Prenuptial Agreements for 2013 and Beyond

New Jersey family courts are generally considered to have large equitable powers, meaning a Judge can look at the situation of the parties and make a decision that is fair to both parties. Until the summer of 2013, Judges could set aside the terms of a prenuptial agreement if circumstances had changed over the following years which would make enforcement of the contract deeply unfair, or unconscionable, to one side.

Thanks to a change in the law made effective on June 28, 2013, the unconscionability provision has been removed for all new prenuptial agreements (old ones remain unaffected). Thus, the terms of a prenuptial agreement made today will be in full force and effect ten, twenty or fifty years from now. All prenuptial agreements still require complete disclosure and all of the necessary requirements other contracts tend to have. In addition, provisions regarding custody can still be modified. However, most prenuptial agreements tend to deal with money, property and other assets, so this change in the law is considered a victory for proponents of premarriage settlement agreements. The changes apply to civil unions in addition to marriages.

The new language of N.J.S.A. 37:2-38 reads as follows:

The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable.  A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:

a.     The party executed the agreement involuntarily; or

b.    [deleted]

c. The agreement was unconscionable when it was executed because that party, before execution of the agreement:

  1. Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
  2. 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;
  3. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
  4. Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

d.    The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.


Alimony in New Jersey

Many people getting divorced are concerned about alimony (also referred to as spousal support). They're not sure if they have to pay, and if so, how much and for how long. Perhaps more than anything else, alimony sticks the most in litigants' craws. When folks get divorced, most of the time they want to be done with their former spouse. A weekly or monthly alimony payment is a reminder they don't want.

So, the question remains, how is alimony calculated? There is a specific statute (N.J.S.A.2A:34-23), which lists the following factors that go into an alimony determination:

(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."

To make it easier to understand, I summarize the statute as follows as if I was explaining it to a husband looking at paying his wife (alimony can be paid from wife to husband, and this information is also relevant to spouses looking at whether they might receive support):

1) Does she need the money and can you pay it?
2) How long were you married?
3) Is she a healthy young woman at the peak of her health?
4) Can she live a lifestyle close enough to which she became used to without the benefit of your money?
5) Does she currently work and can she continue to work at (or better than) what she is doing now?
6) Is there a gap in her employment history (let's say she became a stay at home parent)?
7) Does she watch your kids?
8) Does she need to go back to school or get certified in something so she can get a job?
9) How much did each of you contribute to the bills (everything from the cable bill to vacations)?
10) Is she getting any other money from you (such as money from a retirement account, child support or a business)?
11) Can you liquidate assets (such as sell stock) to pay her?
12) Will too much alimony bump her into a higher tax bracket?
13) Whatever else the Court wants to look at.

Of course, there are many Court cases (going all the way up to our state Supreme Court) which interprets the above and lays out other information to consider. Nevertheless, the above will give you some guidance. If you were married for 12 years and earned $80,000 while she stayed at home to raise your two kids, chances are you will be paying some support for a few years. If you were married for five years and you both earned roughly the same amount of money, chances are you will not be entitled to receive any money.

Every case is different and fact sensitive, in other words, the circumstances of your specific situation will dictate the outcome. To understand your possible rights and responsibilities, you should contact an attorney.

Domestic Violence in a Landlord Tenant Context

Pursuant to N.J.S.A.46:8-9.4, et seq., a tenant may break a lease if a victim of domestic violence. The tenant must provide to the landlord written notice that the tenant or his/her child faces “an imminent threat of serious physical harm” from another “named person” if the tenant remains on the leased premises, and any of the following:

- Final Restraining Order from New Jersey Superior Court
- Restraining Order from any other state
- Law enforcement agency record documenting domestic violence
- Emergency Room or Doctor’s report showing domestic violence
- Certification by a “certified Domestic Violence Specialist” or director of a domestic violence agency that tenant/child is a victim of same
- Certification from a licensed social worker that tenant/child suffers domestic violence
- The lease shall terminate 30 days from the date of receipt of the above by the landlord (note: the landlord and tenant may agree on an earlier termination date)

There are a few conditions to the above. The tenant is bound by the regulations of public housing leases, as well as state and federal law applying to same, where applicable. A tenant may not break the lease of a seasonal rental, which is defined as “for a term of not more than 125 consecutive days” where the tenant has another permanent dwelling. Bear in mind that the landlord to show the rental is seasonal, and seasonal housing is not excluded when it is the living quarters for seasonal, temporary or migrant farm workers in connection with work being done for the landlord.

When a landlord is given this notice, he or she has a number of rights and responsibilities of which to be aware. Rent is still due up until the tenant leaves, which shall be paid, pro rata, up to the time the lease terminates. The landlord is forbidden from disclosing, sharing or providing any information given by the tenant.

Something most people are still unfamiliar with is that the lease is terminated for ALL tenants on the lease. Nevertheless, the other tenant(s) will not be evicted per The Anti-Eviction Act, N.J.S.A.2A:18-61.1, just because one tenant terminated the lease. So, what can a landlord do, then? The landlord may issue a new lease or treat the remaining tenant(s) as holdover tenants, subject to a month-to-month lease.

Both parties retain any other rights they may have and cannot waive these rights. However, when it comes to security deposits, as per N.J.S.A. 46:8-21.1, the security deposit must be made available within fifteen (15) days from termination of the lease, minus any charges allowable under the law. This is a change from the usual 30 days notice requirement, so both landlords and tenants should be aware of this.

What does custody mean?

Many times when people come into my office, they tell me that they want "sole custody." Everyone seems to have a different definition of what "sole custody" means to them. Sometimes that person wants the child to live with him or her, while other times the person does not want the other parent to have anything to do with the child.

Before anything else, it is important to understand custody in New Jersey. The courts tend to look at custody as a two part issue, one involving legal custody and the other involving residential custody.

Legal custody is almost always joint, that is, shared by both parties. Courts will rarely terminate parental rights, and it will only occur upon a showing of clear and convincing evidence that a parent has abandoned a child or is unfit. This reasoning comes from a United States Supreme Court case called Santosky v. Kramer, 455 U.S. 745 (1982). While some parents may argue that a parent is unfit, the burden of proof is high. Our own state Supreme Court determined that there must be proof of actual or imminent harm to the children (see New Jersey Division of Youth and Family Services v. A.W., 74 N.J. 591 (1977)). Our Supreme Court has also held that a parent's incarceration does not necessarily mean the parent is not entitled to visitation or that being around the parent would be harmful to the child (see In re L.A.S., 134 N.J. 127 (1993) and Fusco v. Fusco, 186 N.J. Super 312 (App. Div. 1982)). What to take away from all of this is easily summarized by the case of Barron v. Barron, 184 N.J. Super 297 (Ch. Div. 1982): "Absent serious wrongdoing or unfitness, the right of visitation is strong and compelling." To put it another way, there's a big difference between a parent that doesn't show up for visitation and a parent that has been convicted of molesting the child.

The other type of custody regards residential custody. Sometimes, especially when the child is young, residential custody is shared. More often than not, one parent is deemed the "Parent of Primary Residence" (PPR) and one parent is deemed the "Parent of Alternate Residence" (PAR). The PPR is the person the child lives with more often than not, usually a minimum of four (4) overnights per week. Judges look at overnights rather than hours. In fact, the New Jersey Child Support Guidelines count the number of overnights per parent as part of the overall determination for the amount of child support.

For that reason, the PAR may petition the Court for more parenting time. Usually, this requires a showing of a significant change of circumstances in order to alter the preexisting arrangements, but Judges like to encourage parents to spend more time with children. Even if one of those reasons is a reduction of child support (via increased overnights), if a parent is genuine about spending real "quality time" with his or her children, the Courts are usually inclined to allow that, within reason.

After all, it is the public policy of the Courts to support parenting time for both parents, whether they are divorced or unmarried but no longer together. "Children should have equal access to both parents, [and] the severance of the ties to either parent is contrary to the child's best interest. The child should be able to recognize both parents as sources of security and love and should wish to continue both relationships" (McCown v. McCown, 277 N.J. Super. 213, 218 (App. Div. 1994), citing Beck v. Beck, 86 N.J. 480, 486 (1981)).

Interference with Parenting Time

In New Jersey, the Courts take custody and parenting time matters very seriously, as well it should. If a Judge finds that a parent or guardian has interfered with another parent's time with their child, the Court can order one or more of the following:

(1) compensatory time with the children;
(2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled visitation such as child care expenses incurred by the other parent;
(3) modification of transportation arrangements;
(4) pick-up and return of the children in a public place;
(5) counseling for the children or parents or any of them at the expense of the parent in violation of the order;
(6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
(7) participation by the parent in violation of the order in an approved community service program;
(8) incarceration, with or without work release;
(9) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(10) any other appropriate equitable remedy.

I have often seen Judges order make up time to compensate for missed parenting time, and in some cases I have even seen Judges modify the custody and visitation order. If the behavior is chronic, Judges can (and have) determined that the behavior has created a "significant change of circumstances" to warrant a switch in custody.

There are also harsher penalties for those who refuse to follow custody orders. If a party is found in contempt of court for not complying with a court order, per N.J.S.A.2C:29-9, that person may be sentenced to a jail term of up to 18 months and a fine of up to $10,000.

A person who blatantly refuses to follow custody orders can also face criminal prosecution. Pursuant to N.J.S.A.2C:13-4(a), a "parent, guardian or other lawful custodian" can be found "guilty of interference with custody" if that person "takes, detains, entices or conceals a minor child from the other parent in violation of the custody or parenting time order." If the state proves beyond a reasonable doubt that 1) there was a court order in place at the time the interference is alleged, 2) that the child was a minor, 3) that the taking, detaining, etc. was in violation of the court order, and 4) that the accused parent acted knowingly, the guilty party may be incarcerated for 3-5 years or be ordered to pay a fine of up to $15,000. It's not much fun to see your child in the visiting area of a prison.

The lesson here is to follow every provision of a custody order. If there is something you don't agree with, you always have the right to modify the prior order by consent of the parties or by filing a motion with the court to explain why you think circumstances have changed to an extent that the order must be modified to better suit the parties and the child(ren). Remember, in New Jersey family court, the best interests of the children are always paramount.