Articles Posted in Marriage

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During the New Year’s season we often reflect on the blessings we have received over the course of the last year and give thanks. Many of us visit family during this time and if we are fortunate enough our parents. This past week, the Sixth Circuit of the United States Court of Appeals affirmed the decision of the United States District Court in the case of Sun Life Assurance Co. v. Jackson that involved the distribution of a deceased father’s life insurance policy proceeds to his daughter even though he failed to change the beneficiary designation to his daughter from his brother. In this case the parties were married in 1993 and one child was born of the marriage in 1995. The mother and father were divorced in 2006 and the father agreed to maintain any employer-related life insurance policy for the benefit of his only daughter. The provision read as follows: “In order to secure the obligation of the parties to support their child during her minority, Father and Mother shall maintain, unencumbered, all employer provided life insurance, now in existence at a reasonable cost, or later acquired at a reasonable cost, naming their minor child as primary beneficiary during her minority; and the obligation to do so shall continue until she . . . reach(es) the age of eighteen (18) or 6a3146dbdf81597192112ac03d77c7e4-1-300x200graduates from high school, whichever occurs last . . . .”

Sadly, the father died in 2013 and litigation later ensued because he never changed the beneficiary designation before his death. The insurance company sought declaratory judgment that they properly paid the proceeds to the father’s brother who was still listed as the beneficiary.  The daughter crossclaimed that the proceeds were rightfully her property under the divorce decree. The court found in favor his daughter because “the divorce decree suffices as a qualified domestic relations order that ‘clearly specifies’ [daughter] as the beneficiary under the Employee Retirement Income Security Act, 29 U.S.C. § 1056(d)(3)(C). In its decision the court addressed two questions: “One: What is the test for determining whether a qualified domestic relations order permissibly changed the beneficiary of an ERISA-covered life insurance plan? Two: Does this divorce decree satisfy that test?”

The test the court applied in in answering question one was the “clearly specifies” test. Under § 1056(d)(3)(C) “a domestic order meets the requirements of this subparagraph only if such order clearly specifies— (i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies.” In digging down to determine what exactly is meant by the term “clearly specifies” the court noted that it does not require “Simon Says rigidity or demands magic words.” The court went on to state: “One may ‘clearly specify’ something by implication or inference so long as the meaning is definite. See Oxford English Dictionary 159 (2d ed. 1989) (To specify means ‘to mention, speak of, or name (something) definitely or explicitly’); Webster’s New International Dictionary 2415 (2d ed.1934) (‘to mention or name in a specific or explicit manner’).” An everyday example of this point that the court mentions is that one may clearly specify to a grocery cashier when asked “paper or plastic?” by stating either “paper” or “not plastic” to effectuate the same outcome. Here the court concluded that “a similar approach, informed by common sense and context, applies to the naming of the beneficiary of a life insurance policy. The statute does not require that a particular provision of the divorce decree clearly specify the relevant details.” The court then applied the “clearly specifies” test to the divorce decree and found it passes the test being that it incorporates both the separation agreement and shared parenting plan.  They identified the parties and listed their addresses. Article IX required the father to maintain life insurance “naming their minor child as primary beneficiary.” Page 1 stated that “[t]he parties have one (1) child born the issue of this marriage, namely: Sierra N. Jackson, born February 9, 1995.” The court concluded that the “agreement thus clearly specifies Sierra Jackson as the alternate payee.” Article IX specifies that father shall maintain “all employer provided life insurance . . . naming their minor child as primary beneficiary.” As to plan identity, Article IX identifies “all employer-provided life insurance.” Therefore, the daughter prevailed and the proceeds from the policy were paid to her with interest.

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file0001610872997-212x300Marriage is not as popular as it once was.  Based on 2011 data available to the Pew Research Center, barely half of all adults in the United States were married, which was a record low.  In 1960, 72% of all adults ages 18 and older were married.  Contrast that with 2011, where only 51% of adults aged and 18 older were married.  In addition to higher incidences of divorce and cohabitation  in this century, as compared to 1960, another significant reason for the decline in the overall number of married adults, is that people do not marry as young now as they did in 1960.  Continue reading

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Summer is over. The kids are back in school. The normal routine has returned to your life.  This is a comparatively calm time for most households. There are fewer stressors, a little more “me time”0HFF1UYS9S-300x200
and a lot less “rock ‘n roll” than during the summer.  It is a good time to take stock of where you are, what you have accomplished and for those with marital difficulty the State of the Union. Continue reading

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For attorneys and litigants alike, the legal fees attendant to the handling of a divorce matter are an important consideration. When it comes to legal fees, time is money. Because our Rules of Court prohibit the handling of divorce cases on a contingent fee basis, legal services are billed based upon the actual time spent working on the case at an hourly rate and charged against an initial retainer amount to be paid by the client. When prospective client asks how much in legal fees the divorce will cost, I explain that there are too many variables to give a precise estimate, including the number and complexity of the issues involved, the level to which those issues are contested, the reasonableness of the other spouse and/or attorney in regards to their positions, cooperation and/or course of conduct during the process, and the extent litigation or court involvement is needed to resolve those issues. Continue reading

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Summer is upon us. Summer brings with it holidays, family time, holiday preparations and expectations, and some stress brought on by kids being home for the summer.  The reality is thatcohdrankntmbstn7-300x256 families that have problems often argue and fight at holiday time. The summer is unkind to rocky relationships.    Continue reading

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This is another of a series of blog posts in which I will be highlighting some of the more commonly asked questions of divorcing clients as to whether they can or can’t do certain things in regards to aspects of their financial or personal affairs. Once again, the thoughts expressed in this blog post should not be construed as being in the nature of legal advice, but merely serves as an overview of things to consider if you are a client asking these questions or a lawyer confronted with how to respond to them. Now let’s get to my next two commonly asked questions. Continue reading

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SlashI was recently perusing a periodical and came across a story about a celebrity musician who was claiming he was never married to his wife of 15 years because of a known snafu in her earlier divorce paperwork. The headline stated “Slash claims he was never married to wife of 15 years”. (http://www.metro.us/entertainment/slash-claims-he-was-never-married-to-wife-of-15-years/zsJpjE—wsgif5AIi7dW6/). For those of you who don’t know, Slash, who’s legal name Saul Hudson (which better calls to mind the fictional character Saul Goodman of “Breaking Bad” and “Better Call Saul”),  is the prolific lead guitarist of the recently reformed rock group Guns N’ Roses.  Continue reading

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On September 20, 2016, the Internet was buzzing with reports of Angelina Jolie-Pitt filing for divorce from her long time partner of twelve years and husband of two years, Brad Pitt. The demise ofJoliePitt Angelina Jolie-Pitt’s and Brad Pitt’s two year marriage raises questions about the division of their assets in divorce. “The couple have six children together–and more than half a billion dollars worth in cumulative earnings,” according to Forbes.com. “Since their marriage in 2014, the duo have earned a combined $117.5 million before taxes and fees, per Forbes’ estimates. Continue reading

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Although I can recall having heard about similar stories in the past, a recent news story caught my eye in which a Lakewood, New Jersey couple had been sentenced in a plot to extort a divorce. They, along with others, were accused of involvement in a scheme involving the kidnap and/or assault of husbands in an effort to force them to agree to give their wives a Jewish divorce, or Get. Although in our practice, we deal with “civil” as opposed to “religious” divorces, the inter-relationship of the two occasionally comes up. The subject of this blog post is to briefly address how the family courts of this State have dealt with these sorts of issues, and some practical considerations of how to deal with them so as to avoid the extreme situation noted above. Continue reading

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During a custody dispute over children, if the parties cannot reach an agreement between themselves as to the custody and parenting time arrangement that serves the best interest of the child(ren) at issue, the Court will then be called upon to make that determination for them. The Court is required to make findings as to , and will apply the 15 statutory factors of N.J.S.A. 2A:9:2-4, among which are factors that include the “fitness of the parents”, the “parents’ ability to agree, community and cooperate in matters relating to the child”, the “needs of the child”, and the “stability of the home environment offered”.   Continue reading