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Grounds for Divorce in NJ

Section 2A:34-2 of the New Jersey Divorce Statutes outline the different causes of action available for a divorce. New Jersey recognizes no-fault grounds for divorce on the basis of separation or irreconcilable differences. The parties must live separately for at least 18 consecutive months with no prospect of reconciliation to succeed on the no-fault ground for separation as governed by 2A:34-2(d). A divorce complaint cannot be filed until the 18 month period of separation has elapsed with the presumption that no reasonable prospect of reconciliation occurs after that period. The parties must have experienced irreconcilable differences for six months or more with no reasonable prospect of reconciliation to obtain a divorce on the basis of irreconcilable differences pursuant to 2A:34-2(I). In the case of an irreconcilable differences divorce or one based on fault grounds, the parties do not need to actually separate prior to commencement of the action.

New Jersey also recognizes fault grounds for divorce including adultery, desertion, extreme cruelty, voluntary addiction or habituation, institutionalization, imprisonment and deviant sexual conduct. Desertion must be willful and continued for a period of 12 months or more. Extreme cruelty can be mental or physical but must be to the extent that it makes it unreasonable to expect the parties to continue to reside together. The fault ground for voluntary addiction refers to addiction to any narcotic drug and/or habitual drunkenness for 12 months or more. Institutionalization for a mental illness must be of a period greater than 24 consecutive months. A divorce can be awarded on the basis of imprisonment for 18 months or more. If the divorce is not commenced until after the defendant’s release the parties cannot have resumed cohabitation. Finally, deviant sexual conduct is that which is voluntarily performed by the defendant against plaintiff’s will. Adultery can be established through circumstantial evidence and generally requires some corroboration. When raising a claim for adultery, the third party who participated in the adultery must be named as a co-defendant and has the right to intervene. There is generally no benefit to pursuing a fault based divorce over a no fault divorce.

All grounds for divorce require NJ residency for a period of at least one year with the exception of adultery. This is true as it relates to divorce from the bonds of matrimony, or absolute divorce, as well as divorce from bed and board, or limited divorce. In the case of a limited divorce the parties will still be legally married but are able to achieve separation financially. Just as with a divorce, the parties can enter an agreement to divide all their marital property or submit to the court for a decision on division. Alimony may also be awarded where appropriate. Health insurance may continue if covered by the other spouse and legal separation is not specified as a reason for termination. A divorce from bed and board can be converted to a divorce from the bonds of matrimony if the parties elect to go through with a full divorce. It can also be revoked such that the parties resume their marriage.

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A Brief Guide to Uncontested Divorce in Pennsylvania

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An uncontested divorce occurs when both parties to the divorce agree on all of the main issues of the divorce. A couple may agree to property division, alimony and child support. However, the couple will still need to file a number of forms with the court, whether or not it is contested.

In addition, one party in the divorce must have been a Pennsylvania resident for six months prior to the beginning of the divorce. There must also be grounds for the divorce.

Two no-fault grounds exist in Pennsylvania. To obtain a divorce by mutual consent, both parties must agree the marriage is irretrievably broken and wait 90 days after the divorce action is served on the other side. The other no-fault divorce is a separation in which one party does not consent to the divorce and the parties have lived apart for a certain period of time. For divorces in which separation occurred prior to December of 2016, there is a two-year separation divorce, and for those who separated after December of 2016 there is a one-year separation divorce. Less common is a divorce on fault grounds, which include desertion, adultery, endangerment, “cruel and barbarous treatment,” one spouse’s imprisonment for at least two years or for “indignities.”

For a consensual no-fault divorce, the couple must agree to a Property Settlement Agreement if there are assets or issues of alimony. This agreement will divide the marital property according to a mutually negotiated settlement and award or waive alimony. The agreement may also lay out custody and child support, or these can be left to separate agreements or to court. Custody and support in Pennsylvania are not necessary to resolve before a divorce is granted. If there are no assets and no issues of alimony, you will not need an agreement just the divorce.

If the couple cannot agree completely on all issues, the divorce may still be no-fault but the issues will need to be litigated. In a contested divorce a family court judge will decide all issues according to Pennsylvania state law. This includes dividing marital assets equitably (not necessarily equally) and ordering child custody according to the best interests of the child as well as child support. In Pennsylvania these are all heard separately.

An uncontested divorce is often the result of mediation. In mediation, both parties to the divorce use a trained mediator to agree to the basic terms of divorce. Each party is still represented by an attorney, but the issues are all decided out of court. Mediation can provide the divorcing couple with a less acrimonious process, one that is managed privately.

Whether the divorce is contested or uncontested, each party should be represented by an attorney. A divorce lawyer can protect your rights and interests in divorce and ensure that your transition to post-divorce life goes as smoothly as possible.

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Calculating Child Support

Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are intended to ensure that similarly situated parties are treated similarly. Accordingly, all parties with a combined monthly income of $5000 per month with 3 kids would arguably have the same support obligation based on the guideline amounts. There is a presumption, albeit rebuttable, that the amount of support indicated by the guidelines is the appropriate amount. The guidelines are based on an “Income Shares Model” with the designated obligation being subsequently shared by the parties based on percentage of custody time as well as percentage of income.

The amount of support reflected in the guidelines is meant to provide for average expenditures for food, housing, transportation and other necessary miscellaneous items on behalf of the children. The guidelines make financial support of children a top priority. Accordingly, outside of the basic needs of the party providing support, the child’s needs in terms of support come first. Pennsylvania does however recognize a self-support reserve based on the federal poverty guidelines to ensure that a party is left with a certain amount per month to support themselves.

The first key step in calculating child support is determining the gross income of the parents. The list of what will be considered income for purposes of a support calculation is expansive. Sources of income include wages, salaries, bonuses, net income from businesses, interest, rent, royalties, dividends, all forms of retirement, income from interest in estate or trust, social security disability or retirement benefits, workers’ compensation and unemployment compensation. Alimony may be considered after the court examines the whether the alimony is intended for general support. Lump sum awards are also income and can be averaged over a certain period of time to identify how it translates into monthly income. Examples would include lottery winnings, income tax refunds, settlements, awards or verdicts and insurance compensation.

Net income will be used for purposes of the calculations. To determine net income, the rules provide that only taxes, mandatory union dues, and alimony paid to the other party be deducted. In a scenario where either party is unemployed or underemployed, an earning capacity may be imputed based on prior work history, education level, particular skill set or experience. Verification by a physician is required to prove that a party is physically incapable of working such that they should not be imputed any income.

The party having custody majority of the time is identified as the obligee or the party receiving the support. The party paying support is referred to as the obligor. In a shared custody situation there may still be a support order to be paid by the party with a higher income depending on the discrepancy in the parties’ incomes. The rules for arriving at the appropriate support award differ for low income as well as high (over $30,000/month combined income) income cases.

Adjustments may be made to the basic support obligation depending on additional expenses of the children. Health insurance premiums and child care expenses are routinely addressed as part of the support award and allocated between the parties based on percentage of income. Examples of other expenditures which may be considered include private school tuition, summer camp, and other special needs. An adjustment may also be appropriate if there are other children to support and the total support obligation for all children exceeds fifty percent (50%) of the obligor’s income.

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Landlord Tenant Appeals

Eviction appeals: In Pennsylvania, once a landlord/tenant eviction hearing is decided by a Magisterial District Justice (or by a Municipal Court Judge in Philadelphia), either party has the right to appeal if they disagree with the decision.

If a tenant appeals a determination of possession, there is a 10 day appeal deadline. In other words, the tenant must file the appeal in the Court of Common Pleas where the property is located within 10 days. The tenant has to then serve the notice and Rule advising the Landlord that they have 20 days to file a complaint. These forms must be served on the Landlord and Magisterial District Judge.

The tenant must also file a supersedeas which prevents the sheriff or constable from kicking the tenant out of the property. In addition to filing fees, the supersedeas requires that the tenant pay the lower of 3 months’ rent or the judgment to the Court to hold in escrow until the final hearing. The tenant must also pay the monthly rent to the Court every 30 days. If the tenant fails to do this, the supersedeas may be terminated and the eviction may proceed. Make certain that you keep track of this deadline as some months have more than 30 days.

For issues regarding just the monetary judgment account, the appeal deadline is 30 days.

The process is the same, but you do not need to file a supersedeas and therefore do not need to pay the funds monthly to the Court.

If a landlord appeals, the deadlines are the same, except that the landlord must then file a complaint to the tenant instead of a Rule instructing the other party to file one.

It is recommended that the parties hire an attorney to proceed with an appeal as it is much more difficult and complex than filing with the lower Court.

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Top six mistakes made when preparing will

While proper estate planning is essential, mistakes do happen. Below are the TOP FIVE some common mistakes:

1. Conflicts between legal documents
Many clients do not realize that some property does not transfer through the estate. For example, a deed supersedes the will. In other words, if the deed is titled as joint tenants with right of survivorship, then it bypasses the will upon your death. In other words, the will can leave it to one person, but the deed will override the will.

Similarly, accounts in joint names or with beneficiaries go to the survivors/beneficiaries, despite what the will says.

2. Not leaving enough in the residue (i.e. specific bequests are too high)
Some people want to give specific gifts or amounts of money to a designated person. The remainder (or residue) is then given to the other beneficiaries. The intent is that people are not forgotten, with the bulk of the estate going to the closest family members. Unfortunately, people do not realize that the residue is sometimes smaller than anticipated. There are several reasons for this – estate costs (probate fees, inheritance tax, attorney fees, creditors) are higher than anticipated, real estate sells for less, the stock market and retirements accounts are lower than when the will was prepared, or you spend more than you expected to during your lifetime.

For this reason, you want to revise your will every few years to make sure that the distribution is as planned.

3. Not checking with executors/trustees
When drafting a will, you will need to name an executor, and potentially a trustee and/or guardian. Because there is a lot of work that needs to be done, many people are reluctant to put in the time or energy. Furthermore, some people are reluctant to become the executor because they believe that it will cause issues with other family members. It is best to confirm with the potential executor that they are agreeable to take on this endeavor.

4. Not reviewing the will after life changing events
It is important to review the will every few years. Life changing events happen all of the time, so whenever you or a family member goes through divorce, gets married, has children, loses a loved one, or has a falling out with a family member, you need to make sure that the will reflects the changes. Additionally, you want to make sure that the named executor remains up to the task.

5. Moving to another state
There are different requirements for all states. If you are moving to another state, you should consult an attorney in the new state to make sure that your most recent will is still valid.

6. Ambiguity in terms
There are times when a will is ambiguous. This can happen when there are two family members with the same name (senior vs. junior or when someone with the same first name marries into the family and takes the other’s last name). It can also occur when you give a specific item (i.e. my favorite ring to my daughter), and no one knows for certain what item you are referring. Furthermore, if you are giving percentages of your estate to family members, you need to make sure that the estate adds up to 100%.

As you are unable to clarify this upon your passing, it is imperative that all terms of the will are clear when it is prepared. If there are any ambiguities, it is likely up to the court to determine your intent.

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All Parenting Plans Are Not Equal

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By Marsha Kline Pruett

Parenting plans are about each parent’s desire for access to his or her children and an opportunity to be involved in the activities and responsibilities of parenting. The plans are all about time – how much and when.

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Grounds for Eviction

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For a tenant to be evicted, the landlord may proceed on one or more of the following grounds:

Nonpayment of Rent. For example, the tenant has failed to pay the current or prior months’ rent, and the rent is past due. Also, the tenant has failed to pay late fees.
Termination of the term. For example, the lease runs for 12-months and the landlord gave adequate notice that the lease is not to be renewed. If the tenant stays past the twelfth month, the landlord may proceed on this ground.
Breach of the lease. For example, the lease states that pets are not permitted and the tenant has a pet.
At the eviction hearing, it is the burden of the Landlord to show that the grounds have been met. However, if the eviction is based solely on Nonpayment of Rent, the tenant will be permitted to remain in the property if he pays the judgment in full.

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How To Share

Source: Family Advocate, Vol. 33

Over the past couple of decades, we have become increasingly aware that children benefit from having both parents involved in their lives.

 

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Relocation Realities

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By Leslie Ellen Shear

Parents who are considering moving with their children after separation or divorce, and parents deciding whether to oppose the children’s move have a lot to think about.

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