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LAWS ON CHILD RELOCATION IN NEW JERSEY

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nj child relocation lawsDuring or after divorce parents often find themselves facing new questions regarding their minor children. In New Jersey, a custodial parent who wishes to move out of state with their child must have a Court Order or the written consent of the other parent. Child Relocation in New Jersey can become more complex if the noncustodial parent does not agree to the move, and the Court must decide whether the relocating parent can leave the state. If a non-custodial parent wants to move out of the state there are no laws preventing it.

In the 2001 case of Bauers v. Lewis, 167 N.J. 91 (2001) the New Jersey Supreme Court held that the custodial parent seeking to relocate the child must prove good faith and that his or her request to move is in the best interest of the child. The Court established various factors to consider in determining whether to grant the custodial parent’s application to relocate a child if the non-custodial parent objects:

  1. Reasons given for the move;
  2. Reasons given for the opposition;
  3. Past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
  4. Whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
  5. Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  6. Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
  7. Likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
  8. Effect of the move on extended family relationships here and in the new location;
  9. If the child is of age, his or her preference;
  10. Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
  11. Whether the noncustodial parent has the ability to relocate; and
  12. Any other factor bearing on the child’s interest.

After the burden of good faith and best interest of the child is met by the custodial parent, the non-custodial parent must provide evidence that the child’s interest will suffer from the relocation. Visitation alone is not considered proof as to whether the child’s interest will be jeopardized by the move

Parents considering moving within New Jersey must also be aware of whether they will need permission to do so. Generally, a move that is far enough away to necessitate a change in a previously entered Court ordered parenting plan or a mutually agreed-upon schedule will require permission from the non-custodial parent. As with child relocation out of state, unless a consent order is signed by the non-relocating parent, the parent interested in moving must seek the Courts approval through filing a motion.

Child relocation in New Jersey is a complex and emotional issue that many divorced New Jersey parents must face. Due to the complicated and sensitive nature of the matter it is recommended to consult with a New Jersey family law attorney familiar with child relocation.

WHAT IF MY EX STOPS PAYING CHILD SUPPORT?

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Unfortunately, unpaid child support is a not an uncommon frustration among custodial parents; however, there are a number of options available for enforcement and modification of child support orders in accordance with federal and New Jersey Law.

Financial and emotional support are critical to a child’s well-being and when one parent does not take this responsibility seriously, it should not be overlooked. Child support covers the financial component of a child’s well-being, providing compensation for ongoing expenses associated with basic needs until the child reaches age 18 or is no longer enrolled in high school or secondary education.child support

Under NJ family law, the right to child support belongs to the child and not the parent, which means that its purpose is not to protect either parent but solely to protect the best interest of the child. Parental obligation to pay child support remains the same regardless of the state of the parent-child relationship. While child support requests are commonly made during divorce proceedings, parents who are legally separated or do not live with one another are bound by this legal obligation.

If your child’s parent stops paying child support, the best course of action is to consult an experienced New Jersey family law attorney and seek enforcement of the existing child support order. If the obligor, the parent who owes child support, lives in another state, the Uniform Interstate Family Support Act (UIFSA) will ensure enforcement and modification can take place with no conflict due to orders issued by courts of different states. While UIFSA enhances the court’s ability to enforce child support orders that were issued in another jurisdiction, it restricts NJ courts from entering or modifying an order established by a court with jurisdiction. It also gives NJ courts jurisdiction over non-resident defendants. Under UIFSA only one support order exists at a given time.

Fortunately, New Jersey has a wide range of child support enforcement methods in accordance with Rule 5:7-5. Some of the most common and effective methods include:

  1. INCOME WITHHOLDING: wage garnishment, in which income is withheld from the obligor’s paycheck, is one of the most effective ways of enforcement. Pursuant to N.J.S. 2A:4-30.97 through N.J.S. 2A:4-30.103, an employer notified of an income withholding order must comply with the order regardless of what state is was registered. Income withholding may also be applied to all incomes used to calculate support including unemployment, workers’ compensation, and certain disability benefits.
  2. NJ CHILD SUPPORT LIEN ACT: a child support judgment establishes an automatic prioritized lien against the net proceeds in excess of $2,000 of any lawsuit judgment or settlement, arbitration award, workers’ compensation award, or inheritance. 
  3. FINANCIAL INSTITUTION DATA MATCH: if child support is three months behind, the obligor’s financial assets will be subject to seizure. The financial institution is required to surrender the assets after proper notice and a 30 day contest period. A separate court order must be established for the probation department to identify and seize the obligor’s financial assets in accordance with N.J.S. 2A:17-56.57.
  4. TAX OFFSET OR INTERCEPT: tax refunds may be used to pay child support arrears that exceed a certain amount. Payments due to the State for public assistance benefits paid as child support are first to be paid with the federal tax refund, while the remaining amount is given to the obligee. Generally, state tax refunds are first used to pay the obligee-parent. To qualify for federal tax offset, the amount of unpaid support must be at least $150 in public assistance cases and $500 in non-public assistance cases. For state tax offset the amount of unpaid support must be equal or greater than one month’s support obligation.
  5. APPOINTMENT OF RECEIVER; ASSET SEIZURE: the court may also appoint a custodial receiver to take possession of the obligor’s property and sell or use it to satisfy amounts due under a support order pursuant to N.J.S. 2A:34-23.

Other than income withholding, the rest of the techniques above are applied after failure to comply with the child support order. Moreover, if the obligor still fails to willfully comply with the support order, more severe enforcement may occur in the form of coercive sanctions, pursuant to R. 5:6-5 (enforcement of orders). This permits the court to proceed by carrying out any combination of the sanctions in R. 5:3-7 which include:

  1. Ordering temporary incarceration or issuing a warrant to be executed upon the obligor’s failure to comply in the future; and
  2. Suspending any state occupational or driver’s license; and
  3. Imposing economic sanctions; and
  4. Requiring the delinquent obligor to participate in an approved community service program; and
  5. Ordering any other equitable remedy deemed to be appropriate.

These coercive sanctions are not intended to be used as punishment, but as a way to facilitate enforcement. Typically, an ability to comply hearing is held before the court orders these sanctions to ensure that the obligor has the present ability to pay. Therefore, incarceration is used sparingly in situations when is it likely to lead to compliance with the child support order.

While New Jersey law has numerous ways to protect children and custodial parents in this matter, it can be a tedious and draining process to get payments made regularly if the obligor is unwilling to comply with any order or agreement. At Armour Law, we will help you modify your existing order with the court and ensure that all appropriate enforcement methods are employed.

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.

NAME CHANGE IN NJ

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Deciding whether to keep a married name or re-assume a maiden name is a common dilemma among women going through and after divorce.  The New Jersey Final Judgment of Divorce gives both the husband and wife the chance to legally change his or her name to one used before marriage, or any other last name.  This also applies to same sex couples in which one partner assumed the name of the other in marriage or civil union.  Unlike divorce, a legal separation known as “divorce from bed and board” or “limited divorce” does not satisfy the requirement of the name change statute.

New Jersey Statute 2A:34-21 states that “the court, upon or after granting a divorce from the bonds of matrimony to either spouse or dissolution of a civil union to either partner in a civil union couple, may allow either spouse or partner in a civil union couple to resume any name used by the spouse or partner in a civil union couple before the marriage or civil union, or to assume any surname.”

Before granting a request for name change in NJ during divorce proceedings, the court usually requires that the party state under oath:

(1)   that the request is not intended for any New Jersey Name Changefraudulent purpose;

(2) if he/she was ever convicted of a crime and if so, the nature and sentence imposed; and

(3) whether any criminal charges are pending.

Although these requests are usually granted, an applicant who has a pending bankruptcy action in NJ will generally be denied.

In addition to the use of a previously used name, the statute also grants permission for the spouse to assume any surname, even if never previously used before the marriage or civil union.  If the name was never used, the spouse may be required to comply with the notice provisions of the general name change in NJ statute, 2A:34-21, which requires a detailed sworn affidavit.

The initial divorce pleadings should include the request for name change; however, it is still possible to resume a maiden/previous name after a finalized divorce.  A post-judgment motion will be used for this purpose.

If a spouse is also interested in changing a child’s name, the statute for name change in NJ permits minor children to legally change surnames; however, the process is much more complex than spousal name change.  A formal name change case must be filed in civil court that identifies the other parent, his or her residence, and the parents raising the child. The case will then be transferred to the family court. An experienced NJ family law attorney can guide the parent through this process.

New Jersey Divorce Name Change

The official seal on the judgment of divorce legally authorizes a spouse to change his or her name on all legal documents such as a driver’s license, social security card, and birth certificate.  Once these documents are changed, any relevant government agencies, financial institutions, and businesses should be notified.  Some other institutions to be notified include schools, children’s schools, Department of Motor Vehicles, Department of Records or Vital Statistics, passport office, post office, Social Security Administration, insurance agencies, and phone and utility companies.  It can be helpful to notify all family, friends, and neighbors of the new name to spread the word. Only the new name should be used by the individual in both work and social settings. Wills or living wills, power of attorney, and all contracts should also be amended to include the new legal name to avoid future confusion.

Whether requesting a name change post-divorce or as part of divorce pleadings, it is crucial to have the services of a competent NJ family law attorney.

FAMILY COLLABORATIVE LAW NJ

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While alimony reform was the most talked about bill signed into law by Governor Chris Christie on September 10, numerous others were also signed, including the New Jersey Family Collaborative Law Act (A1477). The act, which is modeled on a proposal by the NJ Law Revision Commission and the national Uniform Law Commission, allows for family collaborative law NJ, a process similar to mediation to be used to dissolve a marriage without court intervention. New Jersey is the ninth state to allow the process after Alabama, Florida, Hawaii, Nevada, Ohio, Texas, Utah, Washington and the District of Columbia.

As stated in the bill, the legislature found that since at least 2005, NJ attorneys have participated in a dispute resolution method known as family collaborative law. This is defined as a process in which an attorney is retained for the purpose of assisting their client with family disputes in a “voluntary, non‐adversarial manner, without court intervention.”

collaborative divorceWhat sets collaborative law apart is that each party begins with the intention of resolving disputes without litigation. A family collaborative law participation agreement must be signed and in record that adheres to the requirements detailed in section 5 of P.L.2014, c.50 (C.2A:23D-5); some of which include: the parties’ intention to resolve a family law dispute through a family collaborative law NJ process, a description of the nature and scope of the family law dispute, identification of the family collaborative lawyers representing each party, the manner by which a family collaborative law NJ process begins and terminates, and the confidentiality of any communication of a party or a non-party participant.

When the parties meet they are accompanied by their respective attorneys and when necessary one or more non-attorney professionals such as certified financial planners, certified public accountants, licensed clinical social workers, psychologists, licensed professional counselors, licensed marriage and family therapists, and psychiatrists.

If either party or attorney commences a court proceeding related to the issues being addressed through the collaborative process, other than to seek the incorporation of a settlement agreement into a final judgment, the family collaborative process will be terminated. The process will also end if either party is subject to or obtains a temporary or final restraining order under the Prevention of Domestic Violence Act, files a motion for emergent relief, fails to provide necessary information to resolve the dispute, or the collaborative lawyer withdraws from the proceedings.

If the collaborative process is unsuccessful for any reason, both lawyers must withdraw from the case and the parties must seek new counsel. The new attorneys are not allowed to be associated with or from either of the collaborative lawyers’ firms, and any communication or information from the collaborative process may not be used in court.

Collaborative law and mediation differ in that a mediator should not be consulted for legal advice by either party. For example, if one spouse offers a lump sum alimony payment of $200,000, the receiving spouse would not ask the mediator for advice regarding the case law and probability of success if litigated before a judge. However, by using the family collaborative law NJ method, the spouse would have their own attorney to consult before accepting these terms.

collaborative divorceThe family collaborative law NJ process can be more cost effective than traditional litigated divorce. By requiring both parties to provide “timely, full and candid disclosure” of relevant information, neither side must resort to discovery. In a divorce, discovery is the process of obtaining important information from sources such as employers or banks. This can include depositions in which sworn statements to be used in court are taken from spouses, witnesses, or other relevant parties. Eliminating these procedures and the time spent at court proceedings – which can last an average of 2 to 4 hours per daily court appearance – will decrease overall attorney fees.

Because each person’s situation varies greatly, there is no one method of dissolving a marriage that is superior to another. At Armour Law Firm we recognize the importance of serving these diverse needs and provide collaborative family law NJ, traditional litigated divorce, and mediation services.