The Law Offices of David T. Garnes Blog

Unfortunately, it is not uncommon for couples that are having problems in their relationship, to become involved in a physical altercation. When this happens, either party, or both, can file for a Protection From Abuse Order, otherwise known as a PFA.

The criteria for obtaining a PFA is fairly straight forward: Any person can request a PFA against another person who is related by blood or marriage, biologically or legally or with whom there is or was an intimate or sexual relationship. To request a PFA there must be some type of physical harm, threats of physical harm or a reasonable fear of serious bodily injury.

To get a PFA, a party must file a written petition in which they state, under oath, all of the acts which they allege the other party engaged in which supports the entry of a PFA. Once the initial written petition is filed, then a temporary PFA will be entered and a court hearing before a judge will be scheduled (usually within 10 days of the date the temporary PFA was entered). At the hearing, you will have to testify as to the allegations contained within the written petition. At the end of the hearing, a judge will make a decision as to whether a temporary PFA should be made final.

The consequences of a PFA being entered against a person are very serious. Specifically, if a PFA is entered against a person, it can restrict them from: (1) having contact with the person in whose favor the PFA was entered, which includes preventing the person from being near the home, school or place of employment of the person protected by the PFA; (2) having any guns or gun permits; (3) restricting a person’s custody rights/parenting time with their children; (4) imposing child support obligations on a person; and (5) requiring the abusing party to pay the protected person for losses resulting from the abuse (which can include medical bills, lost wages, relocation expenses and legal fees). The restrictions imposed by a PFA can remain in effect for up to three (3) years. This period can be extended by the court if the person against whom the PFA is entered continues to present a risk to the protected person.

Once a PFA is entered against a person, their name is placed on a state registry that can be checked by future employers or other third-parties that are performing background checks on the person. Also, PFA’s that are entered in one county, can be enforced anywhere in the state. Finally, if a party violates the terms of a PFA, they are subject to arrest and criminal prosecution.

Unlike other states such as Pennsylvania, New Jersey has no precise formula for calculating alimony. For example, unlike child support cases, where a court simply looks at the child support guidelines “chart” to determine the amount of the child support obligation, there is is no comparable alimony guidelines “chart” to calculate alimony payments.

Although there is no specific alimony guidelines “chart” used by New Jersey judges to calculate child support, there are general guidelines that judges must follow in setting alimony awards. New Jersey judges have wide discretion in how these general guidelines are applied and the amount and duration of the alimony awards that they set. In setting these awards, judges must consider the basic purpose of alimony, which is “to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.” Crews v. Crews, 164 N.J. 11, 16 (2000). “The supporting spouse’s obligation is set at a level that will maintain that standard.” Innes v. Innes, 117 N.J. 496, 502 (1990) (citing Lepis v. Lepis, 83 N.J. 139 (1980)). Bare survival is not the proper standard, it is the quality of the economic life during the marriage that determines alimony.” Hughes v. Hughes, 311 N.J. Super 15, 31 (App. Div. 1998).

In other words, it is fair to say that in New Jersey an award of alimony is broadly discretionary. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004). However, such discretion is not limitless. New Jersey law, N.J.S.A. 2A:34-23(b), sets forth guidelines and objective standards which frame the exercise of the court’s discretion. As stated above, these guidelines are not as specific or “cut and dry” as the child support guidelines. Unlike the child support guidelines, which are just concerned with the respective income of the parties, the alimony guidelines contained within Section 2A:34-23(b) considering the following factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) 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 acquisitions of capital assets and income;

(9) 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;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) 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; and

(13) Any other factors which the court may deem relevant.

In my experience, I have found that judges in New Jersey will consider these factors in conjunction with the financial information that the parties list on the Case Information Statement, to set an alimony award. Specifically, judges look at the respective income of the parties, and if one party is financially in a position to assist the dependent spouse (the spouse that earns the least amount of money) to maintain a standard of living that is somewhat close to what they enjoyed during the marriage, then the judge will set an alimony payment that will provide the dependent spouse with the needed support.

Once the alimony payment is set by the court, the next consideration is how long the alimony payment will be paid. Judges must carefully consider the issue of whether the alimony should be for a limited duration or permanent alimony…. [O]bviously age, education and work experience are the prime considerations in determining whether the supported spouse can return to the work force and achieve a comparable lifestyle. The primary distinctions between cases in which limited duration and permanent alimony are awarded are the duration of the marriage and the degree of dependency that has developed while one spouse focuses on the home rather than advancement in the workplace. “Limited duration alimony is available to a dependent spouse who made contributions to a relatively short-term marriage that … demonstrated the attributes of a ‘marital partnership’ and has the skills and education necessary to return to the workforce.” Gordon v. Rozenwald, 380 N.J. Super 55, 65-55 (App. Div. 2005). Permanent alimony “is awarded after a lengthy marriage for [an] unlimited duration in recognition of prolonged economic dependence and sustained contribution to a marital enterprise.” Id. at 66. Thus, limited duration alimony is proper “where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate,” and permanent alimony is proper where the marriage is long-term and there is economic need. Cox v. Coz, 335 N.J. Super 465, 476 (App. Div. 2000).

There should not be open child support cases in two different states. One state has to make a determination that they have jurisdiction over the case and apply that state’s laws (including the child support guidelines) to the award of child support. This whole process is governed by the Uniform Interstate Family Support Act (”UIFSA” or the “Act”), which addresses the non-payment of child support obligations and has been adopted by every U.S. state.

Whenever more than one state is involved in the establishing, enforcing or modifying a child or spousal support order, the Act is implemented to determine the jurisdiction and power of the courts in the different states. The Act also establishes which state’s law will be applied in proceedings under the Act, an important factor as support laws vary greatly among the states.

The Act establishes rules requiring every state to defer to child support orders entered by the state courts of the child’s home state. The place where the order was originally entered holds continuing exclusive jurisdiction (CEJ), and only the law of that state can be applied to requests to modify the order of child support, unless the original tribunal loses CEJ under the Act.

The Act also provides various direct interstate enforcement mechanisms. For example, it allows a caretaker parent to have an order mailed to the employer of the obligated parent, which will require that employer to withhold pay for the benefit of the child. Furthermore, it allows the caretaker parent to have an order mailed to an out-of-state court to get the other state to enforce the order.

Usually when parties divorce, one spouse buys the other spouse out of the marital home. This usually means that the party that is keeping the house and buying the other party out, will have to refinance. There is a little known other option which entails simply asking the mortgage company to remove the other spouse’s name from the mortgage. Not all mortgage companies will do this, but for those that do, it can mean substantial savings on re-finance charges. Here is more from the New York Times on the subject:

Avoiding Refinancing Costs After Divorce
By LYNNLEY BROWNING

DIVORCED homeowners wrangling with the task of removing a former spouse’s name from the mortgage after buying out his or her equity stake in the marital house may think that refinancing is the only choice.

There is another, little-known option that can avoid refinancing and its costs, which generally run 3 to 6 percent of the outstanding loan principal, according to LendingTree. You simply ask your lender to remove the former spouse’s name, leaving the loan note in your name only.

The problem is that not all lenders or mortgage servicers offer this option, known as release of liability. The lenders and servicers that do will most likely run a separate credit check on you — requiring, for example, that you meet minimum credit scores (typically from Fannie Mae, the giant government buyer of loans), and ensuring that you are current with the monthly mortgage payments. They may also require that any investors in the loan, after it is sold off, agree to the deal.

And if you are “under water,” and owe more on the mortgage than the home is currently worth, this process is not an option.

“This is a common and often messy business,” said Jack Guttentag, a mortgage expert and emeritus finance professor at the Wharton School of Business at the University of Pennsylvania. “Lenders seldom have a reason to take a co-borrower’s name off the note.”

But, he added, if a homeowner can prove that he or she can afford the payments and meet the required credit criteria — typically those of the investor in the loan — then release of liability may work.

Neil B. Garfinkel, a real estate and banking lawyer at Abrams Garfinkel Margolis Bergson in New York, says the lender “will require the borrower to prove that the borrower is able to support the monthly payments without the co-borrower spouse,” typically through monthly bank statements, annual tax returns and investment statements.

Having the name removed protects the credit of both parties, actually. If the former spouse failed to pay other debts, a lien could be placed on the home, and if you were delinquent on the mortgage payments, your former spouse’s credit could be hurt.

Most divorce settlements stipulate one of two outcomes for marital property. Either the house must be sold, or the person wanting to keep the property must buy out the other’s share, usually within months of the date of the settlement, and get the other party’s name off the mortgage — either through refinancing or a release of liability — typically within a year.

Under the second option, the former spouse signs a quit-claim deed at the divorce settlement, relinquishing his or her claim to the property. But while that action takes the former spouse off the house’s title and leaves it in one name only, it does nothing to remove his or her name from the actual mortgage.

Lenders or servicers typically charge $300 to $1,000 to execute a release of liability and require the property owner to pay an additional, nonrefundable application fee, typically $250 to $500. The process can take from 30 to 90 days, mortgage experts say.

One mortgage servicer, PHH Mortgage of Mount Laurel, N.J., requires that a homeowner with a loan sold to Fannie Mae have a minimum FICO credit score of 620 and a debt-to-income ratio of 50 percent or below (the ratio measures the amount of gross monthly income that goes to paying off all debts).

Still, a lender or servicer “generally has no obligation to release one of the borrowers,” Mr. Garfinkel said.

But Mr. Guttentag says homeowners may have one point of leverage. He suggested that qualified borrowers not accorded the release they seek tell their servicer or lender that unless a release of liability can be executed, the borrower will refinance the mortgage — at another lender.

“In such cases,” he said, “the servicer might agree to do it.”

In New Jersey, when parties divorce, Courts are permitted, pursuant to New Jersey State Statute, N.J.S.A. 2A:34-23(b), to award alimony to one of the parties. The Court has the discretion to award alimony in varying forms: permanent alimony (which lasts until death or re-marriage); rehabilitative alimony (which is meant to help make a dependent spouse more self sufficient); limited duration alimony (which lasts for a predefined term); and reimbursement alimony.

In awarding alimony, Courts are required to consider the following factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) 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 acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) 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; and

(13) Any other factors which the court may deem relevant.

When parties divorce, there are two different types of ways that states divide up the marital assets of the parties. Community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) apply a mechanical procedure by which they divide the marital assets of the parties fifty/fifty without regard to who contributed what in the marriage as it relates to the assets. In equitable distribution states (of which Pennsylvania and New Jersey are a part of), courts do not automatically divide martial assets fifty/fifty. Instead, courts look to divide marital property based upon an application of equitable principles to the concept of marriage as a partnership, giving recognition to the economic and non-economic contributions that each party brought into the marriage. Now, here is the question, which system–community property or equitable distribution–do you think is a better system?

One of the most common questions that I get from clients who are considering filing for a divorce is should I file for a “fault” or “no-fault” divorce. The next questions that I hear are what is the difference between the two types of divorce and what, if any, effect will it have on the parties dividing their marital assets?

The terms “fault” and “no-fault” refer to the grounds for divorce that a party is seeking. Historically, in order to divorce, a party had to provide “grounds” that would entitle the party to a divorce from their spouse. Typical grounds for a divorce are abandonment, imprisonment, habitual drug use, adultery, insanity, etc. In the late 1950s, the concept of no-fault divorce was created, which allowed parties to file for divorce without alleging any marital fault. Most divorces that are filed today are no-fault divorces.

This raises the question of why anyone would file for a divorce on “fault” grounds. The law in Pennsylvania and New Jersey is clear that marital fault does not have an effect on the division of the marital estate. However, what I have found is that for some people, they just need to have certain issues heard in court, whether it be a spouse’s alleged infidelity or the fact that the spouse was mentally and physically abusive during the marriage, some people want to have those issues heard in court.

Florida lawmakers are considering changing the State’s alimony law to eliminate automatic awards of permanent alimony and to take into consideration whether the person paying alimony can actually afford to make the payments. Here’s more from the Tampa Tribune:

By ELAINE SILVESTRINI | The Tampa Tribune
A year after making changes to the state’s alimony law, legislators are considering even more revisions that would ease requirements for those who have to pay.

A bill sponsored by a Polk County lawmaker would move the state away from automatically awarding permanent alimony after the end of long-term marriages and also require that the person who pays does not become significantly financially worse off than the person receiving alimony.

“There have been situations of men who I knew who were paying so much in alimony that it was keeping them from being able to live their lives,” said Rep. Kelli Stargel, R-Lakeland. “Some said they would be better off just to quit their job.

“We want to do things equitably and fairly.”

On Friday, the House Civil Justice Subcommittee unanimously approved Stargel’s bill requiring judges to ensure that those who pay alimony do not wind up with significantly less net income than those who receive it. A companion bill in the Senate has been referred to several committees, but has not yet had a vote.

The bill also would limit permanent alimony – which now ends only upon death or the remarriage of the person receiving it - in favor of alimony for a limited time.

Dennis Fuentes, 56, of Tampa thinks the bill is a good idea, but doesn’t go far enough.

Divorced since 2007 after a 27-year marriage, Fuentes says he’s appealing an order that he pay $2,000 a month in permanent alimony, even though his ex-wife had a job throughout their marriage, but stopped working during the divorce. At the time of the order, Fuentes said, he earned $66,000 a year.

“I understand my obligation to have to pay alimony, given a long-term marriage,” said Fuentes, a State Department contracting officer. “At the same time, there has to be an obligation on the part of the other party to continue to look for work.”

* * * * *

For Theodore Mahala, too, the proposed changes are welcome.

Mahala, 63, of Riverview, said he retired in 2009 as a utility worker because of medical problems, and his income dropped precipitously. But a judge refused to reduce his alimony payments to his former wife of 27 years, even though his ex has a good-paying job. Mahala said he divorced in 2003, and was ordered to pay permanent alimony.

“This (bill) will stop the easy payoff, this easy money these women are getting,” Mahala said.

Mahala said his annual income dropped from $65,000 to a little over $17,000, and that a judge told him he should get a part-time job to pay his $700 monthly alimony.

“By the time I pay her alimony and my mortgage, my money’s just about gone,” he said. “I don’t like living paycheck to paycheck, but I have to.”

Some legal experts, however, say judges in Florida do not usually set alimony so high that the payer becomes financially worse off than the receiver.

“It’s pretty rare that the courts will say we’re going to make you pay 80 percent of your income,” said Tampa attorney Joseph Hunt, who chairs the family law section of the Hillsborough County Bar Association.

When it happens, Hunt said, usually the judge has found that the alimony-payer is underemployed, and sometimes, that’s a choice the person makes in an attempt to avoid paying alimony.

Cynthia H. DeBose, who teaches family law at Stetson University, agreed. Sometimes, she said, judges will determine, based on work history, that an alimony payer should be making a certain amount, and will use that determination in calculating payments.

* * * * *

Stargel’s bill, and a companion in the Senate, also would limit the award of permanent alimony.

Now, the assumption in the law is that permanent alimony will be awarded when the marriage lasted more than 17 years. The shorter the marriage, the more likely a judge will award what is known as durational alimony, which ends after a set amount of time, but does not last longer than the marriage.

The proposed legislation would require judges awarding permanent alimony to determine first that no other form of alimony is adequate.

“I don’t think that’s a good change,” Hunt said. “I think it will encourage more litigation.”

He explained that under the current system, when the parties understand that the law requires permanent alimony, their legal disputes center on the amount. Under the proposed law, they would also have to fight over whether the alimony should be permanent.

Hunt said the 17-year mark was set in a law adopted last year. Before that, what was considered a long-term marriage varied around the state.

Before that law, the state also didn’t have the category of durational alimony, but did have what is known as “bridge-the-gap” alimony, which is designed to allow the person receiving the alimony to have financial support for up to two years after the divorce to bridge the gap between being married and single.

Under current law, durational alimony is not an option at the end of a long-term marriage, leaving permanent alimony the only option. Stargel’s bill would delete the portion of the law that provides for durational alimony only after short- or moderate-term marriages and require judges to consider it an option in any divorce.

Legislators, Hunt said, “didn’t give a lot of guidance to the courts in determining how long a durational award should be.” This is a problem that is not being addressed by the bills now moving through the Legislature, he said.

DeBose said the proposed changes could harm children.

“In a long-term marriage when the recipient spouse has been the homemaker and caretaker of children, giving them alimony for a short, durational period, isn’t going to be sufficient to place in them in a position to …be able to sustain themselves,” she said. “Child support alone isn’t necessarily enough to sustain the household.

“My concern is the effect, the trickle down effect on children in the household more than the affect it has on the adults in the former marriage.”

Lawmakers in Alabama are considering a bill that could change the way child custody is handled in divorce cases that are filed in that state.

It’s known as the 50-50 custody bill and could give equal custody and rights to divorcing parents during a custody battle.

That bill could require parents to get equal, joint custody if they can’t come up with their own agreement.

I wonder if this would work in New Jersey or Pennsylvania?

All couples eventually argue but, as we all know, there is a point when an argument becomes something more, a point where it can turn into Domestic Violence, as that term has been defined by the New Jersey legislature. Physical contact is not always necessary for there to be Domestic Violence. Instead, under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et. seq., the following non-physical/non-contact behavior can constitute Domestic Violence: terroristic threats; lewdness, burglary, stalking and harrasment.

The most common thing that leads to a Domestic Violence charge based upon non-physical behavior is harrasment. Unwanted phone calls or emails can easily lead one party to feel that someone is harrassing them. Under New Jersey law, a person commits harrasment when a person, “(a) makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; (b) subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or (c) engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Interestingly, New Jersey courts have held that parties who are engaged in a romantic relationship, in particular a marriage, are given some degree of latitude to engage in communication which in other situations would be deemed harrasment, if the party is engaging in the communication for the purpose of attempting to convince the other party to reconcile their romantic relationship. Also, it should be noted that the Domestic Violence statute is not meant to protect people from all offensive or coarse communication. Essentially, the New Jersey courts have realized that couples argue and that sometimes those arguments can become nasty. The trick is to determine when such heated arguments become Domestic Violence, and those determinations are made on a case-by-case basis.