Do I Have to Sell My Home if I Get Divorced?

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When you are getting divorced, there are different ways to deal with the marital home. If there is equity in the home that the couple accrued during the marriage, it will be divided between the spouses in some manner, in conjunction with the parties’ overall property division.

Selling the marital residence and splitting the proceeds is one of the easier ways to resolve the issue. This may be a necessary option if neither spouse wishes to remain in the marital residence, or neither spouse can afford to remain in the marital residence. The spouses will have to cooperate to the extent necessary to sell the home, but they will each receive liquid assets as opposed to real estate, which can enable them to make a new start or purchase another home.

Another option, if one spouse wishes to remain in the marital residence and can afford to do so, is for that spouse to buy out the other spouse’s share of the equity in the home. Perhaps the simplest way to finance a buy out is to refinance the home solely in the name of the spouse who wishes to stay living in it. This procedure allows the other spouse to remove his or her name from the mortgage, which relieves that spouse of financial liability. During the closing, that spouse also will receive his or her share of the equity in the home.

If a spouse wishes to remain in the marital residence, but cannot afford to refinance or buy out the other spouse’s interest, another option may be for that spouse to remain living in the home, without any distribution of equity to the other spouse, for a certain period of time. This situation may be particularly appropriate if the parties have minor children. For instance, it is not uncommon for the custodial parent to be able to remain in the home until their youngest child reaches the age of 18 or graduates from high school. At the end of that time period, the spouse living in the home must either sell the residence or refinance the home and pay the other spouse his or her share of the equity. The downside to this option, however, is that the name of the spouse who is not living in the home likely will remain on the deed to the house, as well as on the mortgage loan. If the spouse living in the home defaults on mortgage payments or property taxes, the other spouse would be jointly liable for these debts. It is also could preclude the other spouse from being able to move forward with his or her own purchase of a new home. For obvious reasons, this is not a commonly accessed option.

Divorce and separation is never easy, and it can be particularly painful in some circumstances, such as when a spouse fears that he or she can no longer afford to maintain the marital residence. In times like these, it is difficult to make financial decisions that are truly best for you and your family. It is in these kinds of cases that a New Jersey divorce lawyer can be most useful to you and truly make a difference in the outcome of your case. Visit our website at http://argentinolaw.com. You also can email us at info@argentinolaw.com, and one of our staff members will get back to you right away.

Can I Change the Amount of My Alimony Payments?

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New Jersey’s 2014 Alimony Reform Act, N.J.S.2A:34-23, fundamentally changed the way that courts handle alimony in New Jersey divorces. There is no more permanent alimony in the state of New Jersey; legislators replaced permanent alimony with open-durational alimony, which is only available in long-term marriages of 20 years or more, where there has been a significant difference between each spouse’s earning capacity. The Act also made it easier in some respects to terminate or modify alimony payments in certain circumstances. Keep in mind, however, that the Act differentiates between alimony awards made before the effective date of the Act and after the effective date of the Act. As a result, the standard for changing the amount of alimony payments or terminating them altogether is different in some situations, depending on the effective date of the alimony award.

One major change to New Jersey alimony law is the ability of a payor to modify the amount of alimony payments if he or she loses a job. While in the past a payor had a larger burden to justify the modification of an alimony award, it has become much easier when the issue is employment-related. Under current New Jersey law, once an alimony payor has been involuntarily unemployed for a period of 90 days or more, he or she has the right to ask the court to modify the alimony amount. However, the payor must attempt to mitigate the loss and keep records of diligent efforts to replace employment.

There now is a rebuttable presumption that a payor’s alimony obligation should terminate when he or she reaches full retirement age under the federal Social Security Act. However, the other party can rebut this presumption in certain circumstances, if he or she can show good cause for continuing the alimony past the age of the payor’s retirement. In making a decision about rebutting this presumption, the judge must consider a number of factors, which include all sources of income and assets for both parties, the parties’ health, the sum and period of alimony paid, the amount and duration of economic reliance by one party on the other party, and the parties’ ages at the time of the marriage, at the time alimony was ordered, and at the time of their retirement. See Lepis v. Lepis, 83 N.J.139, 416 A.2d 45 (1980).

Furthermore, if payor wants to retire prior to full retirement age, the court must consider similar factors in deciding whether to modify or terminate the alimony award, as well as other factors, such as the payor’s reasons for retiring, the payor’s eligible retirement age at his or her workplace, and the payor’s ability to make the payments following retirement. However, a payor is not allowed to simply retire early in order to avoid paying alimony.

The attorneys of Argentino Family Law & Child Advocacy, LLC , know how difficult legal proceedings can be, particularly when they involve matters that are central to your financial well-being. If you are looking for help with a legal matter involving families or children, you need the advice and guidance of one of our attorneys. Contact our office today to set up a meeting with an experienced lawyer at Argentino Family Law & Child Advocacy, LLC, and learn how we can help you with your legal case.

Are Postnuptial Agreements Enforceable Under New Jersey Law?

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Everyone has heard of prenuptial agreements, or “prenups”. Spouses often enter into these legal contracts before they get married so that some issues are predetermined if they later divorce. For instance, a common subject of a prenuptial agreement is property division. If one individual anticipates receiving a substantial inheritance or valuable work of art during the marriage, he or she may want a prenuptial agreement stating that the item belong solely to him or her if the parties should divorce in the future. If the couple then divorces, a legally valid and proper prenuptial agreement should protect that individual’s right to maintain sole ownership of the art piece or inheritance, despite the fact that he or she received it during the marriage.

New Jersey has a specific statute that guides the specific requirements for a valid prenuptial agreement. In any case, in order to be legally valid, a postnup must be in writing, notarized, and executed only after there has been fair disclosure of assets by both spouses. Additionally, both spouses must have signed the postnup without duress or coercion.

On other hand, a far less common type of agreement is the postnuptial agreement. This contract may be similar to a prenuptial agreement in terms of its subject matter, but the parties enter into postnup after they already are married. Like a prenup, a postnup typically involves financial matters; you cannot decide issues like child custody in either type of agreement. If one spouse is set to receive a large inheritance in the near future, for example, then he or she may want a postnup to prevent the other spouse from having any right to any portion of the inheritance if they end up getting divorced. A postnup may modify or replace an existing prenup, or it may be a stand-alone agreement, usually created if there has been a substantial financial change or marital troubles. Postnups are viewed critically because of the circumstances which surround their entry.

At Argentino Family Law & Child Advocacy, LLC , we know how to handle all of the different issues that New Jersey cases involve with respect to families and children, including issues related to property and debt division. We pride ourselves on always being up-to-date and knowledgeable of any legal developments involving New Jersey family law. We are here to help guide your through your legal proceedings, because we know just how stressful and emotional these kinds of cases can be.

Can My Child Talk to the Judge During Our Family Law Case?

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Under New Jersey Court Rule 5:8-6, a judge may speak with a child privately during a child custody dispute. This is commonly referred to as an in camera interview. If the judge decides to conduct this interview, the attorneys for both parents may submit written questions ahead of the interview for the judge to ask the child. Following the interview, the parents are entitled to a written transcript of the interview, but neither parent may talk to the child about the interview unless the court grants permission for him or her to do so. Therefore, while a judge has the discretion to speak with a child during a child custody case, he or she must do so according to strict rules; the parties also are held to these rules.

The purpose of these detailed rules for an in camera interview is for the child to speak openly and honestly about certain aspects of the custody case. Testifying in open court in front of his or her parents may be frightening to a child, and because the parents are present, the child may not tell the entire truth for fear of disappointing or angering a parent. As a result, the child may make conflicting statements to each parent, in an attempt to tell the parent what he or she wants to hear.

In camera interviews do not occur in most custody cases. The court is more likely to appoint a guardian ad litem (GAL), who is a neutral third party with expertise in children and family law cases. The GAL typically interviews all parties, including the children, and must make recommendations that he or she believes is in the children’s best interests. It is the GAL’s job to speak on behalf of the children and let all parties know about any important things that the children have said about their parents or other relevant issues. 

The family law attorneys at Argentino Family Law & Child Advocacy, LLC, know how to handle all aspects of Washington child custody and family law cases, no matter the complexity of the issues involved. Our attorneys are involved in these types of cases as attorneys, mediators, or as guardians ad litem. We are here to help and give you the advice that you need. Contact our office by e-mailing us at info@argentinolaw.com or call us at (973) 868-0958 to schedule an appointment with one of our experienced family law attorneys today.

What is the Right of First Refusal or Right of First Care?

The “right of first refusal” or “right of first care” is a common provision in child custody and parenting agreements. In its most basic form, the right of first refusal means that when one parent needs child care, he or she must offer the other parent the opportunity to care for the child before contacting a babysitter or another family member to provide the care. While this seems like a reasonable provision in most cases, it may not be appropriate in some cases for a number of different reasons.

Although many parents agree to include the right of first refusal in their custody and parenting plans, other parents do not. In a case where parents cannot agree on the right of first refusal, a judge must decide whether including the right of first refusal in a parenting plan is in a child’s best interest. For instance, if the parents do not have a good relationship and have little contact with one another, a court might find that imposing the right of first refusal against one parent’s will is not in the child’s best interests. In other cases, if a parent is only may be called into work for two hours at a time during his or her time with the children, but only for an hour or two, it may be impractical to contact the other parent and request him or her to provide child care.

Therefore, having the right of first refusal is far from automatic. Not every parent has this right, and the court will not always grant a parent this right over the objection of the other parent. Courts may tend to favor the inclusion of the right of first refusal in parenting plans, particularly for extended periods of time, but they will not always require the parties to exercise it. A good example of a decision regarding the right of first refusal is found in the case of Ferrer v. Durkin, N.J. Super. App. Div., Docket No. A-4880-15T1, June 26, 2017. Although the parents had shared custody of their children, they also had a difficult relationship in which Father often argued and refused to compromise with Mother over minor aspects of their parenting agreement. The trial court declined to implement the right of first refusal as Father requested, and Father appealed. On appeal, the appellate court found that the trial judge did not abuse his discretion in finding that imposing the right of first refusal in this particular case was not in the best interests of the children.

The experienced child custody and parenting time lawyers at Argentino Family Law & Child Advocacy, LLC, are eager to answer your questions and help you understand how the right of first refusal works under New Jersey law. As your attorneys, our focus is on how to best represent you in your case and work toward your desired goals. We have handled countless child custody, divorce, and family law proceedings over the years, and we know how to assist you in reaching the best possible outcome in your case. Call our offices today at (973) 868-0958 and learn how we can help you with your New Jersey custody and parenting time case.