Articles Posted by James McGlew II

The COVID-19 virus has placed the population in a situation the likes of which we have never seen in our lifetime.  It has had an impact on almost every facet of our lives. It has raised, and will continue to raise, the stress levels each of us experience in everyday life.

As a family law attorney, I can confirm that it has had a crippling effect on the legal system and its ability to attend to cases.  Courthouses are closed to the public. For the foreseeable future, Judges and their staff will be working remotely. The time-consuming process of divorce litigation will face extended future delays.

As an alternative to the delays posed by the virus, I am pleased to offer “Virtual Mediation Services.”

Since its’ passage in 1991, the Prevention of Domestic Violence Act or “PDVA” has afforded protection to New Jersey residents who have been the victim of domestic violence. The PDVA has been amended and interpreted on countless occasions over the years and is one of the most strict and protective laws of its kind in the country.

If an individual alleges that they have been the victim of domestic violence and can demonstrate this to a Judge, an emergent Order of protection will be entered. This temporary restraining order or “TRO” will be issued and served upon the other party who will then be restrained from having any contact with the complaining party. At the same time the matter will be scheduled for a hearing, to occur in approximately ten days, where testimony will be taken under oath to determine whether an act of domestic violence occurred. At the conclusion of the hearing the Court will determine whether an act of domestic violence occurred and, if so, the terms of the temporary restraining order will become final and/or modified as final. If the Court finds that an act or acts of domestic violence occurred, the Court has the authority to impose a variety of restrictions and prohibitions in what will become a Final Restraining Order or “FRO.”

Over the years I have had both plaintiffs and defendants inquire as to how “final“ their Final Restraining Order or FRO actually is. The answer varies from state to state.

Two questions often asked by clients at their initial interview are “Do I need to be separated from my spouse for any length of time before I can file for divorce? and Can I obtain a legal separation from my spouse?” The short answer to both questions is no.

In New Jersey, there is no required term of separation necessary to file for divorce. In fact, spouses are often still residing together at the time one of them chooses to file for divorce, or retain an attorney, and they remain so throughout the process. While a physical separation remains a valid cause of action (reason) to file for divorce, it is not required. The majority of individuals who file for divorce do so with their reason being irreconcilable differences.

In New Jersey, there are nine causes of action or reasons which would entitle an individual to obtain a judgment of divorce from their spouse. Seven of these are fault-based and two are not. They are:

In all divorce matters where alimony or child support is an issue, the income or earning capacity of the parties needs to be determined. If you and your spouse are employed on a full-time basis your annual income can be easily determined. However, if you or your spouse are unemployed (either recent or long-term), under-employed or at some point during the marriage one of you took a leave of absence from your prior full-time position, the issue of imputation of income to one or both of you would need to be addressed.

New Jersey Courts have the authority to, under appropriate circumstances, impute income or determine the earning capacity of an individual whether or not they are actually earning at that level. When the true earning potential of a spouse is at issue in a divorce setting, the parties can either stipulate to an income for the under-employed or unemployed spouse, or they can reference the “Occupational Employment and Wage Estimates for New Jersey.” This information is calculated with data collected from employers in all industry sectors in New Jersey.

As the employment history or qualifications of a spouse may not fit within the table or if they are specifically unique, the table itself may be of nominal value. When there is continued disagreement as to a spouse’s income potential one or both of the parties may retain an employability/vocational expert to evaluate the earning capacity of the unemployed or underemployed spouse. At the outset of the case, the parties can jointly retain one such expert or each can retain their own. There are dozens of such experts statewide who regularly perform these evaluations, issue reports, and subsequently testify at any hearing or trial.

In many divorce cases, the most contentious issues are those regarding the parties’ children. The issues of physical custody, time sharing or visitation, extra-curricular activities, religious education and the cost for college education are routinely in dispute.

Often, well-intentioned parents insist that their proposed resolution on these issues is best. It may be in that particular parent’s best interest, but not necessarily those of the child.

Most experienced family law attorneys will point out to their client that any agreement should be based on what is in the child’s best interest. Attorneys often utilize a “Children’s Bill of Rights” as a guideline to set forth what should be considered by the parents.

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.