Okay. I think it’s about time to get started. Just give me a second to get everything set up. All right, good evening everyone, this… I guess I need one more second. Okay. So good evening.
Welcome to The Micklin Law Group, LLC’s monthly webinar series. Tonight’s webinar is 13 Myths About Divorce: What New Jersey Residents Should Be Aware Of. My name’s Brad Micklin, I’m the managing member of the Micklin Law Group. I’ll be leading this webinar this evening. So without further ado, let me just give you a little explanation of what to expect if this is the first time attending this webinar.
Tonight’s webinar is scheduled for 60 minutes, sometimes it goes a little longer, sometimes it goes a little shorter. I never really know how long the material will take me to get through. I do my best to keep it within that hour, and to leave enough room for questions, but I think it’s more important to get the information out to you. So if it takes a little longer, I apologize. I am recording this, so you can get a copy of this and it will also be posted to my website sometime shortly after tonight. I don’t know how quickly it gets out there, but it will be there if you need to watch it again. And you can always also email me if you need a copy of it. So one-way communication, so hopefully you can hear me, but I can’t hear you.
There is a chat panel you should have on the right side of your screen. There’s a section under, in the middle, it says for questions, I think you just tag down to that and you type in any questions you have, it will appear on my screen also. I will address all questions, but only at the end. I don’t stop in the middle to address the questions because it messes up the timing, but I will stay as long as possible to finish it afterwards. I usually recommend also that you type the questions throughout the material, not wait until the end so that you don’t forget it when we move on to other materials. I attached a handout, which is the PowerPoint presentation, in case you want to download it. There are some statutes that I site in here. It’s the first time I’ve done that in a webinar, so I’m not really sure how it works. So if for some reason you’re not able to download the document and you need it, you can just send me an email.
You should have my email from the confirmations as well as from the information on tonight’s webinar. So let me give you a little background about me, for those that haven’t met or dealt with me yet, this is me.
My name is, again, Brad Micklin. I’m the managing member of the Micklin Law Group. I am a member of the New Jersey State bar association. I’m also licensed to appear both in State and Federal Courts. I started my legal career by serving as a judicial law clerk to Judge Austin, who was, at the time, the supervising judge of special civil litigation. And then moved on to Kessler & Associates in Clifton, New Jersey, and I did complex commercial litigations for a number of years.
After a couple of years there, I found that I like the complexity of the litigation, but I didn’t care much for representing businesses, so I opened my own office, probably about 2000-2001. At that time, I was a general practice, solo attorney, which means did a little bit of everything and by myself. Quickly found out that you can’t be good at everything, so I concentrated my practice into divorce, family law, and estate planning and litigation, which is what my practice in as well as Micklin Law Group concentrates in this present day.
My focus is more of the complex, high net worth, high conflict divorce family law cases and estate and probate litigation. Next, I list a number of awards that I or my firm have received in the last couple of years, not to try to toot my own horn, but I think it’s important for those that either are working with me and those that may work with me in the future, as well as just those listening tonight, to know who you’re listening to, that have some sense that I do know what I’m talking about and that I care about what I’m talking about.
The awards on the left of the screen are the more recent ones I’ve received, as well as the one in the center from the American Institute of Family Law. Then there’s the Avvo rating and the Martindale-Hubbell and Avvo ratings, they’re all independent… the ones on the right, they’re all independent attorney rating services. They do research, they have their own algorithm, and I truly don’t know exactly how they come about it, but they interview clients, they do research on ethical standards and things like that. And that’s how they come across these numbers. You’ll see the one on the bottom right actually has me listed in Avvo as 8.3, but that’s the older one. The one in the top center, the 9.7, is actually my current rating there.
All right, so let’s quickly move along and talk a little bit about what we’re going to be covering tonight. This is probably one of my most favorite webinar, and my favorite information, because I have found, from day one of my practice, that people just have so many misconceptions about the law. And they don’t know that, that they’re mistaken. I tell all my clients, I tell my friends, I tell everybody, “Don’t go to the internet, don’t go to your friends.” There’s too much information to be able to digest it simply in one or two sittings. I’ve been doing this for 20 years, and the only thing I can tell you with certainty is that you never know what a judge is going to do. And the only thing I can tell you with certainty is that every single case is going to be different, so your friend’s divorce is not going to be your divorce.
Let me just give you a quick overview of the 13 issues we’re going to talk about. I’m hoping that… Let me just take a quick… Looks like some of them may have been cut off here. So I apologize for that. My sheet, the fonts were changed and didn’t look here. So I’m going to read them out anyway. First one is that you need to be separated for 18 months before you can file for a divorce. We’ll talk about the different reasons for divorce and how long you actually have to wait. If I leave my home, I abandon it. We’re going to talk about why that’s a fallacy and how assets are distributed in divorces. Number three, prenuptial agreements are for the wealthy. We’ll talk about not only the misconception, but the real, at least in my opinion, the real intention behind prenuptial agreements and how to use them positively for both parties, not just the one that has assets. And numbers four, five, and number nine are all kind of related. There’s a lot of misconceptions about alimony, which we’ll cover. So the first one is I can’t get alimony if I’m married less than 10. Number 5 says I’ll only get permanent alimony after 10. And then number nine is that a spouse can’t receive alimony if he or she’s committed adultery. Not only are these all fallacies, but the new provisions under the recently reformed alimony law significantly changed, even what was the current law, when these misconceptions arose, probably making them even more troubling to people who still believe them. Number six, can I file for legal separation in New Jersey? We’ll talk about that, but also what other options you have if you do not wish to file for a divorce just yet. Number seven, a custodial parent can’t leave New Jersey without the other parent’s permission. Very common fallacy, somewhat true, somewhat not true, a very important one to pay attention to so that you understand the distinction. Number eight, I can accidentally end up in a common law marriage if I’m married more than seven years. We’ll talk about… a little bit about that, how it may have arisen and whether or not you have to worry about it. Nine, we talked about. Ten, the fathers don’t get custody. We’ll talk a little bit about the custody issues. I’ll also give you what I’ve been seeing as the trend and fathers and the custody law. Number 11, there are divorce papers to sign. We’ll go through what actually does occur in the beginnings of a case. And then number 13 is I must settle based on the law, a common misconception I found even attorneys seem to believe. And it’s not just that it’s a misconception, but it’s just sort of a close-minded approach. And my hope is to open some people’s eyes.
Okay. So let’s look at number one. I need to be separated for 18 months before I can file for divorce. There are several reasons that you can file for divorce and you need to say specific things in your divorce papers in order to qualify for and one of them is being separated for 18 months. So if you had, in fact, been separated for 18 months, you can use that as your reason. But you do not need to wait 18 months and that’s where the misconception comes from.
There are nine different reasons that you can seek to file for divorce. Each one has specific things you need to plead or say. And each one has a specific waiting period that you have to wait before you can file. The intention behind the waiting period, I’ll go through them in a second, was the legislature, when it created the statute enabling people to divorce, didn’t want people to have the ability to just run into court the moment they had a problem. So they wanted to make sure that you sort of stuck it in there and you tried it. And depending on the reasons for the divorce, depending on how long they felt you should have to wait, so you’ll see each one, some of them have very short periods and some have very long ones. The first one is irreconcilable differences and it’s the most common one. It’s also the newest one, it came into effect several years ago, and the purpose was to bring us closer to a no-fault divorce state, which we are not. We still need to have a reason for getting divorced, but irreconcilable difference is the easiest one to prove.
You just say there’s been a breakdown of your marriage, it has to have lasted six months or longer since the filing of your complaint. Six months, you can basically say, “Six months ago, we had a breakdown, and we’re not going to reconcile,” and you don’t have much you need to prove or worry about. Number two, 18-month separation. Like I said, that is one of the reasons, that you had to be physically separated. You can’t say, “Well, I live in the same house, but we don’t share bedrooms.” That’s not separation, at least not currently. You need to be physically separated. What I’m not sure is whether or not a two-family house would qualify or not, but I wouldn’t recommend it, because there’s just no need to rely on that. If you’re living separate in the same house for 18 months, you most likely had irreconcilable differences for six of them, so there’s just no benefit. Extreme cruelty — extreme mental, physical cruelty is what it actually is. That’s a three-month waiting period. That used to be the most commonly used one before we got irreconcilable differences, and the reason is it doesn’t… it’s not as bad as it sounds. You could allege almost anything that you claim was extremely cruel so that you could get divorced, and the reason courts weren’t that rigid about it, because it was really the only reason you could get divorced if you hadn’t been separated that long.
Judges ultimately, in current day, don’t want to keep you married in a situation you find unfavorable. Number four, adultery has no waiting period, which is a little unique. I think there’s some potential religious undertones for the statutory provisions for that, but I’m not going to go into that. So basically, you can file at any time when you use adultery. Desertion is 12 months, I believe, and that, again, is physical desertion. It can’t be used living in a different bedroom. Imprisonment, if the other person… I guess, actually, it could be either person, but I don’t think the person filing can use the fact that he or she was in prison. And that’s 18 months though. If your spouse is in prison for 18 months, you can. There’s deviant sexual behavior. No need to explain what that could be. That is no waiting period either, similar to adultery. Eight, drug addiction has a 12-month waiting period. And nine is institutionalism, which is a 24-month waiting period. So now, you have the right to use any and all of these, and you can use more than one, but you always want to make sure to use the one you can most likely prove and that’s always going to be irreconcilable differences.
Number two, this, I hear all the time, if I leave my house, I abandon it. This also goes for your children, but it’s a little different. And I’m not going to get into that because it’s not the topic of this webinar. So if you have an issue about that, email me or call my office and I’ll address that for you. But leaving a home and abandoning it. You don’t abandon your home by leaving it. You do not lose your right to the asset by leaving it. You don’t lose the right to any asset by leaving your house. Judges will not expect you to live in a situation that you don’t find favorable. Now, it may adversely affect living in the home after the divorce, say, if you’re interested in buying it, it may complicate that, it also may complicate it if you find you want to get back into the house. Many people move out because things aren’t going well, but then they realize they’re getting divorced and they want to move back into their house, or they can’t afford the housing that they took temporarily to try to work out problems, so they want to move back in. Sometimes it’s harder, sometimes you have to go back to court and ask for permission to do it.
Now, there are some issues, if you do move out of the house, that may need to be considered. One is if you own the house and somebody is paying the mortgage, there’s going to be questions about if there’s been a reduction in the principal that’s due because of payments that one of you made and the other may not have made, there might be credits and adjustments. Often, there’s going to be income tax issues for the mortgage interest as well as the real estate taxes payments.There may be credits or adjustments and issues that need to be resolved for that. So there are issues, but it doesn’t mean that you lose your right. And then there could also be issues of temporary support if you move out, and the other party can’t or doesn’t want to pay for the full amount of the housing, there could be a request to the court that you be ordered to pay some of it. So you may find yourself paying for two houses, which you may not have anticipated, so you’d certainly need to consider that before you choose to vacate.
Prenuptial agreements are for the wealthy. This seems to be uncommon even for people who are wealthy. Prenuptial agreements are generally helpful to those that have acquired significant assets before marriage. But my opinion is that they help all married couples planning on getting married. The purpose is, as I’ve stated in here, you’re going to do many things when you write up a prenuptial agreement.
First of all, you’re going to exchange financial information, so you know what the person makes. You’re going to find out what kind of credit card debt they have, what kind of school loans they have. You’re going to find out how they use money, and how they save, if they save. And that’s very important because I still find that things haven’t changed that much in a lot of traditional relationships. People will still come and one spouse will say, “You know, my spouse took care of the taxes. I don’t even know how much we made,” or “He or she pays all the credit card bills, I don’t even know how much debt we have.” People don’t know how much their spouse makes, they don’t know what debt they have. They’re at home, maybe taking care of the children or they kept their finances separate, and a lot of people are in the dark about it.
But also now, in addition to exchanging financial information, you’re going to outline issues and how they’re going to be resolved before you get married, you’re going to outline how you’re going to handle the assets that you have. You’re going to decide how to handle the assets that you’re going to acquire. Are they going to be considered separate? Are they going to be together with separate funds? You talk about what’s going to happen with alimony, if you end up getting divorced. or at least you should be. So when parties face difficult issues, at a time where they care most about themselves, and they probably can’t think the most rationally about what they want to have as an outcome.
When you’re in the grips of a bitter divorce, and you have to talk abut alimony, most people aren’t willing to be that open and fair. And it costs a lot of time. It costs a lot of money, and it takes a lot of stress, and you know, it’s often not worth it. If you can do this before, I tell everybody, it’s the best thing to do. Also, it gives you a chance to learn about how assets may work in the divorce. You want to get… At least the attorney you consult with should be telling you the difference between active and passive assets, which are the main distinctions of assets. There’s pre-marital, post-marital, active, passive.
Active and passive assets, if you have them, are very significant to understand. I’m not going to go into it, it’s a little bit beyond the scope of this webinar, but they both change in value differently in a marriage. Not in value, but in characterization, meaning you might have one asset that’s a pre-marital asset that could actually become an in-marital asset as well. And then you have some pre-marital assets that are not marital even throughout the course of marriage. So you need to understand these things. The intention of a prenup is to protect one of the parties. I always say it could be here to protect both of the parties. It doesn’t have to be, “I get everything, you get nothing” type of situation. I think most people do believe that. That’s, I think, the underlying misconception about the prenuptial is for wealthy.
Prenuptial for everybody. And if used right, they can actually help strengthen a relationship and I think encourage better communication during the marriage. Can’t get alimony because I was married less than 10 years. First thing is there’s no bright-line with alimony. I list underneath here what the courts have to consider. Now there’s like 14 different factors. There’s always this one at the bottom which is always any other relevant factor which is just kind of like the courts catch-all. But in my opinion, the most common ones are this, ability and need of to pay, duration of the marriage, standard of living, and earning capacities of each person. Now the court is required to do all of these other ones, but these four are going to be the crucial ones because remember, most cases are settled by an agreement. They’re not litigated, so you’re going to be in a hallway talking about these. You’re going to be exchanging letters and things like that. And you’re not going to have the time or the information to really go through all 14 factors, for instance, like tax consequences of alimony.
There’s a tax consequence in alimony. You’ll know that if you have a lawyer or somebody will tell you that, but you’re not going to spend a great deal of time analyzing that because it is what it is. So you’re going to spend the majority of your time on these four factors here. But don’t ignore them, don’t misconstrue them saying that they’re not important, but all these other factors here, history of financial or nonfinancial contributions, this is for like a stay at home mother, I’m sorry, stay at home parent, my apologies. But they’re not as crucial. And basically, the reason is, right here, is alimony is supposed to assist the lower-earning spouse who was what they call economically…served to an economic detriment during the marriage. Meaning for some reason, they did not progress in their profession as they might have if had they not gotten married. It could be because they were raising a family, it could be because of medical condition, it could be just by election, maybe one spouse was earning more.
There are a lot of people who even claim that there should not be any alimony whatsoever, theoretically. But historically, the reason we have it is to help the economic…the non-earning economic spouse to rise and share the comfortable lifestyle they had while they were together. And then I’ll talk about the new alimony here. Now here it says, “I’ll only get permanent alimony after 10 years of marriage.” This, I believe, began because commonly, if you were married for less than 10 years, you got a short term alimony. If you were married more than 10 years, you got a moderate term, and then after 15 or 20 is usually where you were getting permanent. Now there was actually some case law that said, “You could get permanent alimony after a 10-year marriage.” There’s, I think, one case that said that. And it was a very exceptional circumstance where there was a significant change in the circumstances of the lower earning spouse. It warranted an award of permanent alimony. But the belief that you can only get it after 10, not only is that true, because after 10, you’re not likely to get it anyway. And under the new statute, we don’t have it. They did away with permanent alimony because permanent alimony was never permanent, because it could always change for a change of circumstances. So they changed it and they now call it open durational alimony, which nobody really knows what that means.
First, the word durational doesn’t exist, but that’s my own little soap box I’ll step over for this speech. Open durational just means until retirement or change of circumstances. The new law also says you cannot have alimony… I’m sorry, let me say it different. Alimony in a marriage of less than 20 years cannot exceed the length of the marriage. Meaning if you were married for 19, you can’t get more than 19 years of alimony. If you were married 10, you can’t get more than 10. The ambiguity that nobody seems to have raised yet because it’s a relatively new statute is the law doesn’t say that after 20 years, you get permanent alimony. It just says it can’t last longer if it’s shorter than 20. So the absence of the opposite paragraph is going to be an issue, I think, that comes up at some point in our near future. So things to look at when you’re talking about like permanent alimony.
Obviously, there’s always going to be ability to modify for change of circumstances, like I said, it’s going to generally be modified at retirement, which was the case before with permanent alimony, which is why they changed it, because they realized it just didn’t make sense to say that, though I listed some exceptions here. The new statute hasn’t really been pushed to its limits yet, but these exceptions here are going to be considerations. We’re going to see cases, especially I think we’re going to see here with the first one, ages at the time of marriage and alimony awards and that’s going to be unique to people like police and fireman, who quite often start a career very early and get an ability to retire at what would be considered a young age to the average person.
So if you start working at 20, you know, you’re 20, 25 in, or you’re 40, 45, most people aren’t retiring for another 20 years. But you’re young, you should be working, the question is should you have to or not. So that’s going to become a big issue in the years to come over this new statute. Like I said, there really hasn’t been taken around the block yet. I think number three is going to be a very common way to get around the statute: chronic illness or unusual health conditions. Both before and after, you know, if you got married with the condition, it’s going to be a different analysis than if they arose once you were married, and also the reason for it. Number four is also going to be interesting, given up or supported a career. And I say that because right now, we have an alimony that’s made for that and it’s called reimbursement alimony, not a very common type of alimony sought by people. But that’s for a spouse that maybe supported another spouse going through, let’s say, med school. And they worked and supported and paid bills and paid tuition. Now the spouse gets out of med school, starts making a ton of money and divorces the other spouse.
Well, there’s no alimony based on those four factors I was talking about: length of the marriage or change of lifestyle. But there’s a sort of unfairness that you helped the other spouse acquire a very significant asset, the advanced degree. And now they’re earning a significant amount of money from it, so you should be entitled to get some kind of reimbursement. And then number six, I think, is going to be important also, impact of marriage on the ability to become self-supporting.
That’s generally what we have alimony for in the first place is to make sure that they can be self… If and when there is going to be a concern that they can’t be, we’re going to look… judges are going to look probably to want to modify alimony terms or extend them beyond what the current law provides for. Moving along. Can I file for legal separation in New Jersey? I hear this all the time. I get it all the time from everybody. And the incredible thing is New Jersey doesn’t recognize legal separation. There’s no such thing as legal separation in New Jersey. I don’t really even know if there is in any other state. I just know we don’t have it and I hear it all the time.
Now there are some options that give you what might be considered a legal separation. A legal separation always seems to be they want to be apart, they want to have some relief from their legal responsibilities, but they don’t want to get divorced. So New Jersey currently has something called “Divorce From Bed and Board.” What that does is it allows you to almost get divorced, you go through almost the same process and you get your financial issues resolved, but the court doesn’t actually sever the legal marital contract, which is technically what you have when you get married. So you’re still married unless you or the other spouse at some point in time files a motion asking to convert it to a complete divorce.
Typically, people that have used this are people that are very religious, Roman Catholics, for instance, and they cannot permit a divorce, it is strongly against their backgrounds, also, people most often…elderly people who need to continue medical insurance that wouldn’t be able to get it on their own will do this so that they can continue because if you get divorced, you can’t stay on the family plan, because you’re no longer family. So the bed and board allows you to be considered family, even though you’re not married. Now I have a copy here that not all insurance companies honor this because they caught on to this. A lot of people were doing it specifically for this reason. I’ve been finding, over the last few years, insurance companies catch on to this, so now what I do is I check with the insurance companies beforehand, to see if they will honor such an agreement and I confirm it in writing. And I still tell my clients, even though it’s confirmed in writing and the insurance company said so doesn’t mean they’re going to continue. They could change their policies the next day, and you won’t have anything to do. So it’s a very important factor if that’s what you’re relying on to build in some kind of caveat in case the law changes or the policies change.
And another option you have here is a post-nup. Just like a prenup which is before the marriage, post-nup is after the marriage. And it’s simply an agreement that says we’re going to do X, Y, and Z, and you’re going to be responsible for A, B, and C. I’m not a big fan of the post-nup for a number of reasons. One is the courts find them to be overly coercive, meaning the courts think it’s something like, “Sign this or I’m divorcing you.” So you had no choice and you sign. I don’t necessarily agree with that. I think it’s less coercive than a prenup because a prenup is, “Sign this or I’m not marrying you.” And I think backing out of a marriage is a lot easier than filing for a divorce. But the current judges in case law disagree with me, so my advice to you has to be to use them cautiously because courts, they don’t uphold them commonly. And more importantly, it’s hard to enforce if you haven’t filed for a divorce because it’s an agreement between two people. It’s like a lease agreement. You have to go into civil court to enforce it.
Now, you might be able to file an action in family court and rely on it, but technically speaking, if you’re not filing for divorce, you’re in civil court, which is a really complex area to have to file litigation. All right, let’s turn to a very important one that is also a very common misconception — a custodial parent cannot leave New Jersey with the children without the other parent’s permission. Now, as I said when I began this, that’s sort of true and then sort of not true, and it’s very important to understand the distinction. If you’ve never been in court, no case has ever been filed, there hasn’t been a child support or visitation or restraining order, nothing like that, you’ve never been into court for any reason whatsoever, you’re free to do whatever you want.
You can leave the state, you can leave your home, your spouse, the other spouse can do the same thing and pick up and take the children for any reason at any time, go wherever they want, I, and the statute says, if custody is not an issue. And that means that it has never been an issue before that court. So if you’ve ever filed, then custody is an issue or custody has been an issue. Even if it’s a case that’s been dismissed, never got resolved, it was satisfied and the court dismissed it, they denied it, whatever the reason may be, if you had a case and there’s a case number assigned and dealt with any issue regarding your child, custody has been an issue, you cannot leave the state without either the parent’s permission or a court order.
Now you can seek the court’s order if you can’t get the other parent’s permission. Now, there’s going to be different standards for one, if it’s a temporary move, like a vacation, or a permanent relocation. It’s also going to be different depending on how much time the parents spend with the children. Because we’ll have custodial agreements where one parent, a parent’s a primary resident and we have one that’s the alternating parent. But that’s not always real despositive of the actual custodial arrangements. You may have an alternate parent, who has just a parent to time schedule, but is doing more of the parenting of this child, may have the child more often, may pick the child up from school and spend the entire evening with homework and dinner and laundry and then take the child home. That party is doing more of the parenting than what might be the parent of primary residence.
So typically, if we have just an issue about going out of state temporarily and you can’t get the persons permission, you go to court and you file an application, and if you can show it’s just a vacation and you have an itinerary and your kid knows you still live there, the court will give you the permission. The complex issue is relocation. Relocation will have two different standards. One if there’s like a basic overnight parenting schedule, like I said, where one is a parent of primary residence, the other one has like alternating weekends. And then there’s where I was saying where there’s a true shared physical custodial arrangement where both parents are providing equal care or the alternate parent who’s not considered the primary residence is giving more care.
So here, where we have the overnight standard, basic, you know, every other weekend, they would go and visit, you have to prove that the move is in good faith. That breaks down essentially to a good faith reason for the move. It’s not going to harm the child, and it’s not going to harm the relationship with the other parent. It’s not that difficult of a standard, and the reason is, is that the parent who does not have custody of the child can move any time they want. So they decided to reduce what used to be a much more difficult burden on the custodial parent and says, “You can move if you can show us basically those three things.” Now it’s much more extensive than that when you get to the case law and the actual standard, but that’s the basic.
Now if you have a shared physical arrangement, the relocation is different. You have to show it’s in the child’s best interest. And that is typically the sand you’re going to see in any kind of custody issue. It’s a change of circumstances that must be in the child’s best interest. That’s a very demanding standard of proof. It’s not what’s good for the child, it’s not what the parent would like, it’s not what’s going to be helpful. You have to show it’s going to be best, not just better but best. And that’s a challenging one. So if you’re sharing physical custodial arrangements and you wish to relocate permanently, you need to be prepared for it, because you’ve got a battle ahead of you. On the bottom here extended vacations, like I was saying, not usually that difficult to get, again, as long as there’s no parental alienation or past interference or risk of flight. Your common situation, if it’s just a parent who on good faith wants to take a travel, a trip with the child, and you have the notice to the other parent, you’ll get permission.
All right. What do we have next? Can I legally end up in common law marriage if I live with somebody for seven years? No. Simply put, we don’t have common law marriage, just like we don’t have legal separation. These are things that maybe other states have or maybe even New Jersey did have at one point in time, but to my knowledge, they didn’t. I think it’s just the things that we hear and things in the media. One point I raise here, we have a very mobile society, and one issue that at least I’ve never confronted is whether or not if you live in a state that has common law marriage and you move to New Jersey, does New Jersey view you as married and do you get divorced here under the same laws? I put a note here about the “Full Faith and Credit” provision on the Constitution, the United States Constitution which states that all states must recognize the laws, judgments, and recorded acts of another state, which means if you have a money judgment in New Jersey, you have the right to enforce it in Pennsylvania.
If you have a custody order from Wyoming, you can come to New Jersey and New Jersey will enforce it. So if you have a common law marriage in another state and you come to New Jersey, New Jersey should, by the constitutional requirements, enforce that also. But we don’t really know, or at least, I don’t really know, to be honest with you. One thing also to add, just a little side note on palimony, which is a common issue for a long-term relationship that is not going to have marriage, a lot of people will make palimony claims or palimony promises which is support, a promise to support you in the future. The law changed a couple years ago, I think now. It used to be a question of just proving that there was a promise and maybe some reliance on it.
The law now, there’s a statute that says, if there’s going to be an enforceable palimony, it must be in writing and it must be reviewed by an attorney, which I find that an amazing provision because if you can’t afford an attorney, that means you don’t get palimony. Let’s say you have a low-earning spouse or a partner who relied on a palimony and promised to be supported forever, but was illiterate and didn’t have any money to get a lawyer. Is the court really going to say that because she couldn’t afford an attorney, she shouldn’t get support or we’re going to make her suffer because she was poor in the first place, which just doesn’t make any sense. I think the statute is ripe for a constitutional challenge because you have the right to represent yourself and to be your own lawyer, so I find it hard, impossible to believe that a statute that requires you to get a lawyer would ever be upheld, and I’m a lawyer. I mean, there’s benefits to be in our profession, but I don’t think any law can or should ever require a person to have an attorney if they don’t want one.
Another one I hear often, a spouse cannot receive alimony if he or she commits adultery during the marriage. Wrong, unfortunately wrong, has almost no bearing whatsoever. I can say, actually, has no bearing in reality. I’ve never seen any case where it would even be a factor. I read one case a long time ago, but I’ve never actually seen one in reality. As I pointed out in the very beginning, that catch-all provision, I think it was number 14 which I put here also, I circled, is common in most statutes, they always give courts, judges some discretion to go outside of the four corners of a statute, but unless it’s something egregious occurring because of the adultery, it’s not going to make any difference.
On the bottom, I give some examples of reasons why maybe it could affect it, like if one person spent a substantial amount of marital funds and assets on the paramour or there’s a risk to the children and then you need more support so that they can be a separate… a relocation or a different lifestyle. On a side note, I do believe that Pennsylvania does allow for loss of alimony because of cohabitation, but I’m actually not sure. I have no license in Pennsylvania. I stopped practicing there many, many years ago, so I don’t keep up on it. But if anybody knows that, I’d be interested to find out. You can just shoot me an email.
Now the next one is interesting. Fathers don’t get custody. And this arose because, for a very long time, they didn’t. When I started practicing, you never expected a father to be able to get custody, at least at what I would call the normal, traditional kind of situation, you know, two parents, one or two may be working, you know, they live in a house, nothing extraordinary, nothing out of the ordinary, no special needs of the children. And because of that, I just say here, a lot of fathers still feel that this is the case so they don’t even ask for it. And they feel like they’re not allowed to ask for it. While others ask for it when they don’t even want it, they use it as a weapon.
But where the law is right now is they presume that there’s a joint, legal, and equal access to both parents. We start with the premise that both are fit and have equal rights to have custody of their children and then the court has to decide, once again, what’s best for these children. Now I’ve seen an interesting development in the law, and where I think it’s going right now. When I first started practicing, which was, like I said, about 20 years ago or so a father never got custody of his children. He would get, at best, an alternating weekend, and maybe like a weekday dinner, sometimes a weekday overnight because there was a long gap between the weekend, you have two weeks without any parenting time. A couple weeks in the summer, but that was it, you never got anything. And when you had a client who truly and genuinely did want custody of his children and maybe even had a fact situation that suggested he was the better and more fit parent, it never happened. It never happened.
Then I saw, I don’t know, 10, 12 years ago, the courts started to adapt a new policy in which they considered the frequency of parenting time to be more important than the length and duration, meaning it would be better to see your child five days a week for one hour than Saturday and Sunday overnight. So if you had just a weekend, they thought it was better to give you more time, more days with less time. So what began to happen was parent fathers were spending more time with their children, not overnights. So they’d spend afternoons, they’d spend weekends, and they might not have overnights, which actually would leave the burden of dinner and laundry and homework on mom, but dads were getting more time, more frequent contact with their children. So this led to more fathers asking for and receiving shared physical custody, because here they are having the children multiple times a week, but not getting the joy of the full overnight, of spending the afternoon and putting them to bed, waking up, and taking them to school.
So since they were already there, it was actually less disruptive to the child to go back and forth three times a week, five times a week, to have them just stay one week with the father and then one week with the mother. So now we had a development of shared physical, equal shared physical custody.
So that’s where we are now, and a lot of fathers, I’m noticing, are asking for this and getting it. Again, it used to be, a handful of years back, when a father said, “I want to share equal physical time,” you would tell them that there’s little chance of them getting it. Now I’m seeing it more and more often, courts are saying there’s no reason why he shouldn’t. And that’s really the mentality. There’s no reason why a father isn’t as capable of being a parent, as a child, they say, children are resilient, they can handle the back and forth, if the parents can. So they’re giving more and more equal shared physical custody. That, I believe, is going to lead, in the future, to more fathers actually getting custody because it’s still tipped in the mother’s favor, going back up to here to what they called the Tender Years Doctrine, which basically is a law in New Jersey that says a child of tender years, usually two, three, four, is best…his or her interest is best served by being with his or her mother. And that’s basically what the law was. It still exists on the record. It’s not fair and it’s not constitutional, but that’s the status of where we were for a long time. But the development that I just mentioned is bringing us to fathers getting and sharing equal time. I think the next logical step’s going to be that they’re going to start getting primary custody and mothers are going to start having either alternating weekend or an alternating weekday visits, like fathers are getting right now.
Now, I’m going to move on, the next couple issues really may not be that significant, but it gives you a little bit of an understanding of the…how the process works.
People always say, “I don’t know how I got divorced, I didn’t have any papers to sign,” and this happens sometimes when they ignore the papers. But there are no divorce papers to sign. You don’t technically have to sign anything ever. What will happen is when your case is first filed, if it’s your spouse filing it, you’ll be served with a divorce complaint. That has to be served by personal service, which means somebody has to come and physically hand it to you. It cannot be your spouse. It cannot be somebody related to litigation. Physically hand it to you. Once you’re handed those papers, it doesn’t matter what you do or don’t do. If you do nothing they will be able to move for a divorce.
First, they will enter a default which is a filing paper saying that you did not answer within 45 days, and you should not be allowed to, then our default closes out your right to answer. Next, they will file a notice of proposed final judgement which is a proposed judgement that sets forth what they want the court to give them since you didn’t answer. They have to serve a copy on you, so you should know that this is happening. They have to do it 20 days before the default hearing that gets set when this gets filed. Then, they will have a default or proof hearing and the court will take some time. Usually they’ll take some testimony because what’s put in the proposed final judgement does need to be fair. You can’t just say, “Oh, I want my spouse to give me a million dollars.” They will have some inquiry into what it is that you’re seeking and reasons for it. You should also have documentation evidence of it. Now, you can file motion, if you haven’t answered in time, to vacate the default. Now, there’s two different areas, there’s vacating a default, vacating a default judgement, two very different standards. When they file the entry of default, that is vacating a default. All you have to show at that point is that there’s good cause for you not answering. “I thought I had more time, I miscalculated the days, I talked to my spouse, we were going to try to work it out.” Almost any legitimate, fair excuse will be sufficient to very low threshold. Vacating a default judgement is a very different one. That means that the final judgement and voice has been granted, and the case is closed. That is you have to show what’s called excusable neglect and have a meritorious defense to the claim. So you have to show excusable neglect for not answering, which is not, “Well, I thought I’d have more time.” It has to be something meritorious like, “I was in the hospital or the papers were given to a minor and I didn’t know or I don’t live where they were delivered,” something significant. And then, the meritorious defense which is a civil definition, it’s not really, doesn’t fit well in Family Law, but you have to have some defense to what the final judgement was. If the final judgement said, “Husband and wife keep their assets and debts, we share legal physical custody of the children, and you know, there’s no alimony,” you have to show there’d be a serious reason why those provisions would have been changed had you answered timely and properly.
Next, mediation. Very common term, popular term in divorce actions. People think that they need to get a mediator. People will often call and ask, “Can I get a mediator? Do I need to get a mediator? How much do mediators cost?” Blah, blah, blah. Mediation can be a separate process, it does exist as a separate process, but what people don’t understand is the divorce process itself in New Jersey is almost entirely a mediation process . So you will go through several of them to try to resolve your case. First, you will go to an early settlement panel, referred to as an ESP. That’s a time where you’ll meet with two or three lawyers that the court brings in. You and your spouse will submit your position for settlement and the panelists will tell you based on their experience with your judge or in that county, what they think would be the resolution of your case.
The purpose of that is the panelists are supposed to be objective and experienced with your judge in Family Law matters. They can tell you objectively where your case should go, where you might not be able to see it, or even your lawyers may not be able to see it. Then, you will go to an intensive settlement conference, an ISC. New Jersey loves their letters. ISC, an intensive settlement conference is just that, it’s basically a conference where you and your spouse, they get lawyers. The two lawyers will spend possibly the entire day in the courthouse, sometimes just in the hallway, talking out issues. Sometimes the judge will help you, bouncing some issues back and forth, give you some input. But basically, you’re there all day. It’s tiring, it’s frustrating. A lot of times, you’re hungry and you just want to get it over with, and which unfortunately leads a lot of people to settle their case when they might not, or they may should have not done so, but they do. And then, if those two processes are successful, they then send you to economic mediation which is where you and your spouse pick a third mediator, usually an attorney. And you will go to that attorney and take a little more time to hash out your issues.
Now the main difference between economic mediation and ESP and ISC is ESP is very limited, because there’ll be a number of cases on that day, they give you maybe half an hour. If it’s going well, they’ll give you an hour, but that’s it. Now the ISC is much longer but often not successful because there’s no guidance, and like I said, stressful and tiring. So the economic mediation’s where you sit with a third person at your leisure, for as long as you want, and discuss your issues. The only problem, not to say problem, but the only detriment or issue in economic mediation is you’re paying that third lawyer, or sometimes it’s the only lawyer, maybe you’re representing yourself. You’re paying the lawyer to sit in a time.
So you don’t always want to spend that much time to resolve those issues because it’s costing a lot to do so, but it’s a very good process, because again, it’s casual, you’re sitting in a comfortable office, you’re taking as much time as you want, and if it’s not going to work, then you know it’s not going to work and you leave. [Silence] Next, last, is my favorite. I must settle because the law says or based on what the law says. I’ll be in several conferences and I hear this from lawyers. “Well, we can’t do that. The child support guidelines don’t allow that.” It doesn’t matter. Now, when you go to trial, of course it does. Judges have to follow the rules, statutes, case law evidence, they’re required to. But you’re not. You could agree to almost anything you want and the courts will uphold it. You could agree to deviate from child support guidelines, you could agree to alimony were it shouldn’t be or no alimony where it shouldn’t be. As long as it’s not what the courts would say, “contrary to public policy,” like agree to never give any child support to children and a spouse who…when the spouse isn’t working. That’s unconscionable because obviously, the children will starve. So that’s contrary to public policy, New Jersey wants to support its children. But you’re not bound by the laws, and like I said, I hear this from lawyers all the time. “Well, we can’t do that or you’ll never get that because the law doesn’t allow it.”
The whole purpose of settlement is to set your own terms, to determine what’s going to be best for you, even your spouse and your children, and to set it as you want, not to be bound by what a judge is bound. If you want to be bound by what a judge is, you might as well go to trial, because there’s no point. So now we’re at the end. I’m going to take some time for questions. I don’t see any that have been posted throughout, but I’ll sit for another minute or two, and see if anybody posts any.
Just put this screen up so you can get all our contact information. I don’t see anything getting posted, so I’m going to thank you for joining us. I welcome you to come next month to our next webinar. Sorry, I’m not sure of the date or the topic just yet, but you’ll probably get an announcement or an email like you did for this one. And with that, I’m going to thank you for coming, and wish you goodnight.