As I New Jersey Divorce Attorney, I have been asked this question more times than I could possibly recall. However, the answer is almost always the same. First, I explain that procedurally we would have to file a post judgment motion to have the matter addressed by New Jersey Family Court. Then, I explain that before a court will grant a modification to a court order, or final judgment of divorce, the party seeking modification must establish a substantial change in circumstances that renders the enforceability of the original order, agreement, or judgment to be inequitable.
Last month I wrote a blog titled, “What can I do if I discover that my ex was hiding assets during our New Jersey divorce?” More recently while conducting research on this topic, I remembered a case I handled years ago as a New Jersey Divorce Attorney that is right on point.
I nice woman came to see me a few weeks following her divorce. She was quite emotional as she tried to explain how she was “screwed over” in her divorce (my office did not represent her in the divorce action). My first impression was that she was simply suffering from “buyer’s remorse” and was unhappy with her global divorce settlement. Also, when I heard that her ex-husband was already remarried, I inevitably wondered if she was bitter that he would remarry so quickly. However, as I pressed further for facts, the clouds suddenly began to clear.
I am proud to say that back when I opened my New Jersey Divorce Law Firm back in 1996, I was one of the first lawyers in the country who understood that the Internet would be revolutionary. Therefore, I have represented clients not only all over the United States of America but also internationally for nearly 20 years. As a experienced New Jersey Divorce Attorney with an understanding of technology, I have enhanced many of my client’s “parenting time” with their children. Now, with the advent of Skype and Apple’s Face Time I fight for language in our New Jersey Custody agreements even when the parties live in N.J.
In 1988, New Jersey joined with other states in passing the Uniform Premarital Agreement Act. The purpose of the act was and still is simply to govern the law of Prenuptial Agreements (i.e. prenups). Since our state adopted the act, the amount of prenups drafted has steadily increased. At Law Offices of Edward R. Weinstein, we are here to help ensure safety of your assets upon a divorce by assisting you in understanding the value of entering into a prenuptial agreement.
What is a premarital agreement? 37:2-32
A prenup is an agreement between potential spouses made in consideration of marriage and effective upon the marriage itself. The subject matter of a prenup usually varies from agreement to agreement; however, it is extremely common that the agreement will include provisions for division of property and child/spousal support in the event of a divorce. The purpose of entering into a prenup before marriage is to ensure that whatever assets you enter the marriage with; you also leave the marriage with.
What formalities are required when drafting a premarital agreement? 37:2-33
When drafting a prenup, the agreement must be documented in writing. If terms and conditions of the prenup are only verbally agreed upon, they are considered invalid. In addition to the prenup agreement itself, a statement of each spouse’s assets must be attached prior to the marriage to ensure that those assets remain with the respective spouse. Another required formality of a is that both spouses must sign the agreement and the agreement must have attached to it a list of both parties assets and liabilities. prior to the marriage. If the agreement is not signed in writing by each spouse, it is considered invalid and unenforceable. Both parties are highly advised to have New Jersey Family Lawyers and the Agreement should be finalized as far before the actual wedding date as possible.
What are the contents that go into a premarital agreement? 37:2-34
Pursuant to section 34 of the Uniform Premarital Agreement Act, spouses about to enter into a prenup may contract with respect to the following areas:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
4. The modification or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of public policy.
Will entering into a premarital agreement affect the right of child support? 37:2-35
If you and your spouse decide to enter into a prenup, the agreement will not adversely affect the right of child support should you file for a divorce.
When does the premarital agreement become effective? 37:2-36
A premarital agreement becomes effective as soon as you and your spouse are legally married.
Can my spouse and I make changes to our premarital agreement once we are married? 37:2-37
Once you and your spouse are lawfully married, it is possible to amend your prenup. If you choose to make any changes, all changes must be recorded in writing. Additionally, each party must sign the amended agreement, acknowledging the new additions to the asset list or initial provisions.
When will a premarital agreement be unenforceable? 37:2-38
Pursuant to section 38 of the Uniform Premarital Agreement Act, a prenup agreement will be unenforceable if the party seeking to set aside the prenup proves one of the following:
1. The party executed the agreement unwillingly;
2. The agreement was unjust at the time the enforcement was sought; or
3. That party, before execution of the agreement:
a. Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
d. Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel
Additionally, if the marriage is found to be fraudulent or void for some other reason, the prenup agreement is only enforceable to the extent required to avoid an unjust outcome.
Needless to say as a New Jersey Divorce Attorney, emergent matters arise all too often. Recently, I wrote a piece called, “What is a Motion in a New Jersey Family Law Case.” This article shall discuss “emergency motions,” which in a courtroom is known as an Order to Show Cause.
I often explain to my clients that an Order to Show Cause shall typically be addressed in a matter of days, as opposed to a Motion takes numerous weeks before it is to be heard by the Court. While each and every client’s situation is urgent and important, I politely explain that in Family Court a true emergency that would most likely cause immediate and “irreparable harm” to a child or the client. A typical example is kidnapping and/or removal of a child out of the country or the state of New Jersey.
I was recently hired on a new matter where just 6 months after the divorce was finalized, my client found out that his ex-wife had a meth lab in her home, which exploded and one of the children suffered burns. Within 24 hours my office secured an Order to Show Cause granting my client temporary sole custody pending a full hearing in a few weeks. The children are safe, my client is relived and I am proud of a job well done. Please read on to learn more about how an Order to Show Cause works in New Jersey Family Law cases.
While an action is pending, it is possible to apply for either a temporary restraint or an interlocutory injunction. If you apply for either of the two, you must apply by motion or by order to show cause pursuant to Rule 4:52-2. The procedure for applying for these is significant to note and is laid out in Rule 4:52-1, which is reproduced below.
Rule 4:52-1 Temporary Restraint and Interlocutory Injunction—Application on Filing of Complaint
- (a) Order to Show Cause With Temporary Restraints. On the filing of a complaint seeking injunctive relief, the plaintiff may apply for an order requiring the defendant to show cause why an interlocutory injunction should not be granted pending the disposition of the action. The proceedings shall be recorded verbatim provided that the application is made at a time and place where a reporter or sound recording device is available. The order to show cause shall not, however, include any temporary restraints or other interim relief unless the defendant has either been given notice of the application or consents thereto or it appears from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon. If the order to show cause includes temporary restraints or other interim relief and was issued without notice to the defendant, provision shall be made therein that the defendant shall have leave to move for the dissolution or modification of the restraint on 2 days’ notice or on such other notice as the court fixes in the order. The order may further provide for the continuation of the restraint until the further order of the court and shall be returnable within such time after its entry as the court fixes but not exceeding 35 days after the date of its issuance, unless within such time the court on good cause shown extends the time for a like period or unless the defendant consents to an extension for a longer period. The order to show cause may be in the form in Appendices XII-G and -H to the extent applicable.
- (b) Order to Show Cause as Process Service. If the order to show cause issues upon the filing of the complaint, no summons shall issue in the action if the order contains the name and address of plaintiff’s attorney, if any, otherwise plaintiff’s address; the time within which defendant shall serve and file an answer upon plaintiff or plaintiff’s attorney as provided by these rules; and a notice to defendant that upon failure to so file and serve an answer, judgment by default may be rendered against the defendant for the relief demanded in the complaint. The order shall be served upon defendant together with a copy of the complaint and any supporting affidavits at least 10 days before the return date and in the manner prescribed by R. 4:4-3 and 4:4-4 for service of summons, unless the court orders a shorter or longer time or other manner of service.
- (c) Hearing Briefs. Oral testimony may be taken in the court’s discretion on the return date of the order to show cause and on the return date of defendant
It is good practice to notify the opposing party of the nature of the relief being sought by way of order to show cause. A majority of Family Court judges will necessitate that you call and speak directly with their law clerks in order to advise them too of the nature of the relief being sought. Furthermore, most judges will consider the Order to Show Cause within a day and then schedule a return date within a week when the court will conduct a hearing, sometimes sooner if the relief sought is because of an emergency. Attached to the Order to Show Cause should be a brief stating the immediate and irreparable harm that will result if the court does not grant the requested relief.
Orders to Show Cause as Original Process
The Appendix to the Court Rules provides model forms for use when filing an Order to Show Cause as original process. Included in any Order to Show Cause are the following elements:
Model Form number one is for use when Rule 4:67 or Rule 5:4-3 permits summary relief.
Rule 4:67 Summary Actions; please visit http://www.judiciary.state.nj.us/rules/r4-67.htm to see all of the provisions of the rule
Rule 5:4-3 Answer, Acknowledgment, Appearance
- (a) Generally. Except as otherwise provided by paragraph (b) hereof or by any other rule or statute, a defendant in a family action shall file an answer in accordance with R. 4:5-3 or a general appearance and, without filing an answer, be heard on issues of custody of children, parenting time or visitation, alimony, child support, equitable distribution, counsel fees and other issues incidental to the proceeding. A defendant may also file an acknowledgment of service in accordance with R. 4:4-6.
- (b) Summary Actions. In summary family actions in which the process fixes a return day, the defendant need not file an answer, appearance or acknowledgment in order to be heard if the defendant appears on the return day.
Model Form number two is used when immediate relief is required due to difficult circumstances and awaiting the return date will cause immediate and irreparable harm. The order can provide relief pending the return date, pursuant to Rule 4:52.
Rule 4:52 Injunctions; please visit http://www.judiciary.state.nj.us/rules/r4-52.htm to see all of the provisions of the rule
Preliminary Injunction on Return Date
Model Form three is the form used when immediate and irreparable harm might occur due to waiting for a typical motion. No relief is sought prior to the return date, pursuant to Rule 4:52.
Rule 4:52 Injunctions; please visit http://www.judiciary.state.nj.us/rules/r4-52.htm to see all of the provisions of the rule
The leading case illustrating this legal provision is Crowe v. DeGioia, 90 N.J. 126 (1982). The court held that preliminary injunctions are only to be used to restore irreparable harm. The court furthered reasoned that harm is not irreparable if “money damages will offer a remedy except in circumstances of severe personal inconvenience.”
Pendente Lite Orders to Show Cause
Once the complaint has been served on the opposing party, the forms of Order to Show Cause do not necessarily have to conform to the model forms for original process.
Please contact my office if you or a loved one faces an emergency in your family at (732) 246-0909 or [email protected]
As a New Jersey child support attorney for the past 20 years, I have noticed a tremendous increase in people who are on either state of federal disability. Therefore, as a cutting edge New Jersey family lawyer, I determined it would be a good time to share how disability income may affect a parent’s New Jersey child support payments. Let’s explore.
Everybody has heard of supplemental social security income and social security disability. Yet, what most people do not know is that the two are quite distinct in nature. Particularly, the two types of disability income differ when it comes to their impact on child support payments. Let’s explore.
What is the difference between supplemental security income and social security disability in the first place?
Supplemental security income is a means tested government benefit. In other words, it is meant to provide impoverished disabled people with a supplemental form of resources and income. This type of security income is not meant to replace income lost by a disabled person because he or she is unable to perform on the job. Rather, the supplemental security income is just additional help for the people who need it most.
On the other hand, social security disability is a non-means tested government benefit. That means that the income of the disabled person is not the sole determinant to see if one is entitled to the extra help from the government. Social security disability primarily differs from supplemental security income because it is funded from payroll deductions and replaces income lost by a disabled person because he or she is unable to perform on the job.
Who qualifies for these types of disability income?
To be eligible for either of the types of disability income, one must first be deemed “disabled” by the government. Pursuant to 20 C.F.R. §404.1505, disability is “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy.”
How does supplemental security income affect child support?
Supplemental security income is simply additional income that disabled people may qualify for. However, it is not considered income when determining child support payments. The leading case that illustrates this is Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004). In Burns, the issue presented was whether supplemental security income should be counted as income when determining child support payments if the benefits were the disabled parent’s primary source of support and income could not be credited to the parent.
The court held that since the father’s primary source of income and support was supplement security income, he should not have to pay child support because he would then have no additional money to live off of. Furthermore, the court found that “a child support order may be entered against a parent who is a supplemental security income recipient where it is determined that the parent is earning or has the ability to earn additional income.” Id at 50.
How does social security disability affect child support?
Social security disability is a replacement for lost income by disabled people. Therefore, it is counted as gross income under the NJ Child Support Guidelines. It is important to note that if you are receiving social security disability, your child may too be eligible to receive benefits as well. If this is the case, the social security disability benefits will be subtracted from the payor parent’s child support payments.
Currently, there are three leading cases on this topic. The first is Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998). In Herd, the court held that since the child was receiving social security disability benefits because of a disabled parent, the amount of child support to be paid should be reduced. Since the child was receiving additional benefits from the government in this form, it was only fair and equitable to reduce the child support payments being paid by the non-custodial, non-disabled parent.
In the second case, Sheren v. Moseley, 322 N.J. Super. 338 (App. Div. 1999), the father’s child support payments for his two kids was $75 a week. However, after the divorce he suffered from medical disability and could not go to work, resulting in failure to pay his support obligations for his kids. A post-judgment order revealed that his child support arrearage was $5667.82 as of January 1, 1995. Id at 340. Over two years later, the father was granted retroactive children’s benefits totaling $8952, which was immediately sent to the kids’ mom. The court held that “the father was entitled to a $5667.82 credit against the arrearages that accrued during the period of his disability, but not entitled to a credit against his future child support payments when he was no longer disabled.”
The last leading and most recent case that addresses this issue is Diehl v. Diehl, 389 N.J. Super443 (App. Div. 2006). The Diehl court held that when a child receives a lump sum payment benefit because his or her parent is receiving social security disability, the parent can only be credited for the amount of time he or she was responsible to pay child support and for that specific amount. The court stated “absent a special showing of inequity under the circumstances, an obligor should be credited with a retroactive payment of social security disability benefits that do not exceed the obligor’s support obligation during the benefit period.” Id at 450.
If you or a loved one is on disability and either pays or receives disability income, please do not ever hesitate to contact my office.