Tax Reform Bill Puts Alimony Deductibility on the Chopping BlockNovember 3, 2017
Hidden deep within the proposed Republican tax bill entitled the “Tax Cuts and Jobs Act” (Sec. 1309, Pages 122-126) published yesterday is a scarcely publicized provision that eliminates the long-standing tax deductibility of alimony payments. While this prospective provision will impact agreements/judgments entered after January 1, 2018, the provision, if adopted, amounts to a significant paradigm shift in the way that alimony payments have been treated by both the payor and payee. Those individuals currently in negotiations and practitioners should be aware of this possible legal landscape change. If adopted, it is unknown how this would impact alimony and child support calculations going forward. To view the entire bill, please click on the attached hyperlink: https://waysandmeansforms.house.gov/uploadedfiles/bill_text.pdf
Tax Reform Bill Eliminates Tax Benefits Related to Adoption by Taxing Employer Assistance and Eliminating Tax CreditNovember 3, 2017
Under the proposed Republican tax bill entitled the “Tax Cuts and Jobs Act” (Sec. 1406, Page 142) published yesterday, families seeking to adopt a child will suffer two significant cuts. First, the employer assistance credit for adoption will be eliminated. Currently, if an employer provided assistance to a worker adopting a child up to $13,750, the employee pays no taxes on that assistance. The proposed bill eliminates that provision and the assistance would be taxed as income. Second, the adoption credit of up to $13,750 per eligible child will be repealed. Currently, the credit is applicable for taxpayers with adjusted gross income of between a range of approximately $200,000 to $240,000. To view the entire bill, please click on the attached hyperlink: https://waysandmeansforms.house.gov/uploadedfiles/bill_text.pdf
Court Rules that Title 9 (abuse and neglect) hearsay exception does not apply to Title 30 (termination of parental rights).May 22, 2017
In a case of first impression, the Appellate Division has ruled that the Title 9 hearsay exceptions that are authorized for abuse and neglect investigations is not applicable to parental termination cases under Title 30 and that D.C.P.P. may not rely solely upon that uncorroborated hearsay from children to support a termination of parental rights. In the matter entitled Division of Child Protection and Permanency v. T.U.B. and J.E.C. (https://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/published/a2565-15.pdf), the Court ruled that Title 30 (which outlines process for termination of parental rights) does not allow the Court to rely uncorroborated hearsay statements from children when considering the termination of a parent’s rights. In the case, a man identified only as J.E.C. was living with his son, identified by the fictitious name of Calvin, with J.E.C.'s girlfriend, T.C., and her two minor female daughters, given the fictitious names of Jenny and Sandy. At one point, the girls alleged that they were raped by J.E.C., and the DCPP launched an investigation. Following a hearing, the trial court terminated J.E.C.'s parental rights after relying heavily on the girls' uncorroborated hearsay testimony (which is permitted under Title 9). In reversing, the Appellate Division ruled that the trial court committed reversible error by relying upon the Title 9 hearsay exception as the plain statutory language of Title 30 does not extend the exception to trials involving the termination of parental rights. The court held that such an expansion would violate a parent’s due process rights.
A Warning to Parents Litigating College Expenses in the Family CourtFebruary 24, 2017
In a recent decision, Ricci v. Ricci, the Appellate Division addressed emancipation and parents’ obligation to pay college costs for a child who has left the parent’s home. This case is unique in that it involved divorced parents who agreed their daughter, Caitlyn, should be emancipated. Caitlyn disagreed and legally intervened, causing years of litigation which – according to the Appellate Division – has only just begun.
There was no dispute that Caitlyn had disciplinary problems which began in high school. These issues, which continued after Caitlyn graduated in 2012, caused significant family strife. In February 2013, at the age of nineteen (19), Caitlyn moved from her mother’s home to reside with her grandparents. Based on Caitlyn’s conduct and what the Ricci parents perceived to be an obvious desire to be independent of their control, Caitlyn’s parents agreed it was no longer necessary or appropriate to continue supporting their daughter financially. The parents signed a Consent Order emancipating Caitlyn and stopping child support.
Legal action followed, and Caitlyn asked the Court to vacate the Consent Order and require her parents to provide financial support for college. The parents objected, but two Orders were subsequently entered against them “un-emancipating” Caitlyn and requiring them to contribute towards her college tuition. The Ricci parents appealed.
The Appellate Division’s decision outlined the law governing emancipation and college contribution in New Jersey, and found that neither issue was properly considered. The Court first advised there should have been an examination of the events triggering Caitlyn’s departure from her mother’s home in 2013 and her subsequent emancipation. Following existing law, the Court advised: when determining if a child should be emancipated, judges must focus on whether that child has moved beyond the influence of his or her parents and obtained total independence from them.
Second, the Court could not uphold the conclusion that Caitlyn had been un-emancipated, since the trial court did not make the required findings or hold a plenary hearing (essentially a shortened trial) on the issue. Because there was no requisite finding of un-emancipation, the Order requiring the Riccis to pay for Caitlyn’s college expenses was also improper and had to be vacated. In remanding the matter back to the trial court for a hearing, the Court underscored that the threshold question of emancipation is fact-sensitive and must precede any consideration of a parent’s obligation to contribute towards the cost of college. In other words, Caitlyn will first have to prove she was un-emancipated before the trial court can conduct an analysis about whether her parents should be required to contribute towards her college expenses.
The Appellate Division got it right in the Ricci case; i.e., the Court identified a series of procedural mistakes and ultimately remanded the case to the trial court for the proper proceedings. That’s because under New Jersey law, any time there is a significant factual dispute between the parties (which almost always occurs in Family Court matters), a plenary hearing is required. But there is some truth to the legal maxim “justice delayed is justice denied”, and plenary hearings often take months or even years to complete. Therein lies the issue. By affording the Riccis their “day in court”, the Appellate Division effectively ensured this litigation won’t be ending soon. Practically speaking, the Riccis could be sharing the cost of Caitlyn’s wedding before they resolve college costs.
Despite its holding, the Appellate Division acknowledged the trial court judges in this case made the best equitable decisions based on what was before them. They did so without requiring a plenary hearing – recognizing the limited resources of the parties and the court. This type of “swift justice” is something practitioners demand on a regular basis. However, judges will often avoid this because it’s technically contrary to applicable law and leaves most litigants feeling unsatisfied. The bottom line: litigation in Family Court is often a “no-win” for both parents and children. Although easier said than done, a family feud is best resolved without involving the courts and it’s worth exploring mediation or other forms of dispute resolution.
Domestic (physical) Violence Warrants Issuance of FROOctober 31, 2016
In the published decision of A.M.C. v. P.B., the New Jersey Appellate Division reviewed and reversed a trial court’s denial of a final restraining order (FRO) under the New Jersey Prevention of Domestic Violence Act. In so doing, the Court reviewed the seminal case Silver v. Silver which required the victim to establish (1) a qualifying relationship with the abuser; (2) that the abuser committed one or more of the predicate acts of domestic violence identified in the Prevention of Domestic Violence Act; and (3) there is a need for the protection of an FRO going forward. In the recent decision, the Appellate Division reviewed the step three. In the A.M.C. v. P.B. trial, the trial court determined that the victim satisfied the requirements of (1) and (2), but failed to meet (3). Consequently, the trial court determined that a final restraining order was not necessary to protect the victim from future acts of domestic violence. On appeal, the Appellate Division reviewed and reversed this finding.
In rejecting the trial court’s finding, the court opined that the trial court misapplied (3) to the case and improperly created mitigation factors (length of relationship and lack of children) that were not contained within the New Jersey Prevention of Domestic Violence Act to find against the issuance of a FRO. Consequently, the Appellate Division exercised original jurisdiction and issued a FRO. This case stands for the general proposition that when there exists a physical assault on a victim, the general presumption weighs in favor of the issuance of a FRO. From a practitioner’s standpoint, this case represents a tool for victims of domestic violence to guarantee that they receive the strongest civil protection available under the New Jersey Prevention of Domestic Violence Act.
Palimony Statute Ruled Constitutional Comes as no SurpriseAugust 3, 2016
A recent Chancery Division case upheld New Jersey’s new palimony statute as constitutional. The fact that the court upheld the palimony law as constitutional was not surprising, but it did confirm the shift away from the prior case of Devaney v. L’Esperance which held cohabitation was not necessary for a palimony claim and reinforced the requirement that palimony agreements be in writing. The case also criticized the Plaintiff for her frivolous claims and may serve as support for awarding sanctions in future cases where a plaintiff attempts to utilize creative arguments to circumvent the palimony statute.
The Plaintiff in the Chancery Division case of Lee v. Kim brought a suit against her ex-boyfriend and the Attorney General of New Jersey alleging a palimony claim and that the new palimony statute violated her rights to equal protection, privacy, and due process under the Constitution. Ms. Lee filed her suit after the conclusion of a two year relationship with Dr. Kim. Since the parties began dating after the enactment of the palimony statute, Ms. Lee’s claim for palimony was subject to the requirements of the statute; that the agreement be in writing and that the parties to the agreement be represented by counsel. However, Ms. Lee and Dr. Kim never entered into a written agreement. Therefore, Ms. Lee’s complaint for palimony was based solely on alleged oral promises made by Dr. Kim. The court denied each of Ms. Lee’s constitutional arguments and ultimately dismissed her complaint with prejudice.
The Lee v. Kim decision reflects the trend in family courts to limit protracted litigation and make valuable court time available for other cases. Today, with the shortage of judges in many of the family courts, access to a judge to determine issues such as palimony is limited. The court in the Lee matter dismissed Ms. Lee’s case on the papers without oral argument. The decision also sharply criticized Ms. Lee for wasting time and money with her frivolous palimony litigation. Many judges are reluctant to critique a lawyer’s creative litigation decision, so the opinion in Lee makes clear that courts are unwilling to indulge cases such as this and stands as a warning to other plaintiffs and attorneys.
Bankruptcy and Divorce – Where Should You Go To Seek Relief?May 6, 2016
On May 4, 2016, in the unpublished decision of Strunck v. Figueroa, the Appellate Division reaffirmed longstanding jurisdictional jurisprudence involving bankruptcy and divorce. In the case, the parties divorced in August 2011. As part of the divorce, the Plaintiff was awarded the sum of $23,369 to be transferred from Defendant’s Fidelity account by way of Qualified Domestic Relations Order. The divorce decree further directed that the Plaintiff be responsible for the preparation and cost of the QDRO.
However, prior to the amount being transferred, the Defendant withdrew all funds from the Fidelity and filed a Chapter 7 bankruptcy petition. In the bankruptcy petition, the Defendant listed the Plaintiff’s $23,369 claim as being incurred on August 2011 alleging that the amount was an obligation arising out of a matrimonial judgment and not a domestic support obligation.
Plaintiff received notice of the bankruptcy petition and the inclusion of the $23,369 as an unsecured claim in that petition. The Plaintiff chose not to file an adversary proceeding to challenge the dischargeability of the claim. As no objection was reached by the bankruptcy court, the Defendant was granted a discharge of the claim and all other debts.
Thereafter, the Plaintiff elected to pursue an alternative course to recover the $23,369. More than a year after the discharge, the Plaintiff filed a complaint against the Defendant in the Superior Court alleging conversion of the asset. He contended that the Defendant falsely stated in a bankruptcy petition that she was not holding the property of another and sought to enforce litigants rights based upon the divorce decree.
On appeal, the Appellate Division held that Plaintiff’s decision to not file an adversary proceeding in the bankruptcy matter resulted in the Plaintiff being estopped from later seeking to collect discharged claim. Effectively, the Court noted that the Plaintiff failed to protect his rights by not participating in the bankruptcy proceeding, including but not limited to appealing the discharge of the debt. The decision, while unpublished, should reinforce practitioners close scrutiny of bankruptcy proceedings in a post divorce judgment world. The warning from the courts of New Jersey is that when such a proceeding is filed, a client should avail themselves of appropriate bankruptcy counsel and appear in the bankruptcy matter if there is any dispute as to the listing of a any obligation that arises out of a divorce judgment.
Are Trial Court’s Prohibited From Suspending Alimony Upon Cohabitation?May 3, 2016
Matrimonial settlement agreement alimony termination clauses are one of the most highly negotiated provisions in a divorce proceeding. Often, the parties negotiate a provision that provides for the “termination” of alimony when the supported spouse cohabitates with an unrelated adult. In consideration cohabitation “termination” post-judgment applications, many trial courts enter awards which “suspend” alimony obligations during the period of cohabitation. This type of suspension order was often without prejudice which would permit the previously supported spouse to seek the reinstatement of alimony if/when the cohabitation ended.
On May 3, 2016, the Supreme Court of New Jersey in Quinn v. Quinn declared that such a suspension remedy may be impermissible. In that case, the Court analyzed a marital settlement agreement which included an express provision that terminated alimony upon cohabitation. After finding that the agreement was entered by fully informed parties represented by independent counsel and without any evidence of overreaching fraud or coercion, the Court reversed the trial court’s equitable remedy of suspending alimony and ruled as a matter of law that the trial court was required to apply the remedy of termination as fashioned by the parties in their marital settlement agreement.
In so doing, the Supreme Court has now instructed all trial courts to enforce the express language of the property settlement agreement when there is no ambiguity in the provision. Simply, the court ruled that if the language is clear and unambiguous, the trial court must enforce the agreement as written unless doing so would lead to an absurd result. In so doing, the court found in Quinn that the parties agreed to the circumstances that would terminate the alimony obligation by contract, to wit: cohabitation = termination.
From a practical matter, this ruling will have a significant impact in the way that cohabitation clauses and property settlements are negotiated, drafted and presented to trial courts on a going forward basis. In representing your clients, such a provision should receive close scrutiny before being included in a marital settlement agreement.
Sometimes Honesty is Still the Best PolicyApril 15, 2016
In the recently published decision of Taormina-Bisbing v. Bisbing, the Appellate Division examined the effect of a non-relocation agreement on a subsequent request by one parent to relocate to another state.
The case involved a relocation application, which is what a primary custodial parent files when he or she want to move out of state with the children. These cases are generally governed by a case called Baures v. Lewis, 167 N.J. 91 (2001). Under Baures, the moving party must first show there is a good faith reason for the move. Then, they must demonstrate the move will not be “inimical” to the child’s interests. There are 12 factors a court must assess in conducting a Baures analysis, but overall it’s a relatively easy standard to meet. A non-custodial parent seeking to relocate with the children is subject to a different standard. Because he/she is essentially asking the court for a change in custody, the request is determined by conducting a “best interest of the child” analysis. This is a much more difficult standard.
The parties in Bisbing separated in August of 2013. A few months later, the Wife began a long-distance relationship with man residing in Utah who had children from a previous marriage. The parties eventually entered into a Marital Settlement Agreement (“MSA”) in March 2014 and were divorced in April 2014. In their MSA, they agreed the Wife would have primary residential custody of the parties’ 8-year old twin girls on the condition that she would not relocate out of state. She also agreed to give the Husband “broad reasonable and liberal parenting time”.
One month after the divorce, the Wife informed the Husband she was quitting her job to become a stay-at-home mom (which she did). About eight months later, she called the Husband and told him she was marrying her significant other from Utah and asked for his consent to relocate with the children. The Husband refused and the Wife filed a motion. Without conducting a plenary hearing – which is usually required in relocation cases – the trial court found in favor of the Wife and allowed her to move to Utah. The Husband appealed. The Appellate Division reversed and remanded the case back to the trial court with a roadmap for a plenary hearing.
First, the trial court must determine whether the Wife negotiated the MSA in bad faith. In other words, the court must first decide whether the Wife knew of her plans to move to Utah when she was negotiating the MSA. If the Wife knew, she essentially manipulated the situation to obtain residential custody so her removal application would be subject to the more favorable (Baures) standard. Under such circumstances, the Court instructed, the Husband would have to be restored to the position he was in before the Final Judgment of Divorce. The trial court would then apply the best interest standard and make a new determination on the issue of custody. This would force the Wife to prove it would be in the children’s best interest to stay with her and move to Utah.
If, however, it is found that she did not negotiate in bad faith, the trial court should next consider whether the Wife proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision in the MSA. This would trigger a Baures analysis, which would require the Wife to show only that moving with the children is not inimical to the children’s interest.
The Bisbing decision does not necessarily clarify an ambiguous issue or create a new test or standard to be applied in relocation cases. However, the Appellate Division did openly acknowledge a somewhat harsh reality of the laws of this State: once a parent obtains primary residential custody, it’s much easier for him or her to obtain an Order permitting an out-of-state relocation (since the burden would be placed on the parent who wants to stay in New Jersey to show that removal/relocation is against the children’s interests). Matrimonial practitioners should take time to explain this to clients and ask more questions regarding future plans when negotiating settlement agreements. Moreover, although it’s still not entirely clear where to draw the line, this case seems to suggest that a party who knows or strongly suspects circumstances are likely to change soon after an agreement is signed, may later be accused of “negotiating in bad faith”. Therefore, it is important for a party to disclose any intentions he or she may have of moving out of state, marrying, etc., prior to signing an agreement, as these major events typically constitute a change in circumstances warranting a modification of custody/parenting time, alimony/child support, or even equitable distribution.
How Will Retirement Affect Your Award of Alimony? Well, That All Depends...April 1, 2016
As previously reported, in the Fall of 2014 Governor Christie signed into law an alimony reform bill that substantially amended several provisions of the existing alimony statute, N.J.S.A. 2A:34-23. Among other changes to the law, there is now a rebuttable presumption that alimony terminates once an obligor spouse reaches full retirement age, i.e., 66 years old. N.J.S.A. 2A:34-23(j)(1). This means that in cases where a payor spouse retires and wishes to terminate alimony, the burden is on the recipient spouse to demonstrate that alimony should continue. Previously, it was the payor spouse’s burden to show a change in circumstances warranting a modification or termination of alimony. The statute also expressly provides that the amended law does not apply retroactively. In other words, the law applies only to alimony awards in divorces entered after the effective date of the new statute – September 10, 2014. Unfortunately, this language caused controversy and confusion among matrimonial practitioners, who argued over whether the rebuttal presumption of subsection (j)(1) applied to all matters – including those filed before the statute was amended. A recent reported decision addresses this precise issue.
In Landers v. Landers, the Appellate Division was asked to clarify the application of the newly-enacted amendments in cases where an obligor retires and seeks a termination of alimony. In the Landers case, the parties were divorced in 1991 – long before the alimony reform bill was passed. Defendant-husband was required under the Judgment of Divorce to pay alimony to his ex-spouse, which he faithfully paid for over 20 years. After retiring, the husband filed a motion to terminate alimony. The recipient-wife opposed the application and filed a cross-motion seeking continuation of alimony.
Ruling in favor of the husband, the trial court terminated alimony, finding the wife had failed to overcome the presumption under N.J.S.A. 2A:34-23(j)(1) that alimony terminates when a payor attains full retirement age. The wife appealed, arguing the recent statutory amendments did not affect the terms of their divorce judgment, which was entered before the effective date of the amended statute. The Appellate Division agreed, finding “the particular language used in subsection (j)(3) clarifies the Legislature’s intent to apply (j)(1) only to orders entered after the amendments’ effective date.” In reversing, the Court held:
Unlike other amended provisions of N.J.S.A. 2A:34–23, subsection (j) distinguishes alimony orders executed prior to the amendment’s effective date and those executed afterwards. See N.J.S.A. 2A:34–23(j)(1), (3). Therefore, this unambiguous legislative directive governs a court’s examination of alimony modification requests arising when an obligor retires, depending on the original date alimony is awarded. [. . .]
In sum, the Appellate Division found that based on the date of the parties’ Judgment of Divorce, the trial judge improperly followed the statutory provisions of N.J.S.A. 2A:34–23(j)(1), which incorrectly placed the burden of proof on the recipient-wife, rather than the husband, and also omitted the necessary analysis of important applicable factors.
The Landers decision provides important guidance to trial courts when examining requests to modify alimony in cases of retirement; the analysis all depends on the date alimony was originally awarded. Section (j)(1) applies in cases where alimony was awarded after September 2014. This section establishes a rebuttable presumption that alimony will terminate upon the obligor spouse reaching full retirement age, and places the burden on the recipient spouse to demonstrate why alimony should instead continue. Alimony orders that predate the 2014 amendments are governed by Section (j)(3), which contains a different standard and places the burden on the payor spouse to demonstrate that modification or termination of alimony is appropriate.
How to Protect Assets with New Alimony StatuteSeptember 16, 2014
With the growing trend to modify alimony laws, partners who live in a marriage where the other party earns substantially more may need greater protection through prenuptial agreements. There is no longer a guarantee that the supported spouse will be supported for life, and upon divorce they may be surprised to learn just how short in duration their alimony may be. While a prenuptial agreement provides some protection, at the end of the marriage the supported spouse may need to consider relief such as a higher share of equitable distribution, a portion of the retirement accounts, and rehabilitative alimony to cover education and job training. This may put greater importance on seeking rehabilitative alimony for the supported spouse. Rehabilitative alimony is awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur. The payee may also seek reimbursement alimony, which may be awarded under circumstances in which one party supported the other through an advanced education. Although the amendments appear to have made it easier for the payor spouse to retire and stop or modify his or her alimony payment, the payor must also consider protecting assets to ensure their stability upon retirement. With the reform there will be new challenges for divorcing couples depending on whether they are the paying spouse of the supported spouse. The extent to which the new law will affect future alimony awards is unknown, but they will certainly require skilled counsel to assist clients in understanding the changes and how they might be applicable to their particular case. Brach Eichler's family law department stands poised to assist anyone dealing with a matrimonial controversy or is planning to marry and can assist with questions and concerns involving how these sweeping changes may affect them.
How Do You Divide a Pension Upon Divorce?December 30, 2013
For many families, their 401(k) or pension is the largest asset after the marital home. When determining how to divide the asset upon divorce, it is especially important to understand the different methods of valuation. In New Jersey, there are three accepted methods for valuing a defined-benefit pension plan.
Present-Value Offset Distribution
Under this method, the pension is valued as of the date of complaint, as if the pensioner-spouse terminated participation in the plan as of that date. The non-pensioner spouse receives the present value, offset against the value of another asset. Often this method is used when the parties agree that one will receive the marital home with the other receiving the pension.
When using deferred-distribution a court must first calculate what is called the coverture fraction. The coverture fraction is the percentage of the pension that is subject to equitable distribution based on the length of the marriage. For example, if the pensioned spouse was a member of the pension for ten years, but was only married for five of those years the coverture fraction would be 5/10 and only 50% of the pension would be subject to equitable distribution.
Once the coverture fraction is determined, the parties must obtain a Qualified Domestic Relations Order (“QDRO”) to distribute the non-pensioner spouse’s share upon retirement of the pensioner spouse. It is important to know that under this method the parties are dividing a benefit that is contingent upon the pensioned spouse reaching retirement age. Additionally, both parties must pay their respective tax consequences.
This last method is a hybrid of the deferred-distribution, where the non-pension spouse receives the current value of any non-contingent portion of the pension as well as their share of the deferred-distribution if/when the pensioned spouse retires.
A recent unpublished New Jersey Appellate Court decision, Tominus v. Tominus, No. A-0202-12T1, 2013 WL 5658460 (N.J. App. Ct. Oct. 18, 2013), held that courts must consider each of the possible distribution methodologies. A court may only deviate from one of the three methods after making appropriate findings of fact. The decision is a reminder of how complex pension division can be and just how important it is to complete it in the most equitable way possible.
- Child Support
- Equitable Distribution
- Business Valuation
- Premarital Agreements
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