Category: Matrimonial Law

Who Gets the Wedding Gifts?

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When a couple is getting divorced, whether after a twenty year marriage or a 72 day marriage, one of the issues that must be dealt with as part of the divorce proceeding is the distribution of the wedding gifts, or any gifts to either spouse during the marriage.

At Lyons & Associates, we specialize in all aspects of matrimonial and family law, and distribution of the wedding gifts and other marital properties are some of the many issues we deal with during divorce negotiations and litigation.

Several factors come into play when making the determination of who gets the wedding gifts, particularly the length of the marriage and to whom the gift was given. Generally, the presumption in the State of New Jersey is that a wedding gift was given to the couple; therefore, the gift is marital property and considered part of the marital estate that would be subject to distribution amongst the parties in a divorce proceeding. Any spouse claiming the wedding gift, or any gift, was given to one individual versus the other will need to provide proof of the donor’s intent, usually through the donor’s testimony or certification under oath, and cannot have commingled that gift during the marriage. A gift is “commingled” if the spouse to whom it was given uses it in a manner that benefits the other spouse, the marriage, or the non-receiving spouse actively contributes to increasing the value of that gift during the marriage. If, however, the recipient of the gift keeps the gift entirely separate from the marriage, for example, depositing money into a separate account where it remains throughout the marriage without being utilized to benefit the marriage, then the likelihood of that gift being considered separate property is much higher. The spouse must demonstrate “a clearly manifested and unequivocal intent” that the asset would remain the separate property of that party. Wadlow v. Wadlow, 200 N.J. Super. 372, 380 (App. Div. 1985).

While some rules of etiquette might indicate that after a short-term marriage couples should return their gifts to the guests, the law of New Jersey does not require the couple to do so. As long as the individual giving the gift actually intended to give the gift and delivered it to the couple, and the couple accepted, there is no onus on the couple to return that gift for any reason. Pascale v. Pascale, 113 N.J. 20, 29 (1988). There are no conditions tied to the giving of the gift to the couple.

Gifts versus Loans

What about the $20,000 a parent gives to a couple to make a down payment on their first marital residence? Is this contribution considered a gift or loan to the couple?

In keeping with the Court’s mandate in Wadlow, a Court will look to the intent of the parties and the intent of the donor. Most often intent will be difficult to prove in these cases unless there is a promissory note or some other written instrument indicating the large contribution was a loan versus a gift. However, for the Court in Wadlow, despite the clear commingling of the Wife’s $20,000 that she acquired before the marriage, the Court found that the parties “always had the feeling that [the money] had come from [the wife’s] family and as a result of her efforts before marriage and eventually would be returned.” 200 N.J. Super. at 380. The Court recognized the Wife’s entitlement to those assets.

If you are involved in high conflict divorce litigation involving any of these issues, hire a family law attorney who is familiar with these types of cases and who will be able to effectively represent your interests in Court.

Call Lyons & Associates today at 908-575-9777 to speak with one of our skilled attorneys who can work you through the process with both knowledge and understanding. You can also fill out our online intake form

Written by: Kristyl Berckes, Esq.

Why is it Important to Ensure That Your Case Information Statement is Filled out Accurately and Correctly?

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At Lyons & Associates, P.C., we specialize in all aspects of matrimonial and family law. The most important document in any divorce is the Case Information Statement or “CIS”. The “CIS” is a sworn financial affidavit that sets forth five categories of relevant information including personal data, income, expenses, assets, and liabilities. New Jersey Court Rule 5:5-2(a) requires that a Case Information Statement be filed with the Court and served in all contested family actions, except summary actions, in which there is any issue as to custody, support, alimony or equitable distribution. The Court and attorneys rely in large part on the information provided in the Case Information Statements filed by the parties when determining or negotiating the amount of alimony to be paid by the supporting spouse, the amount of child support to be paid by the non-custodial parent, when dividing the parties’ assets and debts for purposes of equitable distribution, and for determining whether one party is in a better financial position than the other and therefore should pay the other party’s counsel fees pursuant to New Jersey Court Rule 5:3-5(c).

Therefore, since each party’s Case Information Statement forms the basis for the determination of the issues referenced above, the accuracy and credibility of each party’s Case Information Statement is exceedingly important.

When filling out the Case Information Statement each party must be careful not to understate or inflate their monthly expenses. The lifestyle enjoyed by the parties during the marriage, which serves as the basis for an award of alimony, is established by the monthly expenses listed by the parties’ on their respective Case Information Statements. Pressler & Verniero, Current N.J. Court Rules, Appendix V to Rule 5:5-2(b) at 2540 (2013).

When completing the Case Information Statement a litigant should verify, to the extent possible, the parties’ respective incomes with their most recent tax returns, W-2’s, and their last three pay stubs. In fact, it is required that each party attach their most recent tax return, W-2’s, and last three pay stubs to the Case Information Statement when filing same with the Court and upon service on opposing counsel. Furthermore, to the extent possible, litigants should also verify their monthly expenses by providing credit card statements, monthly bills, such as mortgage statements and utilities, by attaching such documents as exhibits to the Case Information Statement. If a litigant fails to include an expense in his or her Case Information Statement in the beginning of the proceeding, amending the Case Information Statement at a later date to include this expense may lead the Court to believe that the litigant only recently began incurring the expense after the divorce proceeding began and as a result could refuse to include such an expense when calculating an alimony or child support obligation.

It is important for litigants to provide accurate Case Information Statements because the document may be called into question later on in the litigation. Case Information Statements must be filed with the Court before formal discovery is completed. So, therefore, even if the parties are not in possession of all of the documentation reflecting their respective expenses and income, the parties will eventually be able to verify the information set forth in the CIS at a later stage in the proceeding after formal discovery is completed. Further, if a litigant supplies inaccurate information in his or her Case Information Statement, such inaccurate information may be used against that party during cross examination in the event that the matter proceeds to trial. If a litigant provides inaccurate information on his or her Case Information Statement, at trial, the opposing party’s attorney may use the Case Information Statement to impeach that party’s credibility or to make him or her look like a liar to the Court.

On the other hand, if both parties’ submit accurate, comprehensive Case Information Statements early on in the divorce proceeding, this may help the parties come to a swifter resolution of the unresolved issues and would help to keep their legal fees lower than they otherwise would be.

In addition, the accuracy of each party’s Case Information Statement is always relevant as it may be used in a subsequent proceeding after the parties’ divorce. In fact, a party who files a post-judgment motion (motion filed after the parties are divorced) seeking to modify a Judgment for alimony or child support based on a permanent and significant change in financial circumstances must also provide a copy of the prior Case Information Statement or Statements that were filed during the divorce proceeding. R. 5:5-4(a). As a result prior Case Information Statements are always relevant.

Since Case Information Statements are always relevant, litigants must take great care to make sure that the information being provided to the Court and the opposing party’s attorney is truthful and accurately represents the information obtained from the applicable, supporting documentation.

Contact the Law Office of Lyons & Associates

Completing a Case Information Statement may not be a pleasant task, but the importance of this document in divorce litigation and post-judgment litigation cannot be understated. That is why it is so important to have a skilled matrimonial attorney to walk you through the process. If you have questions about a Case Information Statement, or any other aspect of divorce, call Lyons & Associates, P.C. at 908-575-9777, or contact us online.

Written by: Mark T. Gabriel
Dated: June 3, 2013

Why Should You Get Your House Appraised?

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When filing for divorce, aside from parting ways with their spouse, a person may not immediately think of the financial repercussions that come along with going through with a divorce. In New Jersey, you need to be aware of not only how your marital property is going to be divided, but what the most effective way to do so is. At Lyons & Associates, P.C.,we specialize in matrimonial law and can help you manage the division of your assets.

One of the most common and valuable assets jointly owned by married couples is, of course, the marital home. Whether you are lucky enough to be one of the select homeowners to own your home outright or if your home is encumbered with a mortgage, it is of the utmost importance to determine an accurate value of how much your home is worth. This amount will determine how much equity is in your home, and subsequently how much you are entitled to via equitable distribution of that property.

There are many different ways to determine the current value of your home. None is more accurate than getting an appraisal from a certified professional. An appraisal is the estimation of a home’s market value by a licensed appraiser based on comparable recent sales of homes in the neighborhood. This is not to be confused with an assessment, which is conducted by a government employee who evaluates the value of the home to determine how much property tax the homeowner will pay.

Typically, property is determined at its “fair market value”, or what you would get for it if you sold it today. You want to make sure this number is as accurate as possible. In some if not all cases, that will require the use of a professional real estate appraiser, or else you run the risk of either under or over valuating your property, which could have a negative impact on the amount of money you will eventually receive via Equitable Distribution of your home. If you have any questions about home valuations or any other aspect of your divorce call one of our skilled attorneys at Lyons & Associates, P.C. today at 908-575-9777. You can also fill out our online intake form HERE.

Written by: William Lemega, Esq.

Does New Jersey Permit Gay Marriage?

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At Lyons & Associates, we specialize in helping same – sex couples with the many legal issues that they face. One question we frequently answer is whether New Jersey permits gay marriage?

In short, the answer is NO. However, couples in New Jersey are permitted to enter into a Civil Union. Civil Unions are governed by the Civil Union Act, which is codified at N.J.S.A. 37:1-28 et. seq.

For two people to be able to enter into a Civil Union in New Jersey, it is necessary that they meet all three of the following criteria:

a. Not be a party to another civil union, domestic partnership or marriage;

b. Be of the same sex; and

c. Be at least 18 years of age (with some very limited exceptions).

If you are thinking of entering into a Civil Union and want to know what your legal rights are, both during your Civil Union, and in the unfortunate event that you and your partner later split up, call the skilled attorneys at Lyons & Associates at 908-575-9777, or fill out the online intake form.

What Is Divorce Mediation and Is It Right for Me?

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At Lyons & Associates, because our practice is devoted to family law, we always strive to complete your Divorce in the most efficient way possible. Often times, that includes Mediation.

Divorce Mediation can be a very powerful tool to resolve your family law issues. There are certain benefits to Mediation, including reducing legal costs, avoiding litigation, and keeping things as amicable as possible between the parties. But there are some drawbacks too, especially in cases where one party may be hiding assets or is not proceedings in good faith.

In order for mediation to be effective, we at Lyons & Associates have found that three critical factors must be present:

  1. There must be a balance of power between the spouses. If one spouse is afraid of the other, or if there is a history of domestic violence between the parties, then mediation will not work because one party may wrongly dominate the other in discussions.
  2. There must be full, open, and honest disclosure of all marital assets. If one party is hiding money or assets, the other spouse and the mediator will not be able to find the hidden assets because the mediator does not have the power to subpoena documents directly from banks or other financial institutions. An attorney can issue such subpoenas.
  3. There must be a willingness to compromise by both parties. If one party digs in his/her heels and refuses to bend, then mediation will not work because no real compromises can be struck.

So long as the above three factors are present, mediation can and does work, and the attorneys at Lyons & Associates have helped hundreds of clients through the mediation process. But if any of the above three factors is missing, then you should be careful about entering into mediation, and you need to consider other options..

Call a skilled family law attorney at Lyons & Associates at 908-575-9777, or fill out our online intake form. We can talk to you more about mediation, whether it is right for you and your family, and what all of your options are should mediation not be right for you.

Court Order, Property Settlement or Divorce – How Can I Enforce My Former Spouse’s Obligations

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“My Former Spouse will not Comply with a Court Order, Property Settlement Agreement, or Judgement of Divorce. How can I Enforce my Former Spouse’s Obligations, and how can I Make Sure he or she Complies Moving Forward?”

Many litigants who have been through a divorce or other family law related court proceeding are often frustrated by an opposing party’s subsequent lack of compliance with court orders and agreements after the initial court proceeding. For example, many litigants often spend thousands of dollars on attorney’s fees to enforce Property Settlement Agreements that they previously paid their attorneys to negotiate and obtain for them during the divorce.

We at Lyons & Associates, P.C. realize how frustrating this can be. Often, litigants are left only with two options, to wait and hope that at some point the violating party complies with his or her obligations or to hire an attorney to enforce their former spouse’s obligations under a Property Settlement Agreement or previously issued Court Order. Litigants also run into problems with enforcing their former spouses’ obligations to comply with agreements or court orders, including but not limited to their obligations to pay child support, pay alimony, comply with equitable distribution, and last but not least, to enforce one spouse to comply with an order or agreement concerning custody and parenting time.

Although this process is frustrating, by planning ahead some of the problems listed above can be avoided. For example, agreeing to have child support and/or alimony paid through the applicable probation department can help both parties avoid any unnecessary disputes. Since the probation department tracks, manages, and enforces the payment of child support and alimony, it is often not necessary to retain an attorney to enforce the payment of same. Further, if support is paid through probation “via income withholding” the support is automatically deducted from the payor’s check and the payor’s employer is legally obligated to set up the withholding of support from the payor’s pay checks. Sometimes the paying spouse or “payor” is not required to pay support via income withholding because he or she is self-employed, receives income on an irregular basis, or is paid in cash. If a litigant believes that the paying spouse or “payor” will likely default on his or her obligation to pay support, if support is paid through probation directly and not via income withholding, the spouse receiving support or “payee” could request that the payor’s obligation to pay support be placed on “two week warrant status.” If a payor is placed on “two week warrant status” the probation department will automatically issue a warrant for the payor’s arrest if the payor misses two support payments, whether the missed payments are consecutive or non-consecutive.

If an opposing litigant has already failed to comply with a Court Order or Property Settlement Agreement, the Court may require the violating party to pay the counsel fees and costs the enforcing party incurred in connection to seeking judicial enforcement of the Order or Agreement. R. 1:10-3. Furthermore, Rule 1:10-3 provides that the Court may issue an order for commitment for the purpose of enforcing Orders and Judgments of the family part. Id. In other words, the Court may order that the party in violation of the Order or Agreement be arrested and held in the county jail until the party complies with his or her obligations to pay support. For example, the Court may condition the violating party’s release from commitment on his or her payment of a sum certain to the payee spouse. This is called “civil commitment” and is not punitive in nature, but coercive. In fact, before a violating spouse is committed, the Court is required to hold an “ability to pay hearing” to determine if the violating party has the means to pay the amount on which his or her release is conditioned. If the violating spouse does not have the means or “ability to pay” this sum, the Court is not permitted to keep the violating spouse in jail. If the Court finds that the offending party has the means and ability to pay the sum on which his or her release is conditioned, the litigant can just pay that sum and he or she will immediately be released. Many litigants shy away from utilizing this remedy because it may sound harsh or excessive. However, since the Court is required to hold an ability to pay hearing prior to the violating party’s commitment and he or she is found to have the ability to pay the sum set by the Court, the violating party “holds the key” to his or her confinement and controls whether or not he or she will remain incarcerated. The violating party’s payment of the sum set by the Court is figuratively the “key” to his or her release.

If a litigant fails to comply with custody or parenting time orders, in addition to the remedies available to the Court under Rule 1:10-3, on a finding that a party has violated an order respecting custody or parenting time, the Court may order the following, either singly or in combination:

  1. Compensatory time with the children;
  2. Economic sanctions;
  3. Modification of transportation arrangements;
  4. Pick-up and return of the children in a public place;
  5. Counseling for the children or parents or any of them at the expense of the parent in violation of the order;
  6. Temporary or permanent modification of the custodial arrangement provided that such relief is in the best interest of the children;
  7. Participation by the violating parent in an approved community service program;
  8. Incarceration, with or without work release;
  9. Issuance of a warrant to be executed upon further violation of the judgment or order; and
  10. Any other appropriate equitable remedy. R. 5:3-7(a).

Furthermore, if a party is found to have violated an alimony or child support order, in addition to the remedies provided in Rule 1:10-3, the Court may order the following, either singly or in combination:

  1. Fixing the total amount of child support or alimony owed, entering judgment in that amount, and ordering that the total sum accrue interest until satisfied in full;
  2. Requiring that the total amount of child support or alimony owed be paid on a periodic basis until satisfied;
  3. Suspension of an occupational license or driver’s license;
  4. Economic sanctions;
  5. Participation by the violating party in an approved community service program;
  6. Incarceration with or without work release;
  7. Issuance of a warrant for arrest if the violating party further violates the judgment or order; and
  8. Any other appropriate equitable remedy. R. 5:3-7(b).

If the violating party has violated a Court Order or Property Settlement Agreement, the party seeking to enforce the Agreement should confirm that he or she is in full compliance with his or her own obligations under the Court Order or Property Settlement Agreement. If the party seeking to enforce the Property Settlement Agreement or Court Order is in violation without justification, the Court will likely be unreceptive to the enforcing party’s request for an award of counsel fees or other sanctions against the opposing party. The Court will not excuse either party from his or her obligations under an Agreement or Court Order, even if the other party failed to comply with the Order or Agreement first. Therefore, before either party decides to file a motion to enforce a Court Order or Agreement, the moving party must first determine whether he or she is in full compliance to obtain the most favorable results. In addition, encourage your attorney to be creative with his or her requests for relief and methods of enforcing orders and agreements. As set forth above, Rule 5:3-7(a)(10) and Rule 5:3-7(b)(8) provide that on a finding that a party violated a custody or parenting time order or where a party violated an alimony or child support order, the Court may grant, “any other appropriate remedy” in addition to the remedies provided therein.

Contact the Law Office of Lyons & Associates

At Lyons & Associates, we bring a high level of personalized service and attention to men and women in New Jersey. To schedule an appointment, contact us online or call our office at 908-575-9777.

Written by: Mark T. Gabriel
February, 2013

And Baby Makes Three – Or Does it??

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In a case of first impression, a family court judge in Florida has approved more than two parents’ names being placed on a child’s birth certificate. At Lyons & Associates, P.C., we specialize in all aspects of matrimonial and family law, including birth certificates.

The case involves a lesbian couple who was married in Connecticut and lived in Florida. When it was time for the couple to start a family, they sought sperm from a male friend (who happened to be the hairdresser of one of the women).

The women expected that they would raise the child themselves. But just before the child was born, the hairdresser decided he wanted to be more than just a sperm donor. A two year legal dispute ensued.

The parties eventually came to a settlement, which has been approved by the Florida judge. The settlement calls for all three names to be on the child’s birth certificate, for the two women to have exclusive parenting authority, but for the father to have some visitation time with the child. The father also is relieved of any child support obligations.

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The Florida case is sure to get the attention of other family court judges as well as from non-traditional families across the country.

If you have any questions about birth certificates, or any other family law issues, contact one of the skilled matrimonial attorneys at Lyons & Associates, P.C. at 908-575-9777, or fill out our online intake form.

New Jersey Family Law Firm: Cheaters Never Win – Or Do They?

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At Lyons & Associates, P.C., we specialize in all aspects of matrimonial and family law. Many of our divorce clients ask us if it matters that their spouse has cheated during the marriage.

Across the United States, there are approximately 120 million married people. It is estimated that about 40% of all married people admit to having some type of affair during their marriage (whether physical or emotional). See http://www.infidelityfacts.com/infidelity-statistics.html.

That means that, as you are reading this article, there are approximately 48 million “cheaters” in our country.

But how might cheating affect your divorce? The answer under New Jersey law is that cheating is not likely to have any impact whatsoever on custody, parenting time, alimony, child support, or the division of your assets. The main case in New Jersey that codifies what holding means is Mani v. Mani, 183 N.J. 70 (2005). However, there are two exceptions when cheating that could come into play.

On the custody side, if your spouse is engaged in a relationship with someone who poses a real and present danger to your children, then the courts could consider that. For example, if your spouse’s new paramour has a history of drug problems, criminal history, or child abuse, a judge could place limitations on how much that new paramour should be around your children.

Financially, a non-cheating spouse may have recourse if it can be shown that the cheating spouse’s behavior has somehow diminished the worth of the marital estate. If a spouse, for example, takes out a second mortgage on the home or liquidates retirement assets or runs up credit cards to spend that money on a new paramour, then a court could decide to divide the assets in such a way to try to make the non-cheating spouse more financially whole.

Contact Lyons & Associates

There may be other costs of infidelity – like guilt, embarrassment, anger, or uncertainty about its impact on your daily life. All of those are legitimate concerns, and frankly no lawyer can truly help an individual when he or she is grappling with issues involving our most human sexual intimacies. However, if you know someone who is cheating or being cheated on, or if you yourself have questions about how cheating may or may not impact your divorce, call one of the experienced attorneys at Lyons & Associates, P.C. at 908-575-9777, or fill out our online intake form.

Written By: Theresa A. Lyons, Esq.

Who Gets the Engagement Ring If There’s a Breakup?

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Breaking up is hard to do. Figuring out who keeps the engagement ring may be harder. Like many areas within the law, the answer is “it depends.”

At Lyons & Associates, we specialize in all aspects of matrimonial and family law, and ownership of an engagement ring is just one of many questions that people ask us.

In general, if the parties breakup before the marriage ceremony takes place, then the law states that the engagement ring should be returned to the person who originally gave it. And it does not matter which party breaks off the engagement. An engagement ring is a gift “conditioned upon marriage. When the promise of marriage [i]s not kept, regardless of fault, the condition [i]s not fulfilled and the ring must be returned[.]” Aronow v. Silver, 223 N.J. Super. 344, 350 (1987).

Conversely, the case of Aranow also can be read to hold that, once the actual marriage ceremony does take place, then there is no requirement to return the ring, and the ring becomes the property of the person to whom it was given.

All of that said, there may be some exceptions to those general rules if the engagement ring or the stone is a family heirloom or has some other type of sentimentality attached to it.

If you have a question as to what happens to an engagement ring upon a breakup, or any other question about family law, call the experienced family law attorneys at Lyons & Associates at 908-575-9777 or contact us online.

Written By: Theresa A. Lyons, Esq.