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New Jersey Child Custody Disputes—An Introduction

April 1, 2022 by David Lipshutz Leave a Comment

The Basic Things You Need to Know

If you are considering filing for or are in the middle of a divorce, and you have minor children in the marital home, one of your first concerns will be custody. How does the court determine custody? What are the different types of custody? What factors are involved in a custody ruling?

The Different Types of Custody in New Jersey

As you work to come to an agreement regarding custody and visitation, you’ll hear a number of different terms discussed:

Physical custody—This refers to where the children actually reside. Traditionally, minor children of divorce spent most of their time in the home of one parent and had visitation with the other parent. That usually meant every other weekend with the “non-custodial” parent, as well as alternating holidays, some time in the summer and perhaps a night a week. In recent years, though, the trend has been toward greater shared physical custody, with the children spending more equal time in the home of each parent.
Legal custody—This involves decisions about the child’s well-being, including educational, health, religious and extra-curricular activities.
Joint custody—The court may give both parents equal custody rights
Sole custody—The court may grant custody exclusively to one parent

What Factors Go Into a Custody Determination?

In New Jersey, as in most states, the primary factor governing the determination of custody rights is the “best interests of the child.” New Jersey courts typically look at four different issues:

The impact of a custody ruling on the child’s physical well-being and safety
How the custody determination will affect the child’s emotional health and well-being
The respective parenting skills, as well as the parties’ ability and willingness to engage in co-parenting
Any practical concerns

Contact the Law Office of David M. Lipshutz

We will only take your case if we know we can help. For an appointment, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9 am and 5 pm.

Filed Under: Child Custody in New Jersey Tagged With: Child Custody Disputes

Equal Shared Custody—Pros and Cons

March 4, 2022 by David Lipshutz Leave a Comment

The Advantages and Disadvantages of 50/50 Parenting

Historically, in the aftermath of a divorce, when there were minor children in the home, one parent was granted primary physical custody and the other parent was accorded rights of visitation, typically bringing the child into his or her home every other weekend, alternating holidays and on other agreed-upon occasions. That approach, however, is changing, as more an more states are enacting laws that allow for “equal parenting,” where the minor children spend half of their time with each parent. New Jersey allows such an arrangement.

On it’s face, it may seem like the most equitable way to resolve custody issues. Typically, both parents want to play a meaningful role in the growth and development of their children. But equal parenting does not come without its challenges and its detractors. Let’s look at the advantages and disadvantages.

The Benefits of Equal Shared Parenting

Studies indicate that when minor children spend approximately the same amount of time with each parent:

They have higher self-esteem, better school performance, and better emotional, behavioral and physical development
They have a broader perspective on the world, due to the differences inherent in each household
There are fewer gender-based assumptions about parenting for all parties involved
Parents tend to work more cooperatively, provided there is no fundamental conflict or animosity

Opponents of equal shared parenting fear that:

Sharing custody equally typically eliminates child support and may leave children without adequate financial resources
Children may struggle to have a sense of belonging anywhere, feeling instead that they are visitors in both homes
Where there is a fundamental level of discord, the frequency of contact between the parents can be problematic
Mandating that the child spend an equal amount of time with each parent does not accurately replicate what happens in most intact homes…it’s customary for a child to spend significantly more time with one parent than the other.

Contact the Law Office of David M. Lipshutz

Filed Under: Divorce Tagged With: Advantages and Disadvantages of 50/50 Parenting

Can I Deny Visitation for Unpaid Child Support in New Jersey?

February 1, 2022 by David Lipshutz Leave a Comment

What Are Your Rights When Child Support is Past-Due?

When you’re a custodial parent to minor children, payment of child support by your ex can help ensure that you can keep a roof over your head and put food on the table. When your former spouse clearly has the resources to pay child support, but refuses to do so, you can feel considerable resentment when your children leave for visitation. Can you deny the other parent access to the children because of a failure to pay child support?

The Right to Visitation is Not Conditioned on Payment of Child Support

In New Jersey, as in all states, the right of a non-custodial parent to regular access to and visitation with minor children is not tied to the payment of child support. Though the non-payment of child support can create significant problems, denying visitation will typically only make things worse, as it will constitute a violation of a court order (your divorce decree) and could potentially place you in contempt of court.

Furthermore, absent a showing that the non-custodial parent poses a physical threat to the minor children, it’s unlikely that a court will issue an order denying visitation with minor children. That does not mean, though, that a custodial parent who is not receiving child support cannot petition the court to change the terms of visitation. However, the courts will be unlikely to issue an order that negatively affects the children.

A better approach, when child support is not being paid, is let the matter be handle by the Probation Division of the New Jersey Department of Human Services. How do you do that? Well, as a general rule, unless you agree to some other method of payment in your divorce decree, that will be the default method for payment. With that approach, all child support payments will be made to the Probation Division, either directly or through wage garnishment. The Probation Division will keep records of all support paid, and has the power and authority to engage in collection actions, when there are arrearages. The Probation Division has a number of tools at its disposal, including:

Wage garnishment
Attachment of tax refunds
Suspension of passport or driver’s license renewals
The issuance of an arrest warrant for contempt of court

Contact the Law Office of David M. Lipshutz

Filed Under: Child Support in New Jersey Tagged With: Deny Visitation for Unpaid Child Support in New Jersey

When Your Child Refuses Visitation

January 4, 2022 by David Lipshutz Leave a Comment

What Can You Do If Your Child Doesn’t Want to Spend Time with You?

Divorce is difficult on everyone, but tends to affect children much more than adults. From toddlers to teenagers, kids are often acutely aware that their situation is different from most, if not all of their friends. Constantly going back and forth can be exhausting, and can leave children feeling like they don’t truly belong anywhere. Often, that can manifest in a child’s desire or decision not to spend time with a non-custodial parent. When your child tells you or your ex that he or she doesn’t want to have visitation, what can (and should) you do?

The Law in New Jersey

Technically, a child must be at least 18 years old in New Jersey to have the legal right to choose where he or she wants to live…and to choose not to see one of his or her parents. That doesn’t mean, though, that a younger child may not be granted that right by the court. However, for a minor to have the legal right to refuse visitation, the minor must go to court and get a signed order from the judge.

As a rule, the courts tend to be open to a request for refusal of visitation. First, though, the court will typically have a hearing to gather additional information. The judge will carefully gather evidence, seeking to ascertain whether the custodial parent has wrongfully influenced the child, or is offering some type of reward or benefit if the child refuses to see the non-custodial parent. The court may also examine whether there is any threat of harm or physical abuse to the child, either from the custodial or the non-custodial parent. In these types of hearings, the court may also take testimony from the child, and may give weight to that evidence.

Talking to the Child and to the Custodial Parent

Generally, though, using the courts to enforce a visitation order against your child is not recommended. The quality of your visitation will likely be minimized when it is compelled.

Your first course of action may be to talk with the custodial parent, to see if they have a better understanding of why the child is refusing visitation, or to see if they are complicit in the refusal. It can also be beneficial to speak directly to your child, to see if there has been some miscommunication, or to attempt to mend a damaged relationship.

Contact the Law Office of David M. Lipshutz

Filed Under: Child Visitation Tagged With: Child Refuses Visitation

Wishing You And Yours A Merry Christmas & Happy New Year

December 24, 2021 by David Lipshutz Leave a Comment

We are sending holiday cheer to you in the hopes that you and your family have a very Merry Christmas and a healthy New Year.

As we look forward to 2022 we humbly pray that the new year brings a new sense of peace and joy as we enter the new year ready for a return to normalcy and prosperity.

Merry Christmas & Happy New Year

Filed Under: Uncategorized

Spousal Support in New Jersey

December 1, 2021 by David Lipshutz Leave a Comment

What Types of Alimony Are Available? How Does the Court Determine Spousal Support?

Alimony…it seems like an archaic term, something that’s gone by the wayside as women have become fully integrated into the workplace. Do the courts in New Jersey still grant alimony/spousal support awards? If so, how do the courts determine both eligibility for alimony and the appropriate amount/duration of payments? Are there different types of alimony a court can award?

Alimony—Still Alive and Well in New Jersey

Though the frequency with which alimony awards are granted has diminished, and though the types of awards given tend to be different, parties to a divorce still have a right in New Jersey to ask the court for spousal support. The court may, at its discretion, order either party to a divorce to pay alimony to the other party, based on a wide range of factors, including:

The length of the marriage—Though there is no minimum requirement, the longer parties have been married, the greater the chances of securing alimony
The health and age of both parties—For recipients, older age and poorer health weigh in favor of support. For payors, the opposite is true.
The potential earning capacities of the parties
The standard of living to which the parties were accustomed during the marriage
The actual needs of the recipient, in comparison with the ability of the other party to pay
Whether or not the parties played a significant role in parenting during the marriage
Whether or not the recipient owns any income-producing property
The outcome of the property settlement in the marriage

The Different Types of Spousal Support

Though the courts have the discretion to grant an alimony award with an open duration, it’s becoming more common for spousal support to have a limited duration. A recipient whose age or infirmity makes it difficult or impossible to become self-sufficient may receive alimony permanently, but most alimony awards are:

Temporary—Established for a set period of time…usually a period of years
Rehabilitative—Put in place until the recipient is able to be self-sufficient, through training, education or career advancement

The Termination of Alimony

Alimony can be terminated or reduced by various events, such as

The remarriage of the recipient
Cohabitation by the recipient with a partner in an intimate relationship
The retirement of the payor

Accordingly, it is critical to properly and tightly draft any alimony provision in the divorce decree.

Contact the Law Office of David M. Lipshutz

Filed Under: Spousal Support Tagged With: Types of Alimony

Happy Thanksgiving

November 25, 2021 by David Lipshutz Leave a Comment

On this Thanksgiving Day, we take time to express our daily gratitude for the simple pleasures of life—good friends, family, people we hold dear. As we gather together, help us be grateful and let us share our bounty with our brothers and sisters.

Filed Under: Uncategorized

The Allocation of Retirement Assets in a New Jersey Divorce Settlement

November 1, 2021 by David Lipshutz Leave a Comment

Can Retirement Assets Be Divided between the Parties?

Your marriage is irretrievably broken and divorce is the best pathway forward. You’ve built up a substantial retirement plan, but it’s only in your name. Is it protected from distribution to your spouse in the property settlement? Are there any special conditions that must apply?

The Right to a Portion of Qualified Retirement Plan Assets

Under the equitable distribution principles in place in New Jersey, both parties to a marriage are entitled to receive a portion of any assets acquired during the marriage, regardless of how the property is titled. Accordingly, the fact that all retirement assets are held in the name of one spouse will not prevent those assets from being divided between the parties. One caveat—only those retirement assets that were contributed and accrued during the marriage will be subject to equitable distribution. Any retirement assets contributed or accrued before the marriage are generally exempt.

The distribution of retirement assets must be carefully handled or one or both parties may incur tax consequences. As a general rule, the way those potential problems are avoided is with the use of a Qualified Domestic Relations Order (“QDRO”), a court order that directs the administrator of any retirement assets to transmit a portion of them to the other spouse. The QDRO must be signed by the judge to be legally binding.

A QDRO is not required, however. The parties may include language in the marital settlement agreement allowing the owner of the retirement funds to keep all of them, typically in exchange for conveying other marital property of similar or equal value to the other spouse.

Contact the Law Office of David M. Lipshutz

Filed Under: Divorce Tagged With: Divorce Settlement

Happy Halloween!

October 29, 2021 by David Lipshutz Leave a Comment

Filed Under: Uncategorized

Retirement and Alimony in New Jersey

October 8, 2021 by David Lipshutz Leave a Comment

In the state of New Jersey, alimony may be awarded in a divorce on a case-by-case basis at the discretion of the court, based on a number of factors, including, among other things:

How long the parties were married
The needs of the potential recipient vs. the ability of the other party to pay
The age and health of both parties
The lifestyle to which the parties were accustomed during the marriage
The potential earning capacities of each party

Though the court will enter a binding order, the amount and the requirement to pay alimony may change, based on either the circumstances or a subsequent court order. For example, if the recipient remarries or cohabitates with another person, the obligation to pay alimony will automatically be terminated (unless the divorce decree states otherwise). Furthermore, the payor may often petition the court for a reduction in alimony payments if his or her income drops significantly.

Alimony and Retirement

Often, upon retirement, a person’s income decreases, sometimes substantially. As a general rule, when a payor’s income goes down dramatically due to circumstances beyond his or her control it can provide the necessary rationale for a reduction of alimony. But can a party petition the court for a reduction of income because of retirement? Can a person retire early and ask for a reduction? It depends on the circumstances.

In New Jersey, the normal retirement age is considered to be 65. When a person reaches the age of 65, he or she may petition the court for the reduction of an alimony obligation, provide income has gone down significantly. Approval of such a motion is not automatic, though. The court will look at the facts and circumstances of the retirement to ascertain whether it was reasonable, considering such factors as:

The age and health of both parties
The extent to which the retiring party had any discretion in the decision to retire
The nature of the work the retiring spouse was engaged in
Whether the divorce agreement specified an anticipated retirement date (and whether this is earlier than that date)
The impact a reduction in alimony will have on the recipient

Contact the Law Office of David M. Lipshutz

Filed Under: Alimony Tagged With: Retirement and Alimony

The Basic Things You Need to Know

The Different Types of Custody in New Jersey

What Factors Go Into a Custody Determination?

Contact the Law Office of David M. Lipshutz

The Advantages and Disadvantages of 50/50 Parenting

The Benefits of Equal Shared Parenting

Contact the Law Office of David M. Lipshutz

What Are Your Rights When Child Support is Past-Due?

The Right to Visitation is Not Conditioned on Payment of Child Support

Contact the Law Office of David M. Lipshutz

What Can You Do If Your Child Doesn’t Want to Spend Time with You?

The Law in New Jersey

Talking to the Child and to the Custodial Parent

Contact the Law Office of David M. Lipshutz

What Types of Alimony Are Available? How Does the Court Determine Spousal Support?

Alimony—Still Alive and Well in New Jersey

The Different Types of Spousal Support

The Termination of Alimony

Contact the Law Office of David M. Lipshutz

Can Retirement Assets Be Divided between the Parties?

The Right to a Portion of Qualified Retirement Plan Assets

Contact the Law Office of David M. Lipshutz

Alimony and Retirement

Contact the Law Office of David M. Lipshutz

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