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FAKE NEWS! It seems like every year new words or phrases enter into the lexicon of our increasingly dynamic culture and society. For 2017 the term “fake news” would be at the top of most people’s lists. Largely attributed to President Trump, many believe this refers to news stories that are false or are alleged to be. While this may sometimes be the case, most often the term is used to refer to matters reported in the news media as somehow being a newsworthy or significant when in reality they are not.Fake-News-Lincoln-300x188

In this politically polarized country of ours, the use of the term “fake news” is derided by some and cheered by others. However, what has now been characterized as “fake news” is really nothing new. From time immemorial statements made, events occurring, things seen or observed, have been sensationalized, exaggerated, if not twisted and turned – not to the point of being false, but to give them unwarranted weight, meaning or significance. Why? Some sort of agenda-perhaps. But most likely because making things interesting is what sells. The issue today is the blurring of the lines between something of interest from that which is newsworthy. This is not limited to the political arena, but throughout all aspects of our culture and society. The law is not immune from this phenomenon-family law included.

On a regular basis we see or read stories in newspapers, magazines or on the internet of various celebrities or public figures going through the tribulations of separation, divorce or other domestic problems. Some are truly newsworthy, such as allegations of domestic violence or abuse. Some are just are disturbing, such as when children are thrown into the middle of custody disputes made public — the Alec Baldwin taped conversations with his daughter come to mind. However, most often we see banners trumpeting or headlines blaring the outcome of a celebrity’s divorce case-as though it was somehow newsworthy or legally significant-when in most cases it is not. How many times do we see reports of one celebrity parent or the other receiving “joint custody” of their child(ren) in a divorce or split-up? How many times do we see reports of a celebrity being obligated to pay alimony to their spouse?  How many times do we see reports of a celebrity being required to pay what is labeled as a generous amount of support for the benefit of their child(ren)? Beyond the fact that celebrity families are involved, these reports suggest that the disposition of these matters was somehow newsworthy, unusual or extraordinary in nature. As practitioners of family law, we know that in most cases they are not. Under the New Jersey’s divorce laws (as is generally true in most states), there is a presumption of parents sharing “joint” (albeit usually legal) custody of their children; dependent spouses are entitled to some level and/or duration of alimony or spousal support commensurate with the marital standard of living, particularly in longer term marriages; and children are entitled to be supported by their parents not only consistent with the marital standard of living but to also share in the “good fortune” of their parents.

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file00032137357-300x225The 2017 Tax Reform Act has been signed into law by President Trump. This law significantly changes the tax liability of individuals. For individuals, it preserves the marriage penalty forcing dual income households to file jointly to increase their tax bracket or face the faster escalated tax rates imposed on those married filing separately. The intermediate tax haven for married persons filing separately or head of household is preserved, allowing for some planning in divorce proceedings with regard to filing status.

The most significant change in the law as it relates to divorce in the change in deductibility of alimony. For orders or judgments entered on or after December 31, 2018, alimony will no longer be deductible by the payer or included in the taxes of the recipient. The statute preserves the shifting of taxability from payor to recipient for orders or judgments entered on or before December 31, 2018 but allows those who finalize their divorce before December of 2018 to elect to apply the new law to their agreement.  It should be noted that the new law provides that it applies to decrees of Judgment of Divorce or separation, written agreements or decrees. Hence it would seem that orders that provide for the shifting of taxability which are modified by order or agreement entered after December 31, 2018 would create non-deductible, non-taxable alimony.

For most high earners, the deductibility of alimony allows for a more favorable tax beneficial payment of alimony to a dependent spouse. Applications to modify alimony based on changes in economic situations made after December of 2018 would require a recognition that one of the additional changes that must be considered is the loss of deductibility by the payor spouse and the avoidance of tax by the recipient spouse.  Since the statue protects orders entered on or before December of 2018, it would be beneficial to build into the agreement any contemplated downward modification thereby preserving the current favorable tax laws.   Of course, the new law also encourages a race to the court house for those anticipating divorce and is a clear motive to resolve pending matters before years end.

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In this recent decision in the matter of New Jersey Division of Child Protection and Permanency  v. A.B., (A-27-16), the New Jersey Supreme Court reviewed a trial court’s determination that

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defendant A.B. abused or neglected A.F. (her sixteen-year old daughter), that A.B. willfully abandoned A.F.; and that remarks attributed to A.B.’s sister, J.F., were subject to suppression as embedded hearsay.

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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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When custody disputes arise, I often consider the Biblical narrative, 1 Kings 3:16-28,  which tells the story of how King Solomon resolved a custody dispute of sorts between two women who lived 296050aba1c021ff4a7e4cab0ed498d2-3-300x200 in the same home.  The women came before King Solomon, each claiming to be the mother of the same baby boy.   King Solomon called for a sword and rendered his judgment:  He would cut the baby in two so that each woman could receive half.  The first woman did not contest Solomon’s decision, arguing that if she could not have the baby, then neither woman could.  The second woman begged King Solomon to give the baby to the other woman instead of killing the baby. King Solomon declared the second woman as the infant’s true mother, reasoning that as a mother she would give up the baby if she had to in order to save his life.

In custody cases, I often see  people come in with some preconceived notion about how they think family court judges handle custody cases.  Some, for instance, are of the false believe that mothers are presumed to have primary custody of children and that they come in “ahead” somehow in a custody dispute.  That is not the case.  They also believe that it is presumed that fathers are going to then have limited time with the children.   Neither is the case.   New Jersey’s custody statute, N.J.S.A. 9:2-4, states the Legislature’s policy is to “assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy”.  The statue also states that “In any proceeding involving the custody of a minor child, the rights of both parents shall be equal . . .”.

Some litigants when they come in think that there is a presumption that the children will be “split in half” so to speak – as King Solomon suggested, and that this is done by splitting the time with the children in half, like splitting a bank account.  There is no such presumption in New Jersey of 50/50 parenting time.   Equal parenting time is an option for the family court under the existin custody, statute but it is not presumed.

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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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In my last blog post I noted that effective September 1, 2017 a number of Court Rules directly impacting upon Family Part practice had been approved by our Supreme Court. I summarized and discussed a number of those Amendments. In this blog post , I will summarize and discuss two of the most significant and substantive new Rules which were adopted in this current cycle. Continue reading

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For many years Palimony actions were proliferating. Spurned on by the original landmark palimony case filed against actor Lee Marvin by his former girlfriend in California. palimony actions gave e3bc10d77963468f2705f7119c049b73-300x199 hope that people (usually women) in long term relationships without marriage would have some financial rights when the romantic relationship went sour. Palimony served a useful social function to level the proverbial social playing field once the concept of “common law marriage” was eliminated. For Palimony created legal right of support in situations were there was no legal marriage but there was a promise of support. Continue reading

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Despite the recent heat wave, Fall has arrived. Besides the presumably cooler weather, when the calendar hits September, we can always look forward to a number of things – school starts, rush hour traffic resumes, shorter days, etc. However, for us lawyers September brings with it the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey. Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part Practice. A number were in response to statutory changes that recently went into effect. In light of the number involved, I will summarize and discuss these Amendments over the course of several blog posts. Continue reading