Divorce Different

by Jef Henninger, Esq. Serving all of New Jersey.

Divorce advice from a non-lawyer is no advice at all

Posted by jefhenninger on February 10, 2010

Yesterday, my client told me that his friend advised him to etc, etc in connection with his divorce.  With all due respect to his friend, the advice he gave him was horrible.  Why his friend, who is not an attorney, let alone a New Jersey divorce attorney, would give him any advice is beyond me.  What’s even worse is that my client was ready to follow that advice because his friend, who has gone through a divorce, seems like an expert.

I don’t care who the person is, if the person is not a divorce lawyer in the state in which you are getting divorced, the advice should be taken with all of the salt in the world.  In other words, do not rely upon it.  Instead, pick up the phone and call a good divorce lawyer and get advice from him or her.

Posted in Articles | Tagged: | Leave a Comment »

Taking divorce advice from your spouse may be a bad idea

Posted by jefhenninger on February 10, 2010

This may sound crazy to some people, but I have had clients tell me that they are taking divorce from their soon to be ex-spouse.  Most of the time, this advice involves whether or not either of them should hire an attorney.  I sometimes feel like a broken record but I see too many people that went to court without a good divorce lawyer only to suffer the consequences for many years.  To save a few thousand dollars now, some will spend tens of thousands years later as a result of the mistakes that were made and/or to correct the mistakes that were made.

After you get divorced, you have to be your own person so I think you should start now.  If your spouse wants to go at it alone, let him or her but don’t follow that advice.  Why does your spouse really care about what you do with your money?  Chances are, your spouse may not want to take advantage of you by getting you to sign a settlement agreement that forces you to give up important rights and a lot of money.  I’ve seen it plenty of times.  Don’t make that mistake.

Posted in Articles | Tagged: | Leave a Comment »

Not all divorce attorneys can handle domestic violence accusations

Posted by jefhenninger on February 10, 2010

A new client that hired me this week told me  about his divorce which took years.  During the divorce, his wife filed domestic violence charges against him.  His divorce lawyer either did not have the experience to deal with the criminal charges or didn’t want to.  From what he told me, it seems like both.  This is a very common problem that I see all of the time.

Some lawyers are afraid to admit that they are over their head.  If I don’t know how to do something, I’d rather not not put my client at risk.  Instead, I will either work with another lawyer that has the experience with the law at issue or I will just refer that part of the case out for that lawyer to handle.  I also think some lawyers want to get every dollar that is coming out of the client’s pocket.  I don’t do that.

At my firm, we handle family law and criminal law and we handle both very well.  Domestic violence, in my opinion, is a combination of criminal law and family law and only a lawyer that is knowledgeable in both should handle these cases.  If you find yourself in a domestic violence situation on either side, don’t get caught with an attorney that can only handle half the case.  Otherwise, you may be regretting the consequences for years to come.

Posted in Articles | Tagged: | Leave a Comment »

Your spouse cannot keep all of the money from you

Posted by jefhenninger on February 3, 2010

Another big issue I run into with clients is their fear that they cannot afford an attorney because the other spouse has all of the money.  For the most part, everyone has access to the same pool of funds.  If your spouse refuses to provide money to you but you know that there are funds in a bank account that can be used to pay for an attorney and other expenses, an attorney can file a motion to have the court order the other spouse to provide the money. 

Normally, this order is subject to final allocation which means that you may have to pay that money back or have it credited to the spouse.  For example, if there is a savings account with $20,000 and a court ordered $5000 of that to be given to you as part of the divorce, you may only get another $5000 of the original $20,000 as part of the final settlement.  Of course, you could also get your original half, or $10,000 and your spouse is left with only $5000.  It all depends on the facts of the case and how you want to settle.  The important thing is that just because your spouse gave you the money now, does not mean that he or she will not get it back in some form.

Posted in Articles | Tagged: | Leave a Comment »

Your spouse cannot leave you with all of the bills

Posted by jefhenninger on February 3, 2010

A few days ago, a client told me about her concern that her husband would move out of the house and leave her with all of the bills if she filed for divorce.  She was very happy to hear that, in general, your spouse cannot abandon you and have you pay all of the bills.  Of course, every case is different and only a divorce attorney can explain how this would work in your situation.

Keep in mind that your spouse is free to move out at any time.  Whether or not you should move out should only be determined after speaking with a divorce attorney as you could really set yourself up for disaster.  Your spouse has a duty to maintain the status quo.  Thus, if your spouse paid for all or part of the bills, he or she cannot force you to pay them or refuse to pay them and have the house go into foreclosure, utilities be turned off, etc.  If your spouse did not contribute anything, it may be difficult to force him or her to start now, especially if they have no money.  Again, I am speaking in general terms so please see a lawyer before doing anything.

A letter fom a lawyer should get the job done.  However, if that fails or if there is an emergency, your lawyer will file a motion with the court.

Posted in Articles | Tagged: | Leave a Comment »

I was quoted on NJBIZ.com

Posted by jefhenninger on February 2, 2010

I was interviewed for an article today.

Check out http://www.njbiz.com/article.asp?aID=80498

Posted in My Practice | Leave a Comment »

Permanent alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In New Jersey, courts have moved away from permanent alimony.  However, with much longer marriages, permanent alimony is still available.

An understanding of the purpose of permanent alimony lends further insight into the proper use and application of limited duration alimony. The most commonly expressed rationale for permanent alimony is:
            1. To compensate for benefits conferred on the other spouse by being responsible for homemaking and child rearing. The primary benefit is increased earning capacity of the other spouse who, while enjoying family life, was free to devote all productive time to income production.

            2. To compensate for the opportunity costs of homemaking. This is primarily lost earning capacity through the years of major responsibility for the home, either not being employed or holding employment subject to the needs of the family. Courts recognize this opportunity cost when they refer to the fact that the claimant for alimony had remained in the home in the traditional role of full-time homemaker. There is, also, a cost in lessened opportunity for remarriage which is greater for women than men and which increases the longer the marriage lasts.

            In short, “a transfer of earning power” occurs during a traditional marriage in which the homemaker spouse’s efforts increased the other’s earning capacity at the expense of her own. Alimony is an award formulated to compensate for that transfer by sufficiently (fairly) meeting reasonable needs for support not otherwise met by property division and personal income.

        [Krauskopf, Rehabilitative Alimony, at 583-84 (footnotes omitted).]

Posted in Articles | Tagged: | 1 Comment »

Limited duration alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In Cox v. Cox, the Appellate Divison extensively discussed the legislative amendment that added limited duration alimony as an option:

 Limited duration alimony is not intended to facilitate the earning capacity of a dependant spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

 

[335 N.J. Super. at 476.]

 

Limited duration alimony is thus awarded in recognition of a dependent spouse’s contributions to a relatively short-term marriage that demonstrated attributes of a “marital partnership.” Id. at 483. Both limited duration and permanent alimony reflect the policy that marriage is an economic and social partnership and that the financial and non-financial contributions of both spouses should be recognized. Id. at 479. “All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded.” Id. at 483.

In recognizing the need for limited duration alimony, the Legislature focused “‘upon the economic impact of the marriage on the parties by examining whether employment opportunities were lost or career opportunities delayed.’” Id. at 481 (quoting Report of the Commission to Study the Law of Divorce, Recommendation 13 at 46-47 (April 18, 1995)). It was contemplated that a court would determine whether

“any economic dependency that might exist between the parties was created by the marriage or was the product of the parties’ disparate skills and educational opportunities, unrelated to anything that happened during the marriage. The court’s inquiry would focus not on the fact that the parties were married but upon the impact of the marriage on the parties . . . . [and on] whether either of the parties were economically disadvantaged by child-rearing responsibilities for children of the marriage.”

 

[Ibid. (quoting Report of the Commission, supra, Recommendation 13 at 46-47).]

 

The Divorce Study Commission found that limited duration alimony was not intended to be a replacement for permanent alimony “‘where the length of the marriage and the contributions made by the dependent spouse are significant. In particular, it is singularly inappropriate in long marriages.’” Id. at 482 (quoting Report of the Commission, supra, Recommendation 13 at 47 (footnote omitted)). The Commission was of the “unequivocal view” that limited duration alimony “should be limited to shorter marriages and not be ordered in long-term marriages.” Ibid.

In Gordon v. Rozenwald, 380 N.J. Super. 55, 61 (App. Div. 2005), this court had the opportunity to consider the purpose of limited duration or term alimony in the context of a motion to modify the term alimony provision of a negotiated matrimonial agreement. The parties had been married fifteen years at the time of the final separation and had two children. Id. at 61-62. At the time of divorce, the agreement negotiated by the parties contained a fifteen-year term alimony provision. Id. at 62. During the marriage, the husband was financially successful and the wife did not work. Ibid. Following dissolution of the marriage, the husband’s earnings soared. Id. at 63. Although the wife worked, the earnings of the parties were grossly disparate. Ibid.

We observed that “[l]imited duration alimony is available to a dependent spouse who made ‘contributions to a relatively short-term marriage that . . . demonstrated the attributes of a marital partnership’ and has the skills and education necessary to return to the workforce.” Id. at 65-66 (quoting Cox, supra, 335 N.J. Super. at 483. We noted that such a spouse is not entitled to permanent alimony because the commitment to the marital enterprise was not sustained and the period of economic dependency was not prolonged. Ibid. We also commented that

[t]he premise for a term of limited duration alimony under N.J.S.A. 2A:34-23c is primarily historical not predictive and it is not based upon estimates about financial circumstances at the time of termination. Thus, the end date of a term of limited duration alimony is the equivalent of an arrangement to terminate support at a predetermined time or event, regardless of need.  

 

[Id. at 68.]

 

In Cox, supra, we held that limited duration alimony was not appropriate following a twenty-two year marriage. 335 N.J. Super. at 469-70. There, the wife was employed during the marriage and eventually enrolled in law school, passed the bar, and obtained a position as an associate in a law firm. Id. at 470. The husband earned substantially more than his wife throughout the marriage. Ibid.

In the course of this opinion, we sought to distinguish the four forms of alimony authorized by the Legislature: permanent alimony, limited duration alimony, reimbursement alimony, and rehabilitative alimony. Id. at 476. As to limited duration alimony, we said:

Limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

 

[Ibid.]

 

We also instructed trial judges to consider the underlying policy considerations that distinguish the forms of alimony when the judge must fashion an appropriate alimony award. Id. at 479. We concluded saying that “[p]ermanent and limited duration alimony, by contrast, reflect the important policy of recognizing that marriage is an adaptive economic and social partnership, and an award of either validates that principle.” Ibid. Limited duration alimony provides flexibility for those situations when no alimony or permanent alimony would be unjust. Id. at 480.

The “defining distinction” between permanent and limited duration alimony is the length of the marriage. Id. at 483. Here, the judge referred to various periods that the parties were together, ranging from slightly more than seven years (from date of marriage to date of separation) to ten and one-half years (from date of cohabitation to date of filing of complaint). The judge correctly referred to the marriage as one of neither long nor short duration, although the term is decidedly closer to being considered one of short duration. See Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998) (ten-year marital relationship cannot be considered short-term by today’s standards). We also agree that a marriage of intermediate duration may justify alimony particularly when one of the spouses was financially dependent on the other spouse for all or a substantial part of the marriage. Id. at 33. Financial dependency, however, does not dictate an award of permanent alimony in all instances.

Both permanent and limited duration alimony serve the same goals and are designed to enable the supported spouse to maintain a lifestyle reasonably comparable to the one enjoyed while the family was intact. Steneken, supra, 183 N.J. at 298-99. In the case of limited duration alimony, however, the court makes a determination, based primarily on the length of the parties’ marriage and the spouses need for support. It is not based on predictions of financial circumstances at the time of termination. Gordon, supra, 380 N.J. Super. at 68.

The decision to award permanent rather than limited term alimony in this case seems to have been predicated on plaintiff’s inability to ever earn enough income to maintain the marital lifestyle on her own. In certain situations this is appropriate. See Robertson v. Robertson, 381 N.J. Super. 199, 207-08 (App. Div. 2005) (thirty-nine year old woman who surrendered employment opportunities entitled to permanent alimony after twelve-year marriage); McGee v. McGee, 277 N.J. Super. 1, 14-15 (App. Div. 1994) (fifty-seven year old unskilled and unemployed woman entitled to permanent alimony after relatively short-term marriage but economic dependence commencing prior to the marriage). This factor, however, is relevant only in the determination of the length of the limited duration alimony. In fact, to treat the time needed for the recipient to improve her earning capacity as anything other than a factor to determine the appropriate term of the alimony award, obscures the difference between rehabilitative and limited duration alimony. Cox, supra, 335 N.J. Super. at 481. In this particular case, because of defendant’s very high earnings and the comfortable lifestyle the parties enjoyed, the judge’s assessment that plaintiff will probably never be able to achieve that lifestyle on her own is undoubtedly correct. Given the unique facts of this case, however, a permanent alimony award is not appropriate.

Posted in Articles | Tagged: | Leave a Comment »

Reimbursement alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In Cox v. Cox, the New Jersey Appellate Division explained reimbursement alimony in New Jersey as follows:

Reimbursement alimony has previously been characterized as “not truly support but an equitable creation designed to eliminate injustice.” Louis, Limited Duration Alimony, supra, at 137. See Mahoney, supra, 91 N.J. at 500-01, 503 & n.5. It is intended to compensate a spouse who has made financial sacrifices resulting in a reduced standard of living by enabling the other spouse to forego gainful employment while securing an advanced degree or professional license to enhance the parties’ future standard of living. Id. at 500-01; N.J.S.A.Reimbursement alimony is thus limited to “monetary contributions made with the mutual and shared expectation that both parties to the marriage will derive increased income and material benefits.” Mahoney, supra, 91 N.J. at 502-03. See also Reiss v. Reiss, 200 N.J. Super. 122, 125 (Ch. Div. 1984), aff’d, 205 N.J. Super. 41 (App. Div. 1985) (questioning whether reimbursement alimony is truly alimony as it based primarily on past contributions rather than future needs). As in the case of rehabilitative alimony, reimbursement alimony may be awarded separately or in combination with any other form of alimony. N.J.S.A. 24:34-23f.

Posted in Articles | Tagged: | 2 Comments »

Rehabilitative alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In Cox v. Cox, the New Jersey Appellate Division explained rehabilitative alimony in New Jersey:

 Rehabilitative alimony permits a short-term award “from one party in a divorce [to] enable [the] former spouse to complete the preparation necessary for economic self-sufficiency,” Hill v. Hill, 91 N.J. 506, 509 (1982); Milner v. Milner, 288 N.J. Super. 209, 213-14 (App. Div. 1996), “and ceas[es] when the dependent spouse is in a position of self-support,” Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). Rehabilitative alimony thus represents an appropriate remedy where, for example, “a spouse who gave up or postponed her own education to support the household requires a lump sum or a short-term award to achieve economic self-sufficiency.” Mahoney, supra, 91 N.J. at 504. Its purpose is to “enhance and improve the earning capacity of the economically dependant spouse.” Frank Louis, Limited Duration Alimony, 11 N.J. Fam. Law. 133, 135 (1991). The focus of rehabilitative alimony is upon the ability of a dependant spouse to engage in gainful employment, combined with the length of the marriage, the age of the parties, Heinl, supra, 287 N.J. Super. at 346-48, and the spouse’s ability to regain a place in the workplace, Cerminara v. Cerminara, 286 N.J. Super. 448, 460 (App. Div.), certif. denied, 144 N.J. 376 (1996). It is not to be considered an exclusive remedy, as “[r]ehabilitative alimony in addition to permanent alimony is favored, where appropriate.” Hughes, supra, 311 N.J. Super. at 32.

Posted in Articles | Tagged: | Leave a Comment »

« Previous Entries
Next Entries »
 
Follow

Get every new post delivered to your Inbox.