Last month I wrote a blog post highlighting many of the practical considerations in trying to negotiate a divorce2-300x200 resolution of a divorce given the dramatic and significant impacts caused by the coronavirus pandemic. The loss of jobs. The reduction of income. The decline in the value of assets. Even more important was the uncertainty of how long this situation would continue. I wrote that blog post during the peak of the crisis. As I write this blog post, things have stabilized somewhat. The curve was flattened and the rate of new infections have declined. SLOWLY some of the restrictions have been relaxed and some businesses are reopening and activities being allowed – with strict guidelines. Optimism remains tempered with trepidation over the extent to which things will return to some level of “normal”. However, most people seem resigned to the reality that things will not be returning to the way things were anytime soon, if at all. Confronted with this uncertainty, and the considerations raised in my earlier blog post, one might conclude now is not the right time to pursue a divorce. I submit this should not be the determiner of one’s decision.

There is no question that the decision to terminate one’s marriage is a major, life-altering one. It is not one to be made rashly, on the spur of the moment, or as an emotional reaction to a given situation. When I meet with a prospective client for the first time, I always inquire as to the reasons why they are considering divorce and the extent they have considered or pursued all reasonable efforts to save their marriage. Hopefully having weighed all these considerations carefully, the decision to divorce remains a highly personal one. It is a purely subjective one. Once counseled as to the legal consequences of that decision, it is one to be respected. One point of caution, however. The pandemic itself should not be the sole reason why someone decides to end the marriage. This situation is as “novel” as the virus itself. To one degree or the other, everyone has been impacted by it – stress, fear, uncertainty – be it emotional, health-wise, or financial. Parties to an otherwise solid marriage should be able to work together to overcome these consequences, or make every effort to do so. It is the marriage that is already on shaky ground that the pandemic and its impact can be the straw that broke the camel’s back.

Once a spouse comes to the decision that the marriage is over and can no longer be saved, the question is whether now is the time to commence the divorce process. I submit that the decision to do so or not should be the same now as before the pandemic arrived.

This month, the Appellate Division approved for publication the case of Gormley v. Gormley, A-1428-18, disability-200x300(App.Div. 2019) which addressed the standard to apply in determining the income of a litigant who has been determined by the Social Security Administration to be disabled and whether the Court should impute income for someone who has been adjudicated disabled and does not work.

In this case, the parties married in 2000, had one child, and the plaintiff filed a Complaint for Divorce in 2015.  The Defendant had already been diagnosed with multiple sclerosis at the time of the marriage. In 2002, also during the marriage, the Social Security Administration determined that the Defendant was disabled by multiple sclerosis. As such, she did not work and was receiving $2,023 per month in social security disability benefits. The Plaintiff was employed full-time and earned a commission based income.  In the two years before the trial, he had been earning approximately $150,000 per year.   However, in the year of the trial, he was working fewer hours in order to represent himself at trial, and to study psychology and parental alienation.  As such, he was earning approximately $112,000 per year.

The family court judge imputed $240 per week of earned income to the Defendant even though the Social Security Administration had determined that she was disabled and had been paying monthly social security disability benefits since 2002.  The judge reasoned that she did not visibly observe Defendant exhibit in court disabling symptoms from multiple sclerosis such as fatigue, bladder issues, tremors , difficulty in concentration or any other difficulties that the judge felt would prevent her from working.   No income was imputed to the plaintiff.

In Amzler v. Amzler, (Docket No. A-3384-18), 2020 N.J. Super. LEXIS 38 (App. Div. 2020), the  retirement-300x200Appellate Division provided direction on the effect of the September 2014 amendments to New Jersey’s alimony statute, N.J.S.A. 2A:34-23 as it relates to a litigant’s desire to retire before his full retirement age and stop paying alimony.   Before the 2014 amendments, a party seeking to modify an alimony obligation was required to “demonstrate that changed circumstances have substantially impaired the ability to support himself or herself.” Landers v. Landers, 444 N.J. Super. 315, 320 (App. Div. 2016) (quoting Lepis v. Lepis, 83 N.J. 139, 157(1980)).  The Legislature amended the alimony statute to add subsection (j), which applies in situation applies in situations involving “the prospective or actual retirement of the obligor.”

In  the Amzler case, the parties in 2009 signed a matrimonial settlement agreement (MSA) that required the plaintiff to pay alimony.  The MSA contained an “anti-Lepis” provision, meaning that a “voluntary reduction in income of either party” would not constitute a substantial change in circumstance for the purpose of reviewing alimony.  After the parties’ divorce, the plaintiff continued to work, but due to medical reasons, retired before reaching full retirement age. The defendant filed a motion seeking to enforce the MSA and the plaintiff’s alimony obligation; the plaintiff filed a cross motion seeking to terminate or reduce his alimony obligation due to his retirement.

The trial court granted the plaintiff’s motion to terminate alimony, relying on section N.J.S.A. 2A:34-23(j)(2) of the alimony statute, which applies when a payor spouse retires before reaching full-retirement age. The defendant argued that the judge incorrectly applied subjection (j)(2) of the statute rather than subsection (j)(3), which governs the review of final alimony orders or agreements that were established before the effective date of the 2014 statutory amendments.

After years of a booming economy, the coronavirus pandemic has wreaked havoc on our state and family-corona-300x200national economies.  Non-essential businesses have been forced to close and millions have become unemployed.  Many others who have held onto their jobs have had their hours or pay reduced.  The pandemic has caused households to struggle financially and many are worried about how they will pay their bills and trying to determine how they can reduce expenses.   What are  the options to modify alimony and/or child support obligations if one or both parties has experienced a reduction in income or a loss income due to the coronavirus pandemic?

If one or both litigants cannot resolve the issue on their own, a lawyer and/or mediator can offer up assistance to resolve the matter.  A resolution is going to require both parties to be reasonable and understanding.  The person receiving support may need to be understanding of the obligor party’s financial distress and worry.  The person paying support may need to understand that alimony and child support may represent all or most of the receiving party’s income and that party cannot apply for unemployment benefits to replace lost support. The matter is more significant when there are children that have to be cared and provided for, and that is paramount.

If the parties cannot come to an agreement, can the court offer relief?  The courts have not been having hearings but for emergency matters, and financial disputes are generally not considered emergent.  However, the courts in New Jersey have risen to the occasion and applications to modify support can be filed electronically. A Family Division judge can decide the matter based on the review of the papers alone if that is requested, or the judge can conduct oral argument, settlement conferences and the like via telephone and/or video conference.  The courts are still open to conduct family law business.

It goes without saying that the impact of the coronavirus pandemic has been widespread and file2381251825687-238x300devastating. It has been dramatic and sudden. It has reached every corner of the globe. It has affected virtually every institution – political, economic and social. It has touched every community, every family and every person in some way. For those already going through the personal upheaval of divorce, it’s emotional and financial consequences have only served to make a difficult situation even more stressful and complicated. Even though the vast majority of divorce cases will end up being resolved by the parties by way of a negotiated agreement, the pandemic’s impact has clearly had a drastic effect upon the parties’ ability to negotiate a resolution of their cases at this juncture.

Front and center on our website is the quote from Justice Brandeis: “Nothing is settled until it is settled right.” The pandemic has certainly put this to the test. Until six to eight weeks ago, we were in the midst of a period of sustained economic prosperity. Unemployment was at historic lows. Incomes and wages were up. Businesses were flourishing. The stock market and other investments were at record highs. The real estate market had finally rebounded from the impact of the recession years earlier. One of the biggest keys in trying to negotiate a resolution of a divorce case is having some sense of stability in regards to the family’s financial picture now and of its predictability into the future. When it comes to issues of support, a payor spouse’s willingness to commit to an amount to pay is not only tied to what he or she is earning then, but the reliability of these earnings going forward. When it comes to the division of assets, determining what allocation or distribution of same would be fair and equitable depends not only on being able to identify and value those assets at that time, but some level of predictability of what will happen with those assets into the future. Until recently, that task seemed fairly easy. However, the pandemic has swiftly turned this process on its head.

Record employment has turned to record unemployment in a matter of weeks, largely the consequence of the government’s policy to shutdown “non-essential” businesses in an effort to blunt the spread of the virus. Twenty-two million claims were made for unemployment in the past three weeks alone. Even if people didn’t lose their jobs, they may have suffered a reduction in hours or pay. Social distancing and stay home requirements have further curtailed many jobs and other economic activity. Many businesses have been closed or have seen their revenues drastically reduced. To make matters worse, no one has been able to predict with any level of certainty how long the shutdown will last – weeks, months, until there is a vaccine – or even what the impact all of this economic dislocation will have either short-term or long-term. Whenever it is over, will things simply return to the prior “normal” or will a new “normal” come into being? Will people get their old jobs back? Will there even be businesses or jobs to return to? How much will future earnings be impacted? Will the stock and financial markets rebound?

Due to COVID-19, New Jerseyeans, among others, are experiencing difficult financial times. While there stimulus-300x198has been action by the government to ease financial burdens such as staying evictions and forbearing mortgage payments, the fact of the matter is that ensuring the receipt of child support during this time is critical. Children need the financial support of their parents in good times and bad times. The coronavirus relief bill includes direct cash payments to help people through the crisis — but one red flag that can cost otherwise eligible Americans money is owing past due child support.

When a parent does not make child support payments on time, the overdue payments are called arrears. In order to collect arrears there are various measures that can be taken against a parent that owes child support such as the following:

  • Jail

Life has taken an unexpected left turn over the course of the last few weeks. Many have become violence-300x200unemployed  Those lucky enough to be working may have received a cut in pay or be working reduced hours. Apart from the financial impact of the current pandemic there are social losses as well. Most work places are closed, forcing those still employed to work from home.  Twenty first century life is dynamic. We are not a country of couch potatoes; our kids have lessons, sports and activities. Most household have two working partners. The point is that COVID-19 has brought us closer together in close quarters for longer periods of time than usual.

Citizens are directed to shelter in place in New Jersey but, unfortunately, not everyone is safe in the household where they are to “shelter”. The “rat theory” posits that if you put too many people together in too small a space for too long a period of time, tempers are likely to combust. If your marriage was going through a difficult period before this pandemic, the stress of lost or reduced wages and close proximity may be catalyst for argument and possible violence.

If your spouse has been violent in the past or if there is pent up anger, rage or fear in your household, you certainly you need to be prepared to deal with the possibly of a violent incident. Let’s be honest: tempers are more raw when the release valves fail and now there is a far greater difficulty in finding neutral territory. You, also on edge, may have fewer coping mechanisms to deflect incoming domestic attacks.

covid19-300x200Co-parenting children when parents are separated or divorced can be challenging in normal circumstances.  One would agree, however, that times are not normal.  The country is in the midst of a pandemic due to the COVID-19 virus.  Governor Murphy has closed schools and many business, and he has directed that we engage in “social distancing” and stay at home for the indefinite future.

Families all over the State are concerned about their children’s health and well-being, not to mention family finances due to the number of people who have lost jobs, been furloughed or suffered from cuts in pay or hours.  Existing arrangements for custody and parenting time were designed for normal circumstances, not necessarily for unprecedented times such as these.

Questions may arise as to how  separated parents address custody, parenting time and child support issues.  To what extent do existing orders have to be followed? Generally, many existing agreements or orders for parenting time can and should be followed.  However, can a parent withhold or refuse parenting time?  What happens if a parent or child is exposed to the coronavirus or is at heightened risk of exposure?  What if a parent, child or family member begins to exhibit symptoms?  How should parents accommodate a household that has an elderly family member or a family member with a health condition which makes COVID-19 particularly deadly?  What if one of the parents lives out of state and the child has to travel some extended distance?  What if the households do not have the same social distancing practices?   Can both parents’ homes accommodate educating the children while school is closed?  Should parenting time be modified to reflect that both parents are home more either due to having lost their jobs or they are working from home?

Maury says you are NOT the father! Actually, after getting the results of a genetic or  DNA test, you file000349823764-1024x768discover that you are not the father of the child you were led to believe was yours and had been supporting.  Rather, the child you have been supporting was the offspring of an extramarital affair between your ex-wife and another man conceived during your marriage. Once you get past the shock of such a disclosure, you question to what extent you may have an ability to seek reimbursement from the biological father for the support you had already paid on behalf of that child.

If you turned to the internet for an answer to that question, you might not only have been led to believe you had no right to do so, but that you were a selfish, horrible and “grotesque” person for even raising the issue. This was essentially the exchange highlighted on my browser’s home page a few weeks back.  As a lawyer, it is obvious that  such “advice” would be legally erroneous, certainly under New Jersey law. However, I wondered how many people may have relied upon this response as opposed to discussing the matter with an attorney.

Before commenting on whether it is wise or prudent to rely upon “Ask the Internet” to get answers to significant legal questions, I will address whether under New Jersey law a claim for reimbursement of child support can be brought against one determined to be the biological father of a child. The applicable statute as well as our courts have answered yes. Situations such as these are governed by the provisions of the New Jersey Parentage Act, N.J.S.A. 9:17-38 to 59, enacted in 1983, and modeled after the Uniform Parentage Act 1973. The Parentage Act was intended to establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide procedures to establish parentage in disputed cases, as well as to ensure that children receive their statutory right to financial support and to facilitate payment by fathers who refused to admit paternity and/or fail to pay. To that end, the Parentage Act not only provides all children with a judicially enforceable right to such support, regardless of their parents’ marital status, it affords to “any person” who has furnished financial support to a child the ability to institute a proceeding seeking reimbursement for reasonable educational, medical or other support-related expenses from the biological father where the existence of the father/child relationship has been declared or paternity is acknowledged or adjudicated. N.J.S.A. 9:17-55(a).

Various blogs have been written by members of our firm about situations where a custodial parents IMG_1930-300x225wants to move with the parties’ children to a state other than New Jersey.   Can a custodial parent live wherever he/she wants within the State of New Jersey?  Can a non-custodial parent ask a New Jersey family court just to stop a custodial parent from moving with the children to another town or city within the State of New Jersey?

Certainly some parents have reached an agreement with one another that they will live within a certain proximity to one another where they feel that it is in their own best interest for their children to live in certain areas of New Jersey or for the parents to live within a certain proximity to one another in order for their custody and parenting time agreement to work out.   New Jersey has a public policy of enforcing settlement agreements where they are fair and equitable.

What if parents do not have such an agreement?  Can the non-custodial parent prevent the custodial parent from living anywhere within the state of New Jersey that the custodial parent wants to live? In 2003, the Appellate Division addressed this question in the case of Schulze v. Morris, 361 N.J. Super. 419 (2003).  In this case, the parties had both been living in Middlesex County, New Jersey, but after the custodial parent was denied tenure at her teaching position, she found another teaching job in Sussex County and wanted to move with the parties’ child to Sussex County.  The non-custodial parent filed an Order to Show Cause seeking to stop the custodial parent from moving with the parties’ child to Sussex County.   The Appellate Division concluded that a custodial parent’s request to move to a different place within the State of New Jersey is not a “removal” action pursuant to N.J.S.A. 9:2-2 for which the custodial parent has to obtain the permission of the Court.   However,  the Appellate Division recognized that a custodial parent’s move with a child can have significant impact on the relationship between the child and the non-custodial parent and that there are occasions where an intrastate relocation can constitute a substantial change in circumstance warranting a modification of the custody and parenting time arrangement.   When a noncustodial parent opposes an intrastate relocation of the child(ren) but the custodial parent on the basis that the move will be “deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests”, then the Appellate Division in Schultze directed that the family court had to assess the factors in Baures v. Lewis, 167 N.J. 91 (2001), an interstate relocation case.