Over the past 20 years practicing divorce law here in New Jersey, myself and my associate attorneys have handled many cases in which the defendant failed to respond to the Complaint for Divorce my law firm had filed on our client’s behalf. We must then provide Proof of Service to the Family Court. Upon doing so, a lawyer may then proceed with obtaining a divorce by way of a default hearing. However, 20 days before that hearing, the Defendant must once again be served, this time with a Notice of Proposed Final Judgment and Equitable Distribution.
This document allows the Plaintiff and their attorney to address all outstanding issues of the marriage. In sum, anything that may affect the children, ranging from custody, parenting time, child support, medical and life insurance, to name a few. With respect to finances, all assets and liabilities must be accounted for and equitably divided between the parties. Ultimately, a Judge of a New Jersey Family Court must approve the Notice of Proposed Final Judgment and Equitable Distribution, and then will finalize the divorce.
Now, clearly the spouse who filed the Complaint for Divorce, though their lawyer, is dictating the terms of the ultimate divorce. Therefore, if you are ever served with a Notice of Proposed Final Judgment and Equitable Distribution, it is essential that you immediately contact my office before the default hearing date. Otherwise, it is highly likely you will ever get another chance to have your voice heard in the Superior Court of New Jersey.
Following, please find a draft Notice of Proposed Final Judgment and Equitable Distribution which shall enhance your knowledge of the magnitude of this essential document:
East Brunswick, New Jersey 08816
Attorneys for Plaintiff
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION – FAMILY PART MIDDLESEX COUNTY
DOCKET NO. FM-12-2544-14D
NOTICE OF PROPOSED FINAL
JUDGMENT AND EQUITABLE
DISTRIBUTION PURSUANT TO
R . 5:5-10.
TO: Clerk, Superior Court of New Jersey
Chancery Division/Family Part
PLEASE TAKE NOTICE that in accordance with Court Rule 5:5-10 a Final Judgment Hearing date is scheduled for ______________before the Honorable _____________ J.S.C., at 9:00 a.m. at the __________________ Superior Court, _________________, ______________, New Jersey _________, at which time Plaintiff shall seek a Final Judgment consistent with this Notice of Equitable Distribution. This notice can be examined by the Defendant during normal business hours at the Family Division Managers Office in __________________ at the address listed above, where the notice has been filed. Attached hereto and made a part hereof is the Plaintiff’s Case Information Statement which is being filed simultaneously herewith.
The parties were married on ______________. The Plaintiff filed a Complaint for Divorce on _____________________, pursuant to N.J.S.A. 2A:34-2(i). (Please see the Complaint for Divorce attached hereto as Exhibit “A”). Service of the Complaint was effectuated on the Defendant on __________________. (Please see the Affidavit of Service attached hereto as Exhibit “B”). No response was filed by or on behalf of the Defendant. The Plaintiff’s Request to Enter Default and Certification was filed with the Court on __________________. (Please see the Request to Enter Default attached hereto as Exhibit “C”).
The Plaintiff’s Case Information Statement is attached hereto as Exhibit “D” and is being filed with the Court simultaneously with this Notice of Proposed Final Judgment and Equitable Distribution. To date, the Defendant has never submitted a Case Information Statement.
The Plaintiff is _______ years old and the Defendant is __________ years old. The Plaintiff currently resides at _____________________________________ and the Defendant currently resides at ________________________________________. The parties have been married for approximately __________ years.
(Number of children) were born of the parties’ marriage, to wit: ________________________. ________________currently reside with the Plaintiff and Defendant.
The Plaintiff currently earns approximately __________ per year working for __________________________ while the Defendant’s present employer ________________________ and income is unknown.
Defendant has not provided Plaintiff with a Case Information Statement, nor any form of discovery in this matter. The parties have never co-mingled their assets with the exception of a single savings account and custodial accounts for their children.
The following are the issues to be resolved at the Final Judgment Hearing and the relief sought by the Plaintiff:
1. Custody: As stated above, _____ children were born of the parties’ marriage, to wit: _____________________________________. The children reside with the Plaintiff, and Plaintiff has been their primary caregiver. There are no prior Court Orders with regard to custody of the children. It is the Plaintiff’s position that the parties share joint legal custody of the children, with Plaintiff designated as Parent of Primary Residence.
The parties currently continue to reside in the marital residence, despite having not lived as a married couple for over two years. Therefore, there is no current parenting time arrangement.
However, Plaintiff recognizes the bond that the Defendant shares with the children and therefore proposes the following parenting time schedule for the defendant with the agreement that should he request more time than stated below, she will work with Defendant to accommodate that request.
It is Plaintiff’s position that the parties have been able to maintain a flexible and liberal parenting time schedule with the children which accounts for Defendant’s work schedule during football season, as well as the children’s schedules. Accordingly, Plaintiff proposes that the parties continue to do so.
However, it is also Plaintiff’s position that any overnight parenting time be conditioned upon the following living arrangements of the Defendant:
· That the Defendant provide proof of appropriate living accommodations for the children prior to exercising any overnight parenting time.
· That the Defendant continue to reside within a 1 hour travel distance to the Plaintiff. In the event the Defendant relocates to a different residence, then this shall make the above parenting time schedule subject to review.
· That Defendant does not allow the children to have overnights at his parent’s residence or any other family member with the exception of ______________________ which are the Defendant’s _______________________.
With regard to Holiday’s it is Plaintiff’s position that she have the children every year on Three Kings day and Easter, as has been the status quo. Furthermore, she shall have the children on Christmas Eve, overnight into Christmas morning every year, and Defendant shall have the children on Christmas day every year. Defendant shall have the children every year on Thanksgiving. The parties shall alternate all other holidays.
2. Child Support:
Plaintiff waives her right to receive alimony on behalf of the children. There is currently no child support order in effect. Unfortunately the Plaintiff is unaware of Defendant’s current income. It is Plaintiff’s belief that Defendant has significant unreported income. Attached hereto as Exhibit “E” are child support guidelines in the amount of ___________per week reflecting the Plaintiff’s income of ___________ as well as her contribution toward the health insurance on behalf of the children, and Defendant’s imputed income of $___________.
However, given the fact that this is an above-guidelines case based upon Plaintiff’s income along, as well as application of the Weunch-Deffler rule and thus a reduction of the child support for “controlled expenses”, the child support would be minimal, and therefore the Plaintiff waives any right to receive child support, thus assuming full responsibility for their expenses.
Plaintiff reserves the right to have the child support guidelines reviewed in the event of changed circumstances. In the event Defendant has an obligation to pay child support in the future, his obligation to make payments for the support and maintenance of the shall terminate for each child as said child is emancipated, which shall be defined and deemed to occur at the earliest happening of the following events:
A. Reaching the age of eighteen (18) years (unless the child is legally not able to be emancipated due to his mental and/or physical condition as determined by a court of competent jurisdiction) or if the child attends college, completion of his undergraduate education, provided that the child does not continue said child’s education into a post-graduate program of study. For the purpose of this paragraph, a child shall not be defined as emancipated if said child attends a post-secondary undergraduate institution with no more than a one year gap and maintaining at least twelve (12) credit hours per semester, or interruption of said college education for an unjustifiable cause, or completion of technical or vocational school, or community college, whichever last occurs. In the event that a child enrolls in a curriculum of post-graduate study, the parties agree to application of the law then in effect to determine whether or not the child shall be deemed emancipated at such time in the future;
B. Marriage of the child, even though such marriage may be void or voidable and despite any annulment thereof;
C. Permanent residence away from the residence of the Wife, the primary caretaker. Residence at boarding school, camp or college shall not be deemed to be a residence away from the residence of the primary caretaker, and thus shall not be deemed an emancipation event;
E. Entry into the Armed Forces of the United States, whether voluntary or involuntary;
F. Engaging in full-time employment upon or after the attainment of the child of eighteen (18) years of age, except that (1) engaging by the child in partial employment shall not be deemed emancipation and (2) engaging by the child in full-time employment during vacation and summer periods shall not be deemed emancipation.
3. Life Insurance
It is Plaintiff’s position that Defendant shall be obligated to procure and maintain a life insurance policy upon his life in the amount of _________________ irrevocably naming the minor children as equal beneficiaries, with Plaintiff as trustee in order to secure his child support obligation in the event of death and in the event of a future obligation. The Defendant shall maintain all premiums for this insurance and shall annually provide the Plaintiff with proof that this insurance remains in force and that the beneficiary designation remains as required. The Defendant’s obligation to maintain this insurance shall terminate with the emancipation of the child.
Plaintiff agrees to maintain her existing life insurance policy held with _______________ in the amount of ___________ irrevocably naming the minor children as equal beneficiaries, with Defendant’s _________________________ named as trustees in order to secure her child support obligation in the event of death. Plaintiff has significant concerns of the Defendant acting as Trustee of this policy for the benefit of the children as Defendant has made unilateral withdrawals from the children’s custodial accounts in the past, without consulting the Plaintiff, and for purposes other than the benefit of the children. The Plaintiff shall maintain all premiums for this insurance and shall annually provide the Defendant with proof that this insurance remains in force and that the beneficiary designation remains as required. The Plaintiff’s obligation to maintain this insurance shall terminate with the emancipation of the child.
4. Medical Insurance and Unreimbursed Medical Expenses
Plaintiff shall continue to provide medical insurance for the children through her employment. Her contribution toward same shall be factored into the New Jersey Child Support Guidelines in the event of a future obligation. The parties shall share the cost of all unreimbursed medical expenses in accordance with their respective percentage obligation pursuant to Line 7 of the Child Support Guidelines, with Defendant paying 33% and Plaintiff paying 77% after the Plaintiff pays the first $250 per child, per year.
3. Summer Camp and Extracurricular Activities
It is the Plaintiff’s position that the parties shall discuss summer camp options and upon consultation and agreement between the parties, the parties shall share said expenses; with the Plaintiff being responsible for 77% of said expense and the Defendant being responsible for 33% of said expense. The percentage allocation of summer camp and extracurricular activity expenses referenced herein shall be tied to Line 7 of the child support guidelines attached hereto and shall be modified should there be any future modification to child support.
The parties shall discuss the child’s extracurricular activities, as well as the necessity of tutors, and upon agreement, the parties shall share said expense; with the Defendant being responsible for 33% of said expense and the Plaintiff being responsible for 7% of said expense. The percentage allocation of unreimbursed summer camp/extracurricular expenses referenced herein shall be tied to Line 7 of the child support guidelines and shall be modified should there be any future modification to child support.
4. College Contribution
It is Plaintiff’s position that the parties’ respective contributions towards the child’s college related expenses shall abide the event based upon the then existing financial circumstances, taking into consideration their respective incomes at that time, assets, and liabilities as well as the earnings of the child. The child shall be responsible to apply for all available financial aid, which shall include grants, scholarships and Federal Stafford subsidized and unsubsidized loans. The parties shall cooperate to ensure that all required complete and accurate information, financial or otherwise is timely provided to enable the child to apply for financial aid. The parties’ respective contributions to any out-of-pocket college expenses shall be determined consistent with applicable New Jersey case law at the relevant time.
College related expenses shall be defined to include but not be limited to: tuition, room, board, school fees, books, application fees, and reasonable travel to and from college to the residence of the child.
Each party shall be entitled to visit a school, college, or university with a child during the selection process. Each party shall be permitted to attend any open house which may occur. Both parents are to have input into the college selection process. It is further agreed between the parties that college shall be deemed to include junior college, trade school, or the like.
5. Work Related Child Care:
Currently, the children attend after care on days which neither party is available to retrieve them from school at the end of the school day. Plaintiff has historically paid this expense and therefore agrees to continue to be responsible for this expense. However, in the event the children need to attend any other form of work-related child care that is not comparable to the current expense associated with aftercare, it is Plaintiff’s position that the parties shall share in this expense with the Defendant being responsible for 33% of said expense and the Plaintiff being responsible for 77% of said expense. The percentage allocation of work-related day care expenses referenced herein shall be tied to Line 7 of the child support guidelines and shall be modified should there be any future modification to child support. It is Plaintiff’s position that this expense shall be paid directly to the care-giver by each party.
5. Alimony: It is the Plaintiff’s position that there be a permanent and mutual waiver of alimony.
6. Medical Insurance of the Parties: The Plaintiff currently has medical insurance for herself and the children. The Defendant is uncovered. Upon Final Judgment of Divorce, each party shall be solely responsible for and provide for his or her own medical insurance and shall be solely responsible for the payment of his or her own medical, dental and prescription drug expenses.
7. Real Property: The parties’ formerly resided at ___________________________. In ___________, the parties jointly decided they were going to sell the house and separate. The house was sold and the proceeds of same were utilized to pay off a Home Equity Line of Credit that the parties had taken out to fund the Defendant’s start-up inflatable moon-bounce business, which was ultimately unsuccessful. The proceeds were also utilized to pay off an additional HELOC which was used to purchase Defendant’s vehicle. Thereafter, the Plaintiff purchased a home with exempt funds. The home is deeded in her name exclusively, and the mortgage is also held in her name alone. This residence is located at ____________________________. The value of the home is approximately $______with a mortgage balance of $__________.
It is Plaintiff’s position that she shall maintain the residence and all of the furnishings contained in same with the exception of the list outlined and attached hereto as Exhibit “G”. She shall retain same free and clear of any claim by Defendant, now or in the future. Plaintiff shall similarly hold Defendant harmless against any claims or liabilities attaching to the residence and assumes sole responsibility for same.
8. Bank Accounts: The parties have always maintained separate accounts. The parties have only one joint account which is a savings account with ________________ Bank with a balance of approximately $_________ It is Plaintiff’s position that the balance of this account be equally distributed.
Defendant has failed to disclose any information with regard to his separate accounts. It is Plaintiff’s position that each party retain any and all accounts held in their respective name.
The parties have two custodial accounts in their daughters names: (___________________) Plaintiff is the custodian of these accounts. It is Plaintiff’s position that these accounts shall remain for the benefit of the children.
9. Stock Accounts: Plaintiff has a stock account in her name which was granted by her former employer as employee compensation. The balance of this account is approximately $___________. It is Plaintiff’s position that she retain this account and convert it to a custodial account for the benefit of the children with Plaintiff as Trustee.
10. Automobiles: The Plaintiff is in possession of a ______ which is leased by her company. The Defendant was in possession of a _________ which is also paid in full. It is Plaintiff’s position that she retain this vehicle free and clear of any claim by the Defendant, and that she shall continue to be responsible for all expenses associated with same, including insurance, registration, maintenance, and any and all other costs associated with the vehicle. It is Plaintiff’s position that Defendant retain this vehicle free and clear of any claim by the Plaintiff, and that he shall continue to be responsible for all expenses associated with same, including insurance, registration, maintenance, and any and all other costs associated with the vehicle..
11. Retirement Plans: The Plaintiff has a SEP IRA valued at approximately $___________________. Plaintiff is aware that the Defendant has a 401K however is unaware of the balance. Further, Plaintiff is aware that Defendant’s parents established a retirement account in his name but is unaware of the balance of same. Additionally, Defendant has a pension through his HVAC union, but she is unaware of the balance of same. As the Defendant has failed to provide a Case Information Statement or any response in this litigation, it is Plaintiff’s position that the parties shall maintain sole possession of their respective retirement accounts.
A. Credit Cards
The parties have no joint credit cards. It is Plaintiff’s position that each party shall be responsible for any credit cards held in their respective names.
The Plaintiff has a business known as ________ which is a _____________ Business. It is the Plaintiff’s position that she retain the business free and clear of any claims by the Husband. The Plaintiff was not only the primary caretaker of the children, but also ran her business and was the sole contributor to its success. It is Plaintiff’s position that Defendant’s behavior during the marriage was a hindrance as opposed to an asset of her business success.
14. Taxes: The plaintiff filed joint tax returns for the _____ tax year. The parties shall file separate tax returns for _______ and all subsequent years. It is Plaintiff’s position that until such time as Defendant proves an income and therefore that he would benefit from a dependency deduction, Plaintiff shall claim both children as dependants.
15. Counsel Fees: Each party is responsible for their own counsel fees and costs.
LAW OFFICE OF EDWARD R. WEINSTEIN, L.L.C.
Attorneys for Plaintiff
EDWARD R WEINSTEIN, ESQ.