal injuries. Punitive damages would be available for recovery. The claim usually must be litigated in the family court at the same time as the divorce. The court will usually separate theses claims and let the personal injury claim be heard by a jury in the Law Division rather than the Chancery Division.

The New Jersey Courts also recognize another claim in Ruprecht v. Ruprecht, 252 N.J. Super. 230 (Ch. Div. 1991) for emotional distress but is must be outrageous conduct. The court used the following to describe the conduct that must be present to provide damages

"exceed all bounds usually tolerated by decent society."

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Pendente Lite Alimony

This is a type of potentially temporary alimony that begins before the divorce is final and/or a property settlement agreement is agreed upon by the parties. The purpose is to keep the status quo until the parties are finally divorced. The awards can be changed by the court or the parties but it is very difficult, as a practical matter, since the judge applies all of the pertinent factors that would be analyzed in reaching a final, permanent alimony.

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Why Do Marriages Fail ?

There have been may studies to explain why one in two marriages fail in the United States. Please read this study and really think about the conclusions.

Predicting marital success!

In short the study reveals that the failure or success of the marriage is determined in the first two years.

"First, contrary to popular belief, Huston found that many newlyweds are far from blissfully in love. Second, couples whose marriages begin in romantic bliss are particularly divorce-prone because such intensity is too hard to maintain. Believe it or not, marriages that start out with less "Hollywood romance" usually have more promising futures."

The study also concluded that it is the loss of affection that is a major cause for divorce.

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