Return What happens if there is a custody dispute that involves different countries? |
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A custody dispute that involves different countries is becoming more common all of the time. I am sure that many people have heard of the case wherein a man marries a "hot looking" latina woman. Quite frequently, once marital problems arise, the latina women moves back to South America, Central America, the Dominican Republic, or to the Caribbean. Moreover, those arranged marriages from India often are a disaster. I have heard of many cases wherein the Indian wife leaves her husband and goes back to India. Quite often, the Indian wife also leaves with the child(ren).
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Return What if a spouse has consent from the other spouse to move to another country, is it still possible for one spouse to compel the other to move back to the United States? |
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The party who remains in the United States can apply to the court for a modification of the custody agreement. However, before this application can be made, the person must satisfy the four requirements of the Hague Convention. The party who still resides in the United States must prove that: (1) both countries participate in the Hague Convention; (2) that the child was a habitual resident of the United States immediately before the removal; (3) that the child is under the age of 16; and (4) that the removal of the child was wrongful. If the person who still lives in the United States can prove these four requirements, then he can make an application in the foreign country where the child is now residing for custody.
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Return What if there is a custody order from another state other than New Jersey? |
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In many custody cases, there are different states of jurisdiction that are involved. It is not uncommon for a spouse to leave New Jersey once he or she encounters marital problems. In many cases, a person may obtain a custody order from another state. If there is a custody order from another state besides New Jersey, then a determination must be made if the order will be enforced.
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Return What is a Guardian Ad Litem, and when is one appointed? |
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A "Guardian Ad Litem" is an attorney who is appointed to represent the children themselves, and not the parents in a divorce case. Usually, a guardian ad litem is only appointed in the very nasty cases. A court usually appoints a guardian ad item when they believe that the children need their own lawyer to protect their interests. In many divorce cases, the parents become so enraged that the court feels compelled to appoint a guardian ad litem. The downside of appointing a guardian ad litem is that the parties have to split the costs of hiring the lawyer/guardian ad litem.
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Return What is supervised visitation? |
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In some cases it may be appropriate for a parent to have supervised visitation with the children. In some cases, the parent may have a drug or alcohol problem, and if they have visitation with the children alone, then they could corrupt them. Moreover, in some cases, the non-custodial parent may have a conviction for a sex-related charge. In these types of situations, the courts will often order that all visitation must be supervised.
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Return What is the Hague Convention? |
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On October 25, 1980, an international convention was held at the Hague. Here, numerous resolutions were adopted that concerned the wrongful removal of children from their home country. The resolutions of the Hague Convention was ratified by the United States in 1988. A parent has one year, as per United States law, to apply under the Hague for the wrongful removal of a child.
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Return What type of visitation rights does a parent have in New Jersey? |
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In the State of New Jersey a parent has a constitutional right to see his/her children. Before any parent can be denied of visitation rights, it must be shown that having the child in the parent's presence would cause physical or emotional harm to the child. Moreover, it must be proven that there are no other alternatives than completely terminating visitation.
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Return What type of visitation schedules are available in New Jersey? |
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There is an endless amount of different types of visitation schedules. Each couple can arrange a visitation schedule that can suit their own lives and their work schedules. The standard visitation plan is for the husband to have visitation every other weekend, and on Wednesday evenings. The visitation on the weekend normally starts on Friday at 6:00 p.m. and ends on Sunday evening at 6:00 p.m. The visitation on Wednesdays usually starts and 6:00 p.m. and ends at 9:00 p.m.
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Return When will a New Jersey Court recognize a foreign country's decision regarding custody? |
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A New Jersey court will recognize a foreign country's decision regarding custody, provided that the foreign country had adequate jurisdiction over the case, the New Jersey spouse had adequate notice, and the other country considered the "best interests" of the child.
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Return When will I get my court date and a plenary hearing? |
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The custodial parent is entitled to a hearing only after having satisfied the threshold requirements. The court in Baures v. Lewis, 167 N.J. 91 (2001), held that the party seeking to move should initially produce evidence to establish a prima facie case that; (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child's best interest. If the custodial parent satisfies this burden, then the court will set the case down for a plenary hearing. The courts often refer to this proceeding as a Holder or a Baures hearing.
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Return Are the children's wishes considered by the court in a custody dispute? |
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In many cases, the court will consider the children's wishes if they believe that they are of an age to make an intelligent decision. The court will then interview the child in chambers. The court will then ask the child if they have a preference with regard to custody. This type of interview with the child is called an "in-camera interview." The goal of this type of interview is to assist the court to determine what the child's wishes are. In many cases, younger children are often influenced by the parent with whom they live with. Therefore, sometimes a young child's answers may be skewed. Alternatively, older children are much less influenced by their parents. A court always takes into consideration the age of the child when it determines how much weight to place on the outcome of the interview.
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Return Can a custodial parent move out of the State of New Jersey with the child? |
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When a custodial parent wants to move out of New Jersey, that parent must either have the consent of the other non-custodial parent, or obtain the court's permission. If the non-custodial parent does not consent to the relocation, then the court becomes involved. If the non-custodial parent does not consent to the child's relocation, then the custodial spouse must file an application to the court to relocate. If the custodial parent moves without first obtaining the court's permission, then he/she could be breaking New Jersey law.
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Return Can a parent's new spouse adopt her child? |
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In many cases, a woman remarries after she gets divorced. Thereafter, she may lose contact with her prior husband, and the father of her children. Unfortunately, in many cases the non-custodial parent does not pay any child support, and he fails to develop any type of relationship with his children.
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Return Can a parent's visitation rights be terminated completely? |
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In New Jersey a parent has a constitutional right to have visitation with their children. Therefore, only in the most rarest of circumstances will visitation be terminated completely. The only possible cases where visitation will be terminated is if the parent is a habitual drug offender, or a sex offender. The court may terminate visitation because they do not want the children to be corrupted or harmed.
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Return Can I move away from New Jersey with the child without obtaining the court's permission? |
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The removal of children of parents who are divorced or separated to another state is not permitted without court authorization unless both parents consent. The parents can always mutually agree to permit removal. However, if there is no mutual consent amongst the parties, then New Jersey places strict limits on the ability of a custodial parent to remove the children from New Jersey.
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Return Do grandparents have visitation rights? |
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In many divorces, the parties hate each other so much that they try to get back at each other by refusing to permit the grandparents to visit with the children. For many of our senior citizens, seeing their grandchildren is the most cherished part of their life. In my opinion, in most cases the courts will grant grandparents visitation rights even if the custodial parent objects.
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Return Does a child still have to have visitation his parent, if he does not want to see them? |
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When a child does not want to see the other parent, there are a few factors to consider in pursuing visitation. If the child is 16, then the child is old enough to make an intelligent decision as to whether he/she wants to visit with their parent. However, a custodial parent has a legal duty to encourage visitation with their former spouse. In short, a custodial parent should never bad-mouth their former spouse to their children, and try to poison their relationship.
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Return Does a stepparent have a statutory right to have visitation with their stepchildren? |
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Currently, there is no statutory right for a stepparent to have visitation with their stepchildren. However, each application for a stepparent to have visitation with their stepchildren is decided on a case be case basis. If a stepparent has formulated a relationship with the stepchild, and it the application is made in good faith, then in most cases the application for visitation will be granted. The stepparent has the burden to demonstrate to the court that there is a relationship between him/her and the child which includes reliance for financial support or love and comfort.
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Return How are these removal hearings handled by the courts? |
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The court will set the removal case down for a case management hearing. At this hearing, the lawyers for the parties will meet with the judge and discuss a discovery deadline. The parties will be ordered to exchange their discovery. The discovery will consist of any proofs that will be submitted at the plenary hearing. Some relevant proofs are a comparison of the school districts, pictures of the new home, information about the new home, a reasonable proposed visitation plan, and psychological reports. Finally, the court will encourage the parties to try to reach an amicable settlement.
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Return How can a custody arrangement be modified? |
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Once a custody arrangement is established, then either party can make an application to modify the custody arrangement if there is a "change of circumstances" which has occurred from the time of the original custody decision. The party who applies for a change in the custody arrangement has the burden to prove that there is a sufficient change of circumstances to justify granting the application. It is important to emphasize that a person must have credible evidence to convince a court to change custody. It is insufficient evidence to base a change of custody based a person's beliefs that he or she could raise the child better. The party who is making the application for a change of custody will have to prove to the court that something significant has happened which the court has not considered when it made the original custody decision.
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Return How can a parent's rights be terminated? |
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The termination of parental rights makes the parent and child relationship obsolete. It severs all of the legal ties between the parent and the child. To terminate a person's parental rights, a petition to the court must be filed based upon the best interests of the child. The petitioner must prove that; (1) the child's health and development have been or will continue to be endangered by the parents; (2) that the parent is unable or unwilling to eliminate the harm; (3) that there have been attempts made to correct the circumstances; and (4) that termination will not do mare harm than good. These four criteria must by proven by clear and convincing evidence. In most cases, applications to terminate parental rights must be made by DYFS.
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Return How can a person apply for custody of their child? |
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The first step that a person must take in a custody case is to file a complaint or a motion with the court. Once the custody application is received by the court, it will then be reviewed to determine if the case should be sent to custody mediation. Each county has their own custody mediation procedure. However, in almost every county, a custody case is first sent to mediation to try to work out a reasonable compromise. In addition, all parents are required to take a parental education class. These classes are run by the county, and there is only one session. If the custody mediation is unsuccessful, then the court will then order a hearing to determine the issues of custody and mediation.
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Return How is custody determined in a case where the parties are not married? |
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When the parties are not married, this type of case is referred to as a non-dissolution case. This type of case is given a FD docket number. A custody dispute for people who are not married is treated the same way as it is for married couples. The parties are also referred to custody mediation. Moreover, in FD cases the issue of paternity also frequently arises. In many cases, the father if he contests paternity may be required to take a paternity test. This is a relatively simple procedure. The paternity test(s) is usually given by Lab Corp. These tests consist of a lab tech taking a swab on the inside of a person's mouth. The results are usually provided within three to four weeks.
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Return I have been divorced for five years and I want to move to another state. I can't stand New Jersey any longer! What are the requirements that will permit me to move away and escape from New Jersey? |
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A custodial parent(s) may only relocate if he or she has the consent of the former spouse. Alternatively, the relocating spouse must obtain a court order to permit the move. The purpose of the statute is to preserve the rights of the non-custodial parent and the child to maintain and develop their familial relationship. This mutual right of the child and the non-custodial parent is usually achieved by means of a parenting plan. Because the removal of the child from the state may seriously affect the parenting schedule of the non-custodial parent, the courts require the custodial parent to show why the move should be permitted.
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Return My ex-spouse is now living with another person, can I request that visitation be modified so that the new companion cannot spend the night where the children are located? |
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When a parent starts a new romantic relationship, the former embittered spouse often tries to have the visitation modified so that the new companion cannot spend the night with the children. The former spouse will argue that the children are too young to understand the new situation, and that it will cause emotional harm to them. The court will then assess if there is any the emotional impact to the children if they visit their parent with his new girlfriend or wife. The court will also consider the stability of the new relationship, the ages of the children, and the relationship of the children with the new companion in making this determination.
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Return What are some of the types of proof that I will have to submit to the court in support of my removal application? |
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The custodial parent who is proposing the move out of New Jersey may want to provide the following information or evidence to the court;
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Return What are the different types of custody? |
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Custody can be divided up into two parts, legal custody and physical custody. Legal custody means that the parent has the ability to make the major decisions about the child's health, education, safety and welfare. Physical custody refers to which parent the child lives with.
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Return What are the factors that the court considers during a custody case? |
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The primary standard that the court uses to determine a custody case is always, "what is in the best interests of the child." The court has to determine many factors when it makes this decision.
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Return What can a person do if they continually fight with their former spouse during the pick up and drop off of the children? |
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In many cases, the parties actually have physical fights when they drop off and pick up the children during the visitation. This type of scenario is especially enhanced if the wife moves in with another boyfriend, or if the husband shacks up with a new girlfriend. Given the high cost of living in New Jersey, this type of situation occurs all of the time.
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Return What can be done if a party fails to comply with the visitation schedule? |
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A common problem with visitation is that one party fails to comply with the visitation schedule. Visitation schedules are derived from court orders or judgments of divorce. Therefore, if a person consistently fails to comply with a visitation schedule then they can create a real mess for themselves. A court can sanction a parent with fines if they consistently fail to comply with a visitation schedule.
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Return What can I do to stop my wife from moving away from New Jersey? |
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The non-custodial parent may want to produce the following proofs and information to the court at any plenary hearing:
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Return What do I have to establish to obtain the court's approval to move to another state? |
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The major case that deals with child removal cases is Baures v. Lewis, 167 N.J. 91 (2001). This is a New Jersey Supreme Court case. This case established what the burden is on the parent who wants to move away from New Jersey. The major point of the landmark Baures case is that it made it significantly easier for a parent to move out of New Jersey with the children in a removal case. The Baures case noted that there was a growing trend in the law easing restrictions on the custodial parent's right to relocate with the children.
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Return What happens if a parent kidnaps a child by taking him out of state? |
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In many cases, a distressed parent may "kidnap" a child by taking him/her out of New Jersey. If this happens, then New Jersey courts have jurisdiction. A New Jersey court has parens patriae jurisdiction over the custody and maintenance of the children who have resided in New Jersey for five years or more. If the children have lived most of their lives in New Jersey, then a New Jersey court would exercise jurisdiction is such a case. The public policy behind such a rule precludes the removal of children from one state to another without any prior judicial recourse.
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Return What is the most traditional custody arrangement that a court imposes? |
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The most traditional arrangement is for the parties to share joint legal custody, and the wife/spouse in most cases gets physical or residential custody. When one parent receives custody, the other parent receives visitation rights. This parent is also referred to as the "non-custodial parent." The amount of visitation rights that a parent receives varies in each individual case. Visitation rights cases range from supervised visitation at the court house, to splitting parenting time equally.
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Return What is the overall guiding principle in a removal case? |
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At all times in a removal case the guiding principal is what is in the best interests of the children. The court will focus on the question will the child have a better life in New Jersey or in the new state.
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Return What is the UCCJA? |
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The UCCJA stands for the Uniform Child Custody Jurisdiction Act. The purpose of the UCCJA is for states to cooperate with one another in placing children up for adoption. The UCCJA permits jurisdiction to be exercised by the home state or a state having a significant connection with the child.
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Return What kind of assessments does the court make of the parents? |
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In many custody cases, one parent alleges that the other parent is an unfit parent, and they should not have custody. In this type of case, the court will order an evaluation of the parties. These types of evaluations are called a best interest investigation, a risk assessment, and/or a psychological evaluation.
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Return What must be proved to obtain court permission to remove a child from the State of New Jersey? |
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To obtain court approval to remove a child from the state of New Jersey, a person must be able to show (1) a good faith reason for the move; (2) that the move will not adversely affect the non-custodial parent's visitation, and (3) that it is in the best interest of the children to remain with the custodial parent and move out of the state.
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Return What type of custody arrangements can a court impose? |
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Once a court makes a custody determination, there are several possible custody arrangements that a court may impose. The court may impose: (1) sole physical or legal custody; (2) sole physical custody with joint legal custody; (3) joint custody. The term "joint" does not mean equal. Instead, "joint" means that the parties equally share the obligation to raise the child.
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Return Are child support awards increased for a Cost of Living Adjustment? |
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All child support orders are adjusted every two years to reflect any increase in the cost of living. The cost of living adjustment will be based on the average change in the Consumer Price Index (CPI) for New Jersey. The most current CPI figures can be obtained from the US Department of Labor, Bureau of Vital Statistics, or from the New Jersey Law Journal.
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Return Can a person be arrested if a parent does not pay child support? |
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A court also has other more drastic methods to make a person pay child support. The court has the ability to suspend a person's driver's license or professional license if he/she refuses to pay child support. A court can suspend a person's law license, medical license, or any other license. The threat of this type of this sanction can instill the fear of god into someone. In many cases, child support is paid up to date rather quickly once this threat is put in writing or in a motion. The court can also suspend a person's passport if he refuses to pay child support. This can cause significant aggravation to a person if he frequently travels for business..
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Return How does a person obtain a child support order? |
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When a parent needs to obtain child support, she must make an application to the Superior Court where the parent and child reside. Normally, the clerk has pro se forms that they give to the pro se litigants. The clerk will then interview the applicant and try to obtain as much info as possible. The clerk will want to ascertain where the father lives, and where he works.
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Return How is child support collected? |
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In most of the cases, all child support is collected by wage garnishment through Probation. Most child support orders provide for income withholding or wage execution. It is not advisable that child support be collected by a direct pay. This can lead to unending accounting issues and collection issues.
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Return How is child support determined during a divorce case? |
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IIn a divorce case, an application for child support is almost always made during a preliminary hearing called a pendente lite application. Basically, the dependent spouse must file an application to the court that requests child support. These motions must be very detailed. These motions must include a completed CIS, the parties income info, a detailed description of the major family bills, and a completed child support guideline worksheet.
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Return How is child support enforced if one parent does not pay? |
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In many cases, the parent does not pay their child support obligations. There is no shortage of "dead beat dads" and "deadbeat moms" in New Jersey. When a parent fails to pay child support child support and the money becomes past due, the amount is called an arrearage. There are two types of arrears: fixed arrears and unfixed arrears. Fixed arrears are amounts which a court has found to be due and owing. Unfixed arrears are amounts which the support payor owes, but which have not been addressed by the court. An enforcement application is an attempt to get the courts to address the arrears and require the owing parent to pay.
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Return What are the Child Support Guidelines worksheets? |
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When a court calculates child support they must use a Child Support Guideline worksheets. There are two types of worksheets.
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Return What are the Child Support Guidelines? |
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A child support award allows the custodial parent to provide the child with all of the essentials, such as food, clothing, and shelter. In order to ensure that the courts issue consistent chid support awards, the State has enacted the Child Support guidelines. These guidelines are a formula which guides the person with factors to consider in reaching a child support award. The guidelines are derived from the Consumer Expenditure Survey. The guidelines take income info from both parties, and this info is applied to a formula to calculate a child support award.
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Return What are the criteria considered by the court to determine child support? |
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When a court makes a child support award, the court must consider the following factors: (1) the needs of the child; (2) the standard of living and the economic circumstances of each parent; (3) the sources of income and assets of each parent; (4) the earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children (including the cost of providing child care and the length of time and cost of each parent to obtain training and experience for appropriate employment); (5) the need and capacity of the child for education (including higher education); (6) the age and health of the child and parents; (7) the income and earning capacity of the child; (8) prior support orders for other children; (9) the reasonable debts and liabilities of each parent and child; and (10) any other relevant facts.
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Return What if a person loses their job, or if the amount of their pay is reduced, does this guarantee that child support will be reduced? |
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A decrease in available income is not a guarantee that the support obligation will be decreased. In order to justify a downward modification of child support, the decrease in income must be permanent in nature. The support payor must be able to prove that after numerous attempts, that he could not find a decent paying job.
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Return What is child support? |
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Every child is entitled to support from his parents. The New Jersey child support guidelines are based on the theory that child support is determined in proportion to the parent's income and assets as well as the child's needs.
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Return What is the Uniform Interstate Family Support Act? |
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A very important issue in child support is whether a New Jersey support award can be enforced in other states. Alternatively, can an out of state child support award be enforced in New Jersey. To address these interstate child support issues, the United States Commission on Interstate Child support, has created a federal law called Uniform Interstate Family Support Act (UIFSA).
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Return When does child support terminate? |
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A child support order will terminate once the child becomes emancipated. Emancipation basically means that the child can take care of themselves. Because self-reliance can occur at any age and under any given set of facts, there is no set age when a child will be determined to be emancipated. Many people erroneously believe that once the child turns 18 then their child support ends. This is not the case in New Jersey. The State of New Jersey has some of the strictest child support laws in the United States.
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Return Can child support be modified? |
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When sufficient circumstances are present, a child support obligation can be modified. New Jersey law requires that the person who seeks to modify a support award must prove that there has been a "change in circumstances." The phrase "change of circumstances" is a very broad legal term of art. There are literally hundreds of cases that discuss what is a "change of circumstances." Either party can file a motion for an increase/decrease in child support with the clerk. The parties must submit a completed CIS, income info, and the normal motion package.
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Return Can the court also award additional expenses with respect to the parties' basic child support obligations? |
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In addition to calculating a straight child support award, the court may also award additional expenses with regard to the parties' basic child support obligations. The most common expenses that are awarded are day care and health insurance expenses. The expenses for day care and health insurance can easily inflate a child support award to approach the size of a mortgage payment.
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Return Can the court impute income to a person if he is purposefully unemployed or underemployed? |
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If the court believes that a father is purposefully unemployed or underemployed, then the court will impute income to the party. Imputed income is what the court estimates what the "deadbeat dad" day should be earning. The Child Support Guidelines require that the court to impute income based on the person's potential employment, earning capacity, work history, job qualification, educational background, and regional opportunities.
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Return How can a person emancipate a child and stop paying child support? |
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Child support does not end automatically once the child turns 18. A person who pays child support must file an application with the court clerk and it is known as a motion to request that the child be declared emancipated. The child support obligation will only end once a family court judge enters an order that declares the child emancipated. The order of emancipation is then given to Probation, and the garnishment of the payor's pay check will then be stopped.
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Return How do the Guidelines define gross income? |
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The Guidelines define gross income as any and all of the followings: compensation for services; income from a business minus any operating expenses; gains from property; interest and dividends; rents; bonuses and royalties; alimony or maintenance payments received from the current or other relationships; annuities; life insurance contracts; payments from retirement plans; awards from personal injury or civil suits income from a trust disability payments, profit sharing plans; worker's compensation; unemployment benefits; overtime, part-time and severance pay; net gambling winnings; earnings from investments; tax credits or rebates; unreported cash payments; and imputed income.
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Return How does a court arrive at the parent's net taxable income to calculate a child support award? |
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To arrive at a parent's net taxable income, the parent's withholding tax, prior child support orders, mandatory union dues and other dependent deductions are subtracted from the adjusted gross income. If there is non-taxable income, it is then added to the net taxable income to arrive at the parent's net income. Each parent's net income is then divided by the combined net income to determine their percentage share of income. The parents are then required to pay their percentage share of the weekly child support obligation.
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Return Does a person have to pay for the college costs for their child? |
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The courts have viewed education as a necessity. The recent trend in New Jersey has been to require parents to pay for the college costs for their children. Therefore, if the child is attending college, then it is very unlikely that a court will grant an emancipation motion.
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Return What if my divorce judgment does not mention that I have obligation to pay for my child's college education? |
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Many people simply get divorced and they omit many important provisions in their property settlement agreement, or in their judgment of divorce. The divorce centers are relatively inexpensive to use. However, a person may spend thousands of dollars to try to correct mistakes that a divorce center may have made. It is imperative that a provision that spells out who should pay for college should be incorporated in any divorce judgment. Nonetheless, if this provision is not put into the divorce judgment, then in the majority of the cases, a court will still will require both parents to contribute to the child's college costs. The court will set the case down for a plenary hearing. These hearings are commonly referred to as Newburgh/Arrigo hearings. Moreover, the parents will be required to produce their pay stubs, W-2's, and tax returns. Moreover, the parents will have to prepare a CIS. Thereafter, the court will try to fairly apportion each parent's proportionate share of contribution of the college expenses that he or she must pay.
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Return What is the leading case that determines who pays for the price of college? |
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The leading case is Newburgh v. Arrigo, 88 N.J. 529 (1982). In this case, the Supreme Court of New Jersey held that, on public policy grounds, that the parental duty to provide an education to children extends to the responsibility to provide a college education. As a result of this seminal case, New Jersey became the most liberal jurisdiction in the nation, in terms of post-high school financial duties of parents.
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Return What is the rational of the Newburgh v. Arrigo holding? |
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The underlying rational of the Newburgh v. Arrigo decision is that if society does not mandate the duty of parents to pay for their children's college costs, then the number of children who go on to high education will decrease. Moreover, society will suffer if fewer children receive a college education.
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Return Who should pay for the cost of college? |
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In most circumstances, the privilege of parenthood carries with it the duty to assure that the child receives a good college education. Our courts have held that, in general, financially capable parents should contribute to the higher education of children who are qualified students. In evaluating a party's obligation for contribution toward the cost of higher education, courts will consider the following 12 factors:
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Return Will a parent be required to pay for both child support and for a contribution to the child's college costs? |
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The answer to this question is "maybe"? The courts treat every case on an individual basis. The court will once again hold a plenary hearing that is often called a Newburgh/Arrigo hearing. If a parent is rolling in the "dough" then in most cases a court will require that a parent has an obligation to continue to pay for child support, and also to contribute to the costs of college. However, if a parent has additional children from a new marriage, and if he or she is financially strapped, then the court will in most cases only require the parent to either continue to pay for child support or to contribute to college, but not for both. The courts try to be fair with everyone. Most family court judges do not want to make a parent go bankrupt. However, if a parent has the money, then he or she will pay for both child support and also be required to contribute a fair share toward college.
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Return Is a parent required to pay for a child's graduate or professional school? |
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In New Jersey the duty to pay for a child's college expenses extends beyond college, to graduate and professional school. In the case of Ross v. Ross, 167 N.J. Super. 491 (Ch. Div. 1979), the court held that a parent has a responsibility to pay for a child's graduate and/or professional school. In the Ross case, the court found a 23-year daughter not to be emancipated until her law school training ended and required the father to continue to pay child support for her.
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Return My daughter wants to go to Harvard, however, I only earn $50,000 per year, will I be required to pay for his tuition? |
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Every application to require a parent to contribute to college costs is different, and each stands on its own merits. Every case is decided on a case by case basis. In most cases, the court will set up a plenary hearing, and order the parents to provide a CIS and disclose their financial info. In a situation like the one above, the court would only require the parent to contribute to pay for a portion of the Harvard college cost. An important case is Nebel v. Nebel, 103 N.J. Super. 216 (App. Div. 1968). This case established the "Rutgers" rule. In the Nebel case, the court ordered a financially able father to contribute to the college education expenses of the son, but it also held that, while the custodial mother could designate a private college, the court would limit the college expense obligation of the father to his hare of the far lesser costs of attending a state university, such as Rutgers, where a quality education could be obtained.
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Return Should a property settlement agreement contain terms about who should pay for college? |
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Absolutely, no person with children should get divorced unless a property settlement agreement or a judgment of divorce contains terms that delineate each parent's obligation to contribute to the children's college costs. The clause that I incorporate into my property settlement agreements is as follows: |
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Return Under what situations is the contribution to college not warranted? |
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There are certain situations in which a contribution to college is arguably not warranted. The most obvious situation is when a child who is alienated from a parent, and refuses all contact despite the parent's efforts to maintain a relationship. Even though there is no relationship, the child still requests that parent be held responsible for college. A very perplexing question then arises. Should the child who unreasonably refuses to have a relationship with a parent, and who fails to include that parent in the college selection process be able to turn around and demand a contribution to college?
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Return What are some of the cutting edge cases with regard to "Who Should pay for the price of college"? |
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A. Child Estrangement - In spite of his claim that he was estranged from his son, and that the estrangement was not of his own doing, the father is nevertheless ordered to pay 44% of the college expenses of the son. This result applies, even though; (a) the parties did not address the issue in their New Jersey divorce agreement and (b) the mother gave the father no notice about the child's college plans. The court notes that the father did not attend court-ordered therapy sessions. Conod v. Hall, New Jersey App. Div., July 21, 2005.
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Return What if I can't afford to send my children to college? |
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In many cases, a parent has gotten remarried, and he or she is now supporting two families. Many parents cry the blues when they are faced with applications to require them to pay for their child's college costs? I always try to console the client and advise them the money is going to a good cause? Moreover, I always respond to the client with the following: "Don't you want your child to be successful." Most clients agree with my logic and they see my point!
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Return Are there ever any false complaints made under the Domestic Violence Act? |
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In my experience, the area of domestic violence is one of the most abused laws in the State of New Jersey. In my opinion, in about one half of the cases, the primary reason why the wife filed for the restraining order is because she wants to evict her husband from the home. Remember, even if a couple are divorcing, both parties have equal rights to live at the marital home. In my opinion, about one half of domestic violence complaints that are filed every year are frivolous. There appears to be three major reasons for filing groundless domestic violence complaints. They are as follows;
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Return How do I know if I am a victim of domestic violence under this law? |
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You are a victim of domestic violence if you have experienced any of the following from a person who is over the age of 18 or an emancipated minor:
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Return How long will I have to wait to see a judge? |
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There is no way to tell how long it will take for you to see a judge on any particular day. Go to the courthouse as early as possible. You may have to spend an entire work day at the courthouse, so notify your employer beforehand. Be prepared in the event your wait is a long one. Arrange for a safe place for your children to stay while you are in court.
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Return If I file criminal charges, what can I expect before the case goes to trial? |
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After you have filed criminal charges, the abuser will probably be released from custody on bail, or on his or her own word. According to the law, the court that releases the abuser (the defendant) on bail may require him or her to follow certain rules. These rules are listed in a bail order, which, like the civil restraining order, is a legally enforceable document. The rules on the bail may include prohibiting the defendant from having any contact with you. This includes prohibiting the defendant from entering your home, place of work or school, or harassing you or your relatives.
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Return Is there anything I need to do if I file a criminal complaint? |
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All criminal cases require evidence. This is why it is important for you to seek treatment for any physical or emotional injuries you have suffered at the hands of the attacker. For example, if the attacker has given you a black eye, take a photograph of your black eye. It would also help if you tell a medical professional, either your private doctor or someone in a hospital clinic or emergency room, how you received this injury or why you have become so emotionally upset. If you are on welfare, or if your family is working with the Division of Youth and Family Services, tell your social worker what happened. You can also call your local domestic violence hotline if you need help and support. (See Helpful Numbers at the end of this booklet.)
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Return Should I file criminal charges if I have already filed for a restraining order and received this protection? |
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You should discuss with a domestic violence advocate the issue of whether to file a criminal complaint against your abuser. However, you should make your own decision about filing a criminal charge against the abuser. You have been the victim of a criminal act by someone with whom you have or once had a relationship. A criminal act is not permitted between any two people regardless of their relationship to each other.
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Return What do I put in the complaint? |
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It is very important that you carefully read each part of the complaint before completing it. You must list all facts of the incident that happened that made you file the complaint. For example, facts like: "hit; punched; threatened to kill me; cursed; pulled hair; burned with cigarettes; threw chair, knife, fork at me; followed me to work, home, school, store" should be included, if they happened.
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Return What is a civil restraining order? |
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A civil restraining order is a legally enforceable document that, among other things, limits the physical contact between you and the person abusing you. When you first sign a complaint for a restraining order, and if you meet all the criteria under the Prevention of Domestic Violence Act, you will receive a "Temporary Restraining Order" (TRO). The abuser will not have to be present to obtain the TRO. Within approximately 10 days you will appear in court at a hearing and tell the judge what happened to cause you to sign the complaint against your abuser and the judge will decide whether or not to give you a Final Restraining Order. The abuser will be present during this hearing, but sheriff's officers will protect you.
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Return What is the Battered Woman's Syndrome? |
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In some bitter divorce cases, a battered spouse will also sue their husband for a personal injury tort. The tort claim of being a battered spouse will be consolidated with the divorce case. A ruthless lawyer will use a battered spouse tort claim to try to obtain additional financial concessions in the divorce case.
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Return What is the Prevention of Domestic Violence Act? |
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The Prevention of Domestic Violence Act applies to a person 18 years of age or older or a person who is an emancipated minor that has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. A "victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child, or with whom the victim anticipates having a child, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
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Return What legal remedies can I seek if I have been a victim of domestic violence? |
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You have the right to file a civil complaint under the Prevention of Domestic Violence Act, along with a criminal complaint. Both complaints should be filed for your protection since the civil complaint is designed to protect you and the criminal complaint is designed to punish the abuser.
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Return What should I do if I have a restraining order and my abuser still doesn't leave me alone? |
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If you have a Domestic Violence Restraining Order and your abuser violates the terms (example: mails a letter to you or has someone else deliver a letter to you; calls you on the telephone; appears at your place of work, home, school or restaurant where you are eating, and does not immediately leave when he sees you), call the police immediately. Have your copy of the restraining order ready to show the police. Your abuser can be arrested and jailed. You have the right to call the police as many times as you need to when you are in danger from your attacker, whether or not you have a Domestic Violence Restraining Order. It is very important for you to carry a copy of the Domestic Violence Restraining Order with you at all times.
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Return What steps do I take after I receive a final restraining order? |
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You will receive a copy of the Final Restraining Order after the hearing. It is important to keep a copy with you at all times. It is important that you do the following:
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Return Can I get a restraining order if I am sick and confined to bed, or if I have a physical or mental disability? |
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Yes. A judge may issue a TRO upon sworn testimony or complaint of a person who represents a person who is physically or mentally incapable of filing.
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Return Do I also have the right to file a criminal complaint if I choose? |
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YES. A criminal complaint accuses the abuser of committing a crime. The New Jersey Prevention of Domestic Violence Act lists acts that are considered to be crimes against the victim. They are:
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Return Do I have to go back to the court if I choose to dismiss the civil complaint? |
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YES. If you want to dismiss the civil complaint, you must go to court on the scheduled hearing date. You will be asked to explain your reasons for wanting to dismiss the complaint. The judge will want to know that you are doing this without threats or pressure from someone else. If the judge is convinced that this is your own decision, the complaint will be dismissed.
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Return Do I have to speak at the hearing? |
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At the final hearing you will tell the judge what the abuser did to you that caused you to file for a TRO. You will tell the judge if the abuser hit you, punched you, kicked you, pushed you, etc. If you are afraid of the abuser you will tell the judge this and why you are fearful. You will tell the judge about other times when the abuser hurt you or made you afraid or threatened you in any way. You must not be afraid of the judge because he or she is there to help you and to keep you safe from harm.
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Return How can I get a temporary restraining order (TRO)? |
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Between the hours of 8:30 a.m. and 3:30 p.m., Monday through Friday, go to the court clerk in the Family Part of your county's Superior Court at the County Courthouse and tell a court employee that you are there to file a TRO. A family court intake employee will give you papers to fill out and ask you to describe what happened during the most recent domestic violence incident. You can ask if there is someone there who can assist you in preparing the papers, which contain a complaint and statement against your abuser. Ask the intake person to explain what will happen when you go into the courtroom.
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Return How do I file a criminal complaint? |
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You usually begin the process at your police department or your local municipal court. From this point, the process is different, depending on the crime and the county where the crime has taken place. In some cases the police will issue a warrant for arrest. In other cases a court summons will be issued.
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Return What happens after I file the complaint and papers with the court and get a TRO? |
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The sheriff of your county will attempt to serve the abuser at the places you have told them they can find him. The abuser must be served with the papers so he or she knows to stay away from you and your children and others you have requested he or she stay away from in your complaint.
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Return What happens if a bail order or sentencing order is not obeyed? |
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If the abuser does not obey the terms of the bail order or the sentencing order, he or she can be arrested and put in jail. Call the police if a violation occurs. Have your copy ready to show the police when they arrive.
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Return What happens if I receive a temporary restraining order at the courthouse or through the police and the municipal judge? |
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A TRO is a legal document. It will contain the orders of the judge. You will receive a copy that you are to keep in your possession at all times. The police department receives a copy, the court receives a copy, and the defendant must be served with notice that he or she is not allowed to have contact with you until the court schedules another hearing, usually within 10 days. At this second hearing, you and the abuser will have a chance to testify. The judge will consider both testimonies before issuing a Final Restraining Order.
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Return What if a weapon was used during an act of domestic violence? |
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If a police officer at the scene has reason to believe a weapon was used during an act of domestic violence, the officer must arrest the suspect and seize any weapons on the premises that could expose you to further harm. The officer must also sign a criminal complaint in this instance.
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Return What if the police don't come fast enough or refuse to come? |
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You must be prepared when dealing with a violent person. You should have access to a telephone at all times. Carry a cell phone if possible. If you don't have a phone, try to establish a relationship with a neighbor or relative who will call the police for you when you need help. It is imperative that you tell a neighbor or relative about the violence for your protection and the protection of your children in the event that the police do not come or do not come fast enough.
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Return What is a civil complaint? |
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In a civil action you are asking the court to resolve a conflict between you and the person abusing you. You are not asking the court to punish that person for breaking the law. One of the protections available to you in a civil action is a civil restraining order.
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Return What will I have to do when I file for my TRO through the police? |
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The police will help you file a written complaint that explains what happened. The police officer will call a judge and read your complaint. The judge should speak with you, and perhaps ask you a few more questions, before he or she decides whether or not to issue a TRO on your behalf.
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Return What will I need to bring with me to court? |
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At the time of the final hearing you should bring proof of the amount of money you need from the defendant as support if he or she has an obligation to support you. Proof includes: canceled checks or a lease or other documents that show the amount of your rent or mortgage, utility bills, the latest income tax returns or pay stubs and any other information to prove how much money you need from the abuser
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Return Where must I file for a temporary restraining order? |
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You may file in the county where the domestic violence occurred, where you live, where the abuser lives or where you are sheltered.
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You may file in the county where the domestic violence occurred, where you live, where the abuser lives or where you are sheltered.
This answer supplied by: (732)257-0708
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Return Who issues a temporary restraining order? |
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A TRO must be issued by a Domestic Violence Hearing Officer or by a judge from the municipal court or a judge from the Family Part of the Superior Court at the county courthouse. If you are denied a TRO by a municipal court judge, you may immediately reapply (8:30 a.m. to 4 p.m., Monday through Friday) to the Family Part of the Superior Court based upon the same incident of domestic violence.
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Return Will anyone be arrested? |
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A police officer must arrest the person you state perpetrated the acts of domestic violence against you, even if you do not want her/him arrested and even if you do not want to file a complaint against the person who committed these acts, if: (1) you exhibit any signs of injury; (2) the perpetrator has violated a previous Domestic Violence Restraining Order; (3) there is probable cause that a weapon has been involved in the commission of the act of domestic violence; (4) there is a warrant for the abuser's arrest on any other charge.
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Return Will I have to go back to the court at any time? |
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Within 10 days of the date of the TRO you will have to appear in court for the final hearing. The abuser may also be in court at this time, and the judge will give him or her a chance to tell his or her side of the story. There will be protection for you in the courtroom and in the courthouse. If you are fearful because the abuser is there, tell the court officer. If you need an escort out of the Courthouse because you are afraid of the defendant, ask the court officer to get a sheriff's officer to escort you.
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Return Will I have to testify? |
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YES. A court hearing will be scheduled as soon as possible on your charges, and you will have to testify. If the defendant is found guilty, the judge will sentence him or her. The sentence will depend on the facts in the case. As part of the sentence, the judge may order the defendant to continue obeying the bail order. This is called a sentencing order. In addition, as part of the sentencing order, the judge may require the defendant to get professional counseling.
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Return Will I need a lawyer to handle these procedures? |
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The New Jersey Prevention of Domestic Violence Act was written so you can do everything yourself, which is called "pro se" in legal terms. There are times when you may want to consult a lawyer, especially if you are considering a divorce because of an abusive and threatening marital relationship. You may contact a lawyer through your county legal services office or county bar association lawyer referral service. Also, your local domestic violence program may know of lawyers with particular expertise in domestic violence.
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Return Can a dependent spouse be forced to work? |
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A very popular issue in divorce cases is that the dependent spouse has earning capacity, and that she should go get a job. In cases like these, the lazy spouse may have to be evaluated by an employability expert to assist the court to determine what an appropriate level of income to impute to that spouse. The expert's report may enable the court to consider whether the dependent spouse has the ability or inability to contribute to her support.
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Return Can a person insert an anti-modification of alimony clause in the property settlement agreement? |
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In many cases, the parties will insert a clause in the property settlement agreement that would prevent any modification of alimony even if there is a potential chance of circumstances in the future. This type of clause is known as an Anti-Lepis clause. These types of clause have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.
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Return Can a person limit their exposure to alimony by having an antenuptial agreement? |
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An antenuptial agreement is also known as a premarital agreement. A premarital agreement is considered valid provided that there has been full disclosure of each party's financial status. If there is a finding of fraud, duress, or overreaching of any party, then the court will not enforce the premarital agreement. In some premarital agreements, the parties may try to limit alimony in the future. If a premarital agreement is contested, then the court will examine if a denial of alimony to a dependent spouse is equitable and just based on a totality of the circumstances of the case.
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Return Can a person request alimony after the divorce is complete? |
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In many divorces, neither party receives any alimony. This is because the dependent spouse has sufficient income to support herself, and maintain a reasonable standard of living. However, unforeseen circumstances may change after the divorce to justify alimony. (ie, serious illness and an inability to work) In cases such as these, the sick spouse will file an application for alimony even though the judgment of divorce does not provide for any. If the case has merit, then the court will set a plenary hearing to determine if an award of alimony should be made. This type of hearing is also called a Lepis hearing. The court will examine the financial situation of both parties, the standard of living enjoyed during the marriage, the sick spouse's current prognosis, and any other relevant factor.
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Return Can a spouse bankrupt his alimony obligations? |
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If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree are not dischargeable. In short, a husband can't wipe off an alimony obligation in a bankruptcy case.
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Return Can a spouse file a motion for a decrease in alimony? |
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If a payor's income decreases then he can file a motion to ask the court to decrease or terminate his alimony obligation. The payor spouse must demonstrate that the decrease in income and/or salary was bona fide, in good faith, and not reduced in order to avoid and limit alimony. If a spouse is unemployed or underemployed then the court may impute income to him. The court may also look a person's unearned income and assets to ruling on any alimony modification motions.
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Return Can a spouse file a motion for an increase in alimony? |
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The courts will examine a spouse's ability to pay alimony and the payee spouse's need for alimony. Sometimes, a supported spouse will file an application for an increase of alimony. The grounds for the motion is that the supported spouse needs additional income to maintain a decent lifestyle. If the payee spouse is not receiving sufficient alimony to live, then a post-judgment increase in the payor's spouse's income may justify an increase in alimony. The party seeking to have alimony increased bears the burden of proof to demonstrate a change of circumstance. The courts will also examine the parties' historical standard of living during the marriage.
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Return Can alimony be awarded during a domestic violence hearing? |
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The start of many divorces occur when a party files a domestic violence complaint. Quite often, in a DV case, the dependent spouse will also request that the court issue an temporary alimony award. A court in a DV case has the authority to make a temporary alimony award. The rationale for this rule is that the courts do not want the dependent spouse and the children to starve.
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Return Can alimony be changed after the divorce? |
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Yes. As previously explained, the main purpose of alimony is to permit the dependent spouse to maintain a reasonable standard of living. Alimony can be increased or decreased if the moving party can prove to the court that there was a "change in circumstances" since the divorce. The party who files the application has the burden to prove that there has been a "change in circumstances."
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Return Can alimony be extended? |
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In most cases no. However, some property settlement agreements provide that a spouse may be entitled to alimony after a certain number of years. A dependent spouse will have to file an application for an increase in alimony. The dependent spouse will have to prove a "change of circumstances" to justify an extension of alimony. The courts analyze these applications on a case by case basis. The court will make this determination based on the payor's ability to pay, both parties' respective income's, and the dependent spouses needs.
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Return Can alimony be terminated if the supported spouse cohabitates with another man? |
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In some cases if a supported spouse cohabitates with another man then this may constitute a change of circumstances to justify a change of circumstances. If the supported spouse lives with another man, then the court may reduce alimony. However, cohabitation alone is not enough to reduce alimony. The cohabitation must also be coupled with some economic consequences in order to modify alimony.
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Return How does a spouse's earning capacity affect alimony? |
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When a court determines alimony the actual income of the supporting spouse is not always the only factor used to determine the alimony award. In many cases, the court will also assess if the deadbeat spouse is underemployed. In my experience, once the divorce starts the husband often loses that second job, they get laid off, and they defer bonuses and promotions. Basically, the men try to paint their economic circumstances as bleak as possible.
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Return How does alimony affect the calculation of child support? |
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When the court calculates child support it will deduct any alimony payments from the payor's spouse's income. Moreover, the alimony will be included as income to the payee spouse. In summary, a high alimony payment may result in a reduction in child support. Alimony is deductible by the payor spouse, and it must be declared as income to the payee spouse.
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Return How is spousal support (alimony) calculated? |
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A family court has a fair amount of discretion to determine an alimony award. The New Jersey Supreme Court has established some very specific guidelines and formulas to determine child support. However, there are no alimony guidelines. Many courts and panels have tried to formulate alimony guidelines. However, this goal is very similar to the Cubs quest to win the World Series. It just will never happen! Many men don't enjoy paying child support, but they pay it anyway because they love their kids. However, most men are sick of their ex-wive's and they hate paying alimony. Any set of proposed alimony guidelines is just too controversial and it will never become law.
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Return If a person receives an inheritance does this affect alimony in any way? |
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Although an inheritance is not subject to equitable distribution, any income derived from any inheritance can be used to determine any alimony award. Moreover, if a person receives an inheritance this is also a factor to analyze any motion to reduce or increase alimony.
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Return If a spouse commits adultery does this increase alimony? |
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The standard answer is no. However, from practical point of view marital fault or infidelity certainly does affect alimony. A court must examine the proofs and determine that the amount of alimony is "fit, reasonable and just." Moreover, alimony can't be used to punish a payor spouse, or be used as an award to a payee spouse.
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Return If a spouse receiving alimony remarries does this terminate her right to receive alimony? |
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If the spouse receiving alimony remarries, then any permanent alimony award or term alimony will be terminated regardless of the parties' financial circumstances. The rationale for this is because the supported spouse has entered into a new marital partnership, and the former spouse is not required to financially support this new partnership. If the supported spouse's new marriage fails, then she can't later petition the court to reinstate the first husband's alimony obligation.
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Return If a spouse remarries does this terminate his obligation to pay alimony |
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If the spouse who pays alimony remarries, then this remarriage does not terminate his alimony obligation. If the payor spouse remarries, and he claims that he can no longer support his former spouse, then this factor alone is not a sufficient change of circumstances to just a decrease in alimony.
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Return If a spouse retires does this constitute a "change in circumstances" to justify a termination of alimony? |
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If a party has a good faith retirement at the age of 65 then this may constitute a change of circumstances to justify a modification of alimony. The court will also consider several other factors such as; the age of the parties; how the pensions and retirement assets were divided during the marriage; whether the retirement was reasonable; and was the retirement motivated to reduce alimony. Our New Jersey courts have held that when a person retires at the age of 65, he is entitled to a plenary hearing to reduce alimony based on a "change of circumstances."
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Return What does "double dipping" mean? |
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Although alimony and equitable distribution are two different concepts, they are interrelated. The courts try to avoid "double dipping" when they determine an alimony award. Retirement and pension benefits are major marital assets and they are subject to equitable distribution. If the pension benefits are equitably distributed during the divorce, then these pension benefits can't be used later on for alimony purposes. In simpler terms a dependent spouse can't receive a share of the pension, and also receive alimony from the pension benefits.
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Return What is alimony? |
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Alimony is the term that is used for payments that are made by one spouse to the other after a divorce. Alimony is different from the equitable distribution of marital property. Equitable distribution looks in the past at what property the parties acquired during the marriage. Equitable distribution involves splitting up the "marital pot." Meanwhile, alimony is prospective, and it is used to balance the unfairness in the parties' earning capacities. Alimony is not designed to punish the payor spouse, and it is not a reward to the payee spouse. Instead, alimony is designed to permit both parties to continue to live, as best as possible, the same standard of living that they became accustomed to during the marriage. The parties to a marriage are not taxed on the equitable distribution of marital property. However, alimony payments are taxable to the payee spouse, and tax deductible to the payor spouse.
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Return What is limited duration alimony? |
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The most common form of alimony that is awarded is called limited duration alimony. This is also frequently called term alimony. This type of alimony is payable only for a specific period of time. This type of alimony is usually awarded in mid-length marriages. Like permanent alimony, it can also be modified if there is a change in circumstances.
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Return What is pendente lite alimony? |
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Pendente lite alimony is basically temporary alimony that is awarded before the final judgment of divorce is entered. The goal of pendente lite alimony is to maintain the status quo of the family lifestyle. The court wants to insure that the mortgage is paid, the lights stay on, and that the kids are fed. Pendente lite support is not part of child support. In most cases, an award of pendente lite support is a rude awakening to the husband that his lifestyle and available cash will most certainly change. Alimony of any type is not very popular with men. Many men consider it to be a four-letter word.
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Return What is permanent alimony? |
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There are many types of alimony. To most men, the most vilest form of alimony is called permanent alimony. To a man, if they have to pay a permanent alimony award it really is a nuclear blast to their lifestyle. Permanent alimony is usually awarded in a long-term marriage where there is a large unequal earning capacity between the spouses. Moreover, the dependent spouse must be unable to earn a sufficient income to maintain a reasonably comparable marital lifestyle. Permanent alimony can be modified/reduced based on a change of circumstances. The courts are often flooded with motions to reduce permanent alimony. However, the standards to convince a court to reduce/terminate a permanent alimony award are very strict.
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Return What is rehabilitative alimony? |
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Just like limited duration alimony, rehabilitative alimony is payable for a specific term. The purpose of rehabilitative alimony is to provide support to a dependent spouse while she acquires education or training to permit her to obtain employment that would allow this spouse to support herself. Rehabilitative alimony does not terminate if the supported spouse gets remarried.
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Return What is reimbursement alimony? |
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Reimbursement alimony compensates a spouse for economic sacrifices that were made during the marriage, and these sacrifices helped to enhance the other spouse's earning capacity. Reimbursement alimony is often awarded in cases where one spouse supports the other so that he or she can obtain a professional degree, with the understanding that both spouses will materially benefit from one spouse having obtained that degree in the future. The court may find it unfair for the spouse with the degree to retain not only the degree, but all of the financial benefits of having the degree. Reimbursement alimony generally covers all financial contributions towards the former spouse's education, household expenses, and educational contributions. Reimbursement alimony does not terminate if the supported spouse remarries.
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Return What is the standard to modify alimony? |
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Alimony can always be modified upon a showing of a "change of circumstances." The party who is seeking a modification of alimony bears the burden of proving that there is a "change of circumstances." The party must show how the changed circumstances have sufficiently impaired her ability to earn a reasonable living.
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Return Can I blow off my obligations to my ex-spouse by filing for bankruptcy? |
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Bankruptcy and divorce really go together like ham and eggs, Batman and Robin, and bad girlfriends and headaches. This topic really deserves a whole set of FAQ's. Eventually, I will write an entire set of FAQ's on the impact of bankruptcy on family law.
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Return Can my ex-husband escape paying for child support and alimony by filing for bankruptcy? |
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The Bankruptcy Code attempts to protect the rights of children and former spouses to collect support. Any support whether it is called family support, alimony, or child support, the Bankruptcy Code makes it non-dischargeable in bankruptcy. The spouse who receives the support does not have to file any types of proofs of claims or objections to the Bankruptcy Court to enforce her rights to continue to receive support.
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Return For equitable distribution purposes, does the court take into consideration if only one of the spouses worked during the marriage? |
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The fact that one spouse may not have worked during the marriage is not particularly important. The whole concept of a marriage in New Jersey is that it is an economic partnership. Unless proven otherwise, the court will presume that both the husband and wife both made substantial financial and/or non-financial contributions to the acquisition of income and property during the marriage.
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Return How are pensions divided and split up in a divorce? |
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There are essentially two methods of distribution of a pension in a divorce case. The two methods to split up a pension is a (1) deferred benefit share and (2) immediate offset distribution against the other assets. A deferred benefit share postpones distribution until a pension comes into pay status. An offset distribution trades off the present value of the pension interest against a current asset which is given to him/her in satisfaction of his/her share of a pension.
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Return How are the marital assets distributed pursuant to a divorce judgment? |
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After a divorce is over, the parties have to distribute the marital assets according to the terms of the judgment of divorce. In most cases, this is almost as hard to accomplish as it is to reach a divorce settlement. The bottom line is that after a divorce is over the parties are full of rage and hate for each other. Divorcing people is not an easy way to make a living.
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Return How does a court determine how to apportion all of the marital assets in a marriage? |
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Equitable distribution calls for a judge to apportion the marital assets in such a manner that will be equitable and just to both parties under all circumstances. "Equitable distribution" states that each spouse is entitled to a portion of the marital property in relation to his/her contributions during the marriage.
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Return How does bankruptcy affect a divorce? |
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Family law and bankruptcy seem to go together like Batman and Robin. Upon splitting up, either the spouses can't pay the family debts, or one spouse seeks to use bankruptcy as a weapon against the other spouse, or the other spouse's lawyer.
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Return How is the marital debt distributed during the marriage? |
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In many divorce cases, the issue really is not the distribution of marital assets. Instead it is the distribution of credit card debt, car-repo debt, tax debt, and paying off mortgage arrears. The bottom line is New Jersey is a very expensive state to survive in. Property taxes are sickening. Tolls are high. Food is expensive. Even just going to the beach will cost you almost $10. What a rip off! Jersey is the only state besides New York to charge to get onto the beach. Let's face it, many aspects of living in New Jersey suck.
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Return How will the marital property be distributed? |
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All property acquired by the parties during their marriage is subject to "equitable distribution." The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage.
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Return I have filed a motion for an increase in child support. What happens to my motion if my ex-husband files for bankruptcy? |
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In most cases, the family court will not hear the support motion until the bankruptcy case is finished. Some judges will rule on the motion, and hold that the automatic stay does not bar the family court from considering the motion. Other judges will require that the moving party to obtain stay relief. In simpler terms, stay relief means that the Bankruptcy Court issues an order that permits the moving spouse to continue her family court motion. To obtain stay relief, the moving spouse will have to obtain an order from the Bankruptcy Court that permits her to continue to pursue her motion requesting an increase in support. In the majority of cases, a Bankruptcy Court routinely grants these types of motions.
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Return I purchased a house prior to marriage, and I used my own premarital funds to purchase the house. The property was titled in my name alone. After we married, I agreed to re-deed the home over to the both of us as tenants by the entireties. What then? |
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In most cases, the deeding over would be regarded as evidence of an inter-marital gift of one-half of the property to the previously non-titled spouse.
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Return I was ordered to pay for my wife's lawyer's fees, can I wipe them out if I file for bankruptcy? |
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In many cases, a divorce is simply a war of attrition. In many cases, the family court will award the wife counsel fees. Basically, this means that the husband will have to pay for the wife's lawyers' fees. In many instances, this could be a $10,000 or higher bill. People quite often feel very sick if they are ordered to pay for their spouse's legal fees. This type of arena obviously explains why the security checks are so intensive at the local county courthouses.
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Return If certain assets are titled in my name alone, does this insulate me from any equitable distribution claims by my spouse? |
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No. This is a widely held misconception. There may or may not be an equitable entitlement to the titled property by the untitled spouse, but keeping the title in one party's name alone accomplishes very little. Buying property in one's own name during marriage accomplishes nothing in terms of immunizing it from any claims of equitable distribution.
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Return If I file for a bankruptcy will this impact my spouse's or my own I.R.A. accounts, cash value life insurance accounts, or jointly owned land? |
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In general, your filing bankruptcy will not affect your spouse's property. In a Chapter 7 Bankruptcy, the Trustee will be able to take property which you own if it is not exempt. The Trustee cannot take property of your spouse even if it is not exempt.
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Return If my case goes to trial, and if I disagree with the Judge's decision regarding the equitable distribution of property, do I have any rights? |
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Yes. In every case, the court is required to make specific findings of fact on the evidence relative to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including the factors listed above. If you have a good faith belief that the judge either didn't consider a specific factor that is important, or misapplied a factor to the facts of your case, and you might consider filing an appeal to the Appellate Division.
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Return If my husband files for a bankruptcy can I still enforce the terms of the divorce judgment? |
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The Bankruptcy Code recently made non support obligations created in connection with a divorce or separation non-dischargeable in Chapter 7 if the discharge of the obligation would harm the non- debtor spouse more than it would benefit the debtor. 11 U.S.C. 523(a)(15).
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Return If one spouse files for bankruptcy, what happens to any joint credit card debts? |
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The distribution of credit card debts is a primary issue that arises in the majority of divorce cases. I always suggest that all credit card debts be paid off from the marital assets before any monies are distributed. It is always advisable to pay off all of the marital debt before the divorce is put through before the court. It is always important to emphasize that post-judgment issues always arise. It is extremely important for a divorcing couple to tie up as many loose ends as possible.
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Return Is a severance package subject to equitable distribution? |
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A pre-retirement benefit package received by a spouse after a divorce complaint was filed, but representing in whole or in part a deferred compensation for services provided during the course of the marriage, is subject to equitable distribution. The key question is whether the "benefit" represented deferred compensation based upon the spouses previous endeavors during the marriage. For example, severance pay may be determined by an employee's skills during his/her employment at a company. This, then would be subject to equitable distribution because both parties would have contributed to the employed spouse success in his or her care. Severance pay may also be considered for past labor. Payment for vacation day may accrue during the marriage and it must also be considered under equitable distribution. Finally, commissions upon departure from a company are also considered deferred compensation for previous endeavors.
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Return My child support and alimony are deducted from my former husband's paycheck. Will this garnishment stop if my husband files for bankruptcy? |
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Any child support or alimony garnishment order(s) that deduct current support from the husband's wages are generally affected by the bankruptcy filing. However, in many cases unscrupulous husbands will rack up thousands of dollars in child support arrears. The collection of child support arrears will be stayed in a bankruptcy filing. Any garnishment order(s) that collect past due support arguably are stayed in Chapter 7 and certainly stayed in Chapter 13. The husband will be able to propose a repayment plan to repay the child support arrears in a Chapter 13 case.
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Return My husband filed for bankruptcy and he wiped off all of his credit card debts. The credit card companies are now suing me. What can I do? |
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Under New Jersey Law, the courts have continuing jurisdiction to review awards of alimony and child support and may increase or decrease such awards where parties' circumstances have changed.
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Return My spouse has just filed for bankruptcy in the middle of our divorce case. What do I do now? |
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Divorce and bankruptcy really are intertwined in many cases. Living in New Jersey is extremely expensive. Paying for property taxes each year is similar to purchasing a new car. The stress of living in the "Garden State" is compounded once the spouses each have to maintain two separate households. Quite often, a divorce triggers a bankruptcy filing as well. In my opinion, the mixture of divorce case and a bankruptcy filing can really create a supreme mess. There are no winners or loses in a divorce case. Therefore, if possible all parties really should try to achieve a compromise, and reach a fair property settlement agreement. In many cases, a bankruptcy can help out both spouses, if they both file jointly.
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Return We are in the middle of a nasty divorce, and I was just served with foreclosure papers. What should I do? |
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In many cases, once a divorce is filed, the family just falls apart. It is a sad reality that many families simply can't pay for their mortgage payments once they split up. A spouse can file a Chapter 13 Bankruptcy to stop the foreclosure. A Chapter 13 Bankruptcy will enable the family to propose a debt restructuring plan and a payment plan on the mortgage arrearages. At the very least, a Chapter 13 Bankruptcy will buy the family some time, and enable them to find an apartment to live in.
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Return What are the factors that a court uses to determine the equitable distribution of the marital assets? |
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There are many factors that a court takes into consideration when it determines how to equitably distribute the marital assets. The factors are the following:
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Return What assets are considered part of the marital estate for equitable distribution purposes |
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Only assets that are "acquired during the marriage" are considered to be part of the marital estate. Any property that was acquired before the marriage is considered to be premarital property, and it is not subject to equitable distribution. "During the marriage," is frequently interpreted as beginning the day the marriage ceremony took place, and ending the day when the divorce complaint was filed.
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Return What can I do to protect myself if my spouse files for a bankruptcy? |
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The more experience that I gain in the matrimonial world of divorce, the more I realize that life is not fair. In my one of my first divorce cases, the parties agreed to equally split $40,000 worth of credit card bills. Unfortunately, my client did not want to ruin her credit, and she was forced to repay all of this debt. Her deadbeat husband did not pay a dime of these credit card debts even though the divorce judgment required him to pay one half of it. Credit card companies just want their money, and they don't care who they collect it from.
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Return What does equitable distribution mean? |
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New Jersey is an "equitable distribution state." This means that in a divorce in New Jersey, any property that is acquired during the marriage must be divided in an equitable manner. Therefore, any marital property must be distributed either by a voluntary agreement of the parties or by an order of the divorce court.
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Return What happens to a divorce judgment if the parties reconcile? |
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In some of my cases, the parties reconcile after the divorce is over. If the parties reconcile this can be interpreted as revocation of the prior divorce judgment. Reconciliation occurs when spouses resume living together for a sufficient period of time, which leaves the court to conclude that the parties resolved their differences and agree to resume their marital relationship. In many cases, a court may view a reconciliation as voiding the executory sections of the divorce judgment. However, the executed portions of the divorce judgment will remain unaffected.
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Return What if I purchased a house prior to marriage, and I used nothing but my own premarital funds to purchase the house. The property was titled in my name alone. After we married, I agreed to re-deed the home over to the both of us as tenants by the entireti |
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In most cases, the deeding over would be regarded as evidence of an inter-marital gift of one-half of the property to the previously non-titled spouse.
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Return What is an antenuptial agreement? |
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An antenuptial agreement is one made prior to the parties' marriage. It disposes of property and alimony rights to a spouse in the event that a marriage should fail. Normally, the intent of an antenuptial agreement is to deny a spouse an interest in assets held in the full name of the other at the time of the marriage. By executing an agreement, the parties have agreed not to allow the court to resolve questions of alimony and equitable. Distribution. These agreements are enforceable provided that there is full disclosure both parties as to their financial conditions, including assets and income. The agreement is null and void if one spouse is left destitute. An agreement which leaves one souse with a standard of living far below which was enjoyed during the marriage may not be upheld by the court. The courts will also make sure that there is no fraud or duress in the execution of the agreement.
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Return What property is not subject to equitable distribution? |
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There are several categories of property not subject to distribution. The major type of asset(s) that is not subject to equitable distribution is property that was acquired before the marriage. Moreover, any property that was acquired by way of an inheritance is not subject to equitable distribution. In summary, any property that was acquired before the marriage, and any property that was acquired by an inheritance is not part of the marital estate.
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Return What will happen to my ex-spouse's credit report if I file for bankruptcy? |
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Each person has (or is supposed to have) a separate credit file for credit reporting purposes. Your debts, if yours alone, are not supposed to show in your ex-spouse's credit file. Similarly, your bankruptcy should not show in your ex-spouse's file if you have no joint debts.
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Return Are pensions subject to equitable distribution in a divorce? |
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Pensions are absolutely subject to equitable distribution. A pension is usually one of the most valuable asset that a couple has. The funds from a pension that are acquired during the marriage are subject to equitable distribution regardless of when they vest. Public policy states that to insure the support of a financially depended spouse, a statute prohibiting attachments should not intervene in providing support for a dependent spouse.
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Return Are professional degrees subject to equitable distribution? |
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In many cases, a very valuable assets is a professional degree. In many cases, a devoted wife or husband helps pay for a law degree or a medical degree for their husband. I am certain that many people have heard of the common case wherein the devoted wife spouse is a nurse, and she works her tail off to pay for her husband to go to medical school. Once the wife's looks wear off, it is not uncommon for the husband/doctor to become a playboy.
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Return Can a spouse recover a down payment for the purchase of the marital home, if the marriage is a "quickie."? |
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In many cases, one spouse usually the husband comes into the marriage with the money. Quite frequently, one spouse pays for the deposit to purchase the marital home. In some cases, the marriage is a disaster, and the marriage only lasts a year or two. A frequent issue is whether the richer spouse can recover his deposit monies that were used to purchase the home.
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Return How can I enforce my rights to have visitations with my grandchildren? |
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A grandparent has to file an application with the county court house and request visitation with their grandchildren. The complaint will then be served on the parent(s). Thereafter, the court will set the case down for a case management conference. At this court hearing, the judge will make a sincere attempt to try to mediate a settlement. The judge may also refer the case to mediation. Mediation is the hot new trend in grandparent visitation cases. Mediation is an excellent way to resolve bitter grandparent visitation disputes. The court may also set the case down for a plenary hearing. At the hearing, both parties will be permitted to present evidence that either supports grandparent visitations, or submit evidence that proves that grandparent visitation would not be in the child's best interest.
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Return What are the arguments against grandparents' rights? |
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This answer supplied by: (732)257-0708
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Return What are the arguments for grandparents' rights? |
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This answer supplied by: (732)257-0708
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Return What is the law regarding grandparent visitation in New Jersey? |
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New Jersey's Grandparents' Visitation State, N.J.S.A. 9:27.1 allows a grandparent residing in New Jersey to make an application for visitation. The grandparent must prove that visitation is in the best interest of the child. In making this determination, the court must consider eight factors, including:
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Return Do I need a lawyer during mediation? |
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No. It's a common misconception that you need to hire a lawyer for divorce.
This answer supplied by: (877)732-6682
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Return Do I still need to hire a lawyer? |
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We recommend that each party hire a separate attorney to use as a legal consultant. The attorney can review the final agreement, and file the documents in court. We provide our clients with a list of mediation- friendly attorneys.
This answer supplied by: (908)913-0373
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Return Do you have to be a lawyer in order to be a mediator? |
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No. Some attorneys feel that attending law school provides them the skills they need in order to practice mediation. But mediation is a skill unto itself. While a lawyer may have a grasp of the laws, they may or may not know how to be an effective mediator. They also may not have the financial acumen required to resolve the many complex financial issues surrounding divorce.
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Return How is divorce mediation different from litigation? |
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Divorce mediation is a private, cooperative, non-adversarial process in which parties work together to create an agreement that is fair to both sides. It is designed to save time and money and to preserve relationships. Litigation is an adversarial process which is both expensive and time-consuming. Studies show that children suffer more in a high conflict divorce - and that it is the level of conflict that affects the children negatively, not the divorce itself.
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Return How long does divorce mediation take? |
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The length of the divorce mediation process depends on the complexity of the issues in each particular case. Generally, we estimate five to ten 1-2 hour sessions with a mediator.
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Return How long does the mediation process take? |
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On average, the mediation process takes two to three months from start to finish.
This answer supplied by: (877)732-6682
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Return How much does mediation cost? |
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The average cost of mediation is between $5,000 and $8,000.
This answer supplied by: (877)732-6682
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Return Is Divorce Mediation Right For Us? |
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You and your spouse are good candidates for mediation if you meet the following criteria:
This answer supplied by: (877)732-6682
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Return What is divorce mediation? |
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In divorce mediation, a divorcing couple meets with a neutral, impartial trained professional who helps them come to a mutually acceptable agreement on issues of parenting, division of assets and liabilities, child support, and/or spousal support. Parties make decisions for themselves in private and retain control over their divorce process.
This answer supplied by: (908)913-0373
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Return What is Divorce Mediation? |
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Divorce mediation is a non-adversarial process led by a caring, neutral and skilled mediator that helps divorcing couples resolve all of the issues required to get a divorce.
This answer supplied by: (877)732-6682
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Return Can a premarital agreement be signed after the wedding? |
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A premarital agreement can be made after the wedding whenever differences arise between the parties regarding the future financial issues. This type of agreement is often called a postnuptial agreement. A postnuptial agreement must be based upon some consideration other than the marriage itself. Sometimes a postnuptial is made as part of a reconciliation of the parties or following some other dispute. A postnuptial has been held to be just as enforceable as a premarital Agreement.
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Return What are the essential requirements that must be satisfied in order for a premarital agreement to be upheld? |
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Return What are the reasons why a prenuptial agreement may be declared invalid? |
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This answer supplied by: (732)257-0708
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Return What is a prenuptial agreement? |
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A prenuptial agreement is also known as premarital agreement or an antenuptial agreement. This type of agreement may be used by a couple to determine, prior to marriage, what each party's rights and obligations will be in the event of divorce. Premarital agreements are governed by the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 et seq. The agreement must be in writing and it must have a statement of assets attached to it. It becomes effective upon the marriage of the parties.
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Return What is the standard of law that a court uses to ascertain if a prenuptial agreement is legally binding? |
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As to enforcement of premarital agreements, there is a three-pronged test that must be addressed by a court if the agreement is challenged:
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Return What marital terms can be negotiated in a premarital agreement? |
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The parties to a premarital agreement may negotiate about the following areas:
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Return What martial terms can't be included in a premarital agreement? |
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A premarital agreement cannot limit any child support or any other types of financial support for a child. This includes costs to maintain health insurance or life insurance. Moreover, a premarital agreement can't stipulate which party should have custody of any child born of the marriage.
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Return When should a premarital agreement be signed? |
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It is critically important that all parties have adequate time to review and sign a premarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. It simply does not make sense to try to put together a premarital agreement on short notice and hope that if is ever challenged that it will survive.
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Return Can a person record or tape a conversation of their spouse? |
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Pursuant to federal and state wire tapping statutes, a person is legally permitted to record and tape a conversation only if the person who is doing the recording or taping is a party to the conversation. A person can't tape their spouse while they are talking to other people, and more specifically their paramour.
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Return Can a spouse file a tort for an assault and battery? |
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In many cases, a spouse is actually physically injured by her husband or wife. Unfortunately, in many cases a husband actually physically hurts his wife by punching her. I have had a case wherein the husband actually fractured his wife's skull. Moreover, there are other cases out there wherein a wife has stabbed her husband in the "heat of passion." Acts of domestic violence frequently occur once a spouse is busted for cheating.
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Return What can a spouse do if a husband or wife tries to dissipate and hide assets prior to or after the filing of divorce? |
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A very common problem in many cases is that after the complaint for divorce is filed, then one spouse attempts to dissipate and hide valuable marital assets. In such circumstances, if a spouse wrongfully transfers marital assets to a third party for no or insufficient consideration, then a cause of action may be filed against not only the spouse but also the third party based upon the fraudulent conveyance.
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Return What is a marital tort? |
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Basically, a tort is a civil wrong, for which the court will provide a remedy in the form of an action for damages. Torts may be intentional, negligent or reckless. They may result in any number of physical or emotion injuries and they also include injuries to property. Torts have increasingly become very relevant in New Jersey divorces. Many spouses now also sue their ex-husband for a marital tort(s), and it is then consolidated with the primary cause for the divorce.
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Return What is the Battered Woman's Syndrome? |
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In some bitter divorce cases, a battered spouse will also sue their husband for a personal injury tort. The tort claim of being a battered spouse will be consolidated with the divorce case. A ruthless lawyer will use a battered spouse tort claim to try to obtain additional financial concessions in the divorce case.
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Return What is the tort of the malicious abuse of process/malicious use of process? |
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In many cases, a bitter ex-wife files many frivolous criminal and domestic violence complaints against her husband. I have seen many cases, wherein a bitter ex-wife sole concern is only to destroy their husband. In many cases, they do a great job! A husband can sue his ex-wife in an egregious case for a tort that is called the malicious abuse of process. This cause of action should only be considered in the most egregious set of facts because it is very difficult to prove. However, the filing of a complaint for abuse of process against a raging ex-wife could slow her down, and make her think twice against filing any more frivolous criminal or domestic violence complaints.
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