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On October 5, 2018, the Appellate Division handed down an unpublished decision in M.B. v. D.B., a case that was appealed from Mercer County Superior Court, Family Division.
The parties signed a settlement agreement at the time of their divorce in October 2010. The parties agreed to share joint legal custody of their 11 year old and 13 year old children, and that M.B. would be the parent of primary residence (PPR). The parties also agreed that D.B. would pay child support to M.B.
In July 2011, M.B. was checked into an alcohol and drug abuse treatment center, and relinquished custody of the children to D.B. The Court terminated D.B.’s child support obligation in September 2011. In December 2011, the Court ordered M.B. to pay child support to D.B. (which she did not start paying until June 2012). In 2011, M.B. began receiving Social Security Disability (SSD) benefits for herself and the children. M.B. also received a lump sum payment for a period prior to the parties’ divorce. M.B. kept the SSD benefits paid to her for the children’s benefit because she felt that “she was the one disabled and she was paying child support.” M.B. also testified that she had “absolutely no idea what [she] did with any money . . . blew it.”
The SSD benefits that M.B. received were greater than the amount of child support she was paying to D.B. Basically, M.B. was making a net profit from the SSD payments that were supposed to be for her children’s benefit.
After a 3 day trial in May 2016, the Court issue an Order for M.B. to pay D.B. $74,584 for the SSD benefits she received for the children but kept for herself . The Order also allowed D.B. to deduct the money from his payments to M.B. for alimony due to her over the subsequent 9 years.
M.B. appealed. The Appellate Division noted that the trial court had carefully calculated the SSD payments M.B. received during
1) The period prior to the parties’ divorce (D.B. was awarded all funds);
2) The period when M.B. still had custody of the children (D.B. was awarded no funds);
3) The period when D.B. had custody and M.B. paid no support (D.B. was awarded all funds); and
4) The period when D.B. had custody and M.B paid support (D.B. was awarded the difference between what she paid and the SSD benefits she kept).
The Appellate Court affirmed the Trial Court’s decision, opining that that SSD benefits paid on behalf of children belong to the children, and should be paid to the custodial parent, and if a non-custodial parent’s child support obligation is greater than the benefit paid, they need to make up the difference.
On August 31, 2018, the Appellate Division issued an unpublished decision in B.G. v. E.G. This was a Union County case where after a 23 day trial, the court issued an 83 page letter opinion and Final Judgment of Divorce. Defendant appealed from several portions of the Final Judgment of Divorce. Plaintiff cross-appealed.
One of the most contested aspects of the case was the trial court’s decision to order open durational alimony following the parties’ 14 year marriage despite of the statutory alimony changes in 2017 wherein the standard for open durational alimony became 20+ years or “exceptional circumstances.” In this case, the parties began dating in 1988, began living together between 1992 and 1994, had their first child in 1994, and got married in 2000. The parties had three more children during the marriage. Plaintiff filed her Complaint for Divorce on April 1, 2014.
At the time of trial, Plaintiff was a stay-at-home parent, as she had been for the duration of the marriage. Defendant was unemployed but had a 5 year income average of approximately $132,000. The parties and their four (4) children and lived a middle-class lifestyle. Plaintiff sought open durational alimony.
The oldest child was emancipated by the time the trial concluded. Defendant was designated as PPR (Parent of Primary Residence) of the second child and Plaintiff as PPR of the parties’ third and fourth child. The court noted that the parties’ third child (who was 11 at the time of trial) had special needs. The court recognized that the child is on the autism spectrum, has pervasive developmental delays and attends a special school. The court further recognized that it was expected that this child would require continued care in the future beyond the age of 21.
While the parties had been married for 14 years, the court commented that they were a “monogamous couple” for 20 years. The court also noted that the parties lived together in an “economically exclusive and supportive relationship” since 1992 and therefore the trial court did not rely solely on the date of marriage to determine the length of the married but considered the parties’ marriage to be “equivalent to a long-term marriage of over 20 years” and in light of this, the court awarded Plaintiff open durational alimony.
Defendant appealed several provisions of the Final Judgment of Divorce, including the portion regarding open durational alimony. Defendant argued that N.J.S.A. 2A:34-23(c) limits the duration of alimony to the length of the marriage unless there are “exceptional circumstances”
While the Appellate Court did not agree that the prenuptial circumstances were independently the basis for “exceptional circumstances”, they found that there was other substantial credible evidence in the record to support a finding of “exceptional circumstances” that, when combined with the prenuptial circumstances, warranted open durational alimony for a marriage of 14 years. The Appellate Court specifically outlined the fact that Plaintiff did not maintain career readiness as she was caring for the children and the parties’ home; highlighted the extensive responsibilities Plaintiff has had and will continue to have relative to being the primary caretaker for the parties’ child with special needs and reasoned how those responsibilities limit Plaintiff’s job availability.
The lesson to be learned from B.G. is that here is that “exceptional circumstances” may create an opportunity in the law that, at first glance, you might not have thought existed.
In Friel v. Braun-Friel, a recent unpublished decision of the Appellate Division (March 2, 2018), the Appellate Court remanded the matter back to the trial court for a review of the prior decision.
The parties in this case were separated after less than 3 years of marriage. The primary issue was alimony because the Defendant became disabled just after the parties’ marriage and was unable to return to work, rendering her medically and financially dependent upon Plaintiff.
The alimony statute (NJSA 2A:34-23) states that absent exceptional circumstances, an alimony term should not exceed the length of the marriage.
Here, the trial court found that there were exceptional circumstances but ordered only 2 years of alimony at $130/week. The appellate division determined that despite finding exceptional circumstances, the trial court failed to explain why it limited alimony to only 2 years. The appellate division also determined that the trial court should not have considered Defendant’s receipt of SSDI benefits when she had not been approved for same at the time of trial.
This appellate decision reiterates the need for trial courts to give comprehensive and thoughtful decisions supporting their rulings.
Have you had a case where the contested ruling was not supported by a detailed and thoughtful decision? There’s a limited time for reconsideration or appeal of an Order or Judgment. Contact Argentino Family Law & Child Advocacy, LLC now to set up a case assessment to consult with our attorneys about the possible remedies you may have.
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.