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Co-Parenting for Your Kids

Somerville child custody cawyers at Lyons & Associates help parents construct agreements regarding co-parentingWritten By: William P. Lemega, Esq.

By definition, getting divorced means to legally dissolve one’s marriage to another. If the desire for a divorce is mutual, along with that dissolution is a wish to move on with your life without the involvement of your former partner. However, if you have children together, the paramount concern of both parents should be the well-being of their children (both throughout the divorce process as well as afterward). This means you must be able to respectfully communicate with your ex in a way that meets the needs of you children, which is a task easier said than done.

Co-parenting is not easy. What can be easy is letting your hatred for your ex overcome your actions while the needs of your children take a backseat. It’s important to always remember that children need parents to work together to make decisions based on the children’s best interests, not the parent’s.

Keeping your emotions in check and being able to effectively discuss and resolve disagreements (and there will always be disagreements) is foremost to effectively co-parenting.  Instead of thriving off the drama of confrontation with your ex and casting blame, which only creates disarray in the lives of the children, take a step back and understand that the better the relationship with your ex, the more positive experiences your children will have to share with both of you.

Somerville Child Custody Lawyers at Lyons & Associates Help Parents Construct Agreements Regarding Co-Parenting

What’s most important is that you have a custody and parenting time arrangement that is properly detailed and worded to encourage effective co-parenting.  If you or someone you know has questions about properly structuring and entering a custody and parenting time agreement that will facilitate the needs of your children first, contact one of the skilled attorneys at Lyons & Associates, P.C. at 908-575-9777. You can also contact us online.

Is Adultery Illegal In New Jersey?

Somerville family law firm explains what happens when you file for divorce under adultry in NJ.Written by:  Willliam Lemega, Esq.

There are many different reasons people file for divorce. In New Jersey, N.J.S.A. 2A:34-2 states the causes of action for divorce. There are seven of grounds for fault divorce and two grounds for no fault divorce. Most divorces proceed on grounds for no fault divorce, which are either separation or irreconcilable differences. Rarely used are the seven grounds for fault divorce, which includes adultery.

If you choose to file for divorce on grounds of adultery, you must name the person with whom your spouse had an affair as a co-respondent in the action, in addition to the dates, times and places of the affair. This co-respondent must then be served and given the opportunity to appear in court and respond. Most all times this creates resentment and is psychologically difficult on all individuals involved, which is not the optimal way to commence a litigation that one may be hoping to settle both cost-effectively and expeditiously.

The advantages to filing for adultery in New Jersey are limited since, as mentioned above, New Jersey is a no fault state, and courts do not take marital fault into consideration when adjudicating property division or alimony. Unless the adultery is specifically intertwined with finances, should you file for adultery in your divorce action, the biggest effect it will likely have on your matter is a negative influence towards cooperative negotiation and settlement. If you or someone you know has any questions about filing for divorce and whether or not it would be beneficial to include adultery as a cause of action, contact one of the skilled attorneys at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.

Can My Mediator Also Serve as My Arbitrator?

Bridgewater divorce lawyers answer the question as to whether a mediator can also serve as an arbitrator.Mediation is defined as a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute, as opposed to arbitration, where the parties give the power to decide the issues in dispute to the arbitrator.  But what if the parties desire or require both?

Plenty of times parties to a matter are told, both by the courts and their respective counsel, to do everything in their power to settle instead of taking part in a lengthy and costly trial. This leads many people down the path of mediation or arbitration. Often time mediation will begin, and despite best efforts, the parties will simply be unable to resolve any or all of their outstanding issues. At that time, as mediation has been exhausted without success, parties may desire arbitration. Liking the job the mediator has done up through that point, the parties then want to hire this mediator as arbitrator, seeing as he/she is deeply familiar with their issues from the mediation process. Is this allowed?

Pursuant to the case of Minkowitz v. Israeli, which was decided by the Appellate Division on September 25, 2013, the answer is no. That case states that once the arbitrator has functioned as a mediator, he/she may not then conduct an arbitration hearing. However, this does not necessarily preclude your mediator from serving as arbitrator. If you want your arbitrator to assist in settlement, then the parties must reduce to writing that he/she can serve as both mediator and arbitrator.

If you or someone you know has any questions about the mediation or arbitration process, contact one of the skilled attorneys at Lyons & Associates, P.C. at 908-575-9777. You can also fill out our online intake form.

Written By:  William Lemega, Esq.

Can I Modify My Alimony Obligation?

New Jersey divorce lawyers fight for your rights to modify alimony obligations.If you have recently or not so recently entered into a divorce agreement that obligates you to pay a certain amount of alimony, you may find yourself in a bind should you no longer be able to meet your obligation. N.J.S.A. 2A:34-23 states that orders entered as to alimony “may be revised and altered by the court from time to time as circumstances may require.” This means that you may be able to modify your obligation downward to an amount that you can actually pay.

This statute is further supported by case law, specifically Lepis, which states that the obligations that come along with alimony and support orders are always subject to review and modification on a showing of “changed circumstances.”

As a litigant potentially filing an application to lower your obligation, it is important to understand what burden you must overcome if your application is going to be successful. Courts employ a two-step process to determine whether or not there is a change in circumstance that would warrant review and modification of a pre-existing alimony award. What must be noted is that the party seeking the modification bears the burden of proving that such changed circumstances exist and that the relief sought is warranted.

The two-step test is as follows:

A prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse’s financial status. When the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. This requires full disclosure of the dependent spouse’s financial status, including tax returns…Only after the movant has made this prima facie showing should the respondent’s ability to pay become a factor for the court to consider.

The important thing to realize is that there are different factors that can contribute to the downward modification of your support obligation and you may be entitled to a modification of any support amount you paying. Please contact us online or call our divorce lawyers in New Jersey at 908-575-9777 to schedule an appointment with Lyons & Associates if you are having trouble meeting your obligations.

Written by:  William P. Lemega

Can I Retire Early if I Have an Ongoing Alimony Obligation

Divorce Lawyers in Somerville: Can I Retire Early if I Have an Ongoing Alimony ObligationThe New Jersey Alimony Reform Act of 2014 was signed by Governor Christie on September 10, 2014, and immediately took effect.  The new Act changed the landscape and implementation of alimony in a variety of ways. One such way is in relation to an obligor’s request for modification or termination of an initial alimony obligation because he or she would like to retire, not once he or she reaches the reasonable age to do so, but rather earlier than is normal, whether actual or prospective.

N.J.S.A. 2A:34-23(j)(2) covers termination of alimony where the obligor seeks same based on his or her early retirement. First and foremost, the statute now stipulates that the obligor (who is in most all cases going to be “the moving party”) has the burden of proving, by a preponderance of the evidence, that his or her prospective or actual early retirement is both reasonable and in good faith.

When an application for early retirement is made, both parties must submit updated Case Information Statements to the court. The court will then analyze eight different factors in determining whether or not the obligor has met that burden as set forth above (that the retirement is in good faith and reasonable). Those factors are:

  1. The age and health of the parties at the time of the application;
  2. The obligor’s field of employment and the generally accepted age of retirement for those in that field;
  3. The age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;
  4. The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;
  5. The reasonable expectations of the parties regarding the retirement during the marriage or civil union and at the time of the divorce or dissolution;
  6. The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;
  7. The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and
  8. Any other relevant factors affecting the obligor’s decision to retire and the parties’ respective financial positions.

The statute goes on to state that “if the obligor intends to retire but has not yet retired, the court shall establish the conditions under which the modification or termination of alimony will be effective. Applicable case law, specifically Mueller v. Mueller, 446 N.J. Super. 582, 144 A.3d 916 (Chan. Div. 2016), indicates that while the statute does not set specific minimum or maximum time tables for obtaining a prospective retirement determination, the court opined that such an application may be appropriate and ripe for judicial review twelve to eighteen months prior to an obligor’s desired retirement date.

If you are pondering early retirement and have an alimony obligation or if you receive alimony and have an ex-spouse that may be thinking the same, call our divorce lawyers in Somerville today. Contact Lyons & Associates by submitting an online inquiry or call our office at 908-575-9777 to schedule an appointment.

Written By:  William Lemega, Esq.

Can My Weapons Be Taken if a Restraining Order is Filed Against Me?

New Jersey Divorce Lawyers discuss weapon ownership and restraining ordersIf a Restraining Order is filed against you, the police may confiscate any type of weapon or weapons that may cause harm or bodily injury to the alleged victim, including but not limited to firearms or your Firearms Purchaser Identification Card and Carry Permit. In fact, the Prevention of Domestic Violence Act requires the police to seize all weapons and permits if there is probable cause of domestic violence.

In addition to the initial confiscation, the State can move, pursuant to N.J.S.A. 2C:58-1, et. seq. and N.J.S.A. 2 C:27:17 et. seq, that the weapons not be returned and the card and permit revoked. However, as Defendant you are entitled to a Weapons Forfeiture Hearing. During this hearing, the court will determine whether or not your weapons will be returned.

In New Jersey there are different types of Restraining Orders, including Temporary Restraining Orders (TRO) and Final Restraining Orders (FRO). Whether or not the TRO is converted into a FRO will have an effect on whether or not your weapons are returned to you, but it is not the final determining factor. If the court issues a FRO against you, it is more likely than not that you will not be getting your weapons back; however, you are still entitled to a hearing. Conversely, if the TRO is dismissed and a FRO is not issued, the court may still hold a hearing to determine whether or not your weapons will be returned to you and whether or not the forfeiture is found to still be warranted pursuant to N.J.S.A. 2C58-3c.

“The burden is on the State to prove, ‘by a preponderance of the evidence, that forfeiture is legally warranted.’” In re Forfeiture of Personal Weapons and Firearms Identification Card belonging to F.M., 225 N.J. 487, 508 (2016)(emphasis in original)(quoting State v. Cordoma, 372, N.J.Super. 524, 533 (App. Div. 2004)). At the forfeiture hearing the court will look at, amongst other things, whether or not a FRO was issued, whether the weapon or weapons were actually used in an act of domestic violence, and whether you have a criminal history.

If the facts of your matter demonstrate that pursuant to the statutory law you are unfit to possess firearms and weapons, and such possession poses a threat to the public in general and to the alleged victim of domestic violence in particular, the State will request that an Order be entered directing that your weapons not be returned and that any Firearms Purchaser Identification Card and Carry Permit that you possess be revoked. As such, it is important that you hire a qualified and experienced attorney to navigate through this process.

If you or someone you know has any questions about a Weapons Forfeiture Hearing and what that entails, contact one of the skilled divorce lawyers in New Jersey at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.

Written by:  William P. Lemega, Esq.

New Jersey Divorce Lawyers: Application for Modification of Custody and Parenting Time Arrangements

New Jersey Divorce Lawyers discuss Custody and Parenting Time ArrangementsWhen seeking a modification of a current custody or parenting time arrangement, whether you are the one seeking it or if it is the other parent, it is important to understand the potential hurdles the filing party will have to overcome before a Court will actually effectuate any type of requested change to the schedule that is already in place.

“A judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances…the party seeking a modification bears the burden of proof.” Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div. 1958). If you have read this firm’s blogs in the past, you are no doubt familiar with the concept of “changed circumstances”; however, one of the most overlooked aspects of any application for change of custody and parenting time arrangements is the fact that whoever is seeking the modification has to the duty to prove or disprove any of the disputed facts of the matter. This is important not only if you are the party seeking the change, but also if you are the party defending an application for change.

The primary consideration for the court remains the best interests of the child(ren) and whether the alleged change in circumstances affects same.  Our case law is clear that one “seeking to change the child’s custodial status will have the burden of proving by a preponderance of the credible evidence that the potentiality for serious psychological harm accompanying or resulting from such a move will not become a reality.” M.P. v. S.P., 169 N.J. Super. 425, 431-32 (App. Div. 1979). This can be done in many ways, the most effective being either expert testimony or some type of tangible evidence of egregious parenting or behavior on behalf of the other party. This same standard applies whether the custody/parenting time arrangement was ordered by the court, or agreed to by the parties. Abouzahr v. Mater- Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003).

As a general principle, absent “exigent circumstances,” “changes in custody are not to be made without a plenary hearing.” Entress v. Entress, 326 N.J. Super. 125, 133 (App. Div. 2005). If the Court finds that the pleadings or applications submitted by the parties demonstrate that material facts are in dispute, the Court will order a plenary hearing, which is, in essence, a mini-trial. As such, should you be thinking about filing an application for modification of custody and parenting time, be aware that you could be in for a long and layered process before any court order will grant your request. It is important that you hire a qualified and experienced attorney to navigate through this potentially lengthy process.

If you or someone you know has any questions about an application or modification of custody and parenting time arrangements and what that entails, contact one of the skilled New Jersey divorce attorneys at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.

 

Written by:  William Lemega, Esq.

 

Woodbridge Child Custody Lawyer Discusses Children’s Passports

Who gets to hold my child’s passport when not traveling?

Woodbridge Child Custody Lawyer Discusses Children’s PassportsThe Department of Homeland Security and the State Department have instituted certain policies and procedures for single parents travelling internationally with a child. There have been plenty of battles over whether one parent can travel internationally with the child and whether or not they can obtain a passport for the child. Often times the battle is not just over obtaining a passport for your child. Rather, the battle commences once the passport has been issued as to which parent should hold the child’s passport when the child is not traveling. Lack of trust or fear of one party absconding with the child has led to litigation over who should, or more accurately, who should not, be able to have possession of this coveted documentation.

As our Supreme Court said in Pascale v. Pascale, 140 N.J. 583, 599-600 (1995), primary residential custody envisions that the primary caretaker be able to make the day-to-day decisions that fall outside of major decisions with some autonomy and without the need for endless discussion. Our law envisions that something as seemingly significant as a child’s religious upbringing as something that falls within sort of day-to-day decisions that are ceded to the parent of primary residence (PPR). Id. at 599 and see also Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005). Thus the location and possession of a child’s passport is not the sort of decision that, absent unfit behavior, should be removed from the PPR’s purview.

Unless you can show some sort of objective evidence that a party is incapable of holding the child’s passport or that it will be used as a “weapon”, the Court will most likely allow the PPR to be in possession of the passport. With most cases on litigated international travel, the Court will normally afford the parties a large window of time, for example sixty days, at a minimum, for one party to notify the other of the intent to travel internationally, thereby affording them the opportunity for the Court or a mediator to intervene to compel production of the passport should they need it.

As noted in Costa v. Costa, 440 N.J. Super. 1 (App. Div. 2015), our Appellate Division said, “[a] passport application may be executed on behalf of a minor under age sixteen by only one parent or legal guardian if such person provides an order of a court of competent jurisdiction ‘specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parenting or legal guardian.’” 440 N.J. Super. at 5 (citing 22 C.F.R. § 51.28(a)(3)(ii)(E), (c)(3)). Thus, since the Court can allow a child to travel with one parent, without the consent of the other, should one parent unreasonably withhold the child’s passport, pursuant to Costa, supra, R. 1:10-3 and R. 5:3-7(a), the Court also has authority to allow a parent to obtain a duplicate passport or to compel a parent to release a passport, if need be. As such, the PPR should be able to hold the passport as the other party has adequate methods of resolve available to them should it become an issue.

If you or someone you know has questions about their ability to travel internationally or concern over the other parent having possession of the child’s passport, contact one of our family law attorneys in New Jersey at Lyons & Associates at 908-575-9777. You can also fill out our online intake form.

 

Written By:  William P. Lemega, Esq.

New Jersey Divorce Lawyer Discusses How to Protect Marital Assets During Divorce Litigation

Going through a divorce can be a trying and emotional time. You are negotiating and entering into a final agreement that will hopefully resolve any and all outstanding issues between you and your soon-to-be ex-spouse. Despite the high emotions, it is important that during the divorce process itself, you protect what is rightfully yours to ensure it is still there when the divorce is finalized. After all, your final agreement cannot award you an asset that no longer exists.

The Court has an obligation to protect marital assets pending litigation. See Crowe v. DeGioia, 90 N.J., 126, 139 (1982) (court may intervene with temporary relief “to protect the res from ‘destruction, loss or impairment, so as to prevent the decree of the court, upon the merits, from becoming futile or inefficacious in operation…” (Schreiber, J., dissenting) (citing Guangione v. Guangione, 97 N.J. Eq. 303, 305 (E. & A. 1925)).

It is not uncommon for requests to be made for the Court to prohibit one party from selling, transferring, or dissipating any marital assets which may be subject to equitable distribution.  This could be for a variety of reasons including but not limited to a past history of one party taking out loans without the other’s knowledge. Should the other party have any specific reason to deplete marital assets prior to the divorce being finalized, you are going to want to make sure those assets are protected so your eventual share of them is not depleted.  Once depleted, the depleting party may not be able to replace whatever asset he/she drains.

If you have reason to believe your spouse may have the motivation or the ability to deplete marital assets during the pendency of your litigation, it is important that you obtain a court order prohibiting them from selling, transferring, dissipating, encumbering, or otherwise adversely affecting any marital assets which may be subject to equitable distribution.

This request should also include a prohibition against either party seeking an advance of loan against their 401k or other retirement plan, if applicable. You can always mutually agree to do otherwise, but in the interim, that court order will ensure your assets are available to you when your divorce is finalized.

If either party does improperly dissipate any martial asset subject to the Order, the Court can deduct the value of same from the offending parties’ share of equitable distribution once the divorce is finalized. To speak to a family law divorce lawyer at Lyons & Associates, please contact us online or call our office at 908-575-9777 to schedule an appointment.

Written By:  William P. Lemega, Esq.

Woodbridge Divorce Lawyer: Can I Make my Ex Pay my fees?

What Constitutes “Bad Faith” to Justify an Award of Counsel Fees?

When a party makes an application to the court requesting certain relief, this application is usually the last available step taken only after reasonable attempts have been made to solve these issues in other ways beforehand. As such, most applicants feel that they are entitled to an award of counsel fees due to the other party’s unreasonable position that necessitated the filing of an application in the first place. After all, if it weren’t for your adversary’s “bad faith”, that applicant would not have had to file the application in the first place. However, obtaining an award of fees is never that simple and may be harder than you would first imagine.

In considering whether to award counsel fees in a family action, R. 5:3-5(c) provides that:

In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R.  4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extend of the fees incurred by both partis; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. PRESSLER & VERNIERO, Current N.J COURT RULES, (GANN).

The legislature has also provided that on counsel fee applications the Court shall consider, in addition to the financial circumstances of the parties, “the good faith or bad faith of either party.” N.J.S.A. 2A:34-23. Where a party has acted in bad faith, the parties’ financial circumstances are irrelevant in consideration of an award of counsel fees. See Kelly v. Kelly, 262 N.J. Super. 303 (Ch. Div. 1992). The Kelly Court defines bad faith as:

This definition requires that the action of the party against whom fees are sought must be such as to suggest an improper motive. It implies something more than a showing of a mistaken, unreasonable or frivolous position (although the degree of unreasonableness may be such as to permit an inference as to motive). It requires a party to have malicious motives, to be unfair, to desire to destroy the opposing party, to use the court system improperly to force a concession not other available, Id. at 308.

Therefore, it is important that the pleadings you submit not only assert that bad faith is present, but that you also prove that the alleged bad faith of the other party meets the definition under Kelly. In addition to proving bad faith under the above-stated circumstances, you must be approaching the Court with clean hands yourself, including but not limited to complying with all court orders yourself, or else you will find your application for an award of fees denied. Please contact us online or call our offices at 908-575-9777 to schedule an appointment with a skilled divorce lawyer in New Jersey. We will ensure your application is properly filed to give you the best opportunity to obtain an award of counsel fees.

At Lyons & Associates, P.C., we handle many cases where people get lawyer fees from their ex.

Written By:  William P. Lemega, Esq.