AAML NJ Blog

By Sharon L. Klein, Family Wealth Strategist, Trusts & Estates Attorney

The Role of Life Insurance in Divorce Proceedings

In many divorce proceedings, life insurance plays an integral role as part of the ultimate resolution/settlement, whether it is an asset to be allocated between the parties or is required to be maintained for some period to secure settlement obligations.

Now more than ever – with the coronavirus pandemic wreaking havoc in this country, unprecedented jobless claims, and highly volatile markets – parties are well-advised to ensure settlement obligations are appropriately secured and to consider existing life insurance as a potential marital asset.

Periodic Life Insurance Policy Reviews Can be Critical

It is important to review life insurance policies periodically to ensure they are performing as intended at the best cost, and that the premiums are being paid by the responsible party.

A policy review may uncover some or all of the following factors:

• The interest rate environment could have affected the policy performance, particularly if initial illustrations were run in a different interest rate environment
• Market returns may have underachieved expectations
• Policies issued prior to 2009 are based on 1980 mortality tables. Life expectancies have increased over time which may generate lower premium rates in newer policies
• Newer policies have guaranteed and/or extended Death Benefit Guarantees that may not have been available with the original policy
• There may have been a change in market conditions, the health of the insured or the original intention in purchasing the insurance (for example, to fund education), which may make other insurance options more attractive to consider.

Irrevocable Life Insurance Trusts (ILITs)

Utilizing an Irrevocable Life Insurance Trust (ILIT) can be an advantageous way to purchase and maintain life insurance in divorce and other contexts. An ILIT is an irrevocable trust designed to hold ownership of an insurance policy. To create an ILIT, an individual establishes a trust and transfers funds to the trust. The trustee then purchases a life insurance policy payable to the trust upon the insured’s death. The primary benefit of using an ILIT is that, upon the death of the insured, policy proceeds pass to heirs free of estate taxes. An ILIT can also hold existing policies transferred to it by an insured. Provided the insured lives for three years following the transfer of the policy, the policy proceeds can avoid taxation in the insured’s estate.

5 Key Questions Family Law Practitioners Should Consider When Dealing with Life Insurance

Crucial questions a family lawyer or other family law practitioner should consider when dealing with life insurance in a divorce proceeding include:

1. Are premium notices being sent to the correct address and are premiums being paid on time?

It is critical to ensure that premiums are being paid in a timely fashion. Failure to maintain a policy can leave the obligor’s estate liable to pay the entire amount of the insurance proceeds – but full recovery might not be possible if the estate has insufficient assets.

In Woytas v. Greenwood Tree Experts, Inc.,⁽¹⁾ a Marital Settlement Agreement (MSA) required an ex-husband to maintain life insurance policies to secure his child support and alimony obligations. The MSA provided that, if either party failed to maintain the life insurance policy requirements, that party’s estate would be liable for any outstanding obligations owed under the agreement. The policy included a “suicide exclusion” barring recovery of benefits if the insured were to commit suicide within two years of purchase, which he did. The New Jersey Supreme Court affirmed that the ex-husband failed to “maintain” life insurance, and therefore breached the MSA, entitling the beneficiaries to payment from the ex-husband’s estate for the amount of the unrecoverable proceeds. Since the estate was less than the value of the claim, the court ordered that the entire balance of the estate be paid to the ex-wife.

Similarly, if no one is confirming that the premium notices are being sent to the right address, the result can be disastrous.

In Orchin v. Great-West Life & Annuity Insurance Company,⁽²⁾ the insured’s friend and fellow dentist Orchin served as trustee of a trust holding a life insurance policy. He did not miss a single premium payment from 1993 (when the policy was assigned to the trust) through January 2009. In April 2009, Orchin moved his residence. Though he claimed to have told the post office his forwarding address, the insurance company was never notified of this change. It continued to send payment notifications to Orchin’s old address, and as a result, Orchin never received them – nor the notices that the policy was in default, nor the notice that the policy eventually lapsed.

On January 15, 2010, the insured died suddenly. At this point, Orchin realized he failed to pay the previous premium payments. Omitting to mention that the insured had died, Orchin convinced a supervisor to exercise her authority to make a one-time exception and reinstate the policy.

When Great-West discovered that the insured had died before the insurance was reinstated, they denied the claim. The insured’s wife and Orchin brought suit against Great-West for improper termination of the policy and breach of contract, and the insured’s wife also brought suit against Orchin for breach of fiduciary duty.

The court held that Great-West’s decision to reinstate the coverage was unenforceable. Although “a close question,” the court denied Orchin’s summary judgment motion because issues of fact remained. Specifically, there were questions regarding whether it was reasonable for Orchin to expect the insurance notices to reach his new address and whether he exercised ordinary diligence.

As noted, if an insurance policy required pursuant to a settlement agreement or court order lapses for failure to pay the premium, there may be a claim against the insured (or his or her estate, if deceased). However, there may not be sufficient assets to satisfy the value of the claim. Accordingly, practitioners might recommend that duplicate premium notices and/or confirmations of payment are sent to the other spouse or another party, or that some other arrangements are made to check that the policy is maintained.

As well as emphasizing the importance of having a reliable policy review mechanism in place to prevent a policy lapse, the Orchin case also highlights the issue that, when friends or family members are appointed as trustees, oftentimes they are simply unaware of the myriad of duties to which they are subject. One important step a trustee can take to minimize fiduciary risk is to hire trusted professional advisors who are cognizant of the responsibilities imposed on fiduciaries, and have expertise in fulfilling those responsibilities.

2. Is the policy properly titled from an ownership perspective?

As noted, if insurance is held in a properly designed insurance trust, the proceeds should pass free of estate taxes to heirs. If, however, a policy is owned by the insured, the proceeds will be includible in his estate, and will be potentially subject to estate tax (in 2020 the top federal estate tax rate is 40% and top state estate tax rates are 16%).

Attorneys may be subject to a malpractice action if insurance is not appropriately titled, and attorneys have been sued for failing to correctly advise clients as to how insurance should be owned. Whether a third-party beneficiary can maintain a malpractice action against an estate planning attorney depends on state law, and most states permit those actions to be brought under the appropriate circumstances. Very few states follow the concept of strict privity, which provides that only the client who suffered the malpractice can maintain an action against the attorney.

A Sampling of How Different States Approach the Issue of Privity

California

In Biakanja v. Irving,⁽³⁾ the California Supreme Court rejected the strict privity test for professional liability. That court held that the determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are:

1. the extent to which transaction was intended to affect the plaintiff,
2. the foreseeability of harm to him,
3. the degree of certainty that the plaintiff suffered injury,
4. the closeness of the connection between the defendant’s conduct and the injury suffered,
5. the moral blame attached to the defendant’s conduct, and 6. the policy of preventing future harm.

Florida

In Florida, generally, a legal malpractice claim may be brought only by one who is in privity with the attorney. However, an exception exists that permits an intended third-party beneficiary of the legal services to bring suit where “testamentary intent as expressed in the will … [was] frustrated by the attorney’s negligence and as a direct result of such negligence the beneficiaries’ legacy [was] lost or diminished.”⁽⁴⁾

Hawaii

In Hawaii, a beneficiary may sue a testator’s attorney for failing to draft an instrument that carries out the testator’s intentions.⁽⁵⁾

Michigan

In Michigan, a beneficiary may sue a testator’s attorney for failing to draft an instrument that carries out the testator’s intentions. However, Michigan courts have declined to allow plaintiffs to introduce extrinsic evidence to prove the testator’s intent when the trust terms are clear and unambiguous.^[6]

New York

Until recently in New York, absent fraud, strict privity was required to maintain a legal malpractice claim against an estate planning attorney. Since negligence in the estate planning context is usually not discovered until after a client’s death, the strict privity requirement often resulted in the cause of action dying with the client.

In Estate of Saul Schneider v. Finmann,⁽⁷⁾ the decedent’s estate commenced a malpractice action against the decedent’s estate planning attorney, alleging that the attorney negligently advised the decedent to transfer, or failed to advise decedent not to transfer, an insurance policy into his own name. The result was that the insurance proceeds were includable in the decedent’s estate and subject to estate tax. With proper planning, the policy should not have been in the decedent’s name, and the proceeds should have passed to heirs free of estate tax.

The New York Court of Appeals held that sufficient privity existed between the personal representative of the estate and the estate planning attorney for the personal representative to maintain a malpractice claim against the attorney on the estate’s behalf. According to the court, the strict privity rule leaves the estate with no recourse against an attorney who planned the estate negligently, and the estate essentially “stands in the shoes of a decedent,” giving the estate capacity to maintain the malpractice action.

West Virginia

In West Virginia, a direct, intended, and specifically identifiable beneficiary may sue a testator’s attorney who prepared the will where the testator’s intent expressed in the will has been frustrated by negligence on the part of the attorney so that the beneficiaries’ interest(s) under the will is either lost or diminished.⁽⁸⁾

Perhaps the most important lesson is not to rely on a privity doctrine to avoid liability, but for family law attorneys to be cognizant of adverse tax consequences and to carefully consider ownership of insurance policies with estate planning professionals.

3. Does the Policy Have the Correct Beneficiary Designation?

Divorced individuals and those in the process of getting divorced should update all their important planning documents, account titles and beneficiary designations to be certain chosen heirs are still appropriate. Of course, during the pendency of a divorce, parties may be prohibited from transacting financial affairs except in the usual course of business for customary and usual household expenses. This prohibition is designed to maintain the status quo and preserve marital property until final determination. Accordingly, clients should change the documents they are entitled to change immediately (in most jurisdictions a Will can and should be changed as soon as possible, subject to state rights and prior agreement), and be poised to change the balance as soon as they are permitted.

What if estate planning documents are not updated following divorce, and an ex-spouse remains the beneficiary at death? About half the states in the U.S.⁽⁹⁾ have so-called revocation on divorce statutes. These statutes can revoke bequests to ex-spouses in wills or other estate planning documents if those documents have not been updated to reflect the divorce at the time of an individual’s death. However, half the states in the U.S. do not have these statutes, and even among those that do, not all revoke life insurance designations. Moreover, even if a revocation on divorce statute does apply, the statute will be inapplicable during the pendency of the divorce, until the final divorce decree is entered.

In Sveen v. Melin,⁽¹⁰⁾ decided by the Supreme Court on June 11, 2018, the court determined that the retroactive application of a Minnesota statute does not vio late the Contracts Clause of the U.S. Constitution.

The statute under consideration provides that “the dissolution or annulment of a marriage revokes any revocable… beneficiary designation… made by an individual to the individual’s former spouse.” Under the statute, if one spouse has made the other the beneficiary of a life insurance policy or similar asset, their divorce automatically revokes that designation so that the insurance proceeds will instead pass to the contingent beneficiary or the policyholder’s estate upon death. The decedent’s children argued that under Minnesota’s revocation-on-divorce law, their father’s divorce canceled his ex-spouse’s beneficiary designation, leaving them as the rightful beneficiaries. The ex-spouse claimed that, because the law did not exist when the policy was purchased and she was named as the primary beneficiary, applying the later-enacted law to the policy violated the Constitution’s Con tracts Clause.

The court found that the law does not substantially impair pre-existing contractual arrangements. First, the law is designed to reflect a policyholder’s intent – and so to support, rather than impair, the contractual scheme. It applies a prevalent legislative presumption that a divorcee would not want his former partner to benefit from his life insurance policy and other will substitutes. Second, the law is unlikely to disturb any policyholder’s expectations at the time of contracting, because an insured cannot reasonably rely on a beneficiary designation staying in place after a divorce. Lastly, the law supplies a mere default rule, which the policyholder can undo in a moment. If the law’s presumption about what an insured wants after divorcing is wrong, the insured may overthrow it simply by sending a change-of beneficiary form to his in surer.

However, the most poignant lesson to be learned from cases like this is not to rely on state default law at all and to update all estate planning documents and beneficiary designations as soon as possible.

4. Are Taxes Apportioned as Intended?

A case decided in Georgia underscores the importance of having both the correct beneficiary designation and the tax apportionment result that was intended. In Smoot v. Smoot,⁽¹¹⁾ decedent’s ex-wife, Dianne Smoot, was the named beneficiary of life insurance and retirement assets that were included in the taxable estate. The decedent and Dianne had divorced in 2006, but the decedent had not changed any of his beneficiary designations. Having lost a previous action in which the decedent’s son from a prior marriage claimed that Dianne was not entitled to the decedent’s retirement benefits, the son argued in this action that Dianne was responsible for paying her pro-rata share of the federal estate taxes. The tax apportionment clause in the decedent’s will provided for taxes to be pro-rated against those who received property included in his taxable estate.

The court held that federal law governed the tax apportionment concerning the life insurance proceeds. However, regarding the retirement benefits, the court noted that, under Georgia law, “[a]ll provisions of a will made prior to a testator’s final divorce…in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator…” According to the court, because the will made no provision in contemplation of divorce, the tax apportionment clause had to be construed as if Dianne had predeceased the decedent. Accordingly, the tax apportionment clause did not apply to her, with the harsh result that not only did the exwife receive the retirement benefits, but she received them tax-free because her step-son was saddled with the tax liability.

Although some states may have default laws that would have prevented this result (because designations are revoked in the event of divorce or because of default pro-rata tax apportionment provisions), this case is another stark reminder not to rely on state law but to carefully update beneficiary designations.

5. What is the Value of Life Insurance Policies for Divorce Settlement Purposes?

Oftentimes, parties have existing life insurance policies, the value of which is factored into the division of property between them. Under the right circumstances, practitioners can consider a life settlement: the sale of a life insurance policy to a third-party investor, to raise cash for the divorce settlement. The policy holder can receive cash for the life insurance policy in exchange for the investor taking over the premium payments and receiving the death benefit upon the death of the insured. A life settlement could potentially yield a greater return for the policy holder than surrendering the policy to the insurance carrier for the cash value. The amount of the life settlement depends upon the policy’s death benefit and the insured’s life expectancy. If the death benefit is substantial and the insured is in poor health, the value of the life settlement will be greater. In comparison, if the death benefit is not very large and the insured is healthy, the value of the life settlement might not be cost-effective.

When calculating the expected proceeds from a life settlement, practitioners should be mindful of the tax consequences. The methodology for calculating the basis of life insurance contracts was recently revised under the Tax Cuts and Jobs Act of 2017. The new favorable law provides that no adjustment to basis is made for mortality, expense or other reasonable charges incurred under a life insurance contract.

The tax treatment of life settlement proceeds is generally determined in three tiers:

1. Proceeds received up to the cost basis of the policy are not taxed;
2. Proceeds representing the difference between the cost basis and the policy’s cash value are taxed as ordinary income; and
3. Proceeds received in excess of the policy’s cash value are taxed as capital gains.⁽¹²⁾

It will be important to value the proceeds from a life settlement after taxes to make sure the transaction is financially sound.

The Bottom Line: Collaboration Early and Often is Key

With many nuanced areas that cross professional disciplines, clients benefit when matrimonial, trusts & estates, accounting, and investment professionals partner throughout the whole divorce process – especially during the coronavirus pandemic.

(1)Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 206 A.3d 386 (2019)

(2)Orchin v. Great-West Life & Annuity Insurance Company, 2015 WL 5726334, 133 F.Supp.3d 138 (2015)

(3)Biakanja v. Irving, 49 Cal. 2d 647, 320 P.2d 16 (1958)

(4)Gallo v. Brady, 925 So. 2d 363 (Fla. Dist. Ct. App. 2006)

(5)Blair v. Ing, 95 Haw. 247, 21 P.3d 452 (2001)

(6)Mieras v. DeBona, 452 Mich. 278, 550 N.W.2d 202, at 209 (1996); In re Solomon Gaston Miller Trust, No. 341502, 2018 WL 6252061, at 7 (Mich. Ct. App. Nov. 29, 2018)

(7)Estate of Schneider v. Finmann, 15 N.Y. 3d 306, 933 N.E.2d 718 (2010)

(8)Calvert v. Scharf, 217 W. Va. 684, 619 S.E.2d 197 (2005)

(9)For example, the Uniform Probate Code, in effect in Alaska, Arizona, Colorado, Idaho, Massachusetts, Michigan, Montana, New Jersey, New Mexico, North Dakota, South Dakota, and Utah, revokes dispositions to and fiduciary nominations of the former spouse, as well relatives of the former spouse.

(10)Sveen v. Melin, 138 S. Ct. 1815, 201 L. Ed 2d 180 (2018)

(11)Smoot v. Smoot, 2015 TNT 69-13, No. 2:13-cv00040 (U.S.D.C. S.D. Ga. March 31, 2015)

(12)26 U.S.C.A. § 1016. See Rev. Rul. 2020-05

– Sponsored Content –

Sharon L. Klein is President of Family Wealth, Eastern US Region, for Wilmington Trust, where she also heads the National Divorce Advisory Practice. She is a Fellow of the American College of Trust and Estate Counsel and a member of its Family Law Task Force, she chairs the Domestic Relations Committee of Trusts & Estates magazine, and sits on the Advisory Board of Family Lawyer Magazine. Beginning her career as a trusts & estates attorney, Sharon has over 25 years’ experience in the wealth advisory arena and is a nationally recognized speaker and author. https://www.wilmingtontrust.com/divorce/

This article was originally posted on the Family Lawyer Magazine

By, Carolyn N. Daly, Esq. of Daly & Associates LLC

The COVID-19 pandemic has impacted all of us with orders to stay at home, self-isolate and social distance.  This presents a number of unique challenges for family law practitioners.  One of the most serious challenges is that for some of our clients, that mandate means that it leaves them home with their abusers.

 

Domestic violence is never acceptable, at any time.  But now that Governor Murphy has issued a “stay at home” order, there has been an increase in domestic violence situations reported.  This is unsurprising as victims are forced to remain home with abusers on a continuing basis and the situation is becoming stressful, even for the most calm among us.  The opportunity for the abuse to continue or to occur for the first has therefore grown dramatically.  The Department of Children and Families has been trying to raise awareness regarding this issue, even tweeting about it, and on April 2, Governor Murphy spoke about it during his daily press conference.

If you are a victim of domestic violence, it is important to remember there is help out there for you, even now:

• Your first line of defense is your local police department.  The police are still working to ensure you are safe and if someone commits an act of domestic violence against you, you should call 9-1-1 or go to your police station.  (The County courts are closed to the public at the moment and are not taking complaints for a temporary restraining order.)  Complaints for a Temporary Restraining Order are being taken and processed at the police stations with municipal court judges.  Remember that many police departments have specific policies for domestic violence cases, including removing an abuser from the home if there are signs of physical abuse. The police can also put you in touch with a member of their Crisis Response Team to connect you with resources and help you in applying for a temporary restraining order.
• Remember that as part of a temporary restraining order, you can ask a judge to grant you a number of things, including temporary possession of the house, temporary custody of minor children, temporary possession of your car, and/or emergent monetary relief so that you have money to pay bills and buy groceries and other necessities.  Thus, no victim should be afraid that by filing for a TRO, they risk being homeless, penniless, or leaving their kids with an abuser. 
• The courts may be physically closed, but they are still working virtually.  If the court closure does not allow your matter to proceed to a final hearing, your temporary restraining order will remain in effect for the foreseeable future. 

• The courts are trying to find ways to have virtual final hearings to grant or deny Final Restraining Orders and move these matters forward.  They are trying to address amendments to Temporary Restraining Order, voluntary dismissals by the victim and other issues such as support, parenting time and access to the home by the accused in order to obtain personal items if not addressed in the initial Temporary Restraining Order.  In Morris County, at least, they are now taking amendments via email.  Anyone seeking to amend a temporary restraining order should email the request to Leila.gonzalez@njcourts.gov  Be sure to include all contact information when you send the request.  Then, if an amendment requires a change to predicate act or reliefs, the court will be in contact with you to schedule a teleconference with a Judge.
• If you need additional help, there are a number of other organizations working tirelessly to help you, including:

-JBWS, whose Morris County Helpline Number is (973) 267-4763.  JBWS is still operating their legal advocacy services telephonically, as well as remote counseling services and an emergency shelter;
-Local police departments will give you the opportunity to speak to a crisis response team member if you call them;
-The New Jersey Coalition to End Domestic Violence, whose 24 hour helpline is (800) 572-7233 or visit https://njcedv.org/covid19/ for resources.
-The National domestic violence hotline (1-877-R.U.ABUSED; 1-877-782-2873) or visit https://thehotline.org
-If all you have is a phone text LOVEIS to 22522.

If you are afraid to pursue these avenues while in the home, remember there are still a number of legitimate reasons to leave the house.  You can still go grocery shopping, order curbside takeout at many restaurants for pick up, leave to get something at your local drug store, etc.  Once you are out of the home, and the eyes of your abuser, you can make the necessary calls or go to the police station to seek assistance. 

If you or someone you know has any questions regarding these issues or other family law, domestic violence, municipal court, or criminal law issues, we encourage you to reach out to Daly & Associates at (973) 292-9222.  We are working remotely but we remain fully available to help you and your family in this difficult time.

What Family Law Practitioners Must Know about the Latest Trusts and Estates Developments.

Please join May 2nd for a half-day webinar offering 4 CLE credits in NJ, NY and PA. It’s hosted by NJICLE, in cooperation with the AAML - NJ Chapter. Spanning the process from prenuptial planning, to accessing trust assets in divorce, to potentially changing “irrevocable” trusts, to the latest dramatic tax changes, we’ll review top tips and traps to add value to your practice. Moderating and speaking is Sharon Klein, Fellow of the AmericanAcademy of Trust & Estate Counsel (ACTEC), and speakers include AAML NJ Chapter President Noel Tonnemen and ACTEC Fellows Gerard Brew and Warren Racusin.

To register and for more information please visit the NJICLE website.

AAMLConference.pdf 

By Richard F. Iglar, Esq. of Skoloff & Wolfe

The COVID-19 coronavirus pandemic has plunged our world into a once in a lifetime crisis--we have not seen anything like this in the United States since the Spanish Flu pandemic of 1918. Many aspects of our society have ground to a virtual halt, and our economy has been decimated.  Restaurants, hotels, airlines, manufacturers, small businesses and large businesses alike, are shuttered and at risk of going out of business.  Fear of the loss of employment and income is pervasive.  How will this pandemic impact one particular family law issue, the issue of the payment of alimony?  The divorced individual paying alimony asks, “How can I possibly be expected to pay now?”

Alimony is often the most contentious economic issue in a divorce case and that is understandable given the raw emotions and resentment involved between divorcing spouses and the economic pressure on each of them in facing the reality of having a subset of the prior family income.  The COVID-19 crisis exacerbates that dynamic, with the divorcing parties facing a given set of obligations and expenses and a likely unknown fraction of future income due to the economic ramifications of the pandemic.  To what extent will income be impacted and for how long?  The politicians, pundits and medical experts seem to give contradicting predictions of the duration of the crisis.  Will the COVID-19 crisis cause merely a temporary economic setback with income slightly down overall for the year, or on the other end of the spectrum, will it result in the destructions of businesses and permanent losses of income, or perhaps, will it be something in between these two extremes?

Legally, alimony is a function of income, and as income changes, it is logical that alimony should be changed.  As a general proposition, the law provides that alimony may be modified upon a showing of a changed circumstances under Lepis v. Lepis and subsequent case law.  Therefore, if there is a substantial change in income there is a legal basis for seeking a change in alimony.  However, New Jersey case law has also developed the principle that the change in income must be substantial, and not merely temporary, and cases have arisen as to what period of time should have to pass before a court will recognize a situation which warrants modification.  In a scenario such as the COVID-19 crisis, the decrease in income may be more obvious and more severe than in many other everyday type situations presented to courts in the past.  However, an essential variable remains unknown: how long will this crisis and the economic impact last?  How long must a payor wait before seeking relief from the court to modify alimony?

It appears there is a clear answer for those who are employees, that is, those identified as “non-self employed” workers.  The New Jersey alimony statute, N.J.S.A. 2A:34-23, modified in 2014, clearly addresses the issue of the timing of a modification application where the payor is unemployed or “has not been able to return to or attain employment at prior income levels.”  The statute in subsection (k) provides that no application may be filed until the unemployment or reduction in income has lasted for at least 90 days.  Although this may delay the filing of an application, it might not delay the actual benefit to be ultimately awarded.  The statute provides that the court may grant relief which is retroactive to the date of “the loss of employment or reduction of income.” 

Furthermore, despite the 90 day time frame set forth in the statute, we are confronted by an unprecedented situation and there may be a genuine legal issue as to whether that time frame should still apply.  An argument might be made that with businesses physically closed it would be extremely difficult for a person who has lost his or her job to obtain a new one prior to the end of the crisis.  Accordingly, it may be that a family court, as a court of equity, might be called upon to relax the 90 day requirement in light of the circumstances and as a matter of justice, but this is an issue which will have to be addressed by the courts in the days ahead.

In assessing the application of the “non-self employed” individual, the court must consider the following statutory factors under N.J.S.A. 2A:34-23(k):

(1) The reasons for any loss of income;

(2) Under circumstances where there has been a loss of employment, the obligor's documented efforts to obtain replacement employment or to pursue an alternative occupation;

(3) Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;

(4) The income of the obligee; the obligee's circumstances; and the obligee's reasonable efforts to obtain employment in view of those circumstances and existing opportunities;

(5) The impact of the parties' health on their ability to obtain employment;

(6) Any severance compensation or award made in connection with any loss of employment;

(7) Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;

(8) The reasons for any change in either party's financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party's financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;

(9) Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and

(10) Any other factor the court deems relevant to fairly and equitably decide the application.

But again, in an application filed based on the economic impact of the COVID-19 coronavirus, many of these factors might be more obvious than in situations the courts have typically considered.  For example, where government actions have curtailed or closed business operations, there may be no reasonable dispute about the factual circumstances underlying the alimony modification application.

What about the business owner or other self-employed individuals?  The New Jersey alimony statute, N.J.S.A. 2A:34-23, addresses those payors in a separate section (l).  Interestingly, there is no requirement that the reduction in income must have lasted for at least 90 days before filing in cases involving self-employed individuals.  However, the applicant will certainly still have to address the legal issue of whether the change is a substantial one that warrants relief or whether it is merely a temporary change which does not warrant modification.  The statute requires a comparison of the benefits from the business to the business owner at the time the alimony obligation began and at the time of the application.  Specifically the statute provides the application “must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.”  These statutory provisions recognize that the business owner has more flexibility in how economic benefits are paid out, whether as salary or distributions, for example, or through indirect, but real economic benefits such as the payment of expenses or other perquisites.  The court must consider all of these economic benefits in evaluating the alimony modification application.

The New Jersey alimony statute also specifies a range of relief that can be granted by the court.  Aside from simply modifying the support obligation, N.J.S.A. 2A:34-23(m) provides that a court can order a temporary remedy. The court can temporarily suspend support or reduce support according to specific terms.  The moving party should be aware that the statute also specifies that the court can direct that support be paid from assets pending further proceedings—something which might completely undermine the moving party who seeks relief on periodic payments and winds up having the court essentially take assets away and give them to the supported ex-spouse.  The court also has to the power to direct a periodic review of the situation so what might have been envisioned as a straight-forward request might lead to an ongoing examination in multiple legal proceedings.

Finally, it should be noted that the statute provides that the court may enter any other order which the court finds appropriate to assure fairness and equity to both parties.  This gives the court considerable flexibility.  It also provides any party seeking relief with a legal basis for arguing for what should be the right result in any alimony modification application related to this unprecedented world crisis.

With the pandemic all around us, alimony payors are now raising the legitimate and logical question of how can they be expected to pay alimony at the same levels as previously.  The 2014 amendments to the New Jersey alimony statute, N.J.S.A. 2A:34-23, discussed above, supplement the basic legal principles about modification of alimony and provide further specific statutory factors to be considered.  New Jersey law does provide an answer to the question being asked by alimony payors and it does provide a mechanism in order to obtain relief.  Family law attorneys will now be using these tools to try to address the difficult legal issues created by the impact of the COVID-19 coronavirus and obtain fair results for their clients.

Richard F. Iglar, Esq. is a partner of Skoloff & Wolfe, P.C. and President-Elect of the American Academy of Matrimonial Lawyers-New Jersey Chapter (AAML-NJ).  This article was previously published at www.skoloffwolfe.com.

By Carolyn N. Daly, Esq. of Daly & Associates LLC

Many parents have questions about custody and parenting time during this pandemic. The problem is there is no one answer to any of those questions. The one thing that professionals and judges do seem to agree on is that this is an overwhelming situation for everyone and that during this time, when anxiety levels are high, it is important that children are reassured by their parents and caretakers that “everything will be ok.” Most of them also agree that children need to see their parents in order for this to happen and children need to see their parents working cooperatively and responsibly during this time.  Our children are understandably watching all of us for how to react.

That having been said, COVID-19 is unprecedented and many are working quickly to respond to concerns with as much information they have and with thoughtfulness. It would appear that a consensus is emerging in cases where there is an existing custody and parenting time order.  In those cases, unless and until there is an order or agreement altering the current parenting schedule, then the existing order or agreement, including holiday time, is to be followed during the pandemic.

The Case for Changes in Custody Agreements During COVID-19

When faced with a request to alter custody or parenting time, the courts are looking to see if one parent can show that the other parent has COVID-19, the child has COVID-19, the other parent or child has been exposed to COVID-19 (or is at a substantial risk of exposure), or the other parent is engaging in behavior which is inconsistent with COVID-19 protocols.  A parent seeking to alter the custody or parenting plan for any of these reasons should be prepared with specific evidence, or examples of the other parent’s behavior which support their request to alter or end parenting time or custody.  These factors also apply to cases where one parent, a child, or member of a parent’s household has a serious medical issue or pre-existing condition making them more susceptible to the virus.  If that parent can demonstrate their medical issue and provide specific examples or evidence of how the other parent is not taking precautions or following COVID-19 protocols, a court may alter the custody or parenting time of the other parent.

There are some important things to consider if there is a change in custody or parenting time by agreement or otherwise.  A parent who is not going to have parenting time should absolutely be afforded an opportunity to not only have phone calls, but to video chat by FaceTime, Skype, What’s App, Zoom, Microsoft Teams, etc.  This time should be in a room or place where the child is alone with the other parent.  The other parent can help with homework, e-learning, watch a movie, play a game, read a book or do hundreds of other things with the child(ren) that I am sure others have already suggested.  If there is more than one child, then maybe there should be one video session for each child so that they can have time with the other parent. Additionally, the parties should absolutely agree, or the court should provide, that there will be make-up parenting time as soon as the stay at home mandate has been lifted, provided both parties are prepared to abide by any COVID-19 protocols that exist at the time, or any other protocols that the parties themselves agree are appropriate.

Parents can also consider alterations to their current parenting plans if they are going to continue exchanging the children during this time, such as the location of pick up and drop off.  If it was previously in a public place or at school, then you may want to change it to somewhere more private or accessible.  If there is restraining order in effect, or other concern, then the parties could alter their location for exchange to curbside at each other’s residence or a police station convenient to both.

If the parties’ parenting time provides for frequent exchanges of the children each week, for example if one parent has one overnight each week and every other weekend from Friday night to Monday morning then maybe the every other weekend should be extended to being from Thursday night until Monday night at 5 pm and the mid-week overnights suspended until the stay at home mandate has been lifted.  For parents with 50-50 parenting that isn’t on a week on\week off basis, perhaps they should consider moving to that schedule on an interim basis so that there is an exchange only once per week. The children are all e-learning and have no extra-curricular activities they are attending in person so this might be a perfect opportunity to try other parenting schedules.

Making New Co-Parenting Decisions as a Family

What parents should always remember is that these are your children and your family and a court will never be upset if you reach an agreement on how to handle these issues amongst yourselves.  In fact, they welcome it. With that in mind, parents should be aware that the courts have limited resources and these are only a few of many issues being raised to them on an emergent basis.  Therefore, it would be wise to reach out to the other parent with concerns and attempt some simple problem-solving before initiating court proceedings.  If the parents can’t resolve the issue amongst themselves, there are also a number of mediators, statewide, who are ready to assist them, by phone or video conference, from anywhere, to resolve this issue quickly.

The bottom line is the courts will address these issues on a case-by-case basis and what is needed now for families is more cooperation and less litigation.  This situation should not be seen as an opportunity to withhold or terminate parenting time from a parent, absent truly emergent circumstances.  The American Academy of Matrimonial Lawyers has put up guidelines for parenting during this time, which can be found here.  A very thoughtful judge from Canada gave a well-reasoned decision in an application to alter parenting time during this pandemic, which has been circulated by professionals in this state, and can be found here.

Parenting time when there is domestic abuse could be a whole other discussion. However, what I can tell parents is that the courts are open and hearing emergent matters by phone or video conference.  The same factors and considerations set forth above apply.  If an abuser refuses to allow a child to return to the ex-spouse and there is no valid reason to do so and you can’t resolve it otherwise, you can file an emergent application for the return of the child. The application can be found here on our website under the button on the first page “Our Response to COVID-19”

This article was originally posted on New Jersey Family

By Carolyn N. Daly, Esq. of Daly & Associates LLC

We are in the midst of a serious crisis. Unfortunately, some parties are taking that only too literally, weaponizing the current pandemic and social distancing guidelines to restrict the other party’s parenting time and ability to see his or her children. This is particularly true among first responders or other “high risk” individuals who are continuing to work and risk exposure to the virus. This crisis should not be seen as an opportunity to withhold or prevent parenting time between a parent and child unless there is a demonstrable risk to a child. 

The American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC) attempted to get ahead of this issue, and issued guidelines on March 17, 2020 regarding parenting time in the midst of our current “social distancing” which can be found here https://aamlnj.org/njresources However, stories continue to arise around the state of individuals who are going to the courts to attempt to suspend parenting time because of this pandemic or to seek the continuation of parenting time when one parent unilaterally stops parenting. 

This is a difficult situation, and every case has its own unique circumstances which must be considered. The consideration changes if, for example, you live with individuals older than 65 or someone who has respiratory issues – in other words, if you risk exposing not only your child to the virus, but an at-risk individual who has a higher mortality rate because of their pre-existing conditions. Generally, however, the first thing all parents must be aware of is that they really have only three options: (1) they can work something out amongst themselves, taking into account the best interests of the child; (2) they can hope that a judge will see things their way and apply to change or limit parenting time when necessary; or (3) they have to follow the Court Order currently in place. What is not an option, however, is to knowingly violate any court order in place and unilaterally change parenting time – courts have never looked kindly on self-help. Parents also risk running afoul of criminal law. N.J.S.A. 2C:13-4 provides that if you withhold a child for more than 24 hours you could be charged with interference with custody, a crime that is a second degree offense and carries with it a presumption of imprisonment. 

Work it Out 

The one way to ensure everyone is safe, healthy and happy is to work things out amongst yourselves, with mediators, parenting coordinators, attorneys, pediatricians or other members of the community, as necessary. In doing so, you can craft a plan that works best for you and your children, as opposed to hoping someone else will make the right decision for you based on what information they have had thrust before them. Parents can always modify parenting plans amongst themselves in order to ensure minimal transfers. If, for example, you have “50/50” custody requiring multiple back-and-forths per week, you could instead switch to a “week on/week off” plan temporarily if that works for you. Such a temporary plan would allow for fewer transfers and, therefore, less risk of exposure. If someone does become positive for COVID-19, you should work to ensure liberal access to the children via all of the video conferencing applications available 

today, as well as provide make-up parenting time once that individual is all clear. It is important to remember that central to any discussion should be what is best for the children – and that may not always be the same in each case. What matters is what works for your children and family. 

When it comes to individuals who are still working and potentially risking exposure, you only need to peruse local Facebook groups to find a myriad of opinions of what should be done, ranging from “keep the kids home” to “follow the court orders.” What’s important to remember is that as recently as March 30th, the government has said that social distancing guidelines will continue to be in place for a month and that the “peak” of cases could be weeks away. Simply cutting off contact with one parent for a month or more is not acceptable if based solely upon a parent’s employment responsibilities. 

Think of it this way: what if you were still living together? Would you think it reasonable to suddenly stop having contact with the children? What about a decision to move out and self isolate? In most cases, the answer is probably no, although there are some families who have done this or sent their children to live with relatives. Parents still living together would work cooperatively and take appropriate steps to minimize the risk of exposure; such steps might include completely disrobing in the garage and bagging clothes to go into the wash and then taking a towel and going right into a hot shower as recommended by some. Just because you’re divorced or living separately,the children should still be able to see both parents as long as there isn’t an emergent and clearly identifiable risk. 

Of course, on the other side of this, it is important that both parents remain as healthy and mindful as possible. Wherever possible, practice social distancing. Children should not be exposed to two sets of rules – one parent allowing friends over, treating this as an extended summer vacation, and the other practicing strict social distancing with no friends and a strict school-like schedule. This will only confuse the children, and the parent not practicing social distancing (in spite of all the guidelines) will not find themselves in front of a very happy judge if it comes to that. 

Parties also should remember that the other parent is not being “irresponsible” if they are continuing to visit with their new romantic partner, or exposing the kids to that partner. In fact, Governor Murphy’s Executive Order specifically allows visitation with “family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker, or romantic partner. This also means that you are allowed to travel for purposes of picking up/dropping off children and would not be violating the Governor’s Order since this is a legitimate purpose. 

Again, the most important consideration is what is in the best interests of the child. How do parents work together to ensure this? The answer will be different for each family, as each family has unique circumstances that require additional consideration. 

The Right Solution for Your Children 

Co-parenting is of the utmost importance to the courts and decisions should be made by both parents to ensure uniformity and access. You should also remember that if you cannot come to a solution on your own, family law attorneys trained to handle these situations are here to help. At Daly & Associates, we have attorneys who are ready to help. Ms. Daly is a trained mediator and has been appointed as a parent coordinator and guardian ad litem by the courts to help in these situations. If you are a first responder in need of assistance, call and ask about our special rates for you to help you while you are putting yourselves on the front lines to help us. We may be working remotely, but we are still here for you during this difficult time. 

By Carolyn N. Daly, Esq. of Daly & Associates LLC

It’s finally here.  Some people dream of having kids from a young age, and others later.  Regardless it becomes real and exciting and scary the moment you hear you are pregnant.  Now you are finally at the point where mom is in labor (or is scheduled to go in for a pre-planned, medically necessary C Section), and you can’t wait to meet your newborn and neither can your family.  But now, because of COVID-19, you may all have to wait.  That’s what hospitals in New York were telling partners, grandparents, siblings, and more: that in the age of social distancing, you can’t come meet your newborn.  You can’t care for your partner, who will have to go through labor, delivery, feeding, and recovery alone.  And in New Jersey this restriction is being considered as well.  A “necessary precaution” of the world we currently live in.

As just one example of this, Mount Sinai Health System’s restrictions allowed zero visitors (not even the father), until New York put a stop to it.  Mount Sinai is a health system that has 15 locations around the New York Area.  They justified their decision by stating that they are doing this “to provide the safest environment possible to protect our patients, staff and visitors.”  (Well, if having birthing partners, who are emotional support in the very least.  present is a risk, then perhaps there should be no visitors at all.)  The hospitals say they want to “prevent avoidable exposure to mothers and babies,” and claim their moves are “critical to ensure that we can continue to slow the spread of COVID-19.”  Mount Sinai acknowledges “how important it is to connect with loved ones,” but makes the decision to prevent such connections.  More than 600,000 people had signed this petition to attempt to have these restrictions lifted.

Now here’s the good news for New Jersey residents (for now) – the two largest hospital systems in the state, Hackensack Meridian Health and Atlantic Health, are both allowing one visitor or “support person” in maternity wards.  As recently as 8:48am on March 25^th, Atlantic Health updated their visitor policy to no longer allow visitors for surgical patients, but still allow a “designated support person for patients in the maternity centers.”  We can only hope this continues – but what if it doesn’t?

While this is going on, the courts are doing everything they can to prevent the spread of this disease, including by going almost completely virtual.  The Supreme Court, the Administrative Office of the Courts, and the local Assignment Judges should be commended on getting everyone “up to speed” on virtual hearings as quickly as possible, and so far the court system is moving as best it can.  Obviously, in these times, it is important, as attorneys, that we not overburden the courts with issues that can be worked out between parties.  At Daly & Associates, for example, we are encouraging all of our clients to utilize mediation and other “out of court” measures to settle their matters before going to court.  However, a parent’s attendance at the birth of the child is a momentous occasion, which may not be repeated, and it’s not one that should simply be delayed.  This is a potentially emergent matter – and it’s likely only a matter of time before the courts are asked to weigh in on this issue.

Here are some facts and arguments we suggest lawyers and litigants consider when advocating on behalf of a client should they seek to file an emergent application on this issue, taking into account the factors the Courts consider for emergent applications:

(1)   Whether the petitioner will suffer irreparable harm.

In considering irreparable harm, one should first consider who the “petitioner” is.  Should mom be suing for a support person?  Should the partner be suing for the right to be a support person and to the see their child born?  Or should the parents be suing on behalf of their unborn child?

Here is one of the most stunning facts that calls into question the decisions of hospitals that suspend all maternity visitations.  The World Health Organization is against it, even in light of COVID-19.  According to their “Q&A on COVID-19, pregnancy, childbirth and breastfeeding,” the WHO states that “all pregnant women…have the right to high quality care before, during, and after childbirth. … A safe and positive childbirth experience includes: … having a companion of choice present during delivery.”  So in spite of COVID-19, the WHO still believes in the importance of having a support person present.  It’s not hard to see why they’ve come to this conclusion.  According to developmental and behavioral pediatrician at The University of California at Davis' Dr. Mary Beth Steinfeld, “a normal, full-term baby is…programmed to initiate and enter into a bonding relationship. … When a caregiver consistently responds to an infant’s needs, a trusting relationship and lifelong attachment develops.  This sets the stage for the growing child to enter healthy relationships with other people throughout life and to appropriately experience and express a full range of emotions.”  Dr. Steinfeld furthers “the first few days of life are believed to offer an optimum opportunity for bonding to take place.”  But do they need both parents there?  According to Dr. Steinfeld, “[a]bsolutely.”  The National Institute of Health, WebMD, Psychology Today, Sanford Health, and Medscape have some of additional details on the data and research regarding the importance of immediate bonding for both parents. 

Further, without a support person, moms may be more susceptible to post-partum depression (see the CDC's fact sheet on depression in women, which notes “stressful life events” and “low social support” as risk factors).  And the newborn risks missing what Dr. Steinfeld calls the “optimum opportunity” for bonding to take place.  Clearly, there is irreparable harm to all of these parties.

(2)   The legal right underlying the petitioner’s claim is settled.

Once you have proven there is irreparable harm, you must show a settled legal right.  In this case, one need only look to the WHO’s standards as showing a legal right.  You could also look to the fact that most U.S. hospitals allow bonding as a standard practice.  According to Dr. Steinfeld “standard practice in most U.S. hospitals allows mothers and babies as much time as possible together after birth.  Even when babies are born ill or premature, the importance of bonding is recognized.  Whenever possible, health care providers in intensive care units try to create opportunities for parents to spend time holding and caring for their babies.”

According to Atlantic Health, patients have a right “to receive considerate and respectful care consistent with sound nursing and medical practices.”  Hackensack Meridian says right on their website for maternity services that they “encourage the father or support person to take an active role in the birthing experience,” and even note that “it takes a village to have a child.”  The hospitals themselves recognize this important right.

(3)   Whether the petitioner is likely to prevail on the underlying claim.

Given the wealth of information about the importance of bonding, as well as the rights as defined by the hospitals themselves, one can clearly make an argument that a petitioner is likely to prevail on an underlying claim.  You may also have specific circumstances to further support your claim – for example, if mom is giving birth by way of Cesarian-Section, she will have limited mobility and it will be even more important to have someone there to help.  And in the era of COVID-19, we already know nurses and doctors are stretched thin; won’t they feel better knowing someone else is there to watch over mom and baby and only alert them when something has gone wrong so they can focus on other patients?

(4)   The relative hardship to the parties in granting or denying the requested relief.

The hardship to the hospital is obvious, and the factor the hospital will likely focus on the most is that they are trying to prevent the spread of COVID-19 to other patients and healthcare workers.  They are doing their part to “flatten the curve” by mandating social distancing.  But the articles referenced above make very clear the hardship to the parents and child may outweigh those and certainly a hospital, better than most institutions, can protect again the potential for cross-contamination.  When balancing all of the factors, a court may have a difficult time finding the hospital’s hardship overcomes the hardship of the parents and child, especially given their parens patriae power.

All of this is very new with unforeseen consequences and it is obviously important that we all take part in “flattening the curve” to preventing the spread of this disease.  However, it is also important that we look to protect our parents and children and their future.  We certainly do not want to not handicap that future by over-restricting ourselves in the present. 

If you or someone you know has any questions regarding the topic of this article or other family, domestic violence, municipal court, or criminal law issues, we encourage you to reach out to Daly & Associates at (973) 292-9222.  We are working remotely, but are fully ready and able to help your family in this difficult time.

By Paul Townsend, Esq. 

Ever since the Seminole case of Bisbing v. Bisbing, 230 N.J. 309 (2017), New Jersey relocation law has been in a state of almost mandatory best interest hearings “ in all contested relocation disputes…” . In Bisbing, the Court held that a best interests analysis is required “in all contested relocation disputes in which the parents share legal custody - whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody.” Further, the New Jersey Supreme Court concluded that a relocation decision when the parents share legal custody should be treated in the same manner as the original custody determination.  To further compound the problem, most recently in the case of [A.J. v. R.J., 461 N.J. Super. at 176] a case of intrastate relocation post judgement the Appellate Division held.

in cases where a court exercises its authority pursuant to R. 1:10-3 and 5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction imposed is in the best interests of the children. We further hold the factors in Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (2001) no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309, 166 A.3d 1155 (2017), the court must apply N.J.S.A. 9:2-4.

The area of New Jersey relocation law, whether it be intra or interstate relocation, will  continued to demand a best interest evaluation and as such will be difficult if not impossible to prepare for and to schedule with the court. The consequences of this state of almost mandatory  “best interests” analysis  and its impact upon  the already  jammed court docket has yet to be seen by the family practitioner.  But it certainly appears that all relocation matters are going to need a best-interest hearing under Bisbing. Which in turn leads us to the question: with the family courts as backed up as they are and with forensic evaluations taking as much as one year,   will any child ever be able to leave New Jersey again?  With the way the system is operating now I believe the answer could be no!

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By Amanda Trigg, Esq. 

In 2020, families come in all shapes and sizes.  Within each generation, there may be multiple combinations of parent/ child relationships that impact how your family functions.   Help your family enjoy each other as much as possible by considering these practical tips.

1. Be Real. Don’t ignore the potential problems that your family faces if one parent who has children with multiple partners, or one parent has a partner who has children with others.  Be realistic and address the questions about scheduling, rules, and plans that truly impact all of the children.
2. Be honest with each other.  Learn and work with existing agreements about parenting schedules, a radius clause (which dictates how far parents can move away from each other), the choice of a child’s school district, transportation obligations, and, always, financial obligations. 
3. Be literal. Get out that paper calendar, or invest in good computer software, to chart out the various parenting time scenarios. Do not risk creating last-minute problems when you realize that the kids’ schedules do not work the way you all expected.  For example, it is almost universally accepted that the children will spend Mother’s Day with their mother and Father’s Day with their father, but that can result in step-siblings never sharing the day amongst themselves unless the parents can be selfless and see a different way to approach these days of cultural significance.
4. Be Inclusive. Without knowing how all of the adults feel and think about the children’s schedules, you cannot know the full range of options for maximizing everyone’s enjoyment of each other.  Though it may be difficult, consider including the other parents in discussions, for the benefit of all of the children and adults involved., Many parenting plans include broad provisions for attendance at important family functions, but with multiple layers of family involved, you might propose opening the door to promoting broader involvement with all parts of the family.  For example, some written agreements include specific clauses:

Family Events

: The parties will work together for the benefit of the children and be flexible with each other so that the children will not miss family events of either parent unless there is a conflict between two equal family events. In the event of a conflict, when both parties seek to have the children attend a family event, the regular parenting schedule shall control.

5. Be resourceful. Even the most open-minded parents cannot anticipate every scenario and opportunities to be contentious and to disagree will arise. Avoid taking that bait.  If the situation needs professional input, call an experienced family law attorney, consider involving one therapist for all of the children and if necessary, an all else fails, seek a court order that all adults must cooperate or waive his/her right to give input or have the right to raise a parenting time dispute.

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Questions? Contact the Family Law Team at Cohn Lifland Pearlman Herrmann & Knopf, LLP at 201-845-9600. 

By Jean Ramatowaski, Partner, Ramatowaski & Schwartz 

There can be a significant injustice to a party seeking to enforce a support or property right against their former spouse.  The cost.

Attorney’s fees may be awarded to help make the supported party whole.  Attorney’s fees are granted based upon good faith versus bad faith standard amongst other criteria.  A court order enforcing a previously ordered obligation, without addressing the cost resulting from the application to obtain the order, can only leave the moving party further in debt.  This could make it cost-prohibitive to even seek to enforce a support or property right.

Attorney’s fees that are awarded in the establishment or enforcement of support obligations are enforceable through enhanced wage garnishments; up to 55% of the supported spouse’s disposable income.  If retirement assets exist, an award of attorney’s fees can be collected along with support arrears from the payor’s share of these assets by way of a Qualified Domestic Relations Order. 

The Appellate Division recently acknowledged the collection of attorney’s fee awards as an exception to the anti-alienation provisions of ERISA.   “The anti-alienation provision reflects a policy ‘to safeguard a stream of income for pensioners (and their dependents, who may be and who usually are blameless) even if that decision prevents others from securing relief for wrongs done them.’”  Orlowski v. Orlowski, 459 N.J. Super. 95, 104 (App. Div. 2019) citing  Guidry v. Sheet Metal Worker’s National Pension Fund, 493 U.S. 365, 376 (1990). “When a marital decree qualifies as a QDRO, the anti-alienation provision does not apply.” Orlowski, at 105.

To qualify as a Qualified Domestic Relations Order under ERISA, the required payment must be allowed under the terms of the retirement benefits plan, must be made to a dependent, not their attorney, and must be related to the payment of support or equitable distribution.

A failure to grant this relief addressing collection when available would cause a reduction in the relief otherwise granted to the moving party by the number of the attorney’s fees it cost to obtain the court order.

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For more information, you can contact Jean Ramatowski at 732.613.8300.