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From Complaint to Judgment: New Jersey Divorce Law

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From Complaint to Judgment: New Jersey Divorce Law

Navigating a divorce case from complaint to judgment is almost as difficult as navigating New Jersey’s “pothole” filled highways. There are hazards at every stage of the proceedings which can derail your case at any time. This Divorce Law Guide will help you safely avoid those potholes so that you can get your client what they want - a DIVORCE JUDGEMENT. This course is a basic guide of the various stages of a divorce case in New Jersey. The statutory and procedural hurdles are discussed in plain English so that even the new practitioner and the client can understand the lengthy and costly divorce practice.

Presenters

Michael Casale
Judge Casale; Of Counsel
Greenbaum Rowe Smith & Davis LLP

Transcript

Michael Casale - Hello, I'm Judge Michael R. Casale Of Counsel at the law firm of Greenbaum Rowe Smith and Davis, located in Roseland, New Jersey. I was a Superior Court Judge for 20 and a half years in Essex County. And the last six, the Head Matrimonial Judge. And today's presentation will deal with, 'From Complaint to Judgment, New Jersey Divorce Law.' It's sort of a nuts-and-bolts seminar, a practical guideline in handling a divorce case from complaint through the judgment of divorce. It's not meant to deal with post-judgment issues. And many of the general topics I will discuss with you can be really separate subtopics for their own seminar.

So, this is a general guide to divorce practice in New Jersey. Obviously, as with any case, it is started with a complaint for divorce. The complaint must have the proper venue. That means that one or both parties must live in the county in which the divorce complaint is filed, or in which the cause of action arose. Jurisdiction in New Jersey simply means that there must be a cause of action, that there must be a cause of action, which sets forth in specificity the grounds upon which a party is seeking a divorce. And also, that the parties have resided, at least one of the parties have resided, in the state of New Jersey for one year. The causes of action are set forth in New Jersey statute annotated 2A:34-2.

These are the causes of action that will need to be pled in the complaint for divorce. Adultery, if you are filing a complaint for divorce alleging adultery, you must name in the complaint, the person with whom the adulterous relationship has occurred. Willful and continued desertion, which must be for a time period of 12 months or more, In which the parties have ceased cohabitation as man and wife. You could have a cause of action for extreme cruelty, and that can be physical or mental. It must endanger the plaintiff's safety or create a condition wherein its unreasonable to expect continued cohabitation. You must wait at least three months from the last cruel act to file the complaint. In other words, from the date of the complaint, the last act of cruelty must have occurred longer than three months from that date.

A common cause of action is for separation for at least 18 months. That's continuous separation, no hanky panky fooling around in that time, with no reasonable prospect of reconciliation. There are some unusual causes of action. Voluntary addiction to narcotics or habitual drunkenness. Institutionalization for mental illness, which must be 24 or more consecutive months after marriage. If a defendant has been imprisoned for 18 consecutive months before you file the complaint, you have a cause of action for that. One of the less common causes of action in your complaint is deviant sexual conduct without the plaintiff's consent. And then you have the most common pled cause of action. And that's irreconcilable differences, which cause a breakdown of the marriage.

This is what's known as a no-fault divorce. New Jersey is a no-fault state. I think some individuals believe that they will get more in a financial settlement if they plead some of these other causes of action. Well, if there's reconcilable differences for at least six months, prior to filing the complaint with no reasonable prospect of reconciliation, then that's the no-fault divorce. And by no reasonable prospect of reconciliation, I have had to question individuals about this, especially if they're self-represented. In other words, you don't wanna get back together with that person. There's no reasonable chance that you wanna resume married life with that individual.

Now in addition to alleging causes of action in your complaint, and you could have multiple causes of action, you have to make demands for your relief. Well, what you want obviously is a divorce. If you are the non-moneyed spouse, you're going to seek support, financial support, alimony. If it's a civil union, support. If there are children involved, you're going to want to request primary residential custody and legal custody of the children. You're gonna have to request child support. And then equitable distribution of the assets acquired during the marriage. The equitable distribution as you will see, when we talk about it later, also means equitable distribution of debt and liability.

So, when you file your complaint, and there are forms on the New Jersey Judiciary website, there will be additional forms which need to be required, which show proof of your insurance. And you have to understand that you cannot change your insurances too. Just because you file a complaint for a divorce, doesn't mean you cut off your spouse's life insurance or health insurance. And then you have to pay the appropriate filing fees to file the complaint. Any questions about the filing aspect of the complaint, each county in New Jersey has a Family Division. Administrative individuals, and you could contact them, and they will answer your questions. They're very helpful, especially with self-represented individuals.

So, once we have filed the complaint, now we need to serve the summons and complaint upon the defendant. Various methods are utilized. We have the personal service procedure. You can hire a company, a private company to do this. They are very efficient. It'll cost you obviously some fees, but they'll give you a proof of service, an affidavit of service. Which will be proof that the individual's been served. And it's very detailed, it states when the summons and complaint was served on that individual. Who accepted the service? Was it a child over the age of 14? How that was done, by personally serving the documents. Whether it was the defendant, et cetera. You could rely upon the County Sheriff to do it. They have a Process Service Division and process servers. They have a Process Service Division and process servers.

The problem becomes if you cannot personally serve the defendant, then you have to resort to the least efficient method. And that is filing a motion for substituted service by publication. And you have to attach an affidavit of diligent inquiry. You must check with the military, to make sure the individual is not serving in the military. And you can get such a document from our military. Basically, you have to show that you made a diligent inquiry to serve the individual personally or by substituted service, certified and regular mail. And if that's not been accomplished, then you could get an order from the court to serve by publication to a local newspaper. Once the complaint is served upon the defendant, obviously then the defendant is responsible for filing a response to the complaint. The defendant has 35 days to file his or her response. It could be by way of an answer, an answering counterclaim, a general appearance in which the party does not contest the cause of action for the divorce. But rather, just wishes to be heard on say, alimony, equitable distribution, child support, custody, et cetera.

If there's been no response by the defendant to the summons and complaint, then the plaintiff may proceed to default. That's done by the clerk if it's within the six-month period that the defendant is in default. After six months of the defendant's default, then the court rules in New Jersey require a motion to be filed by the plaintiff for the court to enter a default on the court's docket. Once you have the default, then if you're not seeking support or there's no children involved, or no equitable distribution, then you could move to a default judgment of divorce. The court will give you a date to appear. You should be preparing the final judgment of divorce. If you want to resume your maiden name, you could also put that in your judgment of divorce. Or many courts, including mine when I was on the bench, we had a standalone order for change of name back to the maiden name. If you're asking for alimony, child support, if there are child custody issues, equitable distribution issues, then you cannot just simply have a simple judgment of divorce. You have to file what's known as a notice of file judgment and serve the defendant with that no later than at least 20 days before the judgment of divorce default hearing. That notice of final judgment will have all your requests for relief. If you want alimony, you have to put down the term of alimony you want, the amount of alimony you want, child support that you want. Payment of extra expenses outside of child support, what those are, what percentages you're looking for. Equitable distribution of property, what you're looking for in terms of the assets, your share of them, your share of the liabilities. And that's gotta be served by certified and regular mail on the defaulting defendant, at least 20 days before the judgment of default hearing. And there's a case out there by the name of Clementi, C-L-E-M-E-N-T-I, versus Clementi. And superior court judges are told that they cannot just rubber stamp a default judgment of divorce when there are these issues pertaining to alimony, child support, extra expenses, extracurricular activities of the children, custody and parenting time, equitable distribution of assets and debts. And the court must make factual findings in order to enter a final judgment of divorce with these terms as decided by the court.

As we stated before, the defendant may answer by way of an answering counterclaim or just a general appearance. The significance of those two options, if you just enter a general appearance and say, for instance, the plaintiff's complaint gets dismissed. Now you cannot proceed to a judgment of divorce if you're the defendant. If you file an answering counterclaim, if the plaintiff withdraws his or her complaint and your counterclaim requests a judgment of divorce based upon any one of those or more of those causes of action, then you can get awarded a judgment of divorce. Even if the plaintiff withdraws his or her complaint, or it gets dismissed for failure to prosecute the claim. The judiciary in New Jersey has some excellent programs, in order to try to see if they can convince the parties to start thinking about resolving their differences without full-blown trials.

So, after the case is joined, after the defendant has filed an answer or entered an appearance, the court will have what's known, if there are children involved, a parent education workshop. In which the court representatives, In which the court representatives, and they're very well versed in these children’s issues, try to talk to the parents about co-parenting to prepare the children for the drastic divorce, which is impending. And basically, how to co-parent. That's required, there's a separate fee when you file the complaint if children are involved with custody and parenting time issues. And then after of that, at some point in time, the court will set down custody parenting time mediation. Again, there are individuals within the court system who work in administration who try to mediate the parental disputes without counsel, to see if the parties can agree to legal custody and custody and parenting time schedules, holiday schedules, vacation schedules. These individuals are invaluable to the court system, who work in our court system. And they could really head off some potential issues regarding custody and parenting time.

The first court event will be a case management conference, an initial case management conference, which will occur in person with the trial court, counsel of the counselor involved and the parties. We see this now being done by way of Zoom, due to the pandemic. However, I always felt it was very important for the parties to meet their trial judge in person. And for the trial judge to sort of give the lay of the land, a speech to let the parties know what was going to be involved in prosecuting their case or defending their case. What was gonna be required of them to provide complete discovery, case information statements, attend court hearings as necessary. Economic mediation, early settlement panel, et cetera. Now most good attorneys have already done this with their clients, but the trial judge can reinforce much of the inform that the attorneys have given their clients. For instance, especially when it comes to finances and costs of litigation. I would impress upon the litigants that each court event comes with a tremendous cost, both time and legal expense. The attorneys are paid for their time and their advice. And every time there's a motion, a court event, the case drags on and continues to a trial.

This is all gonna be costly. If there are gonna be experts retained by the parties, for instance, custody experts, I would get out a calculator. And say, okay, you want your own custody expert. Oh, and you want your own custody expert. You can't agree on a joint expert, that'll save you money. And I'll start getting the calculator out and telling them about how much this is gonna cost. If you want a forensic expert, understood. There's a business that has to be evaluated for equitable distribution, or we need to know the cashflow coming into that household, that's fine. Try to see if you can agree to a joint expert. If you can't, well, you're entitled to one. And so is the other side, it's gonna get very costly. And then we set down the discovery requirements, notice to produced documents and interrogatories by a certain date, expert reports by a certain date.

Now we may not have deposition. If it's gonna be a very, very complex case, we're gonna have additional case management conferences. So, I'm a firm believer in not biting off too much. And then just having the second case management conference deal with depositions. We try to see if we can cut the cost down. One of the ways in which costs could be cut down is for the parties to attend a mandatory early settlement panel. That is two experienced lawyers will evaluate the case. Counsel will send in early settlement panel submissions, which sets forth the disputed issues. The party's positions regarding same, and attaches case information statement, account statements, income information, et cetera. In Essex County, these are done on a Tuesday starting at 8:30. And they may list six cases on each Tuesday. The early settlement panelists are experienced lawyers, they serve for free. They're invaluable to the divorce process in Essex County. They should be commended for volunteering their time.

So, then the early settlement panelists, the two of them will make recommendations to the parties as to settlement. The parties are free to accept those, reject those, accept some in part, reject some in part. If there is an agreement at the early settlement panel, I would always require counsel and the parties to come to my courtroom, put the agreement on the record. Very important, we won't rush through it. I'll give them time to gather their thoughts. But we have divorced individuals right after the early settlement panel. Or we've at least had signed term sheets, which will form the basis of the detailed marital settlement agreement. At any event, all the parties and the lawyers are required to report back to the trial court after the early settlement panel, whether they have a settlement or not.

If there's no settlement, they are told they must go to economic mediation. And there's an order generated by the court for the economic mediation. There is a list of rosters of approved economic mediators in the Family Division. And the parties are free to choose from among those on the roster or choose an individual who's not on the roster. If they are on the roster, then the parties are given two free hours by the economic mediator. One for preparation and one for actual mediation time. The post ESP referral order will have the mediator's name and his compensation. And that's usually split 50/50 by the parties. We try to get the mediation date right in that order, which is signed by the court. If it can't be done, then the parties are directed to immediately contact the mediator and get that information. Obviously then after the economic mediation, hopefully there's a settlement and we can put a divorce through. If not, there are additional case management conferences leading up to a pretrial. At which time, the court sets trial dates and the court sets the responsibilities for the pretrial submissions. I always required trial briefs from counsel, which set forth the disputed issues and their party's positions regarding same. Witness list, pre-marked evidence.

And a final and best sealed settlement proposal, which I would open up after trial, after I gave my decision, and it was relevant on the issue of council fees. In other words, if one party's settlement position was so wide of the mark of what I had decided, then I could decide that they had to pay some of their opponents' council fees. We're not gonna talk about the trial. We could do a whole course just on the trials. But 95% of these cases settle without a trial. It's just a question of when. And many times, in my experience, the settlement which was reached at the end was not much different than what it could have been reached in the middle of the case or the relatively beginning of the case. Except there was a whole lot of time and expenses and legal fees that were incurred.

All right, let's talk about now some of the various aspects of these cases. some of the various aspects of these cases. First, custody, as far as I'm concerned, this is the most important aspect of any matrimonial case filed in the court system. We can make a mistake with finances, and we have the doctrine of changed circumstances which deal with that. But if we make a mistake with a child or with children, that can have far ranging consequences in that child's lifetime. So, when we talk about custody, we need to talk about legal custody and physical also known as residential custody. Legal custody talks about being able to agree and communicate on issues pertaining to the child's health, education, welfare. All the serious issues with regard to the children, as well as the day-to-day joint decision making that's involved in raising children. Listen, even if you are in an intact family, that means you're not going through a divorce, there are differences of opinion on what's best for your children. And that's what we're talking about, the best interests of the children.

The most common form of legal custody is joint. That means shared legal custody in which the parties work together to make joint decisions that are in the best interest of the children. Now the public policy in New Jersey is for joint legal custody. It's very rare that we have a situation where someone gets sole legal custody. What is such a situation? Well, if one parent has been absent from the children's lives, is incarcerated and has no contact with the children by a choice of their own. Because we even know, incarcerated individuals can still maintain decision making for the children and not abdicate it. If someone has been deemed to be a neglectful parent by division of DCC and P, it used to be DIFAS, then the other parent may get sole legal custody. But the basic premise is that the parties will share joint legal custody, and that the rights of both parents should be equal in that regard.

That includes having input-That includes having input and decision making as to issues and decision making as to issues involving the health, education, and welfare, raising of that child. Again, it's the rare case where there's sole legal custody to one parent. Because as stated in NJS A9:2-4, the public policy of New Jersey is that there be frequent and continuing contact with both parties. And the public interest is to encourage parents to share rights and responsibilities of child rearing.

There's a presumption that the rights of both parents shall be equal. And that includes joint custody of both parents, legal and physical, with regard to residential arrangements. So that a child either lives solely with one parent or alternatively with each parent. Provisions for consultation between parents in making major decisions regarding health, education, and general welfare. There could be sole legal custody to one parent, with parenting time for the noncustodial parent. Or any other custody arrangement as the court deems in the child's best interest. Now there are child custody factors with regard to parenting time. And those are set forth in NJS A9:2-4. The parent's ability to agree, communicate, and cooperate with respect to raising that child. The parent's willingness to accept custody. The history of unwillingness to allow visitation. These are all factors set forth in the statute, the inter reaction and relationship of each child with the parents and siblings. Is there a history of domestic violence? What about the safety of the child, where is it best going to be manifested? The safety of either parent, from physical abuse.

Preference of a child when of a sufficient age to reason and form intelligent opinions. Many times, we see in certifications filed with the court, my child wants to live with me. He or she doesn't wanna live with the other parent. They told me that. It means nothing really if it's in a certification, it's hearsay. And the child's preferences are only one factor in 16 of the factors, as we're gonna go through. And I would always say, when I was on the bench or in my mediations, do we turn the world over to 13-year-olds? Do we always make them make our decisions for us? Just because they may prefer to spend more time with one parent or no time with the other parent, doesn't mean that's what the court has to do. Children can be very manipulative. If you've raised teenagers, you know that. If one parent disciplines them tomorrow, they wanna go see the other parent. Then that parent disciplines them, oh, they don't wanna spend time with that parent anymore.

Now I will, when custody is disputed, conduct interviews of children in my courtroom if they're of sufficient age. It's done in camera. There's nobody else in the courtroom, other than me and my court clerk who is recording the proceedings, my Sheriff's officer and potentially maybe a law clerk. Nobody else, and I will ask various questions. I never ask them the question, who do you wanna live with? No, I'm not gonna put the child in the middle of that. But I will say, what do you like to do with your father? What do you like to do with your mother? What do you like about your father? What do you like about your mother? What don't you like about your father? What don't you like about your mother? Who helps you with your homework? If you have an important decision to make, who do you go to? So, we ask various questions of the children. And I don't go behind the bench because they're intimidated by that, I don't wear my robe. I will sit at council table, next to them right across from them. So, they're not afraid. They'd rather get a root canal than spend any time in court talking to a judge.

All right, I digressed a little bit when I talked about the preference of the child. When of sufficient age to reason and form an intelligent opinion, we also look at the needs of the child. Stability of the home environment, quality and continuity of education, fitness of the parents, geographical proximity of the homes. The extent and quality of time with the child prior to or after separation. The parents' employment responsibilities are very important. And the age and number of children. What might be a good parenting time plan for a child who's 15 might not be a good parenting time plan for a child who's 15 months. But the law's moving more and more towards equal time-sharing responsibilities. Again, dependent upon the parties' schedules and where they're located and all these other factors. A big factor is availability. If one parent works 70 hours a week, outside of the home, well that parent might not be available other than extended weekends. We try to put a parenting time plan in place that makes sense for the parties but most importantly, for the children. And there are custody experts, child psychology experts, who become involved in this. And there are classic time-sharing plans. But these, of course, are always with the best interests of the children in mind.

The worst cases in my court are those involving custody parenting time disputes. Especially relocation disputes where maybe one parent wants to relocate to another state. Those are extremely, extremely difficult cases and the ones that keep you up at night. All right, so now we have a custody parenting time schedule. We have named the parents as joint legal custodians. We have whether there's gonna be a parent of primary residence, which the law's moving away from. And a parenting time schedule in place. So now let's talk about the financial issues. Well obviously, one of the biggest financial issues in each case is alimony. And there are different types of alimony. We start with four basic types of alimony, open durational, reimbursement, rehabilitative, and limited duration. Now you notice, I didn't say permanent. Because in June of 2014, the New Jersey legislature did away with the term of permanent alimony after conducting lengthy, lengthy hearings on it. Including horror shows in which individuals were 85 years old and still paying permanent alimony.

And now I'm gonna explain to you the differences of these forms of alimony. As we said, there are four specific types of alimony that can be granted, open durational, rehabilitative, limited durational and reimbursement. The differences are as follows. Open durational, formally known as permanent, is basically a marriage of 20 years or more. And the payor's obligation generally ends at the presumed social security retirement age. And we have the social security retirement ages, the court take judicial notice of it. But there must actually be actual retirement, and it requires court approval unless the parties in their marital settlement agreement have set forth differently. So, it either requires court approval or consent, presumed social security age, and actual retirement.

Limited durational alimony is for a limited term, just as we state here. The court must consider the time it would reasonably take to improve the earning capacity to a level where limited duration alimony is no longer appropriate. It could be modified by amount, if changed circumstances, but not generally the term. In other words, if it's limited durational alimony for seven years, the party receiving the alimony can't come back to court and say, well I want 10 years now. And nor can the party paying the alimony say, well, I want it down to five years. Rehabilitative alimony must have a plan which shows the scope of the rehabilitation, the steps to be taken. The timeframe, including the period of employment during the rehabilitation period. And it can be modified based on changed circumstances, or the non-occurrence of circumstances the court found would occur at the time of the award. Reimbursement alimony, that's unusual. That's awarded when the circumstances show one party supported the other through advanced education. And that's non-modified.

Let me give you an example. Husband goes to medical school; wife works her butt off. Support pays the expenses for the family. Helps raise the children. Helps pay for medical school. All of a sudden, three years into to the marriage after the husband has his medical degree, he's starting to do well. Now he has an affair with Nancy Nurse. Well, the court then considers the fact that the wife, I'm being sexist here, I don't mean to. I should say the payor, or the payee in this case. Put her life on hold, her career on hold. And helped pay for, did pay for and support, the husband's medical degree or law degree or any other degree you wanna say. So, the court in that case, equitably rewards that individual for putting their career on hold and supporting the other party through their advanced education.

What is the correct limited duration alimony term? Listen, there have been formulas that are used. The trial judge cannot use formulas. But generally, as the length of the marriage goes up, it's not 20 years, but it's 17 years and there's been economic dependence throughout that marriage, individuals, and families, they can have a division of labor. We see this many times. One party is the breadwinner, goes out to work. The other party becomes the homemaker, raises the children for a certain period of time. Of course, we also see obviously with expenses, two income families with nannies. But in general, if you have a marriage which is not an open durational of 20 years but 15 years or so. Well, the limited duration alimony term is going to be a lot longer than if it was a seven year marriage and not as much economic dependency throughout the marriage.

So basically, like we said, the court has to really look at when they believe the time it would reasonably take to improve the earning capacity of the payee to a level where the limited durational alimony is no longer appropriate. Now we could do a whole seminar on changed circumstances, called Lepus rights, and we're not gonna get into that. That happens many times post-judgment when circumstances change. People lose their jobs, they get demoted, they get promoted. They get equity compensation, deferred compensation. They get equity compensation, deferred compensation. Those things are all for another seminar. The alimony factors are set forth in NJS 2A:34-23. And basically, we're gonna go through those factors, but the considerations really are marital lifestyle. Which is how the parties actually lived throughout the marriage. The case law of Cruz versus Cruz is very important. And it states that both parties should be able to reasonably maintain a comparable standard of living, as they enjoyed during the marriage once they are divorced. We're seeing more and more language saying that the parties understand that they cannot maintain a lifestyle reasonably comparable to that while they were married, since they're in two separate households. But they accept the alimony award anyway.

The needs of the payee. What are the actual needs of the payees? The ability of the payor to pay. Listen, it's very, very difficult now with individuals being in two separate households. Before, there was one set of marital expenses. Now there are two sets of housing expenses. But the alimony factors as set forth in the statute. There are 14 factors. And those are the actual need and ability of the parties to pay. The duration of the marriage or civil union. The age, physical and emotional health of the parties is very important. Individuals, as we know, have prime wage-earning years. Physical health is very important, limitations that individuals may have. The standard of living established and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard than the other. This is what we were talking about before. We try to have an equitable alimony award. Many cases there just is not enough money to go around. In that case, the job of the trial judge or the mediator is to have each party suffer equally. In other words, we understand, payor, obligor, that this is going, this payment of alimony is gonna mean there's less money available for your expenses. Payee, we understand that there may not be enough money here for your expenses to be paid. And we're gonna try to do the best we can to allocate the risk fairly and equally. And then there is also child support and extra expenses that come into the mix.

Determining the actual income, we could do a whole other course in that. If there is a business involved, forensic accountants might have to be hired to determine the true cashflow of that business. It may be a cash business, a pizzeria, a restaurant. Although there's less and less cash, and more and more dividend credit cards being used. But eventually when the forensic accountants come in, and we look at the case information statements which sets forth the expenses of the parties, we get a pretty good idea of the income that's coming into that household. And like I would always tell individuals when I was on the bench, maybe now I don't know exactly how much you're earning. But if you say that the expenses of the household are $10,000 a month, net, and you have no credit card debt. I know you have to be making at least 120 and then we gross it up for taxes. So at least 150. So you can't put on your case information statement that you only earn $50,000 a year. It doesn't make sense. And if I can't figure this out, well, then the IRS is gonna tell me exactly what you're earning. And they'll probably know it better than you.

All right, so we're also gonna consider the earning capacities, educational levels, vocational skills, and employability of the parties. We also see another area of experts when there are employment experts, known as vocational counselors, who will report if they believe someone's voluntarily unemployed or underemployed, on what they believe the true earning capacity of that individual is. And the case law says that the court can impute an income to a party, whether that's their actual income or not. That's for purposes of alimony, and it's for purposes of child support. Now some people have been absent from the job market. For instance, they've been a homemaker. They were disabled and now they're okay. And we have to consider that. The parental responsibilities for the children, that has to be considered. The time and expense necessary to require sufficient education and training to enable the party seeking maintenance to find appropriate employment. The availability for that training and the opportunity for future acquisitions of capital assets and income. The history of financial and non-financial contributions to the marriage or civil union by each party. And including contributions to the care and education of the children, and interruption of personal careers or educational opportunities. Equitable distribution ordered goes hand in hand with alimony. And any payouts of equitable distribution directly or indirectly out of current expenses out of current income to the extent the contribution is reasonable, just, and fair. The income available to each party through investments of assets held by that party.

There's a case, Miller v. Miller, over be over be, where we can impute within reason investment income to a party. The tax treatment and consequences to both the party of the alimony ward, including whether all or part of its non-taxable. The nature, amount, and length of pendente lite support paid, if any. That's a support that's paid while the case is pending before trial. And if the case is taking longer and longer to get to trial, if somebody's been paying support for three years on a marriage that's five years long, that could be it, that's it. Other factors the court may deem relevant. The statute says the court shall assess in writing all the factors in its award and be specific in its finding. Including if one factor is elevated above the other in terms of importance.

So, we've talked about the length of alimony. If the marriage is less than 20 years, the term shall not exceed the length of the marriage unless they're exceptional circumstances. Which are the party's ages, the degree and duration of dependency, chronic illness, or health conditions. Whether a spouse gave up a career or opportunity or supported the other's career. Disproportionate equitable distribution, impact of marriage on either party's ability to become self-supporting, tax consequences, et cetera. So those alimony factors that we set above will be considered and additionally, the impact of the need for separate residents, the increase in living expenses of both parties. And its effect on their attaining reasonably comparable standard of living they enjoyed during the marriage or civil union. And the fact that each party has equal rights to that standard of living.

All right, we talked about alimony child support. We need to consider the income of the parties, the parenting time, the parent of primary residence and the parent of alternate residence, which are set forth in the child support guidelines. So, if the net income of the parties is less than 1,872, we use child support guidelines. It's a program, a computer program, it spits everything out. We put in the parenting time, the income, who contributes to the health insurance. There's an incremental cost for the children that that parent gets credit for. Reasonable and necessary childcare. And court ordered expenses if they have another child where there's a court order obligation. Now in if the parties are making more than $187,200 net, that's considered a high-income case. And we looked at the child support factors as set forth in NJSA 2A:34-23A. Additional need and ability of parties to pay. The standard of living and economic circumstances of each parent. All sources of income and assets. The earning ability of each parent, including their educational background, training, employment skills, work experience, custodial responsibilities, and the cost of providing care and cost to obtain work training. The need and capacity of the child for education. The age and health of each parent and child, the income assets and earning ability of that child. And the responsibility to parents for court ordered support of others, as we've indicated. Reasonable debts of each child and parent, and any other factor the court deems relevant. Again, these factors are to be used in high income cases where the child support guidelines are not applicable, whereas the net income is over $187,200 the combined income.

All right, now we're gonna deal with the last aspect of this seminar, which is equitable distribution. And what we're trying to determine are the assets and the liabilities that the parties have acquired during the term of the marriage. The term of the marriage is deemed to be from the date of marriage to the date the complaint is filed. That's the general rule. Sometimes if there's a lengthy separation combined with some activities by the parties, for instance, mediation, division of assets or written agreement, we could go to the date of separation. But in general, we're talking about what's acquired during the marriage from the date of marriage to the date of complaint. So, we're looking at all different assets, real estate, savings, checking accounts, CDs, stocks, stock options, bonds, automobiles, pensions, 401ks, IRAs, personal property. We're looking at debts, mortgage on the house, rent, automobile financing or leasing, long term loans, student loans, business loans, credit cards.

Now just as we have factors with regard to alimony and child support, we have factors of equitable distribution. And really, the most important job that an attorney will have with regard to equitable distribution is just identifying what's in the marital pot. The case of Rothman V Rothman talks about this. The trial judge's job is to identify the assets that are in the marital pot, have them valued. If it's real estate, appraisals. If it's retirement accounts, there are pension appraisers out there. And then divide it fairly.

So, what are the factors the courts look at, in making an award of equitable distribution? They're set forth at NJSA 2A:34-23.1. The duration of the marriage, the age of physical and emotional health of the parties. The income or property brought to the marriage by each party. In other words, there may be premarital assets. Is very important if you you're asserting that you have a premarital asset, you have to prove that exemption by showing what was put in, where you had that asset, and you segregated it and you didn't co-mingle it during the course of the marriage.

The standard of living established during the marriage, any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution. The economic circumstances of each party at the time division of property becomes effective. The income and earning capacity of each party, including educational background, training, employment, work experience, length of absence from the job market. Custodial responsibility for children, and the time and expense to enable that party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. Contribution by each party to the education, training or earning power of the other. Contribution of each party to the acquisition, dissipation, preservation, depreciation, or appreciation in the amount of value of the marital property, as well as the contribution of a party as a homemaker. The tax consequences of the proposed distribution to each. Present value of the property. The need of a parent who has physical custody of a child to own or occupy the marital residence. And to use their own the household effects. The debts and liabilities of the parties. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children. I specifically use that factor with regard to athletes who may have a huge signing bonus, or only a particular period of time that they're going to make that type of income. Any other factors which the court may deem relevant. So basically, what we're looking at is equitable considerations.

Now equitable does not mean equal. I think there is a misconception that equitable automatically means equal. But that depends on how we analyze those factors. In general, if it's a long-term marriage and the asset's been acquired during the marriage, if it's a piece of real estate say, it's generally gonna be on a 50/50 basis. But that's not cast in stone. We have to look at all these factors. Every case is case sensitive. We have to look at the statutory factors, evaluate those. Make the call accordingly as a trial judge or a mediator. And as an attorney, also make recommendations to your client.

That concludes my comments here. I hope that you've learned some things from this nuts-and-bolts seminar. And again, each individual topic can have its own seminar on it. Thank you, stay well. Have a great day.

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1h 07s

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