Articles Posted in Statutory Law

Mark Goldstein, Esq. and the four other highly experienced family law attorneys at Goldstein Law Group appear regularly before the family court judges in Monmouth County, New Jersey, Middlesex County, and Ocean County.   We see the good and the bad!  Some good decisions by our judges, some not so good (in our opinion, of course).   It’s disheartening and frustrating to us as professionals when we sometimes  read about a  decision by a  judge that seems unreasonable or unfair.  Divided-House-300x200

A recent decision that was just issued earlier this year, from Judge Aquaviva sitting in the Monmouth County Family Court did, in our opinion, get it right!

In the case C.N. vs S. R., the court was asked to address an issue that we, as family law practitioners, encounter frequently-that is, what happens to a house where two parties decided to live together, bought a house to live in, and even raise a family together in that house, but simply did not marry?  What happens when that relationship sours?

In July, the New Jersey Senate passed a bill that would allow child support payments to automatically terminate once a child turns 19. Despite the proposed alterations in child support obligations, S1046 would allow such support payments to continue by court order in certain circumstances. For example, a parent or child may request that support continue for a child who is attending a secondary or post-secondary school. In addition, child support may continue under the proposed law for a recipient who has a serious disability that predates his or her 19th birthday or when the Division of Child Protection and Permanency determines a child must be placed outside the home. The law would also preserve any arrearages that a parent may accrue prior to a child’s 19th birthday.

According to bill supporters, S1046 aims to reduce the family court case load by reducing the number of situations where a New Jersey court is required to declare a child emancipated and terminate child support payments. In addition, supporters claim the proposed measure provides courts with the flexibility to continue child support payments when merited.

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December 18, 2014

by Goldstein Law Group
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Although many government statistics point towards economic recovery, the New Jersey residential real estate market has been slow to recover. Granted, there has certainly been some gradual increases seen in the price of homes since the mortgage fiasco and real estate crash of ’08/’09. However, many homeowners still find themselves in a situation when they go to sell their home that their mortgage balance(s) exceed the fair market value of their home. As a result, they must seek short sale approval of their home from their lender(s) if they want to sell it before the market takes its sweet time to recover more. And, with some homeowners having experienced a loss in value by 25-30% or more, that may never happen in one’s lifetime. As an alternative, a seller can pursue, and must secure their mortgage lender’s consent to the sale of the home at a price that will not result in sufficient proceeds from that sale necessary to pay off their mortgage balance(s). Many lenders will, under the correct circumstances, and after reviewing the specific situation of the seller (including the seller’s finances as well as the facts surrounding the specific sale, such as the price at which it is sought to be sold as compared with a market value analysis or appraisal, and the amount of the anticipated deficiency). Assuming the borrower meets the requirements of their lender(s) and qualifies to complete the short sale, in most instances, that consent from your lender would include a cancellation or forgiveness of you, by that lender, for the balance you may have otherwise still owed on your mortgage(s) in excess of the amount the lender receives from your sale transaction. That’s the good news. The bad news that typically accompanied it was – the amount of the debt which the lender agreed to forgive or cancel was considered by our tax laws as taxable income to you! Thus, you had to pay income tax on the amount of the deficiency on your mortgage which the lender forgave or cancelled. Many sellers viewed this as a penalty to them, in effect- a slap in the face. Now, the good news!
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In a recent New Jersey family law case, a divorced man tried to compel a paternity test to determine whether or not he was the father of his ex-wife’s children. Although he once had an opportunity to file a motion to verify the children’s parentage in the past, he waived that right. As a result, New Jersey legal doctrine and an agreement signed by the ex-husband now bar him from demanding a paternity test. When you are negotiating a child custody issue, it is important to work with a family law attorney who can fully explain the ramifications of a proposed post-separation agreement.

Mark and Jane had been married for seven years, during which time Jane gave birth to two children:  Randi and Kim. Mark had often suspected that Jane was having a sexual affair with Mark’s friend Jim. Eventually Jim died in a car accident, but the strain of suspicion lingered ,and Mark and Jane eventually got a divorce.

When filing for divorce, Mark brought up his suspicion that the children were not his. The family law judge even paused the case so that Mark could “amend his divorce complaint and for [an] order to compel a paternity test.” But Mark decided not to pursue a paternity test, and after a contentious period of negotiation,  Jane and Mark came to an agreement regarding their divorce. Their Post-Separation Agreement (PSA) mentioned the paternity dilemma several times, noting that Mark was unsure about the children’s parentage, and that he would pay reduced child support and surrender his custody rights due to the uncertainty of the situation. Continue reading

When grandparents are denied an opportunity to visit their grandchildren, a conflict is bound to arise. On one hand, a parent has a right to decide how his or her child will be raised. On the other hand, removing a grandparent from a child’s life could potentially harm the child. In New Jersey, we have a statute that governs the rights of parents and grandparents in these situations, and two important court rulings have clarified the way in which the statute is applied. If you are involved in a conflict over visitation, you should speak to a family law attorney who can explain how New Jersey’s statute applies to your case.

The New Jersey legislature passed a law to address problems that arise when a parent forbids a grandparent from interacting with a grandchild. The law sets out a process by which grandparents can apply for visitation rights and lists eight factors that must be considered in evaluating the grandparent’s application for visitation. They include the relationship of the grandparent with the child, how the grandparent gets along with the child’s parents or the person who has custody of the child, and the length of the period since when the grandparent has spent time with the child. Other factors extend to considering what impact the grandparent visitation may have on the relationship of the child with his or her parents or the individual with custody, the time-sharing arrangement of the parents, the motive of the grandparent in seeking visitation, any record of the grandparent mistreating the child, and any other information that may seem relevant to the court.

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New Jersey residents are allowed to designate a representative in legal matters. This arrangement, called a Designated Power of Attorney (POA), allows a trusted person to sign documents and negotiate legally binding agreements on your behalf. The right to a POA is expressed in the Revised Durable Power of Attorney Act (N.J.S.A. 46:2B-8.1). But when a litigant in a contested divorce case tried to use a POA, the court found that there are limits to a POA’s powers. Before  allowing someone to act with such power on your behalf, you should discuss the implications with a licensed attorney.

Mr. Marsico created a POA agreement that allowed his adult daughter from a prior marriage, Ms. Mertz, to act on his behalf in some legal matters. Several months later, Ms. Marsico decided she wanted a divorce from Mr. Marsico. When Ms. Marsico sent a complaint for divorce, Ms. Mertz signed and filed a counterclaim for divorce on behalf of her father, Mr. Marsico.

The attorney for Ms. Marsico objected to the counterclaim, stating that it wasn’t valid because it wasn’t signed by Mr. Marsico. The attorney went on to note that Mr. Marsico is 84 years old, but he has not been ruled incompetent by any court. Furthermore, the attorney argued that Ms. Mertz has a conflict of interest because she may eventually inherit part of the Marsicos’ marital estate. Continue reading

New Jersey recognizes a concept called “divorce from bed and board,” which is the closest thing our state has to a “legal separation” for a married couple. It is also referred to as a “Limited Divorce”.  Divorce from bed and board does not dissolve the marriage in the way that a traditional divorce does (also referred to as an “absolute divorce”). Because of a peculiarity in New Jersey law, family courts do not have the authority to change a person’s surname as a component of a divorce from bed and board action. This type of name change requires additional steps, and in order to properly file your name change you should consult with a family law attorney.

Any adult or emancipated minor in New Jersey is allowed to legally change his or her name. The normal process for name change is a bit convoluted, and divorce cases often include a name change component. To streamline the process, family courts in New Jersey have the authority to simply order the change of a litigant’s surname back to whatever name was used prior to the marriage or civil union. But a family court’s power is narrowly defined in a section of law titled N.J.S.A 2A:34-21. The section granting this power to a family court judge reads:

“The court, upon or after granting a divorce from the bonds of matrimony to either spouse or dissolution of a civil union to either partner in a civil union couple, may allow either spouse or partner in a civil union couple to resume any name used by the spouse or partner in a civil union couple before the marriage or civil union, or to assume any surname.” Continue reading

Alimony arrangements can become infuriating when the alimony recipient secretly cohabitates with a new partner. This often results in one of two untenable situations: The alimony recipient may be using their alimony disbursements to financially support their new paramour; or the alimony recipient may be receiving cash payments of financial support from the new paramour, while concealing significant changes in finances.

Cohabitation is an area where divorce and dissolution becomes exceptionally messy. The obligor (person making alimony payments) sometimes hires a private investigator to monitor the alimony recipient and try to prove cohabitation. If cohabitation is discovered, the obligor may follow up by trying to discern the financial changes that result from the new cohabitation arrangement. Cohabitation can be hard to prove, because a wily alimony recipient might keep their new financial arrangements “off the books” in order to continue to receive alimony checks.

The evidence often yields an incomplete picture of the situation, which is then used to persuade a judge that cohabitation is occurring and an alimony modification is warranted. But a second problem arises because judges traditionally wield vast discretion in defining cohabitation, thus making alimony modification outcomes hard to predict. Continue reading

A 2010 change to New Jersey law made oral agreements for palimony unenforceable. But it was unclear whether this change would affect agreements that were already in place. A landmark case was recently decided by the New Jersey Supreme Court, declaring that older oral palimony agreements are still valid. If you are struggling to enforce a palimony agreement, or if you want to create an agreement of support between yourself and a loved one, you should contact an experienced New Jersey family law attorney.

When two people agree to something, they don’t always “get it in writing.” New Jersey law recognizes that some oral contracts can be just as binding as written contracts, but there are a number of problems inherent in oral agreements. Therefore, it is imperative to get your agreements in writing and in a format that comports with the law.

New Jersey’s Statute of Frauds requires that certain important agreements must be made in writing in order to prevent fraud. For example, if you transfer ownership of real estate, make certain major agreements relating to creditors, or make agreements that depend upon a future marriage, the Statute of Frauds requires those agreements to be in writing. Continue reading

In an alimony arrangement, the “obligor” is the person who is making alimony payments. Sometimes the obligor experiences an unexpected job loss or a reduction in income. This often leads to a request for an alimony modification judgment. An alimony modification can reduce or suspend the obligor’s alimony payment obligation. Previously, New Jersey law was vague as to when and how an alimony modification judgment should be implemented. In the absence of clear legislative guidelines, New Jersey judges often applied their own rules and criteria to cases, leading to unpredictable outcomes and a sense of general unfairness.

The inconsistent nature of our alimony modification system was causing a great deal of stress for people who had already lost their jobs. In a new law, the New Jersey legislature addressed this problem by requiring judges to base their decisions on the following 10 factors: Continue reading

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