Marriage and Family Law Issues 101

Experienced Counsel for Your Family Law Issues

Getting married marks a transition into a new phase of your life. Your priorities change, and your responsibilities grow, as you start a new family. An experienced family law attorney can help you take care of and protect your spouse and family every step of the way. This guide will address five important legal issues relating to marriage and family that you may face.

In this eBook, we’ll cover

• Prenuptial agreements and reconciliation agreements
• Child custody, support, parenting, and adoption
• Wills, living wills, and health care powers of attorney
• Divorce
• Alimony and postmarital issues

1. Prenuptial Agreements and Reconciliation Agreements

Prenuptial Agreements

Property laws vary from state to state and confer certain ownership and inheritance rights to a spouse by default. Prenuptial agreements are contracts, entered into before a couple marries, that specify the ownership of assets and direct the division of property in the event the marriage ends. Evaluating whether a prenuptial agreement is beneficial and discussing entering into one with your fiancé can be difficult.

Prenuptial agreements can specify

How you will determine the division and ownership of property and alimony in case of divorce;
Identify and separate marital community property from premarital property belonging to each partner individually;
Direct the allocation of responsibility for debt acquired during the marriage such as loans, mortgages, and credit cards; and
Plan how property will be divided upon the death of a spouse.
New Jersey courts generally disfavor prenuptial agreements. Consequently, they must be carefully and skillfully drafted in order to withstand judicial scrutiny and be enforceable in the event they are later challenged.

Reconciliation (“antenuptial”) Agreements

Reconciliation (or “antenuptial”) agreements are made between spouses after a marriage has started or between unmarried, cohabiting couples. Like prenuptial agreements, they designate the division of assets and liabilities in the event of divorce or separation. Any couple with shared property interested in protecting their individual rights in the event their relationship comes to an end can execute one of these agreements.

One benefit to entering into a reconciliation agreement early on in a relationship (such as when they initially move in together or shortly after marriage) is that you may be able to reach fairer and more reasonable terms while you are still happily together. This may result in a more amicable separation and help avoid the emotional stress and expensive legal fees associated with hostile divorce proceedings or post-breakup lawsuits to divide property.

Like prenuptial agreements, courts will evaluate reconciliation agreements carefully to ensure that they are legally enforceable contracts, assessing whether they are entered into freely, without coercion, and are not inherently unfair.

In order to properly prepare a legally binding prenuptial agreement, reconciliation agreement, or other document related to property division, each party must have proper (and separate) legal representation and provide full disclosure of the details relating to his or her assets and debts. By working with you, your partner, and your partner’s attorney, an experienced matrimonial law attorney can help you protect your interests with a thoughtful and well-written agreement.

2. Child Custody, Support, Parenting, and Adoption

If you have a child or children from previous relationships, you may need to evaluate and potentially change your existing custody arrangement, visitation situation, or child support payments. You may also want your new spouse to adopt your children, or vice versa. You should consult an experienced family attorney to help with any legal issues relating to your or your partner’s children.

Custody and visitation are determined by New Jersey courts based on the “best interests” of a child. In making its decision, the court will examine each parent’s character and characteristics and determine what arrangement can best support the safety, health, happiness, and general welfare of the children. Changes in your household such as the introduction of new family members, relocation, or changes in your financial stability can be the basis for a modification of existing custody or visitation arrangements.

Child support is set by New Jersey statutes, the sole parenting guidelines (between a custodial and non-custodial parent) and the shared parenting guidelines (between parents who share custody more equally). These guidelines set the amount of monthly child support a noncustodial parent must pay based on the yearly income and parental obligations of the parents. Changes to your household situation, such as one parent adding additional dependents or wanting to change custody and visitation agreements, may result in changes to the calculation of child support payments.

The statutory guidelines help the court determine the amount of money it will take to raise your child or children depending on their ages (covering birth-17 years or the completion of high school, generally), the income of both parents (the guidelines assume that as income increases, the cost to raise children also increases), and other factors such as recurring health care expenses, childcare costs, etc. The cost is then divided between the parents in proportion to their respective incomes.

The New Jersey Child Support Guidelines apply to parties whose combined net incomes are greater than $170/week ($8,840/year) and less than $3,600/week ($187,200/year). They are fairly strictly applied, unless the court finds unusual cause to raise or lower the amounts they calculate for your situation.

In circumstances where parents’ combined incomes are higher or lower than those amounts, and in otherwise determining whether the guideline amounts should be modified for good cause, the court will determine what is fair for each party based upon factors including

• The needs of the child
• The standard of living and economic circumstances of each parent
• All sources of income and assets of each parent
• The earning ability of each parent, including educational background, training, employment skills, and work experience
• The length of time and cost of each parent to obtain training or experience for appropriate employment
• Custodial responsibility for children, including the cost of providing child care
• The need and capacity of the child for education, including higher education
• The age and health of the child and each parent
• The income, assets, and earning ability of the child
• Responsibility of the parents for the court-ordered support of others
• The reasonable debts and liabilities of each child and parent, and
• Any other factors the court may deem relevant.

The “sole support guidelines” presume that a child lives in only one household. If a child spends at least 104 overnights per year with the “non-custodial” parent (every weekend or the equivalent), the court may find that there is a “shared parenting” situation rather than a “sole custody” situation. In this case, the parties must prepare and file a parenting plan with the court that sets the parenting time and responsibilities for each parent.

If a child spends more or less time than the sole support guidelines assume with the non-custodial parent, that parent’s costs for the child will increase or decrease, and the custodial parent’s costs will change as well. Thus, if the court determines that there is a shared parenting situation, it will use the statutory “shared parenting guidelines” and its discretion to evaluate situational factors to guide its decisions about appropriate support. Ensuring you are represented by an attorney experienced in this process can protect your rights to support and visitation.

If you are adopting a child together or adopting your partner’s children, it is crucial to retain counsel who is experienced in the New Jersey adoption process. There are numerous ways to adopt a child together, including adopting a foster child, participating in an open or closed domestic adoption, or adopting a child from a foreign country.

3. Wills, Living Wills, and Healthcare Powers of Attorney

Whether or not you already have a will or a healthcare power of attorney, getting married is the perfect opportunity to update or create these important documents. Although thinking about end-of-life issues can be daunting, handling them at the start of your joyful life together can make the task less somber.

Wills

A will designates who receives your property and assets when you die. It can include specific bequests (e.g., “I leave my 1962 Chevy Impala to my sister Jane”) or general provisions (e.g., “my entire estate to my children in equal parts”). Even if you don’t currently have significant financial assets (or any specific bequest instructions), setting up a will has certain benefits.

• Your will is effective until you revoke it. You can make a will that accommodates future changes, including acquiring real and personal property and having children. While it’s a good idea to update your will periodically, once you have one prepared, it should take very little future investment of time.
• Your will helps your survivors. A will appoints a representative who can make legal decisions when you die, like closing your bank accounts and notifying the utility companies that you are deceased. Without a will, this responsibility passes to your next of kin, who may not be the best person(s) for the task, or it may require that your multiple next of kin jointly make those decisions, which may be logistically very difficult or emotionally traumatizing.
• Your will is about more than property. If you already have children or are thinking of having children soon, your will can designate who will care for them if you die while they are still minors. You can also set up trusts to ensure their financial security and include any other instructions you would like your survivors to carry out in your name, such as establishing a scholarship fund, donating your body to medical research, or scattering your ashes in a specific location.

Living Wills and Health Care Powers of Attorney

Thinking about becoming unable to direct your own medical care because of illness, accident, or age can be overwhelming. But talking with your spouse about these issues can ensure that your wishes are honored in the event one of these unfortunate situations arises.

Two basic documents, a living will and a durable power of attorney for health care, allow you to set out your wishes for medical care. (Sometimes these documents are combined into a single form, which may also be known as an “advance directive.”)

A durable power of attorney for health care allows someone else to act as your agent or proxy, making health care decisions for you in the event that you are unable to do so. For instance, if you are brought to the hospital unconscious, your designated representative would be asked to authorize decisions like whether to allow or continue life-support measures. Your spouse is automatically authorized to act as your agent in most jurisdictions, but having a durable power of attorney naming someone else can be priceless if your spouse is unable to make those decisions (for example, if you are both injured in the same accident).

A living will is a document detailing the type of care you want – and don’t want – if you become medically incapacitated and cannot give your treatment providers direction or consent. You can be as specific as you would like. For example, you can designate that you do not want to receive blood or blood products for religious reasons or that you do not want any resuscitative measures taken at all. Alternatively, you can specify that you would like to allow your care provider to act based upon what he or she believes to be medically best (for example, inserting a feeding tube only if it is likely you will regain consciousness). You can also specify your wishes regarding organ and tissue donation. A living will helps your health care agent make medical decisions in accordance with your wishes.

You can change or revoke both of these documents at any time. Although it may seem grim, setting out your wishes when you’re healthy can ease the pain and stress for both you and your loved ones if a medical emergency occurs.

4. Divorce

Divorce in New Jersey can be contested or not contested, but it doesn’t matter what the cause (or even whether there is any articulable reason). New Jersey is a no-fault state, which means you do not need to explain cause beyond claiming “irreconcilable differences” when filing your complaint for divorce.

Once a case has been opened, the parties meet with the court for a case management conference to discuss issues and create a schedule for discovery, experts, and a potential trial. The discovery process usually involves serving interrogatories (written questions), demands for documents (including financial information), depositions (interviews under oath), and expert evaluations.

There are also options to avoid going to trial. One way is to use an alternative dispute resolution (ADR) process, such as mediation or arbitration. After the discovery process and/or ADR, the court will schedule the parties for early settlement panel (ESP) discussions. This allows the parties to attempt to resolve their issues and enter a mutually-agreed upon order finalizing the divorce. If they aren’t successful, the court will make one more attempt at resolving the matter through a formal settlement conference before scheduling a trial.

If a couple mutually agrees that they no longer wish to continue the marriage and can work together to agree on the division of assets, they may be able to avoid some of the emotional pain and financial complications by pursuing a collaborative divorce. In a collaborative divorce, each party retains his or her own attorney. The parties and their team then meet regularly, often with the help of a mediator, who tries to guide the couple come to a mutually acceptable agreement. Other professionals, such as marriage or divorce counselors and psychologists, may also participate in these meetings to make sure that each side is adequately represented and that outstanding issues are resolved. This approach allows the couple to take some of the hostility out of the divorce proceedings, to devise a mutually acceptable settlement, and to agree on ways in which post-divorce conflicts will be resolved.

Collaborative divorce can be particularly beneficial when children are involved. Traditional divorce can take a significant emotional toll on children who must watch their parents fight a legal battle. In collaborative divorce, on the other hand, the parties negotiate with one another and take a personal approach to reaching an outcome that protects their children’s best interests. With the assistance of an experienced lawyer, you can protect your rights, reach an agreement that is mutually acceptable to both you and your spouse, and minimize the stress of the divorce process everyone involved.

In order to make the best decision for you and your family, get the advice of an attorney who is experienced in both family and collaborative law. Your lawyer will be able to explain in more detail how collaborative and traditional divorce each work and guide you through the process that is right for you.
5. Alimony

When a couple in which one spouse has been financially dependent on the other for a period of time divorces, courts may award alimony payments to the dependent spouse.

Type of Alimony Awards

Temporary Alimony (alimony pendente lite) may be awarded while divorce proceedings are ongoing to help cover living expenses if appropriate based on the dependent spouse’s income.

In the decree finalizing the divorce proceedings, a court may order alimony to accomplish different purposes, alone or in combination:

• Limited duration alimony is based on financial need. It is intended to pay living and other expenses until the dependent spouse becomes self-supporting.
• Similarly, rehabilitative alimony is intended to help a dependent spouse become self-supporting, but it is more limited in time and scope. A requesting spouse must submit to the court the steps to be taken for rehabilitation (e.g., training or education he or she will undertake), the time frame, and a period of employment in that field, after which the payments will end.
• Reimbursement alimony compensates a spouse who supported the other spouse through advanced education with the expectation that he/she would enjoy the shared benefits of that investment but is unable to because of the divorce or legal separation.

New Jersey’s alimony laws have recently changed dramatically. “Permanent” alimony (guaranteed alimony for life) no longer exists; payments typically now end at retirement. A paying spouse who has retired at a normal age (generally around 65 years old, based on Social Security benefit eligibility) is entitled to a court hearing to determine whether his or her retirement has resulted in changed financial circumstances warranting a reduction in alimony payments.

Also, you now cannot be ordered to pay alimony for longer than the length of the marriage except in “exceptional circumstances” as determined by the court.

Determining Alimony Awards

When determining the amount and duration of an award for alimony, the judge will look at several different factors, including:

• Each spouse’s actual needs and ability to pay
• The duration of the marriage
• Each spouse’s age and health (both physical and emotional)
• Each spouse’s income, earning capacity, education level, and employability
• The standard of living during marriage
• Parental responsibilities of each spouse
• The time and expense necessary to obtain education or training for the dependent spouse to become self-supporting,
• Each spouse’s financial or non-financial contributions to the marriage, and
• The tax ramifications to each spouse.

There are no specific alimony calculators or guidelines in New Jersey; the court will make a decision in its discretion based on the factors listed above and anything else it considers relevant.

After an award has been entered, if your or your ex-spouse’s financial circumstances change (such as through job loss, remarriage, etc.), you may petition for the court to re-examine your alimony schedule.

Consulting with an experienced attorney can help ensure that you preserve your rights through the entire divorce process, including the entry of alimony. If you believe your situation has changed, an experienced New Jersey attorney can help determine if you may be able to successfully petition to alter your existing award.

The experienced team at Mark | Lavigne, LLC are skilled family law practitioners. We have offices in Basking Ridge, Newark, and Oradell for your convenience. Call or contact us for a consultation today, or visit us at www.newjerseyattorneys.com for more information on our practice areas and attorneys.

We look forward to helping you with all your family law needs.