AlimonyCustodyDivorceUncategorized

MYTHBUSTERS

As I have said so many times before, every legal case is different and one cannot be compared to any other.  The outcome of your friend or neighbor’s legal case is generally irrelevant to your own.  However, in an effort to educate in a general sense, I offer the following fictional scenarios (with made-up names, of course) which may give the reader helpful information to begin a thoughtful analysis of his or her own circumstance.

There will be six scenarios; two posted each week for three weeks.  Check back often to see the new scenarios and the truths or myths discussed.

SCENE #6:   “Paul” and “Priscilla” have a newborn baby but recently broke up. Priscilla is breastfeeding the baby.  Paul is entitled to joint legal and physical custody of the child.  Priscilla will have to pump her milk or allow Paul to use formula on his parenting days….. Is this truth or fiction?

ANSWER #6:  As with all of these scenarios, the answer depends on the facts of the case.  However, assuming Paul and Priscilla are both average people, with no negative histories such as drug use, violence, etc., and that both of them have adequate housing with a dedicated place for the baby to sleep, then it would not be unusual for a court to award joint legal and physical custody to both parents.  Just because a mother is breastfeeding does not mean that the father cannot enjoy equal time with his child.  With modern conveniences of breast pumps, and good quality formula available, fathers can participate in the feeding and associated bonding with their children.  A mother cannot expect a court to give greater deference to her choice to breastfeed her baby to the exclusion of the father.  This can be difficult for a mother to accept, but from the court’s perspective, the issue of custody and parenting time must be viewed from what is in the best interest of the child.  And, courts usually always begin with the basic premise that it is in a child’s best interest to have equal time with both parents – even during the newborn infancy phase.

Often, the custody/parenting time issue resolves itself when the parties recognize the realities of their schedules.  In the choice between breast milk or formula, let the pediatrician decide what is best and then work out the practicalities with the help of modern conveniences.

 

SCENE #5:   “Krystal” and “Ken” were divorced seven years ago after 20 years of marriage.   As part of the divorce settlement Ken was required to pay alimony.  Krystal’s boyfriend stays over a few nights per week but still maintains and rents an apartment of his own.  Krystal’s alimony from Ken will continue…. Is this truth or myth?

ANSWER #5:   If Krystal is “cohabitating” with her boyfriend then alimony will end.  Exactly what constitutes cohabitation is a fact sensitive analysis and is not necessarily dependent on the number of nights the “friend” stays over, or even if he or she maintains a separate household.  In fact, our caselaw states that cohabitation requires stability, permanency and mutual interdependence.  It involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union, but does not necessarily maintain a single common household.

In analyzing the situation, courts will look at the couple’s finances, social circle, household chores, and other relevant information.

 

SCENE #4:  “Darla” and “Drew” have a 2 year old daughter. The relationship has soured.  Darla won’t let Drew see their daughter.  Drew has tried to reason with her but Darla told him she does not want child support and that he should just stay out of their lives.  Since Darla does not want child support, Drew has no legal right to see his child…. Is this truth or myth?

ANSWER #4:  It is a myth that parenting time (formerly called “visitation”) is contingent on the payment of child support.  In fact, the law in New Jersey is that both parents have a right to see their child (barring any negative or dangerous circumstances such as drug use or abuse of the child).  In addition, both parents have a legal obligation to support their child.  Thus, no parent can legally “waive” child support.  And, if a parent does not pay child support the other parent cannot refuse to allow parenting time.

In this scenario, Drew has  a right to see his daughter and to have parenting time during which he can develop a relationship with her independent of Darla.  If Darla is refusing to allow Drew to see his child, then Drew may have no choice but to file a motion to establish custody and a parenting schedule.  In addition, Drew and Darla have an obligation to support their daughter.  Thus, the Court will want to see proof of income such as pay stubs and tax returns from both parents to establish the appropriate amount of child support.

 

SCENE #3: “Jake” and “Jennifer” have been married for 10 years. Jennifer owned a home when they first started dating and Jake moved in when they got engaged.  Since the house is only in Jennifer’s name – she gets to keep it when they divorce….  Is this truth or myth?

ANSWER #3:  Jake has an equitable interest in the value of the home. Although the deed to the house may be in Jennifer’s name, assuming the house has increased in value since they married, Jake is entitled to his equitable share – typically 50% of the increase in value over the 10 year marriage.  It is important to understand the real estate market and the value of homes in a given area.  A licensed real estate appraiser can assist with determining the change in value.

 

SCENE #2: “Steve” and “Susan” have been married for 17 years.  Steve is a teacher and has a pension; Susan has a good job and contributes to an IRA regularly.  When they split up, Steve will keep his pension and Susan will keep her IRA…. Is this truth or myth?

ANSWER #2:   It is a myth to conclude that simply because an account was in one spouse’s name that it belongs 100% to that spouse.   In a divorce, Steve and Susan are each entitled to an equitable share of the martial portion of other spouse’s retirement accounts.  For example, with regard to Susan’s IRA – assuming all of the funds or value was acquired during the marriage, then Steve is entitled to his equitable share – typically 50%.  If any of those funds in the account were contributed by Susan prior to the marriage, then that value is excluded from equitable distribution.

Steve’s pension is a future benefit.   Similarly, if Steve contributed to the pension for the entirety of the marriage then Susan is entitled to her equitable share.  Unlike an IRA or a 401K, a pension is a future benefit; it cannot be liquidated in present day.  As such, dividing a pension is more complicated and requires the assistance of a forensic accountant to assess the value of that benefit at the point in the future when it is anticipated that the member (Steve) will retire.

Most retirement accounts (IRAs, 401Ks, pensions, etc.) require a Qualified Domestic Relations Order (QDRO) to legally split the entitlements.

Of course, parties are free to negotiate and settle their divorce as they please, and Steve and Susan could choose to agree that they would each keep their own assets.   They should each have an attorney to advise if this is a wise and fair decision.

 

SCENE #1:  “Bob” and “Brenda” never married but lived together as “common-law” husband and wife for 20 years.  They have children and both of their names are on the house and mortgage.  Bob earns significantly more than Brenda. When they split up, Brenda is entitled to alimony, child support and half of the house…. Is this truth or myth?

ANSWER #1:  “Common law” marriage is a myth in New Jersey.  You are either legally married or not.  A legal marriage (between heterosexual or same-sex couples) or civil union gives rise to certain rights or obligations in the event of divorce, including the potential for alimony and equitable distribution.  Child support, however, is an entitlement to the child of the relationship regardless of the parties’ marital status.  Thus, the child is entitled to  be supported by his or her parents and the parents have the legal obligation to do so.

If Bob and Brenda own a house together; i.e., the deed is in both of their names, then they must either agree to sell the house, or in the absence of an agreement, one party can bring an action for partition and force a sale.  Both parties would still be obligated on the mortgage.