Don’t Pay Your Lawyer For This

By: Alexandra K. Rigden, Esq.

Law is a business. So, this blog is actually against my financial interests because I am here to tell you what you should NOT pay your family law attorney to do:

  1. Referee day-to-day, ordinary parenting disputes: Fighting through lawyers over day-to-day, ordinary parenting disputes, can come with a high price tag, both emotionally and financially. When I say “day-to-day, ordinary parenting disputes”, I’m talking about, for example, mom feeding the kids non-organic instead of organic hot dogs; dad returning the children a few minutes late from parenting time; objections by one parent to other parent getting the child a haircut without prior consent—the list goes on and on. Parents will have to co-parent with each other long after the lawyers are gone. Sending the message during the litigation that day-to-day parenting decisions cannot be navigated without lawyers engenders acrimony and unnecessary fees. To the extent possible, parents should pick up the phone and try to figure it out.
  1. Act as your therapist: In the course of family law representation, I learn a lot about a client’s life. I may learn why their marriage broke up, why their kids are estranged from them, how their new relationship is going, how much they earn, and other personal—sometimes very personal—facts. Naturally, conversations transition from facts to feelings. As much as I do enjoy getting to know clients and understand the very human element to family law, I am a counselor at law, not a counselor at life. Moreover, in comparing hourly rates, most family lawyers are more expensive than therapists.
  1. Fight about ordinary personal property: I’m not talking about a Van Gogh painting or a Cartier watch…those items may well be worth the fight. I’m talking about tables, chairs, bed frames, mattresses, pots, pans…ordinary household items. Once these items were brought home they drastically depreciated in value. Your five-year-old mattress isn’t going to have much, or any, value on the open market. Paying lawyers to fight over ordinary personal property is not a wise use of your money.

4. Advise you about taxes and finances: I am not an accountant nor am I a financial advisor. Tax returns, tax issues, and finances are a daily part of a matrimonial practice. But, simply because a client’s finances are part of the equation, does not mean that a family lawyer is qualified to offer advice on them.

What is “full custody”??

By reading the title of this blog, you probably expected me to have an answer to that question. If I had a dime for every time I heard potential clients talk about “full custody”, I would be retired on an island and not writing this blog.

I often hear some variation of the following: I want full custody; I am afraid my spouse/significant other will fight for full custody; my friend got full custody; can I get full custody? But, to family lawyers, the term “full custody” does not mean anything specific.

In New Jersey, there are two main types of custody and “full” is not one of them: legal (sole or joint) and physical (sole or joint). Joint legal custody shared by two parents allows them to have decision-making power and input over a child’s health, education, and welfare. A legal custodian is entitled to health and educational information for the child. It is possible for a parent to have joint legal custody, but not be involved in the child’s life in a meaningful way. In fact, it is very rare in New Jersey for one parent to have sole legal custody, which means they have sole decision making power over the child’s health, education, and welfare to the exclusion of the other parent.

Physical custody, as opposed to legal custody, is the amount of time a child actually spends with a parent. “Joint” or “shared” custody means that the parents equally share the child 50/50. Sole physical custody can mean that the non-custodial parent either has “parenting time” with the child or no parenting time at all.

When I hear that a client wants “full custody”, my initial question is, do you really want sole legal and sole physical custody? Do you truly not want the other parent to have any contact with the child or any say in his/her upbringing? The vast majority of the time, the answer is, of course, no; that parent generally does want the other parent involved in the child’s life. Essentially, by “full custody”, that parent generally means he/she wants the child to live primarily with him/her and spend less physical time with the other parent.

The situations where a parent truly wants “full custody” (which can, realistically, only mean sole legal and sole physical custody) are few and far between. Even more rare is a Court actually imposing such restrictions.

Debt to Society and to Children

A child support obligation is subject to review by a court when there is a change in the obligor’s financial circumstances. One may be surprised to learn, however, that this is true even when the change in financial circumstances is self-created by an obligor committing a crime that results in a prison sentence. If an incarcerated child support obligor can barely afford a snack at the commissary, it is the child who will financially suffer. A prison sentence is not an automatic get-out-of-jail-free card to avoid paying child support. But, upon a Motion filed by an inmate, a court can suspend or ‘arrest’ a child support obligation pending the inmate-obligor’s release from prison.

In Halliwell v. Halliwell, 326 N.J. Super. 442, 741 (App.Div.1999), the Appellate Division held that although an inmate’s incarceration may be the result of choosing to commit a crime, he or she may still be entitled to a suspension of child support pending release from prison. The Court found that an inmate has no ability to rectify his or her financial situation and earn more money, unlike an obligor who is voluntarily unemployed or underemployed. The Halliwell Court viewed incarceration in common with a long-term disability that prevents an obligor from earning income rather than as a voluntary reduction in income that can be rectified. Procedurally, the Halliwell Court found that in cases where a child support obligor has been sentenced to a lengthy period of incarceration and has no assets, a Motion to modify their support obligation should be heard after their release. At that point, the Motion would be considered after the parties submitted updated financial information. A court could then enter an order retroactive to the filing date of the Motion to determine a current support order and arrearage payment, based on the obligor’s financial ability.

In another Appellate Division case of Kuron v. Hamilton, 331 N.J. Super. 561 (App. Div. 2000), the Court confirmed what was already evident, that an inmate’s request to suspend a child support obligation must be determined on a case-by-case basis. That determination includes not only whether to suspend an obligation, but also whether or to what extent arrears will accrue; the accrual of arrears during a prison sentence may be one of the biggest issues such cases. The accrual of arrears during a long-term sentence may result in the inmate being saddled with nearly insurmountable debt upon release. So, after repaying the debt to society, he or she may have substantial child support debt to repay as well.

The real financial victim in these cases is the child, who either does not receive child support during a parent’s prison stay, or may not receive it at all for the time period of the parent’s prison sentence.

Alexandra Ridgen, Esq.

Will the emancipation statute affect New Jersey child support?

Recently, New Jersey Governor Chris Christie signed a bill into law that is commonly referred to as the emancipation statute. This new statute may have a significant impact on when and how your child support order will terminate. Due to the effects it may have on your situation, it behooves you to understand the changes made by the new law so that you are prepared.

Currently, most child support orders terminate on a child’s 18th birthday. This is generally the case unless the order specifies otherwise. Under the new law, child support orders will be extended and will instead terminate on a child’s 19th birthday. It will be applicable to those orders that are issued before and after the new law takes effect on February 1, 2017.

The new law specifies that child support orders should terminate automatically when a child turns 19-years-old, except under certain circumstances. Support orders may be extended in situations when the child who is receiving support is placed outside of the home by the Department of Children and Families. Additionally, the court may grant extensions in some cases if the custodial parent requests a continuation before the child’s 19th birthday. Child support orders also terminate automatically on the day a child enters into military service, gets married or dies.

Child support obligations may be extended in situations when the court orders stipulate an alternative age for termination. This may occur if your child is still in high school, is disabled, is attending a full-time vocational school or college, or if you and your child’s other parent reached an alternative arrangement on your own. The age for such extensions, however, is capped at 23-years-old.

This post has provided an overview of New Jersey’s new emancipation statute. However, you should keep in mind that each situation is unique. Therefore, you should take this post only as general information and not as legal advice.

How is child support enforced in New Jersey?

If you and your child’s other parent are raising your child apart, a New Jersey family law court may have granted you a child support award. Should your child’s other parent fail to make his or her payments, it may make it place an unnecessary burden on you, and affect your ability to care and provide for your child. However, the state has a number of options available for enforcing such orders.

When a parent neglects to make his or her child support payments, it could result in serious legal issues. For instance, falling behind may result in an enforcement hearing being scheduled by the state’s Probation Child Support Enforcement Unit. As formal court hearing, you and your child’s other parent may be called upon to provide sworn testimony before a hearing officer or a judge.

In some cases, the court may issue a bench warrant for parents who do not make their child support payments. This may result in a parent being arrested, and held until he or she catches up on what they owe or reach some other resolution. Additionally, the state’s Supreme Court may record judgments against parents who fail to make their payments. This type of claim could prevent them from selling or transferring certain property, and might appear on their credit reports.

License suspensions are another option that the state may use for enforcing child support orders. The New Jersey Courts point out that parents may have their driver’s, professional or recreational licenses suspended for failing to pay child support for at least six months. The state may also suspend parents’ licenses if a bench warrant is issued for them as a result of child support nonpayment. Further, parents may be denied a U.S. passport if they owe $2,500 or more in past due child support.

Parents who are behind on their child support may also have certain funds or assets intercepted. According to the New Jersey Courts, the state may seize the lottery winnings of at least $600 from parents who owe $1,000 or more in back child support. Under certain circumstances, a federal program permits the state to freeze or seize the assets in accounts belonging to parents who are in arrears on their child support payments.

This post has provided an overview of child support enforcement. It should, however, be taken only as general information and not as legal advice.

What Does The Law In New Jersey Say About Paternity?

It is important to understand that while most births proceed exactly as planned with both parents present at the hospital, there are also many instances in which the issue of parentage is perhaps not so clear cut at the time of birth.

In these scenarios, the legal concept of paternity comes into play, as establishing the identity of a father enables the state to determine which two people are responsible for the care of the child going forward.

In today’s post, the first in a series, we’ll look at some basic background information about establishing paternity here in New Jersey.

What is paternity?

In general, paternity means establishing the identity of a father in the eyes of the law.

Under New Jersey law, if two people are legally married at the time a child was born, the husband is listed as the legal father on the birth certificate and there is no question concerning paternity. However, in the event the parents are not married, paternity must be established in order to set child support obligations and accomplish other important tasks.

Why is paternity so important?

In addition to helping a court set child support obligations, paternity can help preserve a child’s right to certain benefits if their birth father dies (Social Security benefits, veteran’s benefits, property left in a will, etc.) and, if necessary, ensure that they can secure health insurance coverage through their birth father’s employer. From the perspective of the birth father, it can also help ensure parenting time.

What happens if there is no paternity contest, meaning the father agrees the child is his?

If there is no real dispute concerning paternity, the father can simply sign what is known as a Certificate of Parentage. While the father can sign this legally binding document while still at the hospital, it can also be executed at a later point in time at a state/county registrar’s office or a local welfare office.

In future posts, we will examine what happens when the father does not agree that the child is his and how child support obligations are established.