The Law Offices of Julio Sanchez, Esq -- Matrimonial

Matrimonial Law

Few cases can be as intense and contentious as matrimonial cases when the parties are unable to resolve the economic, familial and support controversies between them.

In those cases, the matrimonial court will decide the case if the litigants are unable to come to terms. However, it is important for the parties to fully understand their legal rights at every stage of the proceedings. The counsel and guidance of an attorney is essential. It is important to note, however, that the majority of cases are resolved by negotiation at some point in time and only a few cases are tried to conclusion as to all issues.

At some point or another in the course of a matrimonial litigation, the parties, either by themselves or through their attorneys , have to sit down and conference their case. Towards this goal, the courts have implemented procedures for the financial mediation of the economic issues.From a practical standpoint, there are 5 elements in every case that a matrimonial litigant must pay attention to. They are as follows:

The dissolution of the bonds of marriage.
The support of the children of the marriage.
Custody and visitation rights of the parties with their children.
The support of the dependant spouse.
Distribution of property, both real and personal, acquired by the parties throughout their marriage.

DIVORCE

The Courts in New Jersey are quite liberal in awarding judgments of divorce. I remember the days when the parties, even in uncontested cases, had to come into court with corroborating witness and written proof of marriage to dissolve to convince the Court to issue a judgment of divorce. In our day, the mere testimony of a party to establish the reason for the divorce (the “cause of action”) is legally sufficient to grant the dissolution of the marriage.

Some judges even dispense the requirement of producing a certificate as a pre-requirement for the issuance of a final judgement of divorce. So, if you believe that your divorce case is going to have more merit for reason of the culpability of your spouse in the breakdown of the relationship , I have bad news for you: the divorce courts in New Jersey pay little (if any) attention to what lawyers call the “cause of action."

As a matter of fact, the cause of action is not even considered as the determining factor in awarding custody of children in the State of New Jersey. Recently, our legislature, in order to relax the rules and make easier for the parties to seek a divorce, codified a “cause of action” commonly known as “ irreconcilable differences." As a result of that relatively new legislation, spouses who want to dissolve their bonds of their marriage can now choose to sue for divorce on the grounds of “irreconcilable differences” if those differences have lasted for more than 6 months prior to the filing of the complaint for divorce.

The controversial parts of the contested divorce disputes are usually concern the issue of the children’s custody, parental visitation, child support, equitable distribution of the marital property and support for the financially dependant spouse (alimony).

CHILD SUPPORT

What normally makes a case hotly contested in the Courts is when the parties have custody and visitation issues and/or financial disputes in reference to support or distribution of property. As to child support issues, the court makes a determination on the amount of child support to be paid by the paying spouse (“the obligor”) based on State Child Support Guidelines. In addition, the Court shall also consider, but not be limited to, the following ten (10) factors in deciding the amount of child support to be paid:

Needs of the child
Standard of living and economic circumstances of each parent
All sources of income and assets of each parent
Earning ability of each parent (including educational background, training, employment skills, work experience, custodial responsibility for children, including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment)
Need and capacity of the child for education, including higher education
Age and health of the child and each parent
Income, assets and earning ability of the child
Responsibility of the parents for the court-ordered support of others
Reasonable debts and liabilities of each child and parent
Any other factors the court may deem relevant.

CUSTODY OF CHILDREN

Unless the parties can agree, custody of the unemancipated minor children of the marriage is determined by the "best interest of the children standard”. Both parents begin the process with an equal entitlement to parenting rights. There are statutory and other criteria, which Judges are to apply in making custody and parenting determinations.

The Supreme Court in Beck v. Beck, 86 N.J. 480, 485 (1981) has stated that the "pertinent statute [N.J.S.A. 2A:34-23] provides courts with broad authorization for custody determinations in divorce proceedings ...."'

ALIMONYAlimony for the parties is based on a number of factors. In N.J.S.A. 2A:34-23(b), New Jersey's alimony Statute provides:In all actions brought far divorce, divorce from bed and board, or nullity the, court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In doing so, the court shall consider, but not be limited to, the following factors:

The actual need and ability of the parties to pay.
The duration of the marriage.
The age and physical and emotional health of the parties.
The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living.
The earning capacities, educational levels, vocational skills, and employability of the parties.
The length of absence from the job market of the party seeking maintenance.
The parental responsibilities for the children.
The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisition of capital assets and income.
The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities.
The equitable distribution of property ordered and any pay-outs on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair.
The income available to either party through investment of any assets held by that party.
The tax treatment and consequences to both parties of any alimony award including the designation of all or a portion of the payment as a non-taxable payment.

Any other factors which the Court may deem relevant.The New Jersey Supreme Court in Crews v. Crews, 164 N.J. 11, 26 (2000), held that "[a]n alimony award that lacks consideration of the factors set forth in N.J.S.A. 2A:34-23(b) is inadequate, and one finding that must be made, is the standard of living established in the marriage." The Court found that "[i]n all divorce proceedings, trial courts must "consider and make specific findings' under N.J.S.A. 2A:34-23(b)" Id. at 25.

Matrimonial Law

Few cases can be as intense and contentious as matrimonial cases when the parties are unable to resolve the economic, familial and support controversies between them.

The dissolution of the bonds of marriage.

The support of the children of the marriage.

Custody and visitation rights of the parties with their children.

The support of the dependant spouse.

Distribution of property, both real and personal, acquired by the parties throughout their marriage.

DIVORCE

The controversial parts of the contested divorce disputes are usually concern the issue of the children’s custody, parental visitation, child support, equitable distribution of the marital property and support for the financially dependant spouse (alimony).

CHILD SUPPORT

Needs of the child

Standard of living and economic circumstances of each parent

All sources of income and assets of each parent

Need and capacity of the child for education, including higher education

Age and health of the child and each parent

Income, assets and earning ability of the child

Responsibility of the parents for the court-ordered support of others

Reasonable debts and liabilities of each child and parent

Any other factors the court may deem relevant.

CUSTODY OF CHILDREN

The Supreme Court in Beck v. Beck, 86 N.J. 480, 485 (1981) has stated that the "pertinent statute [N.J.S.A. 2A:34-23] provides courts with broad authorization for custody determinations in divorce proceedings ...."'

See also Terry v. Terry, 270 N.J. Super 105APP.Div.1994).

The actual need and ability of the parties to pay.

The duration of the marriage.

The age and physical and emotional health of the parties.

The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living.

The earning capacities, educational levels, vocational skills, and employability of the parties.

The length of absence from the job market of the party seeking maintenance.

The parental responsibilities for the children.

The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisition of capital assets and income.

The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities.

The equitable distribution of property ordered and any pay-outs on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair.

The income available to either party through investment of any assets held by that party.

The tax treatment and consequences to both parties of any alimony award including the designation of all or a portion of the payment as a non-taxable payment.