Exceptional circumstances lead to open durational alimony!

On August 31, 2018, the Appellate Division issued an unpublished decision in B.G. v. E.G.  This was a Union County case where after a 23 day trial, the court issued an 83 page letter opinion and Final Judgment of Divorce.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.





Meeting halfway

How do you and your co-parent arrange parenting time exchanges?   Does one parent do all the driving?   Do you share the driving?   The Court recently opined that parents should meet halfway!

In the recently decided (Sept. 5th) Appellate Division case of Devorak v. Devorak, a Father appealed a trial court’s decision that required the parties to share the driving responsibilities to facilitate his alternate weekend parenting time with their 9 year old child.

Father filed a motion at the trial court level seeking, among other things, an Order compelling the parties to equally share the driving responsibilities relative to his parenting time.  Mother filed a cross-motion compelling Father to “be required to do all the traveling in connection with his visitations.”

The deadlock arose from both parties’ history of moving between residences following their divorce.  At the time of their divorce, both parties lived in Woodbridge.  As per the parties’ Agreement, Father did the pick-ups and drop-offs for his alternate weekend parenting time.

However, Mother then moved to New York City and the parties entered into a consent order wherein Father agreed to continue doing all transportation relative to his parenting time, pending Mother’s relocation back to New Jersey.  Unfortunately, the parties’ consent order did not set forth a specific plan as to what the parties’ transportation arrangements would be after Mother effectuated her move, nor did it delineate a distance from Father or area wherein she would move.

Eventually, Mother moved to Roseland, New Jersey and Father moved to Ewing, New Jersey, which is approximately 1 hour and 35 minutes away (per GoogleMaps).

The Court found that Father “established a significant change in circumstances warranting a modification of a prior order regarding pick up and drop off….”. The trial Court also stated that “it is fair and equitable [for the parties] to share in the transportation responsibility” and ordered the parties to “agree to a pick up and drop off location equidistant between their current residences.”

On appeal, Mother argued that the trial court made an error in entering an order that modified the parties’ divorce agreement, and that Father did not have to pay alimony and paid “modest” child support in exchange for having agreed to do all the driving for parenting time. Mother also argued that she had to do all of the transportation for her other child from her subsequent marriage in support of her position.  The Appellate Court was unimpressed with Mother’s arguments, and affirmed the trial court’s findings that the parties should MEET HALFWAY.

Can My Child’s Other Parent and I Agree to Waive Child Support?

Parents may wish to waive or terminate child support for a variety of reasons. Some parents may have come up with an alternate arrangement for supporting their child, some may simply wish to avoid all contact with their ex-significant others, and some believe that the other parent won’t pay his or her support obligation anyway. Whatever a parent’s reason may be for waiving or terminating the support, a New Jersey appeals court has ruled that divorcing parents cannot sign a property settlement agreement that waives or terminates a parent’s child support obligation.

In Patetta v. Patetta, 358 N.J. Super. 90 (App. Div. 2003), divorcing parents who shared three children signed a property settlement agreement that was incorporated into their final judgment of divorce. The agreement provided that Father was to pay $50 per week in child support for each child. When one child emancipated, which they defined as turning 18, getting married, passing away, or starting a full-time job, Father’s support obligation would be reduced by $50 per week. When their oldest child turned 18, Father sought to emancipate him and reduce his child support obligation, as per the terms of the property settlement agreement. Mother protested, arguing that the child was still living at home and attending community college. The trial court agreed with Mother, and refused to emancipate the child or reduce Father’s child support obligation. Father then appealed.

On appeal, the appellate court found that the question of whether a child is emancipated depends on certain facts, and that college attendance was a basis for continuing a parent’s child support obligation beyond the age of majority. The court also ruled that the right to support belongs to the child, not the parent, so that the parent cannot waive or terminate the child’s right to support in a divorce property settlement agreement.

Furthermore, in the 2017 decision of Conte v. Ainsworth, N.J. Super. App. Div., Docket No. A-3337-15T1, August 31, 2017, the New Jersey Appellate Division reconfirmed the ruling in Patetta. In Conte, Father and Mother signed a property settlement agreement as part of their divorce. This agreement provided that Father would pay weekly child support for their daughter until she was emancipated, which they defined as the daughter completing her college education. After the child graduated from college and entered a master’s program, Father reduced his child support payments and then sought to emancipate the child in court. In response, Mother asked for continued child support payments and for Father to contribute to college expenses. The trial court emancipated the child according to the terms of the property settlement agreement, and Mother appealed. The appellate court reversed the trial court’s finding of emancipation and ruled that the parties’ property settlement agreement could not waive the child’s right to support, and that the trial judge must consider facts outside the agreement in order to determine if the child was emancipated.

Child support cases are often complicated and stressful, whether you are establishing, modifying, or enforcing your child support obligation. No matter how complex the issues in your case may be, we are here to help. The attorneys of Argentino Family Law & Child Advocacy, LLC, have handled cases involving all aspects of divorce, child custody, and family law, as well as cases involving other matters related to families and children. Please contact the experienced New Jersey family and child lawyers at our office if you have any legal questions about children and your family.

Social Security Benefits and Child Support

There are a number of different situations in which Social Security benefits impact child support orders. The extent of this impact depends, at least in part, on the type and amount of the Social Security benefits that the parent is receiving. These circumstances tend to be very fact-specific, but a parent’s receipt of Social Security benefits, in whatever form they may be, significantly affects the outcome of a child support order.

A parent can receive Supplemental Social Security Income (SSI), Social Security Disability (SSD), or a combination of both. SSI is a means-tested government benefit for disabled individuals with very low incomes and a lack of a substantial work history that would qualify them for SSD. On the other hand, SSD is a government benefit that is not based on income. Rather, working individuals pay into Social Security through payroll deductions; later in life, if they become disabled and unable to work, they can receive SSD benefits in order to replace their employment income. Both of these types of Social Security benefits only are available for disabled individuals.

A parent’s SSI benefits are not considered income for the purposes of calculating child support obligations. Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004). Therefore, a parent whose only income is SSI may not be ordered to pay child support. The only exception is if the parent also is able to earn or is earning income beyond what he or she receives in SSI. In that case, the additional income would be considered as income for that parent in setting a child support order.

SSD benefits, however, are counted as income for the purposes of calculating a parent’s child support obligation. Furthermore, when a parent receives SSD, the child also may be eligible for a direct benefit from the Social Security Administration (SSA). If the child receives this kind of benefit, it is subtracted from the disabled parent’s child support obligation. Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998). In some cases, the child will receive a substantial lump sum retroactive benefit. That sum is deducted from the parent’s child support obligation, but only for the period of time during which he or she was responsible for paying child support, and only for that amount of child support. Diehl v. Diehl, 389 N.J. Super 443 (App. Div. 2006).

The intersection of social security benefits and child support is a complex and non-routine matter that is likely to have a significant effect on both parents’ financial situations. We know how difficult and complicated child support cases can be, but we have the experience necessary to guide you through your case. Contact Argentino Family Law & Child Advocacy, LLC, today and we will show you how we can help with your New Jersey child support case. Our attorneys focus their practice primarily on family law and all legal issues related to children, so we are sure to have the skills that you need for proper representation in your family law case. We are here to answer your questions, settle your concerns, and assist you through the often difficult process of contested family law cases.