Family Law - What's New

In August, 2000, Gov. Whitman signed a bill into law which allows a court to place a lien on a judgment, arbitration award, inheritance or workers' compensation award or settlement, if the recipient owes child support. The lien will have priority over all other liens, garnishments, or levies, except for unpaid state income taxes. The lien applies to the "net proceeds" of a settlement which is the sum awarded minus attorneys fees, courts costs, medical costs and other miscellaneous expenses of litigation. The child support judgment must be docketed with the court clerk in order to create a record of the lien. The new law requires that the attorney for the party who is to receive the monies, must search to determine if there is a child support judgment, and if such a judgment is found, the outstanding arrears must be paid first.

The law is codified at N.J.S.A. 2A:17-56.23b.

• TERM ALIMONY PERMITTED

In mid September, 1999, Governor Whitman signed into law a bill that adds two new forms of alimony; "Limited Duration Alimony," or "Term Alimony" is alimony which is awarded for specific time period, to permit a spouse who needs time, perhaps to train or gain experience in the workplace, to find a job, or to obtain education to be supported during that time. "Reimbursement Alimony" is that which awards reimbursement to a spouse who assisted in his or her spouse's education.

Although both Term and Reimbursement Alimony were common in Property Settlement Agreements agreed upon between the parties, the Court was not previously permitted to make an award of either, but was limited to either Permanent or Rehabilitative Alimony.

The bill also permits the Court to consider the tax consequences to both parties from an award of alimony, as well as income from investments in making its award.

• NEW EDUCATIONAL PROGRAM FOR DIVORCING PARENTS

On May 19, 1999, governor Whitman signed into law, a measure which will require most divorcing parents to participate in a "Parents Education Program" whenever custody, visitation or support is an issue. Parents who have, or are in the process of obtaining Final Restraining Orders will not required to participate in the program. The program will educate divorcing parents about the effect of divorce on children, the economic ramifications and financial responsibilities of divorce, and the legal process. Failure to participate may be considered by the court when it rules on custody and/or visitation issues. The program is currently being developed and is expected to be implemented this fall.

As of November 15, 1999, any complaint or counterclaim requesting child support, or stating that visitation or custody is an issue will be surcharged $25.00 for participation in this program.

• MEDIATION OF ECONOMIC ISSUES

Commencing in June, 1999, six counties will participate in a pilot testing of mediation of economic issues in matrimonial matters. Bergen, Morris and Somerset counties will mediate these issues after the parties have attempted settlement in the Matrimonial Early Settlement Panel. Atlantic, Burlington and Union counties will mediate economic issues before the MESP. After the program has been in operation for a two year testing period, the program will be reevaluated.

• IRRECONCILABLE DIFFERENCES GROUND FOR DIVORCE VETOED

The New Jersey state Senate, in mid-January, approved a bill, which, if signed into law, would have permitted a divorce based upon irreconcilable differences for a period of six months, or by mutual consent. Governor Whitman vetoed this bill, with a recommendation that the time period be lengthened to nine months. The bill has been amended, and must once again go through the committee process.

• N.J. SUPREME COURT AMENDS COURT RULES

On April 5, 1999 new rules went into effect which in some cases radically effect matrimonial practice, give broader enforcement powers to judges, and alter certain aspects of the attorney-client relationship in family law matters.

Highlights of the new rules are:

• Judges are given additional remedies to grant when a parent has been found to have violated an order respecting custody, visitation or the payment of support, including ordering the party to pay the other's attorneys fees, granting additional or "make-up visitation," ordering the party failing to exercise scheduled visitation to pay the child care costs associated with his or her failure to do so, ordering the violator to participate in community service.
• The rules also allow a judge to order the sale of marital property to fund litigation, so as to "level the playing field" and permit the spouse not having control over the marital assets to retain counsel and fund the litigation.
• A listing of insurance coverage (life, health, auto & homeowners) must be submitted with each first pleading (ie. Complaint, Answer or Appearance). Insurance in place at the time of the initial pleading cannot thereafter be cancelled or allowed to lapse unless permitted by court order.
• Non-refundable retainer agreements are prohibited.
• Clients must receive a "Statement of Client Rights and Responsibilities" upon retention of counsel.

Click here for more information on "New Rules"

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• CREWS v. CREWS - Highlights marital standard of living

In a sweeping decision, in June, 2000, the New Jersey Supreme Court determined that "lifestyle" is one of the most important determiners in setting alimony. This case arose in the post judgment setting, where Mrs. Crews who, after a 17 year marriage, received only three years of Rehabilitative Alimony, sought to reinstate and increase same. Mr. Crews, resisted her motion on the ground that she had not demonstrated a "change in circumstances" warranting an increase.

In this case, the Supreme Court held that since the trial judge had not made a specific finding as to the lifestyle of the parties during the marriage, that the case would have to be remanded for specific findings on that issue. The Court held that "The marital standard of living is the measure for assessing initial awards of alimony, as well as for reviewing any motion to modify such award. In the future, the trial courts must make a specific finding of lifestyle, and when appropriate, a trial court should expressly find that there is a higher need existing at the time of the initial award based on the standard of living maintained during that marriage, but that the higher need could not be met by the supporting spouse at the time of the divorce." If it was found the supported spouse was incapable of maintaining that lifestyle on the alimony awarded, because, say of a downturn in finances, then the supported spouse may, if the supporting spouse's income increased, move in court later for an upward modification without showing a change in circumstances.

This far reaching decision has implications for couples who are going through the divorce process at the present time, as well as for those who have been divorced for years.

Couples currently divorcing should make sure that, in the case of settled cases, there is a statement that the supported spouse can reasonably be expected to maintain the lifestyle enjoyed during the marriage, or that because of whatever reason, it cannot be maintained, and that they understand that the alimony portion of the award may be modified without a showing of changed circumstances in the future. Both parties should understand that it will, most likely be more expensive later to go through a hearing to establish what the lifestyle was during the marriage.

For couples who are already divorced, if the supporting spouse is unable to maintain the lifestyle enjoyed during the marriage, an application for an increase should be considered.

The Crews v. Crews case is reported at 164 N.J. 11 (2000).