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There are some points where federal law intersects with or affects the economic consequences of pending or finalized divorces. Recently one of those point of intersection was the topic Job-Application-SSN-300x225of conversation of a prospective client. Her concern I am sure are shared by many. The question dealt with Social Security and how one computes the 10 year requirement for derivative benefits.

Social Security Ten Year Rule:

Under Sec. 202 [42 U. S. C. sec. 402] The spouse and every divorced spouse (who has been married for 10 or more years) of an individual who is entitled to old age benefits is entitled to share in those based on certain criteria.

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Going through a divorce can be time consuming, expensive, and emotionally draining, among many other things. For this reason and more, many people try to rush the process and enter into an file0001849487704-300x225ill advised settlement agreement  on their own in order to obtain a quick divorce and move on with their lives sooner rather than later.  Conversely, other people prefer to stick their heads in the sand and do nothing when their spouse files a divorce complaint, which can lead to the entry of a default judgment of divorce by the court that is contrary to their best interest.  While taking either of these actions may work for some individuals, if such actions result in an unfavorable outcome, it can be costly and possibly difficult to correct, if they can be corrected at all.

Generally, Rule 4:50, which applies when a litigant is seeking relief from a judgment, states the following:

“On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons:

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The Violence Against Women Act (VAWA), 42 U.S.C. § 13701 et seq., is a United States federal law that was originally passed in 1994 and was reauthorized in 2013 in which the spouses and children and parents of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency in the United States. The Immigration and Nationality Act (INA) is the law that governs immigration in the United States. The VAWA provisions relating to immigration are codified in section 204(a) of the INA. Rules published in the Federal Register explain the eligibility requirements and procedures for filing a self-petition under the VAWA provisions. People who may apply include: (1) a spouse of a U.S. citizen or lawful permanent resident; (2) a child of U.S. citizen or lawful permanent resident; (3) a spouse of U.S. citizen or lawful permanent resident who’s child has been battered or subjected to extreme cruelty for the reason bANGEL-13-144x300eing that a parent files for self-petition based on abuse of the child but both parent and child benefit; and (4) parent of a U.S. citizen . It is important to note that, despite its title, the VAWA is applicable to both men and women although spouses of undocumented foreign nationals cannot self-petition.

The need for VAWA to protect immigrants is clear, and is an important law to curb abuses that occur when some U.S. citizens or lawful permanent residents abuse the immigration status of other family members by threatening to report them to the United States Citizen and Immigration Services (USCIS).  Many battered immigrants are afraid to report violence and abuse to the police or other authorities.   One reason for the passage of the VAWA was to help remedy this obvious problem. 

In order to bring the application, an immigrant must be: (1) the child/parent of the of a U.S. citizen or lawful or legal permanent resident; (2) the child/parent was subjected to “battery or extreme cruelty” during the marriage; (3) the child/parent has lived with U.S. citizen or lawful or legal permanent resident abuser in the United States; and (4) the child/parent is a person of “good moral character.” All of these element must be proven.  The child/parent is still eligible for relief  if abuser loses status within the two years prior to the filing of a self-petition and still eligible if parties are divorced within two years prior to filing of self-petition and divorce is “connected” to domestic violence.  Accommodations are also made for filing from abroad for Spouse/Child of U.S. citizen or lawful permanent resident.  In order to meet this criteria, the abuser U.S. citizen or lawful permanent resident must be  on of the following: (1) a government employee; (2) member of Armed Services of US Government (Army, Navy, Air Force, Marines); or (3) if U.S. citizen or lawful permanent resident abused alien spouse in United States.

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Protests have erupted over some of President Donald Trump’s immigration orders and policies. file000863634145-300x225Candidate Trump and President Trump is correct that he has brought immigration issues to the forefront in American politics.

In January, 2017 President Trump signed an Executive Order called “Enhancing Public Safety in the Interior of the United States”, which, the Order states, was signed pursuant to the President’s authority under the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), “and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation’s immigration laws are faithfully executed.”   The Executive Order states that its purpose is to address the issue of “Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety.  This is particularly so for aliens who engage in criminal conduct in the United States.” Furthermore, the Order states that “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.  These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”  Moreover, “Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility.  We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.  The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.”

Hence, the Executive Order mandates that “In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:

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Several weeks ago my colleague, Elsie Gonzalez, Esq., wrote a blog post discussing the recent Appellate Division case of Ricci v. Ricci, A-1832-14T1 decided on February 9, 2017. That matter aroseCollege-Student-Discounts-300x300

as a result of a child bringing an action against her divorced parents seeking contribution from them for her college expenses as well as other relief. Although the circumstances and reasons for same were in dispute, the child had moved out of her mother’s home at age 19 and moved in with her paternal grandparents. The parents filed a Consent Order declaring the child emancipated. The child subsequently filed a motion seeking to intervene in the matrimonial matter, seeking to vacate the emancipation Order and for contribution towards her college educational expenses, initially for the community college she was attending. The trial court entered an Order finding the child to be unemancipated, directing contribution toward the community college expenses, but leaving open the issue of future contributions, including referral to mediation. As a result of a subsequent motion, a different judge required the divorced parents to contribute towards the child’s college expenses for Temple University, and, when the court denied their Motion for Reconsideration, an appeal ensued. In its comprehensive opinion, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings. In essence, the Appellate Division concluded that the extent to which parents, whether divorced or not, should be required to contribute towards a child’s post-high school educational expenses was dependent upon whether that child was either considered emancipated or unemancipated as a matter of law. The Appellate Division found that the trial court’s vacating the prior emancipation Consent Order and deeming the child unemancipated without the benefit of a plenary hearing, notwithstanding the conflicting allegations as to the circumstances surrounding same, was in error. The Appellate Division opined that the issue of college contribution could not be addressed until after the emancipation issue was decided, and remanded the matter for a plenary hearing on this threshold question. However, in doing so, the Appellate Division at the conclusion of its opinion offered the following “observational” comments:

“A plenary hearing on emancipation, mandated by law, has one winner and the chasm between parents and child surely will widen whatever the outcome. The initial motion judge was very sensitive to this possibility and urged the parties to seek an alternate course to reach resolution. We applaud that effort imbued with common sense. We also recognize demands placed on our Family Part judges do not allow the luxury of uninterrupted consideration of one matter at a time. Therefore, in addition to being emotionally draining and time consuming, litigation is expensive. In light of these realities, before undertaking the course outlined by law, we encourage the parties to give serious consideration to whether their positions, and hopefully their relationship, could be reconciled by a different course of dispute resolution, which unlike litigation, might more closely address the dynamic and complex interactions between parents and child.”

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Valentines Day was this week, a Hallmark holiday created by the card maker to create a demand for its product. This Hallmark holiday resonates with us because we want to feel good aboutPART_1432489208837-2usa-225x300

our loved ones, and celebrating them and our relationship makes us feel good. Most humans love to love. I suppose that is a funny observation for a divorce lawyer but my profession does not immune me from a human’s fundamental drive to love and be loved.

This is a funny year to celebrate Love. Our nation is polarized philosophically and that polarization is drawn down the middle of the marital bed. There are arguments about “fake news” and “very fake news”.  Major new outlets have taken sides, openly endorsing the ouster of the President whom they call Mr. Trump, while other outlets revel in the courage of the President and his willingness to take on partisan news reporting.  All this is a lot to digest. It was similar in the first year of Reagan’s Presidency but Reagan’s style was smoother and he was more able to quell the surrounding storm. The point is that regardless of your view of the President, Hillary Clinton and Conservatism versus Liberalism there is a lot of ammunition available on TV for you to garner and use in an argument about the correctness of your position.  I know people feel passionately about their views.

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Reiterating the opening to my colleague, Padraic F.X. Dugan, Esq.’s blog outlining the history of U.S. file0002135280483-214x300Supreme Court decisions regarding the fundamental right to parent one’s child, he wrote:  “United States Supreme Court Justice Sandra Day O’Connor wrote on behalf of the Court in the case of Troxel v. Granville, 530 U.S. 57 (2000), that ‘the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.’ Justice O’Connor went on to cite other decisions like Meyer v. Nebraska, 262 U.S. 390 (1923), wherein the Court recognized ‘that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ In Wisconsin v. Yoder, 406 U.S. 205(1972), the Court noted: ‘The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition’. Justice O’Connor ultimately held: ‘It cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

On February 9, 2017, the New Jersey Appellate Division handed down a decision in Ricci v. Ricci, A-1832-14T1 While not factually identical to the Rachel Canning case discussed by Mr. Dugan referenced above (where a New Jersey student sued her nondivorced parents for contribution towards her college expenses), the Ricci’s are divorced and were sued by their emancipated daughter for payment of college tuition.

The relevant facts are as follows: the Ricci’s daughter, who is now 23 years old, left her mother’s home at the age of 19 to reside with her paternal grandparents. Consequently, the Ricci’s executed a consent order terminating child support. Thereafter, their daughter sought to intervene in the matrimonial matter, seeking to vacate the emancipation order. The trial court entered an Order on October 11, 2013, permitting the daughter to intervene, finding the daughter unemancipated for the purpose of college payment without discussion and required the parents to pay the tuition cost for community college for the 2013-2014 school year, which was less than $2,000.00. However, prior to completing her degree at community college, the Ricci’s daughter transferred to Temple University without discussing the decision with her parents and afterward sought that her parents pay the significantly larger tuition. On October 31, 2014, a new judge, without the benefit of a plenary hearing or review of financial documentation enforced the October 11, 2013 Order and required the Ricci’s to pay their daughter’s outstanding tuition, fees, and the cost of books at Temple University. The Ricci’s sought reconsideration of the October 31, 2014 Order but the judge did not examine whether and to what extent the Ricci’s could and should pay tuition and ordered the parties to pay their daughter’s outstanding tuition at Temple University. The Ricci’s appealed the resulting Order.

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On February 1, 2017, the New Jersey Appellate Division published its opinion in the case of New Jersey Division of Child Protection and Permanency v. V.E., A-0586-15T4 — A.3d —- (2017). V.E.file000626018085-300x225 is the mother of R.S. now age nine.  V.E. appealed an administrative finding of the New Jersey Division of Child Protection and Permanency  (“DCPP) that “established” a finding of abuse or neglect without her first being given an evidentiary hearing. The Appellate Division reversed the decision of the trial court to not afford V.E. a plenary hearing “because an established finding is a finding of child abuse or neglect under N.J.S.A. 9:6–8.21(c)(4), subject to disclosure as permitted by N.J.S.A. 9:6–8.11a(b) and other statutes, due process considerations require a party against whom abuse or neglect is established be afforded plenary administrative review. The agency’s denial of an administrative hearing is reversed.”

V.E. and  R.S. resided in a multi-family home where, allegedly unbeknownst to V.E., a sophisticated marijuana growing operation was underway in the basement apartment. V.E. and R.S. lived on the first floor of the two-family home. One day a kitchen grease fire occurred on the second floor while R.S. was at school. The fire department forcibly entered the basement through a back door while searching for the gas line and discovered the marijuana growing operation. The police described the scene as a “’sophisticated … growing operation,’ which included a makeshift irrigation system, fans, fluorescent lights, and heat lamps. The entire building was evacuated after the Hackensack Building Department condemned the structure because of the possible gas leak and an ‘unsafe overload of the electric panel.’ Narcotics Detective Alexander Lopez–Arenas took over the criminal investigation. He noted the “entire home smelled like marijuana” and valued the growing operation at approximately $2,000,000.”

As a result, V.E. was charged with child endangerment and various drug-related offenses and sent to the county jail. R.S. was placed with his Godmother, and the DCPP moved forward with filing a verified complaint for custody of R.S., pursuant to N.J.S.A. 9:6–8.21 and N.J.S.A. 30:4C–12.  The trial court upheld R.S.’s emergency removal and placement outside his home. As a result,  DCPP was granted legal and physical custody of the child with provisions for supervised visitation, substance abuse evaluations, and random urine screenings for the parents.  DCPP then interviewed V.E. and learned that she knew nothing of the growing operation. The child’s father also confirmed that another individual rented the basement and he denied knowledge that drugs were in the home. During DCPP’s interview with the child, R.S., he appeared “happy and talkative” during his interview. He also confirmed that he and his mother only entered the laundry room in basement and did not see any plants.

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I understand why you might not want to read this but . . . tax season is upon us.   While I am an attorney specializing in family law, I frequently come into contact with other areas of law, such as irs-300x225criminal law, school law, health law, real estate law, elder law, bankruptcy law, and so on.  While I am not a tax attorney, tax considerations do come into play in family law, especially divorces, sometimes by circumstance and sometimes by necessity.   Please note that I am not an accountant, and your divorce attorney is probably also not an accountant.  I do not intend this blog to be legal or accounting advice.  If you have any questions about your tax obligations you should definitely consult an accountant.

A this annual time of year when we are gathering our tax forms and receipts, it did get me thinking about ways in which some tax considerations intersect with divorces, and things that a divorcing person might want to think about.  Here are a few:

Support considerations: