Divorce & Family Law Insights

The Tax Cuts and Jobs Act of 2017 (TCJA), enacted by Congress last December, has created jobs for many individuals. It has also created additional work related to the issue of alimony for family law attorneys.

As interpreted under our New Jersey divorce statute, one spouse may be obligated to support the other spouse by the payment of alimony. The payments made by one spouse to the other which met the Internal Revenue Code definition of alimony would be deductible by the payer on his or her federal income tax return and included as taxable income to the recipient. This remains the case for alimony agreements or settlements signed prior to the end of 2018.

However, beginning in 2019, Congress has changed the rules. Payments made pursuant to an agreement or Court Order reached or entered after December 31, 2018 will no longer be deductible by the payer nor will they need to be claimed as income by the recipient. This major change in the tax law will not change the tax treatment of any payments made pursuant to an agreement which was entered prior to the end of calendar 2018.

If you find yourself in a situation where you are contemplating divorce, there are several recommended steps you should take. The first of these is to consult an attorney who specifically practices in this area and devotes the majority of their practice toward divorce and family law matters. Contact the attorney to arrange for a consultation. You should not be put off by an attorney who charges an initial consultation fee. As with most things, you usually get what you pay for. Often times the consultation fee is a small initial investment in a major life changing event.

Next, if you are a parent, it is important to never involve the children in the marital discord. No child should be placed in the middle of divorcing parents or the issues one of the parents may have with the other.

If you are not already, become knowledgeable about your family‘s finances. Try to secure copies of relevant financial documentation including, but not limited to, prior tax returns, W-2 and 1099 statements and paystubs, bank account, investment and credit card information pertaining to both you and your spouse. While you and your attorney will be entitled to obtain and review this documentation during any litigation, there is a cost savings involved when you can provide as much information as possible to your attorney.

Divorce mediation is a cost-effective and time saving process to utilize in what is an emotional and often contentious proceeding between parties. The mediation process can be utilized whether or not the parties are in the process of divorcing, contemplating divorce, or examining issues which remain or have arisen after their divorce.

For individuals considering divorce / family law mediation, it is essential they understand that the State of New Jersey does not require licensing or any type of certification for someone to become a mediator in private practice. Because of this, there are many mediators offering their services who lack the requisite background and specific knowledge of the important legal issues you are facing. When in this situation, it is important to select an experienced family law attorney and one who has been “approved to act as a mediator” by the New Jersey Supreme Court. To meet the Court standard for such qualification, a mediator must have completed a minimum of 40 hours in a Court-approved mediation course, possess a minimum of a bachelor’s degree, and have five years of professional experience in the field of expertise in which they are to conduct mediations.

Whether the issue is custody, time-sharing, alimony, child support, the distribution of property, investments or retirement accounts, or any other issue encountered in a divorce, a mediator who has the specialized training and experience is best equipped to assist the parties in resolving their differences. Some individuals find mediation to also be beneficial before they get married when they need to discuss and negotiate pre-nuptial agreements.

In all cases of divorce or separation where children are involved, the issue of time-sharing (previously referred to as “visitation”) is a significant issue to be addressed. Unless the parents have agreed to an equal shared custodial arrangement, an appropriate schedule of time-sharing is particularly important for all those involved: the custodial parent, the non-custodial parent, and the children.

Determining a schedule of time-sharing with the children is sometimes resolved between the parties. However, in those cases where the parties are unable to do so, the Court will order mediation in an attempt to resolve the issue. If the mediation is unsuccessful, the Court will (and has the authority to) determine the time-sharing schedule which will be binding on all involved.

Traditionally, time-sharing consisted of alternate weekend overnights for the non-custodial parent, a division of legal and religious holidays, extended time during the summer, and perhaps one evening per week for dinner. Recently, time-sharing schedules have become more flexible with non-custodial parents demanding (and receiving) more time with their children. Busy work schedules for the parents and academic and activity schedules for the children demand a more fine-tuned approach to time-sharing.

One of the most contentious issues faced by many divorced parents has always been whether the custodial parent has the right to relocate with the parties’ children out of state. In an increasingly mobile society this has become an issue for many parents. Often custodial parents decide that they cannot continue to reside in New Jersey. They need to explore job opportunities in other states and/or move back to a state where they were raised and may have a family-type support system in place. They may have started a relationship with someone who resides out-of-state or may be contemplating marriage with that person who has an established career in another state. For years, the custodial parent could not permanently remove the children from the state of New Jersey without the written consent of the other party or a court Order. If there was no agreement, the party wishing to move would petition the court for permission. Over the past several decades the standard our Courts have used to make this determination has evolved. For more than 15 years, the standard has been that the prospect of moving the children out of state would be granted unless it was “inimical to the child’s interest.”

Last month, the New Jersey Supreme Court changed the standard that lower courts are to utilize when determining whether or not a custodial parent may relocate the children out of New Jersey. It was also determined that this new standard would apply whether or not the party seeking to move has been the child’s primary residential parent. This ruling represents a significant departure from existing law by changing the standard a court is obligated to interpret. It also gives the noncustodial parent considerably more input and seeks to protect the rights of both parents.

When examining the issue of relocation our courts are now charged with determining whether there is “cause” (to be interpreted under the existing statute) to authorize a child’s relocation out of New Jersey. To do so, courts are now obligated to weigh many factors including, but not limited to: “the parents’ ability to agree, to communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preferences of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of children.”