Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If Alimony (or Child Support) Is Not Paid, May I Receive Attorneys Fees?

New Jersey courts place the utmost importance on child support and alimony. Alimony is about support and standard of living. It involves the quality of economic life that one spouse is entitled to, which becomes the obligation of the other spouse. As an established New Jersey divorce attorney, I know that New Jersey Statute 2A:34-23(b) sets the factors involved in determination whether alimony should be awarded. The most important purpose of New Jersey Statute 2A:34-23(b), is to give family law judges broad discretion and authority to order remedies on a case by case basis, which will achieve justice and satisfy the needs of the litigants. Any child support lawyer understands that it these funds are the right of the child, and is critical in the upbringing of a child of divorce. Child support payments provide for the child's food, clothing, childcare, housing, and education. The child support order may also include obligations to pay for health insurance and medical care, or even for lessons and other activities. Unfortunately, not every child is blessed with the best parents. All too often I have seen the stereotype of the dead beat dad bear its ugly face, and I have seen far too many situations where the parent without custody fails to make support payments that the child desperately needs. There is however a remedy for this. I have fought tooth and nail to utilize the New Jersey court system to enforce the rights of my clients. As an experienced New Jersey lawyer who specializes in family, I am well versed in how to make a non-paying spouse pay, and I know that non-payment of child support and alimony, and a refusal to communicate with the other spouse can have disastrous ramifications for the non-paying spouse and can even lead to a warrant for their arrest. Courts will enforce litigant’s rights to support payments, and higher courts will enforce the same in the interest of justice, equity, and the best interest of the child.

  In Tomasso-Addeo v. Addeo, ex-husband Eric Addeo, appealed from an order dated September 29, 2014. This order awarded his ex-wife, Deanna Tomasso-Addeo, counsel fees in the amount of $ 3445. These fees were sustained in a motion filed after the final judgment of divorce, and was to enforce her rights as agreed to under the marital settlement agreement.

Eric and Deanna were married in 1994, and they filed for divorce in 2013. During the course of the marriage they had one child together. Their final judgment of divorce incorporated a marital settlement agreement. Many couples decide to execute settlement agreements in an effort to quickly and cleanly resolve their divorce. These agreements can include provisions for property distribution, alimony, and child support payments. Settlement agreements are becoming increasingly more popular in the world of family. In a modern world were usualy both spouses are capable of earning income, it easier and usually more beneficial to agree upon alimony and child support arrangements in a voluntary and mutual agreement rather than to leave it in the hands of equitable distribution. I stress to all my clients the importance of being absolutely certain that they wish to be bound by the terms of these agreements for the foreseeable future. Many people do not understand that the provisions of a settlement agreement or consent order are binding by law, and the court will enforce them accordingly.

 This marital settlement agreement required Eric to pay Deanna child support in the amount of $ 500 every month, and alimony in the amount of $ 500 every month. Unfortunately, many months after the divorce, Deanna was forced to file a motion to enforce litigants rights and enforce numerous provisions of the marital settlement agreements, which included the child support and alimony provisions. Deanna further sought an award of counsel fees. A motion to enforce litigant’s rights is an application to the court for the purpose of getting the court to issue an order requiring the other party to comply with a previous order. To do so you must have obtained a judgment against the other party, and the other party must have failed to comply with the terms of the order. There are numerous steps in the process. First you must fill out a notice of motion to enforce litigant’s rights ad a certification in support of the same motion. You must also partially fill out an order to enforce litigant’s rights for the judge approve, and make 3 copies of all the completed forms. The next step is to mail the originals to the court with a $ 25 filing fee. You will then receive a motion date and time. After receiving a signed order to enforce litigant’s rights you must wait ten days, and if the other party still does not comply with the order, you can obtain a warrant for arrest.

The Family Part court of Somerset County conducted oral argument on September 26, 2014. After oral argument the Family Part court issued an order that required Eric to compensate Deanna for counsel fees in the amount of $ 3445. The Family Part had found that he violated Deanna’s rights by failing to abide by his support obligations as agreed to in the marital settlement agreement. Furthermore, the motion judge found that he had generally failed to pay his support obligations on time and had owed arrears consistently. He also refused to communicate with his ex-wife and owed her other costs as well. In a detailed written statement of reasons, the motion judge explained his decision, and included why he also awarded attorney’s fees to Deanna.

On appeal, Eric argued that the Family Part Judge did not consider that he was current on his arrears by the time of oral argument. The New Jersey Appellate Division started it opinion by explaining that counsel fees awarded in a family law or divorce case, depend on the discretion of the Family Part judge. According to the 2011 case of Barr v. Barr, the New Jersey Appellate Division will only change or revoke an award of attorney’s fees “only on the ‘rarest occasion,’ and then only because of clear abuse of discretion.” Moving on to Eric’s argument, the New Jersey Appellate Division found that the motion judge did in fact consider the status of the arrears. Actually, the motion judge reviewed the probation records, and discovered that Eric had a consistent pattern of late payments. The motion judge found that an award of counsel fees was fitting because of the late payment history, and other considerations. As such, the New Jersey Appellate Division found that there was no abuse of discretion on the part of the motion judge in awarding attorney’s fees. In analyzing the award of attorney’s fees, the motion judge correctly applied the standards written in New Jersey Statute 2A:34-23, and Rule 5:3-5(c). The motion judge stated that the award of attorney’s fees as predicated on Eric’s consistent failure to abide by his support obligations, and his refusal to communicate with his ex-wife.

Eric also contended that the motion judge was wrong in not bearing in mind his financial situation at the time of oral argument. Still, he acknowledged, however, that he had not submitted updated financial information. Therefore, the judge did in fact examine both parties’ financial circumstances as per the factual record, and the costs that Deanna had to incur in bringing the enforcement motion. Thus, the New Jersey Appellate Division appropriately considered the factual record when deciding the motion. Furthermore, every single one of the judge’s factual findings were sufficiently supported by the factual record.

Please connect with my office if you have an alimony or child support dispute.