New Jersey Alimony Reform

New Jersey is waiting to hear whether the long sought-after changes to their alimony laws will be adopted. Many view NJ’s alimony laws as unfair and inconsistent. The proposed changes to the law would seek to fortify a more uniform and rational framework for determining what amount and duration of alimony is appropriate as well as circumstances that would warrant a change or termination of the alimony award. One of the key provisions of the proposed new law is the “elimination” of permanent alimony which would be replaced with open durational alimony. Additionally, the court would be required to consider all the relevant factors for an alimony award and provide specific written findings of fact and conclusions of law in support of their decision. The factors would be expanded to include a consideration of support that has already been paid prior to finalization of the divorce as well as the standard of living of both parties such that neither would be entitled to a greater standard of living than the other post-divorce.

The proposed revisions to the alimony law also attempt to put a cap on alimony such that for marriages of twenty (20) years or less, the alimony award cannot be longer than the length of marriage. The court could still get around this general rule in the case of exceptional circumstances. Additionally, alimony awards could be modified and/or terminated upon the retirement of the spouse paying alimony if at full retirement age. If seeking to retire earlier, the paying spouse would have the burden of proving retirement is reasonable and made in good faith. Finally, alimony could be suspended or terminated if the party receiving support cohabits with another person. It is still the burden of the party alleging cohabitation to provide proof of the same to be successful in terminating the alimony award.

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Vacation Schedules in Custody

Vacations are a staple of the summer season and you want to make sure your children are able to enjoy vacation with you. A vacation schedule can be included as part of a custody order to alleviate any confusion or disagreement. Standard provisions specify how many weeks of vacation each party is entitled to per year, how the weeks may be exercised, what type of notice should be given, and what additional information should be provided. A sample vacation schedule paragraph is below:
Each party shall have two non-consecutive weeks of vacation each year with thirty days advance written notice to the other parent. If there is a conflict on vacation where both parties plan the same week, the party who gives written notice first shall be entitled to the week. Written notice may be via email or text message. The parties agree that they will each exercise their vacation week to include their regular scheduled time so as not to unnecessarily disrupt the regular custody schedule.

The parties agree will provide the other parent with a travel itinerary, and names of anyone traveling with the children and provide contact information for how to reach the children while on vacation. The parties agree that if either parent intends to remove the children from the Commonwealth of Pennsylvania for any purpose for any length of time over two days, that he or she will provide one (1) week notice to the other and indicate the destination where he or she intends to take the children, names of anyone traveling with the children, the length of the trip and a phone number and address where the children can be reached. Neither party will be allowed to travel out of the country with the children unless both parties agree in writing or a Court Order is obtained. The parties acknowledge that the vacation schedule takes precedence over the regular schedule and the holiday schedule takes precedence over the vacation and regular schedules so that neither party may take vacation during the other party’s holiday time.

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Residency for Jurisdiction

Under Pennsylvania law, specifically 23 Pa. C.S. 3104(b), one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession. Members of the military are considered to be residents of their home state even if they are stationed elsewhere at the time a divorce is commenced. The home state would be the state where they intend to return to and reside in following any term of active duty.

Jurisdiction for custody matters is usually also based on a six month time frame. Jurisdiction is proper in the home county of the child which is where the child has resided for at least six months prior to commencement of the action. Temporary absences from the county do not negate residency for the purposes of jurisdiction. Further, in emergency situations, the six month residence requirement may be set aside. Temporary emergency jurisdiction may be exercised if the child is in the jurisdiction at the time and it is necessary to make an immediate determination to ensure the child’s safety. For example, an emergency order may be entered if a child has been abandoned, or is subject to mistreatment or abuse. An emergency order would only be valid until a court with jurisdiction as the home state of the child makes a determination.

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Counseling in Adoption Cases

Prior to an adoption taking place, the rights of the natural parent(s) must be terminated. This may occur via consent, voluntary relinquishment or involuntary termination. Pursuant to 23 Pa C.S. 2505, each county is responsible for keeping a list of qualified counselors who are available to assist natural parents contemplating voluntary relinquishment or facing termination of parental rights. The court must inquire of the natural parent(s) if counseling services were utilized prior to any decree terminating their rights. If the natural(s) have not received any counseling, the court may briefly postpone a decision on the termination to allow the natural parent(s) an opportunity to seek counseling.

When an adoption is filed, a portion of the filing fee goes to support the county counseling fund which exists to pay for counseling where the natural parent(s) desire to participate but are unable to afford it. Presently, the counseling fee is $75 and is filed with the Report of Intent to Adopt. The Bucks County Orphans’ Court Division is hosting two informational sessions regarding the counseling program available. The first is on July 29, 2014 at 9:30 a.m. at the Lowers Bucks Chamber of Commerce in Fairless Hills, PA. The second event is being held on July 31, 2014 at 9:30 a.m. at the Central Bucks ambulance & Rescue Unit in Doylestown, PA. For additional information or to R.S.V.P., please contact (215) 348-6260.

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Landlord-Tenant Basics

A lease is the typical agreement outlining the arrangement to occupy property between the tenant, who will become the occupant, and the landlord, who is the legal owner of the property. Leases between landlords and tenants can be oral or written if the lease is for a period of less than three years, although written is always preferable. Lease agreements must be in writing for terms greater than three years. A tenant should make a careful review of the property prior to signing a lease. For example, a tenant should check to see if all appliances are in working order, if there are any plumbing issues, if the electric is properly wired and all light fixtures and outlets are in working order, whether the walls or ceilings have any cracks, holes or other damage, if the floors, railing and bathroom fixtures are in good repair, whether there are any rodent or insect problems, and whether the windows and doors are functional and secure. A tenant should be sure to note any existing damages to the landlord prior to signing a lease as the tenant is obligated to leave the property in the same condition at the termination of the lease.

The term of a lease will automatically terminate as stated in the lease but can terminate earlier in certain circumstances. A landlord can evict a tenant if they are behind on rent or break any other clause of the lease. A landlord must provide a notice to quit to be personally delivered to the tenant, posted to their residence, or left in a common area. The notice must allow a time frame to rectify the breach prior to eviction. If the tenant does not come into compliance, the landlord must then follow the steps to file a complaint in district court for eviction.

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Retirement Plan Distributions in Divorce

Retirement plans are often one of the significant assets up for distribution in the course of a divorce. Careful attention should be given to the type of retirement plan at issue to avoid tax penalties and/or early withdrawal penalties to the extent possible. First, retirement plans must be distinguished between qualified plans and non-qualified plans. Qualified plans include defined contribution plans such as 401Ks as well as defined benefit plans such as pensions. A Qualified Domestic Relations Order (QDRO) will be necessary to distribute a qualified plan. Non-qualified plans include individual retirement accounts or IRAs. A QDRO is not needed to distribute these plans.

Both qualified and non-qualified plans will be taxable as distributed. The QDRO effectuates a tax-free rollover of funds to the spouse being awarded a share of the retirement plan in divorce but the spouse will be taxed on it when they withdraw it. Distributions outside of a QDRO may also be subject to an early withdrawal fee. Typically, a 10% early withdrawal penalty applies to distributions before the plan participant is 59 ½ years old. There are a few ways to avoid the early withdrawal penalty including a loan from the retirement plan, disability of the plan participant, and scheduled equal payments. Additional exceptions for IRA plans include higher education expenses and for first-time home buyers.

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Improper Custody Relocation

Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” Procedurally, the party intending to relocate should give at least 60 days notice or notice as soon as possible after they have knowledge of the relocation. A full hearing on the relocation should be held prior to the move if the relocation is contested. In addition to addressing the 16 factors to consider in any custody award, the moving party must also address the 10 relocation factors. The moving party has the burden of proof to show relocation will serve the best interests of the child(ren) and that there is no improper motive in seeking to move.

Failure to abide by the procedures listed in the statute has consequences. Specifically Section 5337(j) discusses the ramifications for failure to provide adequate notice and follow the appropriate channels. The court may consider the lack of notice as a factor when making a final determination on the relocation and whether custody rights should be modified. The court can also view the lack of notice as a basis for ordering the return of the child to the jurisdiction. The court may order the party who improperly relocated to pay attorneys fees and expenses on behalf of the party who must initiate litigation to indicate their opposition to the relocation. The court can also treat it as a matter of contempt and impose sanctions against the moving party. Finally, 5337(l) explains the court is not permitted to confer any presumption in favor of the relocation where it occurs before the court holds a final hearing.

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Increase/Decrease in Asset Value

Property acquired prior to the marriage or in exchange for said property is not marital however the increase in value of that property during the marriage is up for distribution. Pursuant to 23 Pa. C.S. §3501(a)(1), any increase in value for non-marital or separate property should be measured from the date of marriage or date of acquisition through the date of separation or date close to the equitable distribution hearing, whichever date results in a lesser increase. This provision is intended to protect the party with the interest in the non-marital property in situations where there may be a lengthy time period between when the parties separate and when they get to the point of dividing the property.

Section 3501(a)(1) also discusses the potential for offsets in any increase in non-marital property by a decrease in non-marital property. Accordingly, if Wife had an increase in non-marital property as well as a decrease in non-marital property of the same amount, the two occurrences would cancel each other out. However, if the increase is greater than the decrease, the increase would be reduced by the extent of the decrease for a net value. This rule applies to the non-marital property of each spouse. In other words, Wife’s increased value in non-marital property can only be offset by her decreased value in non-marital property, not Husband’s, and vice versa.

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Guardian Ad Litem

A guardian ad litem (GAL) is an attorney the court appoints to represent the best interests, and often times the legal interests, of a child in a court proceeding. Once appointed, the GAL should participate in all future proceedings as necessary to continue to ensure the child’s interest. By law, the GAL is mandated to meet with the child as soon as possible following appointment. Additionally, the GAL should review all the relevant records related to the case and conduct further investigation as deemed necessary. Further investigation may include speaking with the child’s parents and/or guardians as well as interviewing other potential witnesses.

The GAL’s ultimate responsibility to the court is to make specific recommendations for an order that will address the child’s safety and provide for his or her best interests. The GAL’s responsibility as it relates to the child is to explain the proceedings to the child in a manner that they can understand. Additionally, the GAL is to explain the child’s position to the court along with any evidence in support of their position. A GAL must be appointed in any case where it is alleged that the child is a dependent. A GAL may be appointed in other instances such as custody cases or Protection from Abuse cases involving the child. It is possible that a child can be appointed a GAL to protect their best interests and a separate attorney to protect their legal interests.

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Non-Marital Property

Section 3501 of the Divorce Code defines what will be considered marital property versus what will be considered non-marital property. Specifically, marital property will include all property acquired by either party from the date of marriage through the date of separation. There is a presumption all property acquired during the marriage is marital regardless of how title is held (e.g. individually vs. jointly). It will also include the increase of value of any non-marital property during the course of the marriage. 23 Pa C.S. 3501 goes on to list what property will not be considered marital under the statute. Property acquired prior to the marriage or in exchange for said property is not marital as well as property expressly excluded by valid written agreement of the parties at any time.

Property received as a gift from any person other than the other spouse is not marital along with any property acquired after final separation but potentially prior to the entry of a divorce decree as long as marital property was not used in its acquisition. Any inheritance received is treated as a gift and will also be deemed non-marital so long as it is not subsequently commingled with marital funds. The court will also not look at property that was disposed of in good faith while the marriage was intact. An example would be property sold to a family member for its fair market value. Veterans’ benefits cannot be attached, levied or seized except in the case where a portion of the veteran’s retirement pay was waived in exchange for the benefits. Finally, any payment from a cause of action or lawsuit where the underlying claim occurred before the marriage or after separation.

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