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SAME-SEX DIVORCE MEDIATION IN NEW JERSEY

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The changing political landscape surrounding the rights of same-sex couples has led to difficulty for many simply wishing to commit to a marriage, or for that matter dissolve one. Fortunately, same-sex marriage in New Jersey was legalized in October 2013 allowing many long-term partners and couples already in a civil union to have the same rights as heterosexual married couples.

While this was a joyous victory for many in the state, it also opened up a multitude of legal questions concerning factors such as equitable distribution, alimony, and child custody, should a couple be seeking divorce. While these issues are identical to those seen in heterosexual divorce, tackling them for same-sex couples in New Jersey is more complex due to evolving laws. This can be especially difficult for couples who were in a committed relationship for many years before having the chance to enter a civil union pursuant to N.J.S.A. 37:1-28 to -36, the New Jersey Civil Union act (enacted in 2007) or marriage. Years of accrued assets and property and children of the relationship were not viewed by the law as they would be for married partners.

same-sex divorce mediation

Many same-sex couples who were in long-term committed relationships wanted to marry but were unable to do so until 2013. A majority of assets would have been accrued during the time before the marriage period, but under the law only those gained after the marriage in 2013 would be considered marital assets for equitable distribution. However, this does not mean that the appropriate divorce relief cannot be granted, only that the court process will likely be more challenging as many judges are not yet fully accustomed to handling same-sex divorce. The same applies to couples still in civil unions seeking dissolution.

BENEFITS OF DIVORCE MEDIATION FOR SAME-SEX COUPLES

Due to the complexity and newness of same-sex divorce, alternative approaches like mediation are highly beneficial. Mediation allows couples to work through their issues to reach a fair compromise without the stress of litigated divorce. Hour long sessions are conducted with a New Jersey mediation attorney, and if needed a third party professional such as a financial planner or psychologist. If a couple is able to work together and communicate effectively, the cost of mediation will drop as the amount of sessions needed decreases.

Same-sex divorce mediation allows couples to bypass the uncertainly of evolving laws and set their own terms. It can also be beneficial for children as it usually translates to parents with better communication skills who are more focused on problem solving than finger pointing.

Although same-sex divorce mediation is not right for everyone, for those who are open to working together it can be the least stress producing and most cost effective option.

GETTING FAMILIAR WITH PRENUPS IN NJ

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What are Prenups in NJ?

A prenuptial agreement, also known as an antenuptial agreement or premarital agreement, is a written contract between two people planning to marry. It sets terms of possession of assets, management of future earnings, and control or division of property should a marriage end in divorce; however, it cannot adversely affect future child support.

Prenups in NJ go into effect immediately after a legal marriage takes place. It is possible to amend prenups in NJ after marriage; however, all of the changes to the initial agreement must be acknowledged and signed by both parties.

Although it is not required by NJ law, it is recommended that each party be represented by their own attorney to ensure their best interest.NJ prenups

Why is a Prenup Necessary?

Prenups in NJ are especially common when both or one party has substantial assets, high income, potential inheritances, children from a previous marriage, or a negative history regarding finances with a prior spouse.

Although prenups in NJ tend to have a negative connotation, they can actually serve to make a relationship stronger and open up a healthy financial dialogue. Many couples experience marital strife or divorce due to financial differences, but being open with one another from the engagement period may help avoid misunderstandings.

Prenups in NJ also help protect assets or property that has more than just monetary value. For example, an inherited family property may be of significant sentimental value to a person. Deciding what will happen with your spouse ahead of unforeseen circumstances will lead to a more fair settlement, as opposed to leaving such an important and sensitive matter for the courts to decide.

New Jersey Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act was adopted by NJ in 1988 and outlines the requirements of prenups in NJ. In addition to definition and formalities it covers the contents and enforceability of a premarital agreement.

According to section 37:2-34, the contents of a prenup may include:

a. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

b. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

c. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;

d. The modification or elimination of spousal or one partner in a civil union couple support;

e. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

f. The ownership rights in and disposition of the death benefit from a life insurance policy;

g. The choice of law governing the construction of the agreement; and

h. Any other matter, including their personal rights and obligations, not in violation of public policy.

The Uniform Premarital Agreement Act also states that if a party alleges that an agreement should not be enforced, the burden of proof falls on them to show that one or more of the following from section 37:2-38 is present:

a. The party executed the agreement involuntarily; or

b. The agreement was unconscionable at the time enforcement was sought; or

c. That party, before execution of the agreement:

(1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;

(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;

(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or

(4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law.

In 2012, Governor Chris Christie strengthened the enforceability of premarital agreements by signing a law that amended N.J.S.A § 37:2-38 and N.J.S.A § 37:2-32. This removed a provision stating that prenups in NJ could be invalid if unconscionable at the time of enforcement, and left unenforceability to those agreements which were unconscionable at the time they were executed.
nj prenups

Considering a Prenup

Forbes.com contributor Jeff Landers provides an interesting perspective on prenups. He describes them as being very similar to wills in that they are carefully thought out documents centered on open communication. The estate of a person who passes away without a will is divided according to the government, not friends or family; should a marriage end in divorce without a prenup, assests and property are divided by the courts, not by the thoughtful agreement of both parties. In this way, a prenup, like a will, can help provide fairer distribution.

Contemplating a prenup can be intimidating, and broaching the subject with a future spouse during a time full of joy, excitement, and wedding planning can be very difficult. It is important to keep in mind that drafting a prenuptial agreement does not have to be a negative experience and it can be beneficial to both partners in the long run. While no one hopes for marriage to end in divorce, it can be in the best interest of both spouses to have control of their financial futures should it occur.

WHAT YOU NEED TO KNOW ABOUT NJ’S NEW ALIMONY LAW

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New Jersey’s alimony law recently received some major modifications after two years of negotiations.

Signed by Governor Christie on September 10, the bill (A845/971/1649) has become known mainly for its substitution of permanent alimony with open durational alimony; however, there are a number of other significant changes worth noting.

New Jersey Alimony Law Durational Limits

Under the new law, for any marriage or civil union lasting less than 20 years, the duration of alimony cannot exceed the length of the marriage or civil union. For example, an alimony recipient from a marriage lasting 10 years would be entitled to a maximum payment period of 10 years. Certain exceptions apply, but are granted based on a set of considerations.

Some of these include: the age of both parties at the time of the marriage or civil union, the degree of dependency of one party on another, a spouse or partner who has a chronic illness or unusual health circumstance, whether a spouse or partner has given up a career or supported the career of the other, the impact of the marriage or civil union on either party’s ability to become self-supporting (including either’s responsibility as primary caretaker of a child), and any other factors or circumstances deemed relevant by the court.

Retirement

Whereas the previous law dictated that permanent alimony should continue even after retirement, it will now terminate or be modified when the obligor reaches his or her prospective or actual retirement age. In this case, “full retirement age” is defined as the age at which a person is eligible for full benefits under the Social Security Act. If a person wishes to retire before this age, they must first demonstrate that they are doing so reasonably and in “good faith.”

Although the bill in its entirety applies mostly to future divorces, those who began paying permanent alimony before its enactment will be able to terminate payments upon reaching the full retirement age.

Loss of Income

Under the new law it is much easier for those paying alimony to reduce the amount of their payments should they become unemployed. An application to modify payments can be made if after 90 days the party remains involuntarily unemployed or has not found employment at his or her prior income level.

When considering an application by someone who is not self-employed, the court will take into account numerous factors, some of which include the reason for the loss of income, the effort made to obtain employment in any field or at any level, any severance compensation or award, the impact of the health of both parties on employment, and any other factors deemed relevant.

Any self-employed person’s application should include an analysis detailing the economic and non-economic benefits received from the business as compared to those received at the time of the initial alimony order.

Cohabitation

Also of great significance is the court’s ability to suspend or terminate alimony if the recipient begins cohabitating with another person. Cohabitating in this sense is described in the bill as involving a “mutually supportive, intimate relationship,” and does not only apply to those couples who maintain a single common household.  Although the previous law did order that payments stop when the payee begins cohabitating, the changes provide much stricter guidelines.

In addition to living together, factors such as intertwined finances (joint bank accounts, holdings or liabilities) and shared responsibility of living expenses are considered; however, less tangible factors will also be considered including the recognition of the relationship among family and friends, frequency of contact, duration of the relationship, sharing household chores, and other evidence relevant to establishing the presence of a marriage-like relationship.

Also to be taken into consideration is if the recipient has received “palimony,” which is defined as any enforceable promise of support from a partner.

The Future for  New Jersey Alimony

Already ordered Alimony will not be disturbed.  Alimony reform advocates would like to see more changes including retroactive modification of alimony orders.  As for new orders, each case is fact sensitive and requires an analysis of the law and how it applies to the case.

UNDERSTANDING ALIMONY FROM THE PERSPECTIVE OF A NJ MIDDLESEX COUNTY DIVORCE LAWYER

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As a NJ Middlesex County Divorce Lawyer, I deal with questions regarding alimony in most of my cases. The current New Jersey alimony law has four types of alimony:

  1. permanentNew Jersey marriage divorce and alimony
  2. limited duration
  3. rehabilitative
  4. reimbursement

Types of Alimony and Factors

Permanent alimony is appropriate where a marriage has lasted for a long duration.

Limited duration alimony is awarded based on the financial need and for as long as it takes the requesting spouse to become self-supporting.

Rehabilitative alimony is awarded to help the requesting spouse to self-support through training and education.

Reimbursement alimony compensates a spouse that has supported the other spouse through advanced education.

The Court will examine several factors when awarding alimony, including:

  1. Actual need of the spouse requesting alimony and the ability of the payor to pay
  2. Duration of the marriage
  3. Age, physical and emotional health of the parties
  4. Standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living
  5. Earning capacities, educational levels, vocational skills, and employability of the parties
  6. Length of absence from the job market of the party seeking maintenance
  7. Parental responsibilities for the children
  8. Time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income
  9. History of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities
  10. Equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair
  11. Income available to either party through investment of any assets held by that party
  12. Tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment
  13. Any other factors which the court may deem relevantnj alimony law

Although the list of factors are applied in all cases, the most often used formula, as a starting point, is to take a third of the difference between the parties income and pay that amount for half of the duration of the marriage, that is, if the marriage lasted less than 15 years. Once the marriage has lasted longer than 15 years, permanent alimony may apply.

Many individuals make the mistake in associating equitable distribution of retirement benefits as alimony and it is not. Retirement benefits are usually treated as an asset for purposes of equitable distribution.

Modification and Termination of Alimony

The court may change or terminate alimony orders if there is a change in circumstances. The current law has been questioned due to the uncertainty of the outcome of the case where a spouse goes to court to modify or terminate their alimony obligation. A poll was taken at nj.com whether permanent alimony should be eliminated. According to NJ.com, 91% said yes (3,180 votes) and 9% said no (313 votes). The answer is never that straight forward since each case is extremely unique.

It is clear that most of New Jersey residents are unhappy with the current NJ alimony law. A significant amount of individuals wrote to the NJalimonyreform.org regarding their alimony horror stories. Each story describes the unfairness the payor feels when he or she is obligated to continue paying after the payor has lost their job, becomes ill, or retires.  Click here to read the full story “The Personal Horror Stories of Marriage and Divorce in New Jersey”.

New Jersey lawmakers are working on changing the NJ alimony laws. Some of the possible changes include specific requirements to modify or terminate alimony payments when the payor retires or loses their job. Another proposed change is to eliminate the phrase “permanent alimony” and replace it with “alimony of indefinite term” to establish that alimony is modifiable when there is a change in circumstances. It has also been proposed to eliminate permanent alimony all together.

Until the change in NJ alimony law takes place, it is important to cover retirement, health issues, loss of employment and any other possible changes to the payor’s circumstances in the Settlement Agreement.