While Going Through a Divorce, Keep the Children in Mind

images-9

 

Many people believe that a divorce has to be an all out war involving family members, friends and even the children choosing sides. They will wage battle after battle, and allow the anger and hostility to consume every aspect of their lives. Going through the New Jersey divorce process is a very stressful experience. However, when there are broken hearts and hurt feelings left in its wake, a divorce can get downright ugly.

The saddest part of this tragedy is that the children get caught in the crossfire. The children of a combative divorce often suffer tremendous emotional strain because their developing psychological frameworks can’t handle the pressure when they are continuously exposed to the negativity. As a Jersey City divorce lawyer, I often see how the battles that parents wage against each other can create an unhealthy atmosphere for themselves and their families.

While your children will not, and should not, be involved in the negotiations of your divorce, here are three ways to handle your divorce proceedings to ensure the process takes your child’s feelings into consideration.

Keep it respectful

First you should demand a respectful atmosphere between you and your soon to be ex-spouse. Often referred to as “taking the high road”, each and every time there is a communication between parties through email, in person, letters, text messages, etc, they should be handled without getting nasty. Of course there will be some rough discussions, but even those should be handled with a high level of professionalism. This won’t be easy, but you have to keep in mind how harsh communications can affect the children, even when they aren’t intended to.

Do whats in the best interest of the children

Always put the best interests of your children first. I have seen many divorcing parents in Hudson and Bergen Counties use parenting time and financial support as bargaining chips in both divorce proceedings and in their lives. Rather than take into consideration what is truly in the best interest of the children, they negotiate with hate and manipulation. It is never healthy for one parent to threaten the other with dragging the children into the middle of their battle. Parenting time and child support negotiations should be contingent upon what is best for the children.

Promote a healthy relationship with the other parent

Accept and promote the fact that it is healthy for your child to have a relationship with their other parent. Each parent should encourage the child to go and visit the other parent rather than making comments like “you have to go” or “It’s court ordered and I’ll get into a lot of trouble if I don’t make you go”. A far better statement would be, “Your mom/dad loves you and wants to spend time with you too”.

Its not always easy

Now I realize this all sounds well and fine, in a perfect world you would be able to maintain complete emotional control at all times. I’ve been practicing in family law far too long to know that once you get on the emotional roller coaster of a divorce, you will slip now and again, that is perfectly natural, you are only human and this is a very difficult and emotionally challenging time in your life. The best you can do when a slip does occur, is to apologize and then pledge to move on in a more productive manner with the very clear intention of bringing as much peace to your children as you can.

What Happens to Assets and Debt in a Divorce?

images-1

 

“What happens to our assets and debt when we get divorced?” This is a very common question I get asked by clients starting the New Jersey Divorce Process. Rightly so, couples are worried about the debt they have accrued on credit cards, a home equity line of credit, student loans and car loans. At My Law Firm we will review the documentation you provide and along with other financial factors, explain your options in your proceedings.

Does Marital Fault or Misconduct matter?

For the most part, judges dividing marital property in New Jersey don’t care who is at fault in the divorce, however, there are a few rare exceptions. In the case one spouse has “dissipated” (wasted) marital assets by misusing property (gambling is an example), a court may assign the other spouse a larger part of the remaining assets to help compensate for the loss of marital funds. A judge might also make an exception if one spouse’s behavior was “egregious” or extremely shocking. An example of this is if one spouse tried to kill the other.

Are there factors more important than others?

It is up to the judge to decide how important any particular factor is. Judges usually consider the length of the marriage and the marital lifestyle as the most important factor in a Northern New Jersey divorce. For example, people ending longer marriages have usually contributed more significantly to a joint standard of living and given up more individual opportunities.

Couples going through a Hudson or Bergen County divorce can negotiate their own property divisions, either on their own, or with the help of their lawyer. New Jersey courts also provide several programs for divorcing couples to help them resolve property disputes. If an agreement isn’t able to be made, a judge or arbitrator will make the decision.

Equitable distribution is made in three basic steps:

Identifying Marital Property

Marital property includes assets and debts which are accumulated during the marriage. This does not include property either spouse acquired before the marriage, received as an individual inheritance or a gift from a third party during the marriage. A spouse will have to prove any claims that property the couple owns at the time of divorce is separate. This can be difficult, since separate and marital property are often “commingled,” or combined. An example of this is, one spouse might deposit funds from a previously separate account into a joint account, and then continue to add marital funds to the joint account during the marriage.

A spouse who owns property can “transmute” (change) separate property into marital property, or vice versa, by changing the title to the property during marriage. For example, if one spouse changes the title on a separately owned home to both spouses as “tenants by the entirety,” the home becomes marital property subject to equitable distribution.

Distributing marital property from separate property can be complicated. If you and your spouse disagree about whether specific property is separate or marital, it is best to contact one of the professionals at My Law Firm.

Determining the Value of Marital Property

Normally, property is valued at its current “fair market value,” which is what you could sell the asset for if you sold it today. In some cases, couples need help from professionals, such as real estate or business appraisers, to determine asset values for property, in the case of a home or a business. A retirement pension can also be very difficult to evaluate and may require the input of a forensic accountant or an actuary.

Distribute Marital Property

There are several different options to consider in the distribution of marital assets and debts. A couple can agree to sell a marital home and divide the proceeds even before the divorce is final. If only one party agrees on this line of action, that spouse will have to ask the court for permission to put the home on the market.

A couple can also give (or be ordered by the court) one spouse the right to live in the home for some temporary period of time. This is most common when the couple has minor children. The order or agreement might specify that the house will be sold at some specified future date, for example, when the youngest child leaves for college. Another possibility is that the home be transferred to one spouse, while the other retains an interest-bearing loan.
If a couple has enough joint assets to enable one spouse to “buy out” the other spouse’s share, the spouse keeping the house may be able to refinance it with a new mortgage.

How do You Find Out if Your Spouse is Hiding Assets

download-26

 

Unfortunately, some spouses try to hide assets before or during a divorce to avoid having to share them with their soon-to-be ex spouse. However, divorcing spouses in New Jersey can use the power of “discovery,” to help them find hidden income and other assets.

The first step in dividing assets during a divorce is to create a complete financial picture of all the assets owned by each spouse. Usually, these assets will be categorized as marital (property acquired during the marriage), separate (property acquired before the marriage, after the separation or by gift or inheritance), or commingled (where you’ve mixed the marital and separate property together).

Even though you may not have ownership rights in your spouse’s separate property, it’s important to account for all of it because a court may consider the value of both spouses’ separate property when deciding how to divide marital property and debts.

How do you find assets when you’re the “Out-Spouse”?

If you didn’t handle the bookkeeping during your marriage, and you payed little or no part in tracking finances, you are what some attorneys refer to as the “out-spouse.” This just means that you don’t have immediate access to, or knowledge of, the financial information like your spouse does.

If you’re the “out-spouse,” your first course of action should be to simply ask your spouse for copies of all financial records. If your spouse can and will produce all the records, the information gathering may go a little smoother. However, this is rarely the case. Sometimes, your spouse simply can’t find all of the records. If this is the case, the two of you may be able to work together to gather the information. Today’s online access to just about everything makes it easier to get account records.

Unfortunately, many spouses refuse to produce information because they’re hiding assets. Finding hidden assets in a divorce can be challenging, especially if you don’t have an attorney. If you suspect your spouse is hiding assets, it is in your best interest to contact the My law firm, Jersey City Family Law Attorney, to make sure your rights are preserved.

The Discovery Process

If you have reason to believe your spouse won’t voluntarily disclose all financial information in your divorce, your My attorney will need to use a formal, legal process to get the information and documents. Attorneys and judges refer to this as the “discovery process.” The discovery process provides several methods of getting information, which includes the following:

Document demands. Your attorney can ask your spouse to produce specific documents, such as tax returns, financial statements, loan applications and account records.

Written questions called “interrogatories” or “requests for admission.” Using this process, your spouse must answer questions in writing, or admit specific statements that you believe are true.

Inspection demands. You can ask to inspect property like a safe deposit box or a collection.

Testimony given under oath. In an oral deposition, you, your spouse and lawyers appear before a court reporter. Your spouse is sworn to tell the truth and must answer questions asked by your attorney.

The discovery process is an excellent way to collect financial information from an uncooperative spouse because the court has the power to compel compliance. For example, if your spouse fails to produce documents, you can ask a judge to order them to do so. If your spouse disobeys the order, a court may punish them by imposing a “sanction,” which can include monetary fines or even a judgement against them on a particular issue.
A deposition is an especially good process to obtain information from a dishonest spouse. Anyone who lies under oath during a deposition can be charged with perjury. This may be just the kind of pressure to get a soon-to-be ex to tell the truth about hidden assets. Typically, you should hold off on the deposition until you’ve obtained some of your financial records so you know which questions to ask about the records you’ve already examined.

Why it’s Not a Good Idea to File Your Own Divorce

download-25

 

Filing a New Jersey Divorce is a complex process. There are several details of your current and future life up for negotiation, forms to be filed with the court and eventually standing in front of and addressing a judge.

Along the way there are several obstacles and loopholes to avoid. The courts call representing yourself “Pro Se,” which means without counsel. As a Jersey City Divorce and Family Attorney, I have helped many clients who have considered taking on the legal process without counsel and quickly realized they needed help.

I’ve also had clients who made it through the process only to realize that their agreements aren’t working or they made mistakes that are suddenly starting to cost them much more than they would have otherwise spent if they had hired an attorney.

The main reason people choose to file their own divorce is because they think it will save them money. In my experience most people wind up spending more money in the long run when they represent themselves rather than they would if they had hired a reputable New Jersey lawyer.

Some realize this and wind up spending even more to have a lawyer try to fix the mistakes they have made. By finding an honest and ethical attorney with an expert and efficient staff you will save money in several ways.

In the beginning many people think they have a cordial relationship with their soon-to-be-ex and therefore they can work things out between themselves without the need of counsel. What they don’t anticipate is that the excellent relationship may start to unravel when they start to get into the details of their arrangements.

An experienced Hudson County divorce lawyer can offer creative solutions and they will fight for the best deal possible to secure their client’s future. The fact is this is probably your first divorce, but for the lawyers at My Law Firm we have been through several and know exactly what to watch for and anticipate.

Working through the Bergen County court system takes experience and attention to detail. You not only have to put the correct agreements in place, but your forms need to be filled out correctly or the court will return them to you with little explanation.

The court will tell you that they can’t give you legal advice and they will direct you to either a lawyer or a law library to find the answers to your questions. The right attorney will meticulously prepare all of your divorce documentation, track progress and responses from the court and keep you informed at each step of the process.

In addition to the complexity of required court documents and filing procedure, the wording of your divorce needs to be precise. For example, the types of alimony you request in your paperwork can have significant ramifications including the length of time it is paid and for what reasons. You could either find yourself cut off in a short amount of time or wind up paying for too long whichever the case may be.
The most important thing to remember is, no matter how you get through the divorce process, the final agreements are legally binding. You will be legally bound to comply with the agreements including alimony and child support payments. If these aren’t calculated or negotiated properly it could cost you a lot more money.

Creating a Successful Visitation Plan

When your divorce or separation includes children, one of the most important decisions you will need to make is how you will arrange time with your children. Your parenting plan, also known as custody or visitation, should revolve around the specific needs, challenges and opportunities of your family.

 

Whether or not you and your ex can sit down and work out a parenting plan together, or you need to work with a mediator, here are some important considerations for mapping out a successful plan:

 

Different Kinds of Time to Consider

When you are creating a parenting plan it is recommended that you think about the different kinds of time you spend with your children. For example:

 

  • Regular at-home time (meals, homework, chores)
  • Overnights
  • Outside activities spent together (sports, shopping, visiting relatives)
  • Holidays and special days
  • Time the children spend away from both parents (school, friends’ homes)

 

No matter how much time each parent spends with the child, it should include these kinds of activities.

 

Also, consider how much input the children should have. Parents need to make decisions for young children, but teens might feel more empowered if they are able to have some input.

 

Age-Appropriate Planning

How should normal every-day time with each parent be split? With the assumption that there aren’t any safety issues in either home, the answer depends largely on two factors. First, your family’s unique needs and second, the development stage of your children.

 

First take into consideration the logistics, your work schedules, your children’s activities, how you’ll arrange pick-ups and drop offs and any childcare arrangements. Can the child get to school from both parents’ house? Also take into consideration the emotional aspects, how well your child can adapt to transitions, how well siblings get along with each other and other family members and how well you are able to communicate with your ex. Having an understanding of what works for your unique situation will help create a plan that works best for your family.

 

Next, take into consideration your child’s development stage, are they very young or older? How much attention do they need and how much transition can they handle?

 

Babies and young children need more attention and structure. Infants need frequent physical contact with each parent, as well as a predictable schedule. Toddlers still need frequent contact, but have more awareness of others, so sibling relationships may also be important to them. A plan for a family with infants or toddlers may involve 3 or 4 changes a week (2 days or so at each home, or for one parent to take the children out for a few hours while they are staying with the other parent).

 

Older children may be more flexible. By the time children reach elementary school age, they can spend a few more days with each parent, and can use other types of contact (phone, computer, etc.) to stay connected. A plan for adolescents, may involve the children spending a week with each parent. This is a time when they are exploring relationships with peers, so they need their parents to catch them when they fall. However, a plan for teens may involve the children spending a week with each parent.

 

Dividing the Holidays

Holiday planning doesn’t have to be difficult if you follow some simple steps. When a holiday is important to both families, parents sometimes alternate, so the children spend Christmas with Dad during even years, and Mom during odd years. Or, if parents spend holidays close to each other, they may split the holiday itself, so the children spend the morning with one parent and the evening with the other. Still in some families, it may work for the parents to spend time with the children together.

 

Summer Vacation

How long do you each want to have your children during the summer? Do you take vacations or travel? What kinds of activities are your children in during the summer? Parents often want to keep things as normal as possible, so this is a place where you might want to create a plan that takes your children’s schedules into account.

 

Other Considerations

How well do you and your ex get along? How well is your communication? In a perfect world we all want to think that we are able to do whats in the best interest of the child and work out an agreement that benefits them first and foremost and allows fair parenting time for both parents.

 

However, even though we can start out with the best intentions in mind, divorce is a very emotionally charged experience that can breakdown good intentions along the way. It is for this reason that you need to make sure your agreement is recorded and protected by a professional outside party who will look out for your needs and rights.
At the New Jersey Family Law Firm of Attorney Santo V. Artusa we have spent years protecting the rights of New Jersey parents going through the same situation you are. Our professional team focuses on providing top quality legal representation, with our client’s best interests’ our top priority.

Premarital (Prenuptial) Agreements in New Jersey

Premarital agreements, also called “prenuptial” or “postnuptial” agreements in some states, are contracts made between prospective spouses considering marriage, which become effective at the time of the marriage.

 

The general purpose of premarital agreements is for prospective spouses to define, prior to marriage, their rights and obligations on financial issues, including the division of property or spousal support in the event they separate or divorce.

 

If properly drafted, these agreements can save both spouses major emotional and financial expenses if their marriage comes to an end. Premarital contracts also speed up and streamline the divorce process because it can avoid the time-consuming process of having a court resolve issues that have already been addressed in the premarital agreement.

 

Issues that can be addressed in New Jersey premarital agreements:

 

  • The rights and obligations of both spouses regarding joint and separate property, whenever and wherever acquired or located.
  • The right to buy, sell and otherwise manage and control property.
  • The division of property upon separation, divorce, death or the occurrence or nonoccurrence of any other event.
  • The modification or elimination of spousal support.
  • The making of a will, trust or other arrangement to carry out the provisions of the agreement.
  • The ownership rights in, and disposition of, the death benefit from a life insurance policy.
  • The choice of law governing the construction and interpretation of the agreement
  • Any other matter, including personal rights and obligations as long as it’s not in violation of public policy.

 

Limitations of premarital agreements in New Jersey

Prospective spouses may not predetermine issues related to children which include child support payments and custody in their premarital agreements. These are issues that are typically decided by a court using a “best interests” standard. Child related provisions in a premarital agreement would also go against public policy because they are not dealing with the spouses but the child.

 

Requirements for a valid premarital agreement in New Jersey

New Jersey enacted its version of The Uniform Premarital Agreement Act (UPAA) in 1988. The UPAA provides that all premarital agreements must be in writing, signed by both spouses and a statement of assets is to guarantee that there will be fair and reasonable disclosure of the spouses’ financial information. After the marriage, the premarital agreement may be amended or revoked only by a written agreement signed by both spouses.

 

It is advisable, although not required, that both spouses consult with an attorney before entering into a premarital agreement. In situations where one spouse does not hire an attorney, a statement must be made in the premarital agreement that he or she freely, knowingly and voluntarily waived the right to be represented by counsel.

 

Challenging premarital agreements

The spouse that’s contesting the premarital agreement has the burden of proof and must show by clear and convincing evidence that either:

 

  • They executed the agreement involuntarily
  • The agreement was unconscionable at the time it was signed
  • He or she was not provided with a full and fair disclosure of the earnings, property and financial obligations of the other spouse before the signing of the agreement.
  • Before the signing of the agreement, he or she did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
  • Before the signing of the agreement, he or she did not consult and did not voluntarily and expressly waive, in writing, the opportunity for counsel.

The court will find the premarital agreement unconscionable if it is shown that the challenging spouse would be without reasonable support, would have to depend on public assistance or would be provided a standard of living far below the one he or she enjoyed before the marriage.

Reopening a New Jersey Divorce Case

Sometimes people become unhappy with the outcome of their divorce and wonder if they can “reopen” their New Jersey divorce case to change child support, alimony or the basic distribution of assets.

 

The answer to this will depend on the types of changes you would like to make and whether you can show compelling reasons that justify reopening your case.

 

Even if your divorce was accomplished by settling with your ex-spouse and agreeing on all of the issues between the two of you, and you didn’t end up in court, it’s still important to understand that you must still go to court if you want to change the outcome. This is because although your settlement discussions and decisions were made outside of court, you have to take that agreement to a judge, for his approval and his issue of a final judgement of divorce.

 

On the other hand, if you and your ex were not able to agree on one or all of the issues and you needed court intervention involving a trial and the submission of evidence in support of your claims the judge would then make the final judgement for divorce.

 

However your case was handled, if you want to make a change to the outcome of the divorce agreement you will still need to do it in court.

 

Typical changes requested

People who want to modify the outcome of their divorce case typically ask the court to take another look at one or both of the following:

 

Support orders. A support order is issued by a judge after trial or a settlement agreement that specifies the amount and duration of child support and alimony. If one spouse experiences a change in their financial situation (for example, the spouse who is required to pay loses their job), that spouse may need to change the amount of child support or alimony specified in the original support order. The spouse responsible for the payments can file a motion to change the amount of child support or alimony payments. However, this request does not amount to reopening the entire case.

 

Substantially changing the property division or revoking the judgment. If you want to make substantial changes to your divorce agreement, such as dividing assets that were not included in the original agreement, or completely revoke your settlement agreement of divorce judgement, you’ll have to ask the court to reopen your divorce case. This procedure can be quite complicated. In New Jersey, you need to present evidence of one of the following situations in order to persuade a judge to reopen your case:

 

  • There was a mistake, oversight or excusable neglect during the case. For example, one of the spouse’s pension plans wasn’t included in the divorce agreement.
  • You discovered evidence you didn’t know about during the divorce. For instance you find the true accounting records for the family business.
  • You find out your spouse is guilty of fraud, misrepresentation or other misconduct. An example of this would be, you find out that your spouse diverted income or assets to an offshore account and failed to disclose this to you before, or during, the divorce.
  • The property settlement agreement and/or judgement are void or invalid for technical reasons. This may happen when the agreement was obtained through extreme pressure or coercion, either of these could make the divorce agreement invalid.
  • You are aware of a special reason that would justify your request. New Jersey allows you the opportunity to bring to the court’s attention situations that aren’t limited to the ones explained above. For example, if the terms of the divorce agreement have left you in a dire financial situation, while your spouse has been able to maintain the same lifestyle they had during the marriage, the court may find that this situation justifies considering your request.

 

At the end of a divorce, especially a difficult and bitter one, many people feel like they “got a raw deal.” The truth is no one really wins in a divorce. Your Northern New Jersey divorce can be very traumatic, and it may take a long time to heal from it. In addition to this, you may have a hard time adjusting to some aspects of life after divorce such as owning fewer assets, dividing income, and living with your children part-time. These are very difficult adjustments for anyone to make. Naturally, you may feel like you’ve “lost.” However, simply feeling upset that you didn’t walk away with everything you wanted will not be enough to convince the court to reopen your case.