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UNDERSTANDING DOMESTIC VIOLENCE IN MIDDLESEX COUNTY: PREVENTION OF DOMESTIC VIOLENCE ACT AND FINAL RESTRAINING ORDER

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What is domestic violence?

Abuse can take many forms, whether it is physical, emotional, verbal, or financial. It can be difficult to understand what exactly constitutes domestic violence under NJ law, but it is important to know if you believe you are facing a harmful situation.

Under the Prevention of Domestic Violence Act (PDVA) of 1991, there are 14 criminal offenses: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, or stalking.

final restraining order

These are considered to be domestic violence acts when they occur between two or more adults who are currently in or have been in some type of intimate or familial relationship. This includes dating relationships, marriages, household members, or two people who have a child in common.

This act protects individuals regardless of their gender, immigration status, marital status, or any other factor.

What is a restraining order?

Typically, when an act of domestic violence occurs in Middlesex County, a temporary restraining order (TRO) is issued by either the police who respond to the incident or the family court, if the police have not been involved. This usually lasts for a minimum period of about one week, giving both parties time to consult an attorney should they choose. When the TRO is issued, a court date will be provided for a final hearing. The most recent act of domestic violence is examined first, but past history demonstrating the escalation of abuse also plays a role in the court’s decision.

If domestic violence is found to be present, a final restraining order (FRO) is granted. This provides the victim with protection by making it a criminal offense for the abuser to violate. Any contact, even in the form of a phone call, can result in arrest, giving the victim a greater sense of comfort and safety. In New Jersey, a final restraining order is a permanent order that does not have to be renewed after a certain period of time like in many other states; it will also be honored if the victim moves to another state.

Although violating a final restraining order is a criminal offense, simply having one in place does not eliminate the option to negotiate parenting time, and does not effect a person’s employment eligibility or criminal record. Many victims choose not to follow through with a final restraining order fearing these consequences for their partner, spouse, or family member, but unless it is violated, it will serve only as protection and not as a means to “ruin” another’s life.

Taking action

While this process can be undertaken alone, it is commonly a very emotional and confusing time for the victim or plaintiff, making the presence of an attorney very beneficial.

It is important to remember that even though one of the 14 acts of domestic violence may not be occurring directly, abuse can still be present and should be addressed. Domestic violence includes subtle factors that cannot always be seen by those who are not directly involved in the relationship. Many abusers exercise power and control in various ways to isolate, intimidate, and coerce their victims, making it more difficult for them to seek help. When children are involved, battling domestic violence with a knowledgeable attorney becomes even more crucial, as remaining in an unhealthy situation can have a severely negative impact.

At Armour Law Firm we have the experience and sensitivity to deal with domestic violence and understand how it can affect other legal matters such as divorce, mediation, child custody, and child support.

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.