Read the Transcript of this Podcast Below.
What are the most common types of post-judgment issues brought to court in New Jersey?
In New Jersey, parties typically come to court after they’ve been divorced to deal with things such as enforcement and modification. The question becomes, what are you enforcing, what provisions of the agreement, and what issues are you seeking to modify? We look at modification of child support, that’s a very common one. Oftentimes, we will also modify custody and parenting arrangements. Changing custody is a little bit less frequent, but you often have changes in parenting plans, especially as children grow older, have more activities, and have a need for flexibility in their life arrangement. It’s also not uncommon that you’ll have the establishment of college contribution. Sometimes you may even have one party seeking to relocate out of the state of New Jersey with the child, which requires a court order. Those are some of the common issues that we see post-judgment.
Can the parties be ordered to attend mediation in a post-judgment matter? When would a court typically order such mediation?
It’s not uncommon at all that when the parties are seeking to modify something post-judgment, the court wants them to try to work it out themselves through the mediation process. There is actually a court rule that obligates judges to require mediation when custody is a viable issue. Sometimes when we go to court and seek to modify a custody plan or a parenting plan, the court will require mediation to comply with the court rule. Sometimes, also, if the court makes a prima facie finding that one party has established enough evidence to move forward on a claim to seek a modification either upward or downward of support obligations, the court will order mediation to avoid a plenary hearing. A plenary hearing is a trial just on the one issue that you’re seeking to address in the post-judgment motion. Mediation can help to limit the issue, if not to resolve the need for taking up the time and resources necessary for that plenary hearing.
What can someone do if their spousal support payments are not being made on time?
Normally, when parties get divorced, spousal support payments addressed in the property settlement agreement are going to be ordered to be paid through the probation department, which is essentially a gate keeper to receive, process, and keep an accounting of child support and spousal support payments made pursuant to divorce decrees. If a spouse is not receiving those payments on time, the probation department sometimes will get involved, without the need of an attorney, in order to assist in enforcing that obligation. But more often than not, it has to be a pretty substantial delay in payment in order for probation to get involved. They usually are only going to truly become vested involving that problem if a party is delinquent in paying support altogether, not if they’re simply late.
If they are late, however, we can seek to have garnishment. Garnishment is now the presumption of the law that if you are paying support through probation, it should be through garnishment of wages. But if you don’t have garnishment of wages in a court order, you have to go to court to have that done. If garnishment of wages is not appropriate or permissible because you have a party who is self-employed, then you would normally ask the court to impose some form of sanction when the support is not being paid timely, or perhaps even prepay the support over an extended period of time so that there is no delay in the amount of time that it takes to get those payments over to you.
If a parenting time order is not being complied with because a child refuses to see the noncustodial parent, is that order likely to be enforced or modified?
When you have a parenting order that’s not being complied with, the question that the court normally wants to find out is why. If a parent comes to court and says they’re not seeing their child despite an order that grants them the right to see the child, the person who has to respond to that, the custodial parent, normally will have to come forth with some reason to justify it. If the simple answer is the child does not want to go, that becomes a question of why the parent is not encouraging or is not enforcing that the child must go.
Oftentimes, the issue of parental alienation is alleged in those circumstances, i.e., the claim that the person who has custody of the child has intentionally rendered the noncustodial parent to be less desirable in the eyes of the child by virtue of speaking ill of them and engaging in a series of tactics to hurt the parent/child relationship. Courts will often look into that and determine whether or not the child is so far gone, if the child has such a bad perception of their noncustodial parent, that they’re not going to do well if they were forced to have parenting time.
Sometimes, the focus becomes on the custodial parent to figure out what they did, or perhaps failed to do, in order to get that child’s relationship with the other parent restored. Enforcement or modification is really going to depend on the circumstances and what the court’s view is of the child. Many times, in these cases, we get professionals involved to help give the court guidance on what’s really going on with the family.
After the divorce is final, can one parent move away to another state or a jurisdiction with the children?
In New Jersey, a court order is required in order for a parent to leave the state of New Jersey with the children, unless the other parent consents. What normally happens is you will seek consent, and if you cannot secure consent, a motion must be filed in Superior Court, and the Court will have to determine what is in the best interest of the child. In August 2017, our Supreme Court changed the law on out-of-state relocation. It used to be that a custodial parent need only show that they had a good faith reason to move, and that the move would not harm the child.
Now, we simply go with a best interest analysis. You look at all sorts of factors, such as where the child is going to live, and what school, leisure, and medical opportunities they’re going to have in the new location relative to New Jersey, and it becomes very fact sensitive. But either way, the standard is going to be applied based on the information that comes only upon presentment of a motion. It’s very important that parents understand that they can’t simply move, they have to get the court’s permission if the other party does not agree.
Can child support be terminated if a child becomes emancipated – maybe by leaving home, dropping out of school, getting married, for example – before the child support is scheduled to end?
Emancipation in New Jersey is defined as the child moving beyond the sphere of influence of their parents. As soon as that happens, the entitlement to child support on the part of the child will end, and a court has the right to terminate that support obligation. That usually happens when the person receiving support, or rather the person who’s paying support, goes to court and seeks an order to terminate support. But there are any number of factors that would be required for the court to evaluate: leaving home, dropping out of school, getting married, joining the military. These are all fact sensitive as to whether or not the court’s going to terminate support.
If a child leaves homes after the age of 18, the support is most likely to be terminated. But if it’s before 18, the support would likely continue. If a child gets married, the court would normally say, “You’ve moved outside of the sphere of influence of your parents,” but there are circumstances where a child may be mentally or cognitively impaired, and the court might say that the child is still going to school and thus needs the support of their parents. Joining the military is almost invariably a reason that the court would say that child support should end.
You have to come to court with your good faith reason, but the general rule is once you graduate from high school, if you’re not attending school full-time and there’s not some disability or limitation on why the child can’t do that, child support should end at that point.
If the spouse receiving support wins the lottery post-divorce, can the spousal support order be terminated?
If the spouse receiving support wins the lottery, that would be a change of circumstances that would entitle the person paying support to come in and seek to terminate support. Generally speaking, spousal support is designed to help the party who’s receiving it achieve a post-divorce lifestyle that’s reasonably comparable to the marital lifestyle. So it would be the very odd situation that the person wins the lottery and is not able to use those funds in order to fund their lifestyle and meet, if not exceed, the marital lifestyle. One could envision any number of factual scenarios where that could be the case. If you win the lottery, and the amount that you receive is going to carry you $10,000 a year over 10 years, let’s say you won $100,000, but you’re going to be entitled to receive support for the next 20 years, then support would not necessarily be terminated.
In the situation where you receive a lot of money, let’s say it’s a million dollars, or more than a million dollars, but the amount you’re receiving as support is relatively small, then not only could support be terminated for the recipient, but the recipient could be ordered for the previous obligor. Because in that scenario, the obligor is just as much entitled to receive and achieve the marital lifestyle post-divorce as with the recipient. You really have to look at the facts and circumstances for each individual family. But yes, any windfall of money is most likely going to result in either a termination, or certainly a modification of a prior support obligation.
If one ex-spouse doesn’t sign the paperwork needed to transfer title to property awarded to the other spouse in the final decree, is there any way of enforcing that order?
If spouses don’t cooperate with signing of documents that are necessary to effectuate their written property settlement agreement, or a court order, there is a mechanism to enforce that. Normally, the first time you go to court, you want to ask the court to compel the person to sign the document. That can be something as easy as, I go to court with my motion for oral argument, the other party is physically in the courtroom, I have the document in my hand, and I ask that the court order it be signed, and I have it signed right there in the presence of the court.
There are other times when you may need paperwork to be signed in the presence of a third party, such as when you secure a passport. If you’re then going to be asking that your spouse be responsible to sign the document, you normally want to put a very strict timeline on that. If the person does not comply in the time that the court allows, you want the order to become a self-executing order, giving power of attorney to the spouse seeking to have the paperwork signed, that they can sign on behalf of the other spouse. Now, some agencies will not accept that. It’s very difficult to secure that type of order, or to have that type of order honored when you are looking at getting a passport.
Normally, if you want to do something like that, you need to have sole legal custody as your court order. And so, for enforcement purposes, what I normally tell people is to make sure that there’s a consequence tied to the person not signing; it could be an economic sanction, it could be a sanction on parenting time, it could be a sanction on further relief in their property settlement agreement, counsel fees, any number of those types of punitive actions. But there needs to be something other than simply that the order become self-executing, because that may or may not work for a third party looking at the order.
Can permanent orders for spousal support, child support, parenting time, property and debt division be modified for any reason?
Permanent orders really are somewhat of a fiction in family court. What I mean by that is, any time you’re looking at issues dealing with children, whether it be child custody, child support, parenting time, things like that, you’re normally going to have a standard in our law that says that there could be a modification of any of those types of orders in the best interest of children. It’s not at all uncommon that custody arrangements may change several times, fluidly or on a very truncated basis, post-judgment from the judgment of divorce. When custody changes, child support may need to change, and of course parenting time would change. You want to make sure that the way you’re characterizing the order is accurate.
But once you have those issues out of the way, if you look at things such as property and spousal support, getting those types of orders modified are not necessarily as easy as people might think. With spousal support, you want to have the baseline that you’re achieving the marital standard of living, or at least you’re trying to with the support that’s being paid. If a person receiving support says they were not able to meet the marital standard of living with the support that they are receiving, they could, in theory, post-judgment, come back to court and say, “My former spouse now has a better job. My former spouse now has fewer expenses, and therefore has a greater ability to pay support,” so there could be a modification. But they couldn’t simply come to court and say, “Judge, I don’t like my support amount anymore, or I want to have a better lifestyle, so therefore please give me more.” There has to be a showing of a change in circumstances enduring in nature that can be objectively verified before a spousal support obligation can be modified.
And then finally, looking at property and debt division, it is almost impossible to get equitable distribution and property issues modified post-judgment. Typically, once you have decided what you’re doing with your assets and liabilities in divorce, you’re stuck with that, unless you can show that there was some type of fraud, unconscionability, or duress that led you to enter into the agreement. Then you’d be seeking to set aside the agreement regarding those assets, and you might seek to do something different with them. But you’re not going to be seeking to modify the judgment, because the judgment is pretty much sacrosanct at that point.
If one ex-spouse was ordered to pay certain joint debts but declares bankruptcy post-divorce, is the other ex-spouse on the hook for those debts?
Any time that there is a bankruptcy filing that happens post-divorce, you have to consider that the person who’s going to have relief from their debts is relieved from paying the third party, whomever is the creditor in that instance. If there is a series of credit card payments outstanding, those credit card companies would no longer have a legal right to come after you; however, bankruptcy cannot extinguish a matrimonial settlement agreement. As a result, any debt that is the responsibility of a person in divorce, while they may not have a duty to pay their third party from whom they secured the debt, they will still have an obligation to pay their former spouse. In theory, the person who’s left with debt is still on the hook for those debts to the company. They don’t get their debt wiped out because their spouse filed for bankruptcy.
The amount of debt that’s left in the name of one party, when the other filed for bankruptcy, is something that the court can deal with by way of indemnity agreements. It’s not at all uncommon that you will have an agreement that the parties will sign voluntarily, that if either party has a claim outstanding from a creditor, they can come after that person for enforcement of a debt that is truly the responsibility of both of the parties. Any amount of fees, collection costs or credit, or attorney’s fees that are incurred for that can be shared between the parties, as can the actual debt. Bankruptcy does not extinguish marital obligations, but sometimes those obligations do have to be recast in fairness when debt is wiped out on one side of the ledger and not the other.