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Articles Posted in Case Law

Will my spouse be entitled to permanent alimony if we divorce after 15 years of marriage?

Since September 2014, the term “permanent alimony” became a thing of the past.  Now, in New Jersey, it has been  replaced with the phrase “open durational alimony.”  Currently, a family court must first determine whether open durational alimony is merited before considering other types of spousal support, such as limited duration or rehabilitative alimony. Although there is no bright-line rule regarding what constitutes a long-term marriage, the September 2014 amendments to New Jersey law now state a spousal support award may not exceed the length of a couple’s marriage if the union lasted less than 20 years, except in certain exceptional cases.

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New Jersey’s Family Court Recognizes the Changing Times in Which We Live- Judge Rules that a Permanent Restriction on an Ex-Spouse’s Paramour Staying over His or Her House When the Child is Residing at the Home May NOT be Enforceable.

Can my ex-husband allow his new girlfriend to spend the night while our child is at his home for parenting time?    This is the question that Mrs. Mantle, an Ocean County post -divorce litigant wanted to know.  She believed she could enforce such a restriction.  The Court believed otherwise.   Judge Lawrence Jones sitting in the Ocean County Superior Court, Family Part, was willing to tackle this sensitive issue we family law practitioners frequently encounter in the divorce cases we handle at Goldstein Law Group.   Until now, there was little guidance on what time periods or other conditions, if any, were reasonable for an ex-spouse to ultimately expose his or her children to that spouse’s new significant other, in particular, to have the paramour sleep over the house when the children were also residing there.   We, as family law attorneys, counseled our clients accordingly, based upon the ages of the child or children, the living arrangements, any psychological issues the child or the parties were facing, and other case sensitive factors.  In many instances, the parties sought to impose “DaVita” restraints (taken from the case in which Mr. and Mrs DaVita addressed such issues, and there were restraints imposed on the exposure of children post-divorce to a parent’s significant other. Here, Judge Jones recently ruled that blanket DaVita restraints are not generally enforceable.  Rather, divorcing parents may not permanently ban a child from interacting with a parent’s new significant other without proof of inappropriate conduct.  In Mantle v. Mantle, two divorcing parents agreed to indefinitely restrict either parent’s new paramour from having access to their child during parenting time.  A few months later, the child’s mother sought to enforce the open-ended “no exposure to dating partners” requirement on his father.  Despite this, the mother did not assert that the father’s new girlfriend committed any inappropriate or harmful acts in the presence of her son.

According to the family court, a 1976 Appellate Court case upheld a trial court’s decision to place a restriction on a child’s access to his or her parents’ dating partners.  In DaVita, the court ruled the trial court did not abuse its discretion when it granted a mother’s request that her former spouse’s girlfriend be prohibited from spending the night during the father’s parenting time.  In that case, the court added that the decision was not contrary to the current societal norms in the community.

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A mother’s extreme difficulty in obtaining international travel documents to allow her children to visit their father at his home in Brazil did not warrant changing the parents’ custody arrangement from joint to sole custody, according to a recent Appellate Division ruling. While the family’s travel complexities were a new development, they did not rise to the level of a “substantial change in circumstances,” as needed to modify an existing child custody arrangement. As this case highlights, courts, in the interest of stability for the children, require significant showings in order to change custody arrangements.

The custody dispute involved two former spouses, Paulo and Sandra Costa, who divorced in 2006 after 12 years of marriage. At the time of the divorce, with both of the Costas living in New Jersey, they agreed to joint custody of their two children, who were six and nine. Three years later, though, the father relocated to a small town near Sao Paolo, Brazil.

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An Appellate Division case from last year (June 2014) offers some clarity regarding when an alimony payor spouse’s financial setbacks are involuntary as opposed to voluntary or permanent as opposed to temporary. In this particular case, the husband whose reduced salary for more than three years was the result of his efforts to save his failing business was entitled to seek a reduction in his alimony payments. Since this decision occurred in June of last year, New Jersey’s sweeping alimony reform statute was enacted when Governor Christie signed a bill on September 10,2014 that addressed many aspects of alimony, giving guidance to the family bench and bar with respect to such issues as the type of alimony that may be appropriate, as well as the duration of any such alimony. The new legislation also set forth specific factors which a judge must now consider (after September 10, 2014) in deciding a modification application of a payor’s support as occurred in this case.

Michael and Tracy D’Alessandro married in 1985 and separated 22 years later. During the marriage, they had two children. When the couple completed their property settlement agreement in 2009, the husband was a one-half owner of a business, which was valued at the time at $1.25 million, and was receiving a $240,000 annual salary. The wife worked in a school cafeteria and made $15,000 per year.

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A husband’s attempt to bring an end to his alimony payments did yield a reduced obligation, but not the complete cessation he sought. It also came at a price after the Appellate Division upheld not only the continuation of alimony but also a trial court award requiring the husband to pay $15,000 of the wife’s attorneys’ fees that she spent defending against his efforts to terminate alimony.

When Robert Clauss married his wife Linda in 1988, she was a ballet dancer who had no college education. When the couple divorced two decades later, the wife was unemployed with no income. The couple reached an agreement on spousal support that called for imputing an income of $30,000 per year to the wife. However, by 2012, the wife had earned her license as a registered nurse and was making $66,000 per year.

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Sometimes, a divorcing couple completes their property settlement agreement anticipating one future, only to have a different one unfold after they finalize their divorce. A couple encountering such a situation ultimately required a trial court and the Appellate Division to resolve their alimony dispute. The court decided that nothing in the agreement gave the wife grounds for extending the end date of her receiving alimony, even though the “trigger” event for the start of her alimony did not occur for a period of years, instead of months.

When Stephen Tully and Ann Buscher divorced back in early 2007, their case included a property settlement agreement that called for the husband to pay the wife alimony starting from the time they sold the marital home and running until the end of 2016. The couple, however, ultimately did not vacate the house or list it for sale right away. The wife moved out in 2011, and the husband followed the next year. The house was listed for sale in September 2012.

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A three-judge panel recently held that certain whistleblowers are eligible for protection under New Jersey law. This ruling affects the rights of people who report the suspected abuse of vulnerable family members. If you believe a family member is being mistreated, talk to an experienced New Jersey family law attorney. If you suspect that someone is in immediate danger, you should call 911 right away.

An ambulance was dispatched to a New Jersey nursing home in order to transfer an elderly woman to a local hospital. The senior reportedly had a “goose egg lump” on her head, as well as bruising around the ears, down her neck, and on her arms. No one knew where the injuries came from. The woman’s daughter happens to be a doctor who rode along to comfort her mother on the ride. The daughter asked an Emergency Medical Technician (EMT) working for the ambulance company if she had ever seen similar injuries originating from this nursing home. The EMT answered “yes.” The EMT allegedly reported the issue to her dispatcher. The daughter also pursued the matter. Thus began an investigation into possible senior abuse at the nursing home.

The nursing home became aware of the allegations stemming from the EMT’s statements. The nursing home contacted the ambulance company to express concern over the matter. Soon thereafter, the EMT was fired by the ambulance company. Continue reading

A recent ruling by the New Jersey Court of Appeals clarifies the standard of proof required in obtaining a Final Restraining Order (a/k/a  an “F.R.O.”). This ruling affirms a court’s authority to use discretion to weigh evidence in restraining order proceedings. If you are being harassed by a spouse, significant other, a person you’ve lived with, or have a child with, you should contact a New Jersey family law attorney right away.

Although married for several years, Gandy and Blaine experienced irreconcilable differences, so they moved into separate residences and later obtained a divorce in 2012. There were two children born during the marriage, and Gandy and Blaine shared custody. The relationship between Gandy and Blaine seemed plagued with a history of hostility. In May 2013, Gandy claims that Blaine came to pick up the kids, but while he was waiting in the driveway he appeared to be doing something behind Gandy’s car. When Gandy came to the door of her residence, Blain walked out from behind Gandy’s car and around some bushes in order to proceed up Gandy’s walkway. Continue reading

Changes in child custody orders can affect a parent’s financial obligations in a number of ways. In the recent New Jersey appellate case of Cowie v. Cowie, which was filed by our firm, a mother had already obtained sole custody of her children, and she made a motion to have the father’s child support obligation re-evaluated. But challenges arose when the new custody arrangement was deemed “temporary,” and the family court denied her motion. But the appellate court sided with the mom, noting that child support orders are designed to benefit the child, and that the change in custody warranted a fresh look at the father’s child support obligation. If your custody situation is changing, you should talk to an experienced New Jersey family law attorney to see if the new arrangement will have an impact on other aspects of the divorce and child custody agreements.

A divorced mother and father had joint custody of their children, with equal custodial and financial rights and obligations. But the father began to suffer from mental health issues, which began to strain the parents’ prior “50/50” custody arrangement. So a court intervened and awarded the mother “temporary sole legal and residential custody.” Because of a new supervised parenting schedule, the father no longer kept the kids overnight. Eventually, the father stopped seeing the children altogether. With the child-rearing responsibilities shifted solely to the mother, the mother’s expenses increased substantially.  Continue reading

Child support negotiation involves a number of issues that can complicate the process. For example, some divorced parents want to waive or reduce a child support agreement as part of a larger divorce settlement deal negotiated between the parents. New Jersey judges can intervene by altering the child support amount or changing the date on which child support terminates. In some cases, judges can even void an otherwise mutually acceptable agreement. These thorny problems can be resolved by working with an experienced New Jersey family law attorney.

Sometimes divorced parents want to negotiate an agreement that reduces or eliminates a child support obligation in exchange for some other benefit, but problems can emerge because New Jersey courts recognize that the right to child support belongs exclusively to the child. This fact doesn’t change even when both parents agree to modify or terminate a child support agreement. The New Jersey Appellate Court case of Faro v. Heyden held that “even an explicit waiver agreement cannot vitiate a child’s right to support.”  Continue reading

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