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Fundamentals of New Jersey Family Law

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Fundamentals of New Jersey Family Law

This course will provide a broad overview of the practice of family law in New Jersey. This course will begin with a review of where cases are heard and how they are docketed, including how to file pleadings. We will then take a deep dive into the different causes of actions in New Jersey, including no-fault, fault-based, and annulment. This course will also review procedures of non-dissolution, key matrimonial issues, and key concepts of custody.

Transcript

Good morning. Thank you for joining us today for the fundamentals of New Jersey family law. My name is James DeStefano. I'm an attorney at Einhorn, Barbarito Frost and Botwinick. Our offices are located in Denville, new Jersey. I've been practicing family law exclusively for the last 12 years. Prior to joining the firm 12 years ago, I was a law clerk to the Honorable Robert J. Gilson. And he. And he was sitting in the family part in Sussex County. And my name is Angelica Mercado. I am an associate at the law firm of Einhorn, Barbarito, Frost and Botwinick, and my practice is dedicated exclusively to family law. Prior to joining the firm, I was a law clerk for the Honorable John p McDonald in Somerset County Family Court, where we handled exclusively matrimonial matters. Today, we're going to be talking about various issues that arise in family park cases. We are going to go through some procedural topics as well as a number of substantive topics, so that you have the fundamentals necessary in the event you have a family matter in your practice. First, we're going to start with an overview of the new Jersey judiciary. There are 12 superior courts in each of New Jersey's 21 counties, and each Superior Court has a family part that adjudicates, the family part matters and family law matters. Family part cases are broken down by docket. And as you'll see on this first slide, we've listed all of the dockets that you may see in a family part matter. Those dockets that are most common are the food docket non dissolution docket which is three down. And that docket is for non married couples that will have custody parenting time, child support and sometimes even spousal support issues. Those are non divorce situations. The other major docket that you'll have experience with or you'll encounter is the docket which is fourth from the bottom. And that's the dissolution docket or divorce docket. This is where you'll be filed. This is the docket under which you'll be filing a complaint for divorce or an answering counterclaim for divorce. A few of the other major dockets that you'll experience in your practice will. Will include, but not be limited to, the adoption docket, which is the docket at the top, as well as the docket, which is the domestic violence docket. And the domestic violence docket includes applications for temporary restraining orders and final restraining order hearings. Jurisdiction is an important concept in a matrimonial family law matter and. Jurisdiction refers to whether a court has the authority to make decisions about the issues in the case. So for our purposes, we're asking ourselves, does the State of New Jersey have the jurisdiction or authority to make decisions about these family issues that are before it? When it comes to a divorce complaint? New Jersey has jurisdiction, provided that either spouse was a resident of the state of New Jersey for at least one year prior to filing their complaint for divorce. There is one exception to that, and that's in the event that you file a, um, a complaint for divorce based on the fault based claim of adultery. In that situation, there is no residency requirement. Um, when it comes to jurisdiction over children, typically when you're looking at an D matter and there's a child custody matter. Uh. Jurisdiction will be governed by the Uniform Child Custody and Enforcement Act, which is Njsa two and 3465. The statute is set forth in this second slide. Once jurisdiction is determined we're going to go. The next question becomes what's the appropriate venue? And venue refers to which county in the state is appropriate to bring your action. From divorce matters. Rule 5171 governs. You'll file a complaint for divorce based on the county in which the plaintiff was domiciled, when the cause of action arose. If the plaintiff is not domiciled in new Jersey. Or in a county in new Jersey when the cause of action arises. You'll file in the county in which the defendant resides. So, for example, if you represent a client. Who lives in Florida, but they recently moved there and their spouse remains in new Jersey. And that spouse has lived in new Jersey for over a year, and that's where they previously resided together. You're going to look at the county in which that spouse resides in order to file your complaint for divorce. With respect to child custody matters and matters. You're going to look to rule five colon 2-1. And that rule governs actions primarily involving support of a child or custody of a child, which requires that your that your action be brought in the county in which the child is domiciled. We're now going to speak a little bit about the pleadings and the process in filing in the docket for a divorce. So you'll initially file a complaint for divorce under an FM docket in the county in which the plaintiff resides or is domiciled, or the defendant. As we just discussed, the complaint for divorce is an important document that must set forth all of the jurisdictional and venue requirements, as well as your cause of action, which we will get into momentarily. New Jersey is a notice pleading state. So after you set forth the the cause of action and all of the requirements for the complaint, you're also going to provide in the section the where the wherefore clause is, where you're going to be, the information that you put there is what you're asking the court to do for your client, whether it's award alimony to equitably distribute assets to address the issues of custody and parenting, time to address child support, college contribution, etcetera. So all of those claims and prayers for relief will be set forth also in your complaint for divorce. Once you serve your complaint for divorce on the other side, your the other side will have 35 days from the date of service to file their responsive pleadings. The responsive pleadings can vary. You could file an answer just responding to the complaint. You could file an answering counterclaim, which sets forth a counterclaim for divorce for your client. You could file a general appearance. As a practice tip, we recommend that you file an answer and counterclaim. And that's because if for whatever reason, the plaintiff in the matter, the first party that files chooses to dismiss their pleadings, you have the counterclaim on which to proceed and continue the case. If you file only an answer, and the plaintiff chooses at any point during the litigation to dismiss their pleadings, the case will be dismissed and there will be no other pleadings for which the court could permit the case to continue on. So even if you're on the eve of trial, the plaintiff could theoretically dismiss their pleadings and with only an answer having been filed, your client's going to have to start the process all over again. And that's not something that you want for your client, especially in this environment, when cases are taking longer to either resolve or to have a trial heard. After an answer and counterclaim is filed the initial filing party, the plaintiff will have 20 days from the date of service to answer the counterclaim for divorce. So three pleadings. Initial complaint, answering counterclaim or other responsive pleading, and the answer to counterclaim if filed. Now, it's important to make sure that when you are prepping a plating all causes of action that you in fact want to raise or may want to raise are set forth in your initial complaint or counterclaim. The reason being is public policy. Who does not does not favor piecemeal litigation in new Jersey. The courts generally, and in theory, it doesn't really play out in practice. Oh. Hope to resolve a divorce matter, a matrimonial matter within one year. Piecemeal litigation would not would not support this objective. Moreover. Single controversy. The single controversy doctrine, which is an equitable principle that requires litigants to assert all affirmative claims in. In a pleading would would theoretically preclude a litigant from raising a related claim arising out of that matter in controversy later down the road. Now, in practice, the court rules do permit an amended a litigant to amend pleadings, but the effect of this is prolonging the litigation. When all of these claims could be set forth in the initial complaint or counterclaim. And a point on that is, if you do have to amend your your complaint or your your counterclaim for divorce, do it as soon as possible. The sooner you do it in the litigation, the more likely you are to have the court allow that amendment to to take place. The further down the road you are in the litigation, the more difficult it may be to show the court why and prove your burden as to why that that pleading should be permitted to be amended. Yes. The standard for amending a pleading is essentially good, cause the sooner you, the sooner you attempt to amend a pleading, the more the more reasonable your showing of good cause appears to the court as the the necessity of amending that pleading arose sooner in the litigation. Now when? When we say that you should include all causes of action in the initial pleading, we're referring to fault based, know no fault and annulment based causes of action for divorce. A no fault divorce is the most common cause of action for matrimonial proceeding. That's irreconcilable differences. No fault means that your client does not have to prove wrongdoing in order to achieve their divorce. Fault based causes of action will refer to adultery, desertion, extreme cruelty, separation, and the other examples listed on the slide. Now with the reconcilable differences, the court is looking at it from a subjective point of view. Whether your client believes that the marriage is irretrievably broken, not from a reasonable person or an objective point of view, which is why that's a no fault cause of action. And as a practice tip, even if your client wants to move forward with their divorce on a fault based cause of action and wants to prove adultery or extreme cruelty, or one of those one of those bases for divorce, always file. An additional count for irreconcilable differences. The burden for demonstrating irreconcilable difference is much, much lower than the burden of proving one of the fault based courses of action. If a no fault based cause of action is not included. The court has the ability to deny the divorce if the if the statutory requirement to prove the fault based cause of action are not met. Annulments have a much higher burden than than dissolution. Causes of action. The reason being that. If an annulment is granted, the court deems the marriage to have never existed. So if your client wants to move forward with a cause of action based on annulment, also include a dissolution based cause of action, such as irreconcilable differences in case the standards for annulment cannot be met. Another cause of action that you may often see is a Tevis claim, which is a civil claim, which is a civil based cause of action seeking seeking civil damages arising out of a marital tort. Tevis claims assert a claim of injury, including but not limited to physical injury, battery, intentional infliction of emotional distress, or false false imprisonment by way of example. The Tavis claims are included in the matrimonial action under the the court's ancillary jurisdiction and under the similar controversy doctrine. The marital tort arises out of that marital relationship. So again, in its efforts to avoid piecemeal litigation, the court wants this marital tort civil claim for damages pled with all causes of action for the dissolution of the marriage. Once the pleadings have been filed in your case and the answer has been filed, the next step in your matter will be for the court to issue notices for what's called a case management conference. This will be the first event in the The Family part matter, where you'll go to court or have a zoom meeting with either the judge or court staff, during which time you'll go over a number of different scheduling issues. The court will go over scheduling when case information statements will be filed. When discovery should be prepared and propounded. When answers will be due. The court will also go over the different experts that may be required in your specific matter. So many. There are many different types of experts that you may encounter during your career practicing family law. Some of the most common examples of experts that you may encounter and work with are certified financial planners and forensic accountants. You may deal with custody experts. You'll have real estate that needs to be appraised, so you'll have real estate appraisal companies involved in certain instances. There may be times where there's personal property like collections, wine collections, coin collections, sports memorabilia. There are certain companies that provide values for those types of assets. Pensions. You'll see pensions are fairly often in cases. You may need to have the pension valued in order to get a present value to offset against other retirement assets, or against other assets that the parties may wish to offset the pension against. In addition, you may encounter a vocational expert. A vocational expert is an expert who will evaluate a litigant, and one of the reasons they may evaluate the litigant is because they are unemployed or underemployed, but have the background, education and experience where they can be making significant income. And that's valuable in a case where there may be an alimony component, which we'll get into later on in our presentation. But these are various different types of experts that you'll. You may see in your case, and which the court will provide you dates upon which their reports will be due. So it's important to understand before this case management conference, what issues are in your case. Is there a child custody issue, and if so, have some experts in mind that you may have reached out to already, or that you will immediately reach out to to find out availability and ability to meet the court's required timelines? Same thing for financial experts. If there's a valuation issue, if there's a business and you're going to need a forensic accountant to come in and provide valuation services, you want to know who you may be going with. Have one, two, three firms that you've maybe worked with in the past. Get an understanding of what their timelines are, what their work looks like, so that you'll be able to meet the court's requirements. Now, and I'll add that this is important because when the court issues its case management order resulting from the case management conference, it will set your case on a track. And that track is directly dependent on the nature of the issues in play. In your case, contentious child custody issues are going to be put on, are likely to be put on an expedited track because the court is guided by the best interests of the child, and the court deems the expedited resolution of custody matters to be in the best interest of the child, as we'll discuss later on in the presentation. Similarly, complex business valuations and cases will likely prolong the track of the court's case management and discovery process because the nature of the discovery requires more time and more more expertise in order to to arrive at any factual findings. Exactly. So understanding your case prior to this case management conference, and not knowing every fact, but knowing what issues are going to be addressed and are going to be up for discussion, is important so that you can tell the court what track it should be on. In your opinion, what kind of deadlines are reasonable? You don't want to set artificial deadlines in your discovery that will not be able to be met, because then you're going to be in violation of an order unless you get it amended by the court. And to make sure that all of the experts you may need are set forth in the case management order, you could also practice. Tip for a case management order is to include the right to have a rebuttal expert. So if there's going to be an expert, maybe a joint expert. That's going to value some business. You may want to reserve your right to have your own expert retained thereafter. If you think that after reviewing the joint experts report that something is completely off, you may need the right to go back and have somebody else value the business to say, hey, look, this was wrong or this was off, and this is what an appropriate value for this business might be. So always retain the right for rebuttals. Now in the middle of the slide you'll see the case information statement. This it's in bold. It's in bold because the case information statement is probably the most important document in any family part matter. It's a very extensive document which sets forth three main types of information income, information, assets and liabilities, and the family's budget. And we're going to go through what a case information statement looks like because it's extremely important. On this slide you'll see the first two pages of a blank case information statement. The first page sets forth a lot of data regarding the family. You'll put in dates of the marriage, dates of the parties, dates of birth, date of complaint, the issues on the right side, top right of the first page. There's the issues in dispute. You'll check those off. There's another box there that says other issues. There will be times that there will be other issues. For example, there may be a dissipation claim, which we'll get into later. You'll want to make sure that you include those types of issues that don't fall neatly into one of these categories in that other issue area. Um, this. The rest of the information on page one is fairly self-explanatory. On page two is where we start getting into the income information. Now, the case information statement will require you to input your client's income data three different ways. This first way where it says number one is last year's income. So using either last year's W-2 or income tax returns, you'll include the parties income for the prior year the prior full calendar year. The second way you'll look at it is more of a current, present earned income type situation where you're going to be looking at the average gross weekly income, less the average weekly deductions to get a net average weekly income. Now, in most instances, your client is not going to be paid on a weekly basis. Most commonly, you'll see clients pay it on either a bi weekly or bi monthly basis, meaning either 26 pay periods a year, bi weekly, or 24 pay periods a year bi monthly. So that's going to require you to calculate what the actual weekly gross amount is, what the actual weekly average deductions are, and what the net average weekly income will come out to be. And for this box, you're looking at your your client's last three pay periods. The third way that your client's income is going to be analyzed and looked at by the court is based on a year to date. And that's on page three here. So you'll take your client's most recent pay stub. You'll include your client's year to date gross income on the top, the dates from which you have the income. So January 1st. To whatever date it is now. Sometimes you may see a pay stub that starts December 28th of the prior year, but it runs into the new year, so you'll have to be careful with that. But make sure you've talked to your client so that you get that first. You know you have an understanding of when the pay year actually starts, and then you're just going to fill in the year to date tax deductions, state and federal. You'll you'll also include the year to date other deductions, which are most commonly medical insurance, life insurance 401 K contributions. Sometimes you'll see IRA contributions um, rare. Do I see charitable contributions coming directly out of a pay stub? But I've seen it on on a handful of occasions, so be mindful of that. There's also certain deductions that you may see that you'll want to include, including flex spending. So if your client is contributing to a flexible savings account for payment of medical expenses that may be on their on their pay stub, and you'll want to include it maybe as an other if it doesn't fall neatly into another box, actually it may fall into medical reimbursement. Flex fund. There it is. Okay, so you'll include all of that. And generally you'll have a program for the which will come up with the numbers that will come here. And what you want to do once you have these numbers is go back and look at the weekly average income to make sure that the numbers are close to each other. Right. So there may be times during the year that the income numbers on the present earned income average on the second way are a little bit different than what you what you get here on the third way that you're going to be showing the income. And that may be for a number of reasons, including if your client is a high earner, maybe they've already paid all of their required tax deductions, etcetera. So or maybe they're no longer contributing to a flex plan. So you'll want to look at look at that just to make sure that it makes sense because the court is going to look at that kind of stuff. And if they see a significant deviation, they're going to be they're going to be a red flag and they're going to say, hey, why is why is that the case? The next page that you see on the other side. Here is the additional information. Those are self-explanatory boxes. The next page that we just went onto is the budget page. I'll add as to on to page. The fourth page. Additional information. This. This part of the form provides you and your client an opportunity to put in words your explanation of income, particularly when you're dealing with non W-2 wage earners. This this allows a litigant to to really tell the court, in their own words, what the sources of income are, why there may be discrepancies between among one of the three ways that they show their income according to their pay stubs, W-2 and tax forms. It also allows you to put forth any support obligations that you might have. If you have physical assets in a safe deposit box, it's important to disclose in this information. And I'll also note that this form is testimony to the court you're certifying to the court. So this information. So the more details that can be added to contextualize the numbers that are put in the boxes throughout the form, the easier it is for your client to to demonstrate credibility as to their factual assertions. The next two pages of the case information statement are the family's monthly expenses or monthly budget, and you'll see that there are three categories. Schedule A, which are the shelter expenses. Towards the bottom of this page. Schedule B is the transportation expenses, and on the next page schedule C, which is personal expenses. You'll also note that the case information statement is broken down into various categories. And then you have two columns the Joint Lifestyle column and the current lifestyle column. You'll want to use the Joint Lifestyle column when you're coming up with what the marital lifestyle was, what when there was an intact family, you're looking at their budget. What was it? Sometimes the family remains intact during part of their divorce. For example, if complaint is filed and the answer and counterclaim is filed but everyone is still living under the same roof, you may not have a current lifestyle because everyone is still living together and all of the expenses remain remain the same. Everyone's maintained the financial status quo, which is what the law requires. No one's paying support to the other. So, you know, maybe the parties are still using the same credit cards, same joint checking account, etcetera, etcetera. So you'll only fill out that one column at that point. If you have separate living arrangements, you'll definitely need to fill out this second column. It's important when you're going through the different expenses to challenge your client on them. Ask your client, where did you get this information? How did you come up with these numbers and make sure they seem reasonable and rational in light of the family's income? Because at the very bottom of this schedule of expenses, you'll see that there will be subtotals, and then there will be a grand total. And that will set forth what the family's net monthly budget is. So why is that important? What you need to do. It's important because. If the family's net budget, for example, is $10,000 a month net, but the family doesn't net $10,000 a month in income, well, that's going to set off a red flag to the judge. And the judge is going to ask himself or herself, hey, why is it that this budget is higher than their income? How are they paying these expenses? And there may be a reason there may be debt, they may have a HELOC that they're using. There may be other maybe they they had a savings account that they've now diminished and no longer exists. Or maybe the expenses are inflated. And that goes to your client's credibility or the court. It may raise a red flag to the court as it relates to income. Is there cash that's not reported? Is there are there other sources of income that this person or these parties are not disclosing? Are there expenses that are run through a business? So if the net income and the net expenses are in close, and there's no real explanation as to why there's a variance that's going to raise a red flag to the court, and you're going to have to explain what that difference is. So be mindful of that as you go through it. Now, the last section of the case information statement is the assets and liabilities pages. And on the left side, you'll list all of your client's various assets, their values. And if there's an exemption, you'll note that here you'll also list on the next page the debts and liabilities of the family, the amount that is total that is owed, and whose name it's in for both pages. Actually, you'll you'll list whether it's in joint names or in a party's individual name, whether it's an asset or a liability. And you'll want to make sure you have current values. Now after the conclusion of the discovery period. The reality is that a case isn't automatically scheduled for trial. There aren't enough judges. There's not enough time in a calendar year. The vast majority of cases will settle before ever seeing the inside of a courtroom. For the number of practical reasons for that one, it's very expensive to try a case and and two, the courts do not have the bandwidth to try 100% of matrimonial matters. The number I often hear thrown around is less than 5% of cases actually go to trial. So the court rules set forth a number of different mechanisms for trying to settle this case before having to schedule it for a trial date. Rule five colon 5-5 sets forth the rules for early settlement program. The ESP is a is a court run program in which volunteer attorneys, volunteer, seasoned attorneys sit on a panel and assess the case that's brought before them. They look at the facts, they consider laws, the law, and they make a recommendation for settlement to the parties. This is not an optional program to participate in. If a case is not settling, parties are required to participate in the ISP and run the risk of having their proceedings dismissed if they fail to participate. If the parties do not accept the recommendation or settle following GSP, then under rule five colon five six they must attend a post GSP economic mediation. To, to attempt to resolve the economic issues that would include alimony, equitable distribution, etcetera. I'll also add that under rule five colon 8-1, which is not on this slide, the court must refer cases to mediation when the custody of the children or parenting time issues are in dispute. This doesn't necessarily happen after the close of the discovery period, which is why it's not on this slide. But absent a domestic violence restraining order, all parties are required to attend custody mediation if they if they haven't reached a resolution as to custody and parenting time. And generally that custody and parenting time mediation happens fairly early in your case. So if custody and parenting time are in dispute, be mindful that this is coming down down the road very quickly. So you need to have a conversation with your client about custody and parenting time issues immediately to get to assess whether it will be able to be resolved during mediation or not. Correct. The courts also require as the as to the the custody mediation resolution, the parties to exchange and submit to the court's custody and parenting time plans with their proposals for custody and parenting time arrangements. The. The courts do not do not hinge the economic and custody issues upon one another. The courts, the courts, in fact, schedule the child and child custody mediation early on because it is a higher priority issue. As referenced earlier, when we discuss how contentious custody cases get tend to put on an expedited track. Now if custody issues do not settle, this is all. This also becomes a subject of ESP and post discovery mediation. If post ESP economic mediation doesn't result in a settlement, the court then requires the parties and counsel to attend an intensive settlement conference. During the pandemic, these these were traditionally these were not held in courts. But there's a tendency to for the judges to now bring clients and litigate and attorneys back into the courthouse to, to compel resolution, to compel settlement. With the guidance of the judge, the ICC is is essentially an in court mediation where the parties are forced to sit down and speak to one another, and with the judge guiding the conversation towards resolution. The interesting about the the interesting thing about the intensive settlement conference is now that they're going back to the courthouse and prior to the pandemic was that it was a good way to bring the parties together to try to settle their case for a number of different reasons. One, you're there, so you have to talk. You're there all day. So you tell your client, look, we're going to be here all day long. The judge is going to get us there at 830. We're going to be there till four. We'll go in and out. The judge will have some conversations with you, but not a lot. And it's usually with with attorneys in chambers. Um, but also the court knows that these parties are taking off time from work, so they're potentially losing out on income. They're now paying attorneys to be there all day long. So it does kind of push people to take it seriously, or else it's an expensive endeavor, endeavor for you not to be taking it seriously. Um, so the hope there is that after 1 to 3 intensive settlement conferences, you've at a minimum narrowed the issues that may need to be tried or optimistically. You've now settled all your issues because you realize how expensive it's going to be if you have to go to trial. And I'll also add that in terms of your relationship with your client, when when you consult with clients about their matrimonial matters, you'll often hear that clients want their day in court. They want the judge to hear their problems, to hear their qualms, to hear why this marriage needs to be resolved. This doesn't necessarily require a trial, because the ISC provides parties and counsel an opportunity to go into the courtroom, to go into the courthouse, to have the to have the judge. Make make surface level opinions and recommendations without a formal trial being scheduled. So as as a client, as a litigant, you do effectively get a day in court, an opportunity to be heard by a judge without the necessity of a matter proceeding to trial. And if, unfortunately, the case doesn't settle at that juncture, the court will schedule trial dates. And it's important to note for client management purposes that trial dates are generally scheduled far out. So it's not going to be, you know, the following week from your Isa. It's going to be months before you get to go back to the courthouse for trial. There's a likelihood that the court may require you to go back to mediation in between your ISP and trial, and the likelihood that you're not going to get consecutive trial dates. And the importance of that is you may get 1 or 2 trial dates a month at various times non-consecutive. And that also becomes expensive for your client, because now they're paying you to prepare and to debrief the case each time so that you have, you know, every single time you go back, you're going to have to relearn where you were, what you were doing, where you're going to make sure that you are on, on top of, you know, the trial strategy, which is different than if you're going back every single day. You know, it would be a little bit more consolidated and easier for you to pick up where you had left off when you have 30 or 60 days in between trial dates, that's not as easy to do. Now shifting gears to the non dissolution docket. Non dissolution docket is deals with all issues related to support and custody. While traditionally the non dissolution docket the docket. Assists and deals with matters related to Non-married couples. It's not exclusive to non married couples. So for example if a married couple needs to address custody and parenting time or or support, but is not yet ready to file a formal dissolution complaint, they can be heard in the in the non dissolution docket as it relates to the limited issues of support and custody related matters. The procedural requirements within the docket differ from those in the docket. The matrimonial docket. Because traditionally the PhD docket deals with limited issues and the PhD docket often deals with a higher, higher proportion of pro se self-represented litigants than the matrimonial docket. The the PhD docket required the a the AOC the judiciary to to find uniform processes for addressing these complaints. As we'll describe a little bit in our presentation. The the rules, the rules governing the docket tend to be a little bit more malleable than the rules governing the docket. And we're talking more procedural rules, not the substantive law as to custody and support. And because of the higher level of self-represented litigants that are filing complaints in the non dissolution docket. The the judiciary issued a form called the verified Complaint, which would allow the court to to lay out the issues or rather, allow the litigant to lay out the issues for the court in a uniform way. That allows the court to address these complaints on on an expedited basis. Notably in the in in the docket. If a. If a plaintiff files a complaint, a defendant does not need to to comply with responsive pleading deadlines in order to have their day in court. Again, public policy reasons. For public policy reasons, everybody has their day in court, should have their day in court when it comes to child support related issues, child custody related issues. So on the screen you'll see the first two pages of the verified complaint. All. All parties and all all individuals appearing in the docket must use this form, even if they are represented by counsel. Again, the reason being that the looks for uniformity in how they address cases that go, that go before the docket. It lays out in very simple, straightforward terms, the information the judge will need in order to address this complaint. So as an attorney, as a practice tip, when you complete this form, you still have the opportunity to supplement this form with your traditional certifications and and filings that would support an FM application. If we look at the following two pages of the of the PhD application verified complaint. Rather, you'll see a number nine. The issues that are that are addressed within the Ph.D. docket paternity is another is a common one, but the most common are related to custody, parenting time, and child support. In the last few pages, you'll see that the court asks the litigants outright. Do you require an interpreter? Do you require any accommodations which you do not see really addressed by the court itself in the docket? Again, reason being, most self-represented litigants don't know what rights they have available to them and don't know what to ask for when when pursuing their day in court. And on the additional information sheet. That's where pro se litigant can essentially make their certification. As attorneys, we we have our own our own form of certifying or making certifications to the court as to factual assertions in a matter. But again, this application is really designed for the pro se litigant to provide the court with all the required information and everything they want to say in this initial form. Now on the docket. The courts don't don't make orders the way the same way that they do in the docket in the FM. You usually see an order drafted by the court with, with a caption drafted by the court by a judge's chambers, a written statement of reasons or a statement of reasons provided on the record. All orders use this form, which is called the Uniform Summary Support Order. And again, it just lays out in a very straightforward manner. What are the issues? Who are the children? What are the resulting support obligations? Methods of enforcement. And number 23. That's where you will see the judges written an elaborated order. More often than not, you will not see a reasoning for that order that's usually provided on the record at the hearing. Just something to note when it comes to support in the docket. Probation more often than not enforces support obligations. There are various ways that the probation department of a county can can enforce child support or spousal support, and that would be just by over oversight and supervision. You'll see in orders it's written as a support order payable through probation or through wage garnishment. Wage garnishment means that the payer never sees that money. It's deducted automatically out of their pay stub. And since probation to be distributed to the payee to the receiving spouse. All right. Now we're going to get into some some substantive law. And the first issue we're going to cover is the issue of equitable distribution. Now, it's important to note at the onset I said equitable distribution. New Jersey is an equitable distribution state. It is not an equal distribution state. In the event of a divorce, marital property is not automatically split 5050. The court is going to look at the various factors in Nyssa to a 34 dash 23.1, and will make a determination on what the court believes is a fair way to distribute assets. What is subject to equitable distribution. Marital assets that are acquired during the marriage. Inter marital gifts pre marital assets that are co-mingled or transferred into joint assets are subject to equitable distribution. Marital debt is also included in the equitable distribution analysis and credit card debt. Personal loans, student loans, lines of credit. Those are all types of debt that will be analyzed by the court and factored into an equitable distribution award. Equitable distribution is really a three step analysis. And as you may recall, when we went over the case information statement, there was a section on assets and liabilities. That's where this section really comes in handy and is really important because the first step in equitable distribution is to determine which assets are subject to equitable distribution. And I have some case law, some blurbs here for you. Now, the first one says property subject to equitable distribution includes property that was obtained during the marriage due to the efforts by either spouse. And that's that's an important consideration to be mindful of. Um, once you assert, once you're able to determine which assets are subject to equitable distribution, the next step is to determine what the value of those assets are. And there's different ways to value different assets. For example real estate you will value that using either a comparable market analysis. If that is something that both sides agree to do, or you'll use a certified real estate appraisal. Now, if you're going to be selling the marital residence or another residence or real property owned by the parties, there may not be a reason to have it appraised because the value is whatever it sells for. Same thing with businesses. You may need an expert to come in to value businesses to give you the values bank accounts, retirement accounts. Those are a little bit easier to value because you'll have account statements. So you'll be able to go through various bank records, account statements, retirement accounts statements, etcetera to determine what the value is and whether there was any sort of dissipation of assets or any withdrawals that shouldn't have been made. Um, the third step in the equitable distribution analysis is allocating those assets. And again, that goes back to the statutory factors. How does the court distribute assets? Now generally speaking the longer the marriage. The more likely it is the court is going to distribute assets on a 5050 basis. There is a rebuttable presumption that each party made a substantial financial or non-financial contribution to the acquisition of income and property while the party is married. The public policy giving rise to the Equitable Distribution Law is, at least in part, an acknowledgement that marriage is a shared enterprise, a joint undertaking that in many ways is akin to a partnership. So the philosophy of the court is, even if one party is the spouse that goes and works and is saving in their 401, K has built a business during the marriage using marital assets, money that was acquired during the marriage, even if that other party was just, you know, was staying at home, taking care of children, keeping that, maintaining the house, etcetera. Well, that's a marital enterprise both parties are doing, taking actions that are impacting and providing value to this marriage. And that's why all of those assets would be subject to equitable distribution. Now, it's important when you go through the various assets with your clients that you talk to them about what assets may be exempt or may be pre marital property. Exempt assets include assets that were acquired prior to the marriage and that were not commingled. Inheritances that were acquired either before the marriage or during the marriage, provided that those also weren't commingled or put into joint assets or into joint names. And a good another example of an asset that comes up in many divorces where there's a question on who's entitled to that asset, is the engagement ring. An engagement ring is not subject to equitable distribution. An engagement ring is looked at the courts, looked at by the courts as being a conditional gift. So once the condition is met, marriage, the ring belongs to the party receiving the ring. Okay, so that ring will now also be an exempt asset. I did provide another example at the bottom of this slide. If one party took pre-marital money and used it to purchase a residence in joint names, that money would likely lose its exempt status as it was transferred from a separate exempt asset into a joint asset owned in joint names. Now, it's not as simplistic as that, meaning the party that provided the money could argue that, you know, we did it only six months ago. It was it happened within the last few months or a few years and that it's traceable. There are equitable factors that the court is going to look into when looking at an issue like this. So perhaps. Instead of a 5050 distribution of an asset like this, a residence that was purchased using some pre-marital money. It was only purchased a few a year or two ago. The court may say, maybe we'll do a 60 over 40 split or a disproportionate distribution of that asset because, again, new Jersey is an equitable distribution state. A court is looking to fashion a fair or equitable remedy. And it may not necessarily be fair to give a party a windfall if it only happened if the marriage broke down only a few months after or a year after this transfer took place. I'll also add that. Exempt status for equitable distribution does not mean that those funds aren't available. When the court begins to analyze your ability and need for support both child and spousal support. So a good example of this is if one spouse is unemployed and received worker's compensation. Settlement. Worker's compensation settlement in new Jersey is exempt as it's intended to compensate the individual, not the marital enterprise, for. For a physical injury or whatever the base of that worker's compensation package was. Now that worker's compensation settlement can be used to determine that that spouse's need for spousal support, though separate and apart from equitable distribution. The other thing to note is that assets distributed per per equitable distribution are not intended to be later, later used in the determination of. Of spousal support and obligations. One of the things you should also be mindful of is that a court can look at exempt assets and non distributable assets when conducting their analysis of the equitable distribution issues. And what I mean by that is, if a spouse has $2 million of of exempt non marital assets that will not be distributed, that's just in their column. And the marital enterprise, the the amount that's subject to equitable distribution is only say $500,000. The court could decide instead of giving the spouse with $2 million, $250,000 or 50% of that marital amount, I'm going to give them $100,000 and give the other spouse $400,000, because although it's a disproportionate distribution, this other spouse has all this other money there in a much better, much stronger financial position. So again, really important for equitable distribution that you look through the statutory factors because there are a number of different fairness, equitable equity arguments that could be made in order to support your client's claim for either a 50/50 split of assets or to support a claim for maybe a disproportionate distribution of assets. And some of those statutory factors are set forth on this slide that the court's going to look at, which are going to, again include duration of marriage, the age and physical health of the parties, income or property brought to the marriage standard of living, any written agreements. This is what I was just talking about. Economic circumstances of the parties at the time of the distribution, the division of the property, income and earning capacity, etcetera. Now a couple of equitable distribution practice tests. Tax implications. Be mindful of taxes. Not all assets have the same tax implications. Some assets may be pre-tax assets, such as 401 K or IRAs. Other taxes may be after tax assets. You're talking about checking accounts, savings accounts, etcetera. Net proceeds from a sale of a residence. Some assets may have embedded embedded capital gains or losses. If you're not mindful of the tax ramifications when distributing assets, you may be putting your client in an unfavorable position. They may not be getting the full benefit of what you're thinking they're getting. So, for example, don't take a 401 K and offset that against your client's share of the net proceeds for the sale of the marital residence, without there being some sort of true up or tax calculation to take into account the fact that the 401 K money will be taxed at some point in the future, and the net proceeds are an after tax amount from the sale of marital residence. That's an after tax dollar. Same thing with when you're distributing investment accounts. Speak to the parties. Financial planners. Make sure that when they're distributing those assets, that one party is not taking all the you know. Great stocks and leaving the other party with the terrible stocks which have, you know, significant capital gains included. So when and if they sell them, they're the ones that are going to be taxed significantly. So make sure you're just aware of those issues. Secondly, retirement assets pension specifically there's two different types of ways to distribute a pension. There's a separate interest qualified domestic relations order. And there is a shared interest qualified domestic relations order. Now certain pensions can only be distributed by way of a shared interest qualified domestic relations order. Be mindful of that. Because if that's the case, then you're going to need to ensure that there is a survivor annuitant component to the to the negotiations so that, God forbid, the party with the pension passes prematurely. Your client doesn't lose out on their share of the of their their pension. So make sure that you're looking into that. Now if it's a separate interest qualified domestic relations order, each party is getting their own separate account essentially. So the death of the participant spouse wouldn't necessarily lead to the other spouse losing out on their right to their half or portion of the pension. Lastly, marital debt, how do you allocate marital debt? It's a little bit more difficult to allocate debt than it is to allocate assets. You could do offsets, you know, if, for example, if someone if there's $50,000 of marital debt and each party is supposed to take on $25,000, maybe one party is keeping more of the sale proceeds from a house, and the other party is taking on more of the debt. Or, for example, maybe they're using the net proceeds from the sale of the marital residence to pay off that debt and then distributing the proceeds from the sale of the residence. You could also do balance transfers on credit cards and debt consolidations. Alimony. This is another very significant topic in divorce and family law. What is alimony? Alimony is the court ordered payment of financial support from one spouse to another. And how does one ask for alimony? A spouse that seeks an alimony award should ask for it when they file their initial pleadings. You don't have to ask the amount. You don't have to say the specific duration that you're looking for, but you need to make sure that you have your client request that the court award them spousal support in their complaint or counterclaim for divorce. There are four different types of alimony. There's open duration alimony, which is for marriages that are 20 years in duration or greater. And that's a statutory right. There's limited duration alimony, and that's for marriages that are less than 20 years. And alimony in a limited duration case shall not exceed the length of the marriage except in exceptional circumstances. And then you have rehabilitative and reimbursement alimony. These are two rarer types of alimony that are not often utilized in divorce cases, but you should be mindful of them because it is a way to get your client additional relief that may help them as they are working their way through the first couple of years of their divorce. Post well. Post divorce life. Rehabilitative alimony is typically given to a spouse when they show a plan detailing the scope of the rehabilitation in order for them to earn more income in the future. And reimbursement. Alimony may be awarded when one spouse supported the other through an advanced education, anticipating participation in the fruits of their earning capacity generated by that education. And that's a non modifiable type of alimony. I'll add that open durational alimony is not to be confused with terms often thrown around permanent alimony. Open durational alimony is presumptively modifiable. Now in drafting agreements that can be circumvented with what are called anti lepis provisions, meaning that the parties specifically negotiated this alimony amount, which cannot be changed later or through the courts, in consideration for some other relief as part of the overall marital settlement. Permanent. The term permanent alimony used to be used, and that's no longer the case. Open, durational. And a lot of clients, you'll see, get confused by that concept, and you'll see clients that may come to you after they've been divorced for quite some time and say, hey, I thought I had permanent alimony, that I would get alimony forever, but my husband retired or my husband my ex-husband rather suffered a significant change in financial circumstances. Maybe for health reasons, maybe their business folded during Covid. There's a number of different reasons, but alimony, open duration, or limited duration is subject to certain termination events and is also subject to certain events that may reduce that obligation, either in duration or in amount. And we'll get into that in a slide or two. Njsa two. Colon 34. Dash 23 sets forth the law on alimony. And these are the factors on this slide that the court will consider when making an alimony award. So what's important about that is sometimes you'll hear practitioners say there's a calculation or some sort of formula that you could use to calculate alimony. In new Jersey. That is not the case. Our case law is clear that there actually is no formula. The Appellate Division has made it very clear in that respect. There is no formula. A court should not be using a formula when determining alimony. The court instead should be going through all of the statutory factors in order to arrive at a reasonable amount of support for a party. Alimony is a needs based claim. It's based on the need of the of the spouse that is not working or working in a limited capacity, and the ability of the payor spouse to pay the amount that's needed. So the court needs to balance the needs of the party versus the ability to pay of the other party. When does alimony terminate? Alimony terminates upon the death of either party. The remarriage of the recipient's spouse or the end of the agreed upon court ordered term. So if it's a ten year term, whenever that ten years runs out, that would be the court ordered term. Um. Retirement. Alimony. May. Be modified or terminated in the event of a good faith retirement, and that issue is governed by njsa to a colon 34 Dash 23, subpart J, which states as follows. There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to termination date shall not be vacated or annulled. You should be mindful of that. For retirement, you need to look at the statute carefully based on whether it's a post amended statute case or a case that was prior that came through prior to the statute being amended, because there are some nuances in the law with that in that regard. Another reason why alimony may be terminated or modified is cohabitation. In that regard, alimony may be suspended or terminated. And that's what the language of the statute says. If the payee cohabits with another person. And it's really important that you make yourself familiar with the cohabitation law, because it recently changed in the kadhali versus Kadhali decision, which I have a blurb on at the very bottom of this slide. And in that case, it's made it. The court has made it easier for the party that is seeking a finding of prima facie, a finding of cohabitation to make their make their case. If a Movants certification addresses some of the relevant factors and is supported by competent evidence, and if that evidence would warrant a finding of cohabitation. If unrebutted, the trial court should find that the Movant moving party has presented a prima facia showing of cohabitation and should grant limited discovery tailored to the issues contested in that application. So this was a very important case that recently came down, and it really helped to define what a moving parties obligation is in order to obtain discovery in a cohabitation case. And I'll add an advising your clients as to what alimony will look like for them on the receiving end and cohabitation. This means that a pay your spouse does not necessarily need to have proof that they are, that the payee spouse is, in fact, living with someone. They can show one of the other factors. The actual physical living together is not dispositive as to a prima facie showing of cohabitation, and the Kadhali decision really makes clear that that they that a movement does not need to get go through every single one, every single factor and make some showing as to every single factor which a lot of trial courts were requiring up until the issuance of the decision in the last two, three months. Right. And some of the other things that parties are able to show, which are a little bit more obvious with the help of private investigators, is, you know, parties assisting each other in chores around their house. Sometimes you'll see investigators that are able to show that the parties are traveling together, doing a deep dive on social media to show that they're holding themselves out in a committed relationship. Maybe their kids are buying the other spouse, you know, a Father's Day gift or a mother's day gift. I'm not a spouse, but a significant other, you know, showing a lot of involvement in their family activities. So whereas in the past that may have not risen to the level necessary to get discovery. Now, if you could show a couple of those things, the court will be more inclined to allow you to go to the next step, which would be additional discovery in that matter. Um, so. In both matrimonial and non dissolution matters. You'll. The most common issues you'll see are related to child custody and child support. Child. The law governing child custody is on its face simple. But the more simple a rule is, the more room for interpretation, the more room for argument on both sides of on both sides of the position. So in new Jersey and in most states, the courts are governed by by the best interests of the child when issuing determinations of custody. In new Jersey. Njsa 9.24 sets forth that there is a presumption that both parents that the child benefits from having frequent and ongoing contact with both parents. Historically, there's and culturally there are many, many believe that the a mother might have more rights by the virtue of being a mother. New Jersey law says that is not the case. Public policy favors that both parents both parents involvement in their lives. However, that does not necessarily mean that there is a presumption of 50 over 50 custody, because, again, the court looks to the factors that are on the right side of your screen to make a determination as to what is in the best interests of this specific child or this specific family. Um, the other thing to note is that custody is always modifiable, unlike alimony. There, you cannot circumvent the modify ability, the modify ability of a child support order in your settlement agreements. So in order to to seek a modification of custody, there must be a prima facie showing of of change circumstances, substantial change in circumstances that would affect the welfare of of the child or children. This could include relocation. This could include the occurrence of an event that that implicates the well-being of the children. Oftentimes the court will also you'll you'll the court will also see arguments that by virtue of a child's age. They. This can be seen in circumstances. Age alone is not a prima facie showing. However, implications of the child's growth and development could could establish a prima facie showing of changed circumstances. For example, a child reaching high school age might have more, might have more, have stronger, a stronger position as to the custody arrangement that the court would then be be open to considering vis a vis a child interview, as opposed to an eight year old child who has feelings about a custody arrangement and the court will regard as not having the maturity to really make an informed decision on on the issue. And in that respect, one of the things that as a practitioner, you could argue, because again, age alone is not going to carry the day is now your child has gone to high school. So you have sports, you have extracurricular activities, you have all of these different scheduling events that the child probably didn't have when they were younger, that now that they have, there's a change in that this schedule that we previously had is no longer working. And now because of that, because of this change in the child's schedule and sports, and maybe they're a great soccer player and they're traveling all around the state and they're away on weekends. Um, now you have the basis to go in and say, oh, by the way, my my child, who's 16, has also indicated a preference for x, Y, and Z. The court will likely then consider that preference at that point, given the child's age. And one of the things that the first slide talked about or mentioned is legal custody versus physical custody. Legal custody is decision making. Physical custody is exactly what it sounds like. It's who has the child with them during that time. So when you share joint legal custody, you share all decision making regarding the child's health, education, general welfare. So you and your your client's former spouse or soon to be former spouse, they need to be able to communicate in the best interest of the child and be have a relationship that's able to work through issues that concern that child. Um, so. You need to be mindful of that when dealing with the legal custody issue, because you're going to have to deal with issues of medical decisions. You're going to have to deal with issues of school decisions, sports decisions. Anything that could touch on health, education and welfare falls into that legal custody arena. And in most cases, joint legal custody is what's ordered by a court. Then you have physical custody, which is who's who has the child during certain time. And you know, that ranges it could range from a 5050, a true 5050 split where parents live in close proximity to each other. The child can go back and forth between the parents on an equal basis, maybe two days a week at each house and then alternating weekends. Or you may have the other end of the spectrum where the child is only spending alternating weekends and some dinner visits with the parent. And again, that the court's going to look at all the factors on that first slide. And if custody is at issue, they're going to listen to the experts that are involved in the custody case, any custody evaluations that take place when rendering their ultimate decision. Now, the ultimate physical custody arrangement directly impacts the the issue of child support in new Jersey. The new Jersey new Jersey uses the Child Support guidelines and algorithm used to calculate an appropriate Child baseline Child Support Award as a rebuttable presumption as to what what is necessary to to cover all of this child's basic needs. Expenses included in this in this Child Support order include housing, food, clothing Unreimbursed health care, up to $250, and and other basic costs that are associated with with the the child, the rearing of the average child. But again this is a rebuttable presumption. The court also takes into also considers the factors set forth in Njsa two a colon 3423. On the left hand. The left hand side of your screen. Because again child support is intended to to be to be provided for the benefit of the child, and all child related decisions are are ultimately based upon the best interests of the child or children. Child support. The Child Support Guidelines based base award can be modified, can be adjusted based on the age of the children, other support obligations that the pay parent might have to other families if there are government benefits. Needs based benefits being being paid on behalf of this child. And again, the physical custody arrangement, that is to say, the the court will look at who is absorbing most of the costs associated with this child rearing in. In calculating its Child Support Award. Now one of the more common adjustments to this child support order that you see comes in above guidelines child support situations. So parents with a combined net annual income in excess of $187,200 fall above the guidelines, which means that the child support calculations rendered by the new Jersey Child Support Guidelines serves as only a baseline. This this is the minimum amount then parties are. The court can will enter a supplemental Child Support Award on top of this baseline amount, based on the factors enumerated in the previous slide. The court will look at, for example, vacations, general lifestyle considerations, activities of that this particular child or children. Other other additional costs that are not necessarily incorporated into the guidelines calculations, but that have formed the general lifestyle of this child. The court. The court generally deems that to the extent that the parties are able, the child's lifestyle should not be impacted by the dissolution of the parent's marriage. To the extent, of course, that the parents can afford to to maintain this lifestyle. So that supplemental award on top of the Child Support Guidelines baseline amount is intended to capture the the lifestyle on top of the minimum. That's that's expected for the basic needs of of the children. And as a practice point on that, it's important to be mindful that it's not that child support shouldn't be used to try to get your client extra money for their lifestyle. It really is for the child. And in doing that, when you're doing your case information statement and you're going to be the one making the claim that you want above the guidelines child support, it's really imperative that you provide what the children the child's expenses are. The children's expenses are. So there's line items on the case, information for sports activities, extracurriculars. If there's private school, make sure those are completely filled out. Make sure your client is listening, that the kids are playing travel soccer, or the kids are involved in horse riding. Or maybe they maybe the family owns a horse. So there's there's barn fees and other fees associated with that horse. Make sure all of that information is included and that you have the requisite proofs, because a court is going to be required to make a finding of what those expenses are to in order to set a above the guidelines amount. Now. Another related issue to child support is college contributions. Child support and college contributions are separate yet related support obligations for parents. So there. Child support is necessarily going to be impacted by a parent's contribution to college. In large part, this is because once a child matriculates into a post-high school educational program, so that would include vocational programs as well. The costs. The costs associated with child rearing change, they're no longer a child. If the child is or if the no college student is dorming at college, if they are, if they are contributing to transportation expenses to to attend a day program at a local college. These are all considerations that will impact that. That delicate balance between a child support order and a parent's contribution towards college. Now, to the extent that parents are able, the courts regard that a parents do have an obligation to contribute. But one thing to note is that a child cannot take two classes and expect parents to be on the hook. They have to be matriculated into a full time post high school education program in order for this. For this to really trigger a parent's obligation to contribute to both their support and college education. And this goes into general principles of emancipation. A child who is not fully matriculated can be deemed emancipated because they have the ability to work and support themselves, and they are legally adults. So the important practice tip for college contributions as it relates to child support is that a child's attendance away at college will likely be considered a change in circumstances warranting a review of child support, but it's not an automatic presumption that child support will be modified. You need to. It's going to be a fact sensitive determination made by the court based on the totality of the circumstances. What type of program the kid has gone into? Meaning is it is. Are they at a four year institution that costs $75,000 a year, or are they attending a year at community college before figuring out their next steps at a much lower rate? Are they living home? Are they living away? There's a lot that goes into it. It's very fact sensitive, and you need to make sure that you are aware, and you're presenting those facts to the court so that the court can make an appropriate determination. And when the person the parents seeking a modification of child support based upon this college, their college contribution, or or a parent is seeking for the other parent to contribute to college. The court considers all the factors listed on your screen and determining what the parent's respective obligations are. Again, the court doesn't automatically adjust as as James was saying, a parent has to either move for college contribution or a parent has to move for a modification of child support. Now, you could you you could include in your agreements certain provisions that address this. Right. So for example you need to address you need to file an application with the court to seek contribution from the other spouse for college. If your marital settlement agreement says the issue of college will be addressed at the time. And why would you do that? Well, maybe you're in a situation where you're representing clients with young children and the parties aren't sure what their financial circumstances are going to be at the time those children matriculate to college or post high school educations, they may want to leave it open ended and address the college contribution factors in Newburgh at that time. Or you may have a situation where the children are older. The family has saved. There's 529 funds. The parties are well off, they have significant assets and the parties agree. Hey, look, one spouse or one parent is going to pay 40%. The other spouse or parent is going to pay 60%. You know, we're good with this percentage. We don't need to go through the college contribution process. So it really is dependent upon the factual situation, in your case, the ages of the children, the financial realities of the family, to determine whether you're going to set an establish a contribution at the time of the settlement, or you're going to essentially punt on the issue until the children are older and are getting ready to go to college. And just some procedural information as to seeking these these modifications of court orders. Again, a change of circumstances has to be showed at the trial level upon a motion to the court. The movement must be able to show that the child will be beginning or has begun, has begun college, for example. Under under the factual circumstances we discussed in the previous slides. Once there is a a genuine issue of material fact as to. Um, as to the issues in play. So, for example, if there's a genuine issue of material fact as to what the child's who's now in college needs are, a plenary hearing must be scheduled. Um, but contrast to this, to a non college situation where a party is seeking a modification of child support based on based on the in an increase of income of the other of the pay or spouse. Um, to the extent that a court can can calculate child support based on tax returns based on w-2s based on 1099, etcetera. A court might not deem a plenary hearing necessary to to to render a decision as to a modified child support obligation. Now, this isn't this isn't a blanket statement to say that all basic child support modifications will not require a plenary hearing, because then there's always the possibility that a tax return might not capture all the income of of a payer or payee party. In that case, a plenary hearing would would be necessary for the court to make factual findings as to each party's income. But to the extent that there is no dispute as to the parties income, which you usually see in low to middle wage W-2 workers from from our experience in the court, then the court might not find that a plenary hearing is necessary. And it's important when you're looking to modify a court order for any type of issue, whether it's child support, alimony, it's custody. It's important that you understand your client's burden of proof, and you need to make the prima facie showing of changed circumstances and to provide all of the required information under the court rules, in order to have any possibility of success. So, for example, when you're filing an application to modify child support or to modify alimony, you're going to need to provide, under the court rules, a copy of your prior case information statement that was filed at the time of the divorce, as well as an updated case information statement to show the court the financial realities of that family with respect to alimony. There are certain time restrictions and requirements that you must be, must be mindful of and must must understand that are in the statute. If you're trying to make a, um, a claim to reduce alimony based, for example, on a loss of employment or a decrease in income. So there are not only case law requirements, but there are requirements within the court rules. There are also requirements within the statute with documents that are required, and timelines that must be followed in order for you to bring that application. So definitely familiarize yourself with the court rules and familiarize yourself with to colon. 2023 3423. Excuse me? Um, and the other thing that I wanted to mention about trials, of course, quickly, is the misnomer that child support terminates at the age of 18. That is not true. In new Jersey, child support terminates when a child is deemed emancipated. Now a child turning the age of 18 and not going on to college. That would be an emancipation event. So it's not to say that turning 18 can't be an emancipation event, but if a child turns 18 and is still matriculating onto college, he's in college on a full time basis, going to a full program, four year program. The court will not emancipate a child at that point. Um, a court will not emancipate a child. Also, if the child is suffers a medical condition which precludes them from being able to support themselves. So you should be mindful of the various different emancipation events, as well as what may happen in the event that a child is disabled during the litigation, or what happens if a child becomes disabled after the divorce is entered. However, I will add that the enforcement of child support by the courts will absolutely end at the age of 23, regardless of whether a child can legally be deemed emancipated. So if a disabled child is receiving child support, the court cannot enforce that past the age of 23. That's when guardianship proceedings have to really, really come into play in order to make sure that child is provided for in the long term. Um, these are inconvenient limitations on the enforcement of child support because because these are limitations on probation's jurisdiction over these issues. But again, just something to be mindful of that there is an interplay between the court, the family, courts enforcement and when the guardianship, the surrogate court has to step in and take over. And that is the end of our presentation. Thank you very much for joining us. We hope you learned something from this. If you have any questions, please do not hesitate to reach out to either of us. We'd be happy to answer your questions. Thank you again.

Presenter(s)

AMJ
Angelica Mercado, JD
Associate
Einhorn Barbarito
JDJ
James DeStefano, JD
Counsel
Einhorn Barbarito

Course materials

Handout

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Pending
    Alaska
    • 1.5 voluntary
    October 18, 2025 at 11:59PM HST Available
    Arizona
    • 1.5 general
    October 18, 2025 at 11:59PM HST Available
    Arkansas
    • 1.5 general
    October 18, 2025 at 11:59PM HST Approved
    California
    • 1.5 general
    October 18, 2025 at 11:59PM HST Approved
    Colorado
      Pending
      Connecticut
      • 1.5 general
      October 18, 2025 at 11:59PM HST Available
      Delaware
        Pending
        District of Columbia
          Not Offered
          Florida
            Pending
            Georgia
              Pending
              Guam
              • 1.5 general
              October 18, 2025 at 11:59PM HST Available
              Hawaii
              • 1.5 general
              October 18, 2025 at 11:59PM HST Approved
              Idaho
                Pending
                Illinois
                  Pending
                  Indiana
                    Pending
                    Iowa
                      Pending
                      Kansas
                        Pending
                        Kentucky
                          Pending
                          Louisiana
                            Pending
                            Maine
                              Pending
                              Maryland
                                Not Offered
                                Massachusetts
                                  Not Offered
                                  Michigan
                                    Not Offered
                                    Minnesota
                                      Pending
                                      Mississippi
                                        Pending
                                        Missouri
                                        • 1.5 general
                                        October 18, 2025 at 11:59PM HST Available
                                        Montana
                                          Pending
                                          Nebraska
                                            Pending
                                            Nevada
                                              Pending
                                              New Hampshire
                                              • 1.5 general
                                              October 18, 2025 at 11:59PM HST Available
                                              New Jersey
                                              • 1.8 nj family law practice
                                              October 17, 2024 at 11:59PM HST Approved
                                              New Mexico
                                                Pending
                                                New York
                                                • 1.5 areas of professional practice
                                                October 18, 2025 at 11:59PM HST Available
                                                North Carolina
                                                  Pending
                                                  North Dakota
                                                  • 1.5 general
                                                  October 18, 2025 at 11:59PM HST Available
                                                  Ohio
                                                    Pending
                                                    Oklahoma
                                                      Pending
                                                      Oregon
                                                        Pending
                                                        Pennsylvania
                                                          Pending
                                                          Puerto Rico
                                                            Pending
                                                            Rhode Island
                                                              Pending
                                                              South Carolina
                                                                Pending
                                                                South Dakota
                                                                  Not Offered
                                                                  Tennessee
                                                                    Pending
                                                                    Texas
                                                                      Pending
                                                                      Utah
                                                                        Pending
                                                                        Vermont
                                                                        • 1.5 general
                                                                        October 18, 2025 at 11:59PM HST Approved
                                                                        Virginia
                                                                          Not Eligible
                                                                          Virgin Islands
                                                                          • 1.5 general
                                                                          October 18, 2025 at 11:59PM HST Approved
                                                                          Washington
                                                                            Pending
                                                                            West Virginia
                                                                              Not Eligible
                                                                              Wisconsin
                                                                                Not Eligible
                                                                                Wyoming
                                                                                  Pending
                                                                                  Credits
                                                                                    Available until
                                                                                    Status
                                                                                    Pending
                                                                                    Credits
                                                                                    • 1.5 voluntary
                                                                                    Available until

                                                                                    October 18, 2025 at 11:59PM HST

                                                                                    Status
                                                                                    Available
                                                                                    Credits
                                                                                    • 1.5 general
                                                                                    Available until

                                                                                    October 18, 2025 at 11:59PM HST

                                                                                    Status
                                                                                    Available
                                                                                    Credits
                                                                                    • 1.5 general
                                                                                    Available until

                                                                                    October 18, 2025 at 11:59PM HST

                                                                                    Status
                                                                                    Approved
                                                                                    Credits
                                                                                    • 1.5 general
                                                                                    Available until

                                                                                    October 18, 2025 at 11:59PM HST

                                                                                    Status
                                                                                    Approved
                                                                                    Credits
                                                                                      Available until
                                                                                      Status
                                                                                      Pending
                                                                                      Credits
                                                                                      • 1.5 general
                                                                                      Available until

                                                                                      October 18, 2025 at 11:59PM HST

                                                                                      Status
                                                                                      Available
                                                                                      Credits
                                                                                        Available until
                                                                                        Status
                                                                                        Pending
                                                                                        Credits
                                                                                          Available until
                                                                                          Status
                                                                                          Not Offered
                                                                                          Credits
                                                                                            Available until
                                                                                            Status
                                                                                            Pending
                                                                                            Credits
                                                                                              Available until
                                                                                              Status
                                                                                              Pending
                                                                                              Credits
                                                                                              • 1.5 general
                                                                                              Available until

                                                                                              October 18, 2025 at 11:59PM HST

                                                                                              Status
                                                                                              Available
                                                                                              Credits
                                                                                              • 1.5 general
                                                                                              Available until

                                                                                              October 18, 2025 at 11:59PM HST

                                                                                              Status
                                                                                              Approved
                                                                                              Credits
                                                                                                Available until
                                                                                                Status
                                                                                                Pending
                                                                                                Credits
                                                                                                  Available until
                                                                                                  Status
                                                                                                  Pending
                                                                                                  Credits
                                                                                                    Available until
                                                                                                    Status
                                                                                                    Pending
                                                                                                    Credits
                                                                                                      Available until
                                                                                                      Status
                                                                                                      Pending
                                                                                                      Credits
                                                                                                        Available until
                                                                                                        Status
                                                                                                        Pending
                                                                                                        Credits
                                                                                                          Available until
                                                                                                          Status
                                                                                                          Pending
                                                                                                          Credits
                                                                                                            Available until
                                                                                                            Status
                                                                                                            Pending
                                                                                                            Credits
                                                                                                              Available until
                                                                                                              Status
                                                                                                              Pending
                                                                                                              Credits
                                                                                                                Available until
                                                                                                                Status
                                                                                                                Not Offered
                                                                                                                Credits
                                                                                                                  Available until
                                                                                                                  Status
                                                                                                                  Not Offered
                                                                                                                  Credits
                                                                                                                    Available until
                                                                                                                    Status
                                                                                                                    Not Offered
                                                                                                                    Credits
                                                                                                                      Available until
                                                                                                                      Status
                                                                                                                      Pending
                                                                                                                      Credits
                                                                                                                        Available until
                                                                                                                        Status
                                                                                                                        Pending
                                                                                                                        Credits
                                                                                                                        • 1.5 general
                                                                                                                        Available until

                                                                                                                        October 18, 2025 at 11:59PM HST

                                                                                                                        Status
                                                                                                                        Available
                                                                                                                        Credits
                                                                                                                          Available until
                                                                                                                          Status
                                                                                                                          Pending
                                                                                                                          Credits
                                                                                                                            Available until
                                                                                                                            Status
                                                                                                                            Pending
                                                                                                                            Credits
                                                                                                                              Available until
                                                                                                                              Status
                                                                                                                              Pending
                                                                                                                              Credits
                                                                                                                              • 1.5 general
                                                                                                                              Available until

                                                                                                                              October 18, 2025 at 11:59PM HST

                                                                                                                              Status
                                                                                                                              Available
                                                                                                                              Credits
                                                                                                                              • 1.8 nj family law practice
                                                                                                                              Available until

                                                                                                                              October 17, 2024 at 11:59PM HST

                                                                                                                              Status
                                                                                                                              Approved
                                                                                                                              Credits
                                                                                                                                Available until
                                                                                                                                Status
                                                                                                                                Pending
                                                                                                                                Credits
                                                                                                                                • 1.5 areas of professional practice
                                                                                                                                Available until

                                                                                                                                October 18, 2025 at 11:59PM HST

                                                                                                                                Status
                                                                                                                                Available
                                                                                                                                Credits
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Pending
                                                                                                                                  Credits
                                                                                                                                  • 1.5 general
                                                                                                                                  Available until

                                                                                                                                  October 18, 2025 at 11:59PM HST

                                                                                                                                  Status
                                                                                                                                  Available
                                                                                                                                  Credits
                                                                                                                                    Available until
                                                                                                                                    Status
                                                                                                                                    Pending
                                                                                                                                    Credits
                                                                                                                                      Available until
                                                                                                                                      Status
                                                                                                                                      Pending
                                                                                                                                      Credits
                                                                                                                                        Available until
                                                                                                                                        Status
                                                                                                                                        Pending
                                                                                                                                        Credits
                                                                                                                                          Available until
                                                                                                                                          Status
                                                                                                                                          Pending
                                                                                                                                          Credits
                                                                                                                                            Available until
                                                                                                                                            Status
                                                                                                                                            Pending
                                                                                                                                            Credits
                                                                                                                                              Available until
                                                                                                                                              Status
                                                                                                                                              Pending
                                                                                                                                              Credits
                                                                                                                                                Available until
                                                                                                                                                Status
                                                                                                                                                Pending
                                                                                                                                                Credits
                                                                                                                                                  Available until
                                                                                                                                                  Status
                                                                                                                                                  Not Offered
                                                                                                                                                  Credits
                                                                                                                                                    Available until
                                                                                                                                                    Status
                                                                                                                                                    Pending
                                                                                                                                                    Credits
                                                                                                                                                      Available until
                                                                                                                                                      Status
                                                                                                                                                      Pending
                                                                                                                                                      Credits
                                                                                                                                                        Available until
                                                                                                                                                        Status
                                                                                                                                                        Pending
                                                                                                                                                        Credits
                                                                                                                                                        • 1.5 general
                                                                                                                                                        Available until

                                                                                                                                                        October 18, 2025 at 11:59PM HST

                                                                                                                                                        Status
                                                                                                                                                        Approved
                                                                                                                                                        Credits
                                                                                                                                                          Available until
                                                                                                                                                          Status
                                                                                                                                                          Not Eligible
                                                                                                                                                          Credits
                                                                                                                                                          • 1.5 general
                                                                                                                                                          Available until

                                                                                                                                                          October 18, 2025 at 11:59PM HST

                                                                                                                                                          Status
                                                                                                                                                          Approved
                                                                                                                                                          Credits
                                                                                                                                                            Available until
                                                                                                                                                            Status
                                                                                                                                                            Pending
                                                                                                                                                            Credits
                                                                                                                                                              Available until
                                                                                                                                                              Status
                                                                                                                                                              Not Eligible
                                                                                                                                                              Credits
                                                                                                                                                                Available until
                                                                                                                                                                Status
                                                                                                                                                                Not Eligible
                                                                                                                                                                Credits
                                                                                                                                                                  Available until
                                                                                                                                                                  Status
                                                                                                                                                                  Pending

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