Knowing Where to Look for Non-Disclosed Assets

There are certain types of assets that provide an easier means to divert funds and frustrate the court’s ability of reaching an equitable distribution of marital property. If your spouse owns a business or professional practice, business income may be hidden in the form of cash payments that are not reported to the IRS or revealed in business records. Many tax returns filed by business owners are less than candid about disclosing all sources of income or include questionable deductions. Experienced NJ divorce lawyer Sylvia Costantino looks beyond the numbers on a tax return or misleading business records by conducting the discovery necessary to expose hidden sources of business income as well as non-disclosed or undervalued business assets.

Use of Forensic Accountants and Business Valuation Experts

When a NJ divorce lawyer handles a high net worth divorce or the potential amount of hidden assets merits the cost of more thorough investigation, Ms. Costantino may utilize the services of a forensic accountant or other expert to review detailed financial records of a business or other financial documents. Because we recognize the importance of making cost-effective decision for our clients, we evaluate whether the cost of using an expert would appear to be justified by the value of the assets being hidden.

Conducting Asset Searches and Discovery

Many spouses divert assets in a divorce or attempt to avoid disclosing assets by maintaining secret bank accounts, making overseas investments or obtaining credit cards that are not disclosed to a spouse. When you indicate to your NJ divorce lawyer that you believe that your spouse is being less than candid in disclosing assets, the divorce attorney may seek discovery to try and uncover secret accounts, transferred assets and other inappropriate methods of shirking a spouse’s obligation to provide full disclosure. Again, the services of a forensic accountant may become necessary.

If you are facing the prospect of a marital dissolution, NJ divorce lawyer Sylvia Costantino conducts thorough discovery and analyzes financial records to protect her clients from spouses who flaunt property disclosure requirements. We invite you to contact us so that we can explain your rights and options. Please call us today to schedule your free consultation at (732) 615-9100 or email us.

When you attempt to live under the same roof with your soon to be ex-spouse, the situation can become quite tense and uncomfortable, especially once the divorce complaint is filed. Although a growing number of divorcing couples elect to reside together in the marital home during the pendency of the action, this is due to tough economic times and is not by choice. At our New Jersey divorce law firm, clients frequently express the desire to move out of the marital home right away to try and escape the animosity, stress and confrontation of sharing living space with their soon to be ex-spouse.

There are certainly circumstances where moving out is appropriate such as to prevent domestic violence, bitter arguing in front of your children, or even protect against false allegations of spousal abuse. While a spouse facing these types of serious issues may have no alternative but to move out of the marital home, there are definite disadvantages to doing so while the divorce process is underway. Below we provide you with some key reasons why you may want to reconsider relocating from the marital home until your divorce case is resolved:

Access to Your Kids: If you move out of the marital home without a written temporary custody and parenting time schedule, you are essentially at the mercy of your spouse if you want to obtain access to your kids. This essentially causes a “tug-o-war” with the kids in the middle. Most parents who are motivated to move out of the marital home during a divorce are already experiencing an acrimonious relationship with their spouse. Consider that this will not improve much even if you do move out. In fact, in most cases the poor communication between spouses will worsen with a separation during the pendency of the divorce. And when parents are not communicating and cooperating with each other, their ability to co-parent also suffers. Therefore, unless you can get a written consent order or a court order for pendente lite custody and parenting time, you may want to reconsider moving out and empowering your spouse to say no to you spending time with the kids.

Who is the Primary Caretaker? During the pendency of the divorce, you do not want to solidify for the Court exactly who the parent of primary residence is until you have had a real opportunity to think about a long-term parenting plan and future permanent housing for you and the children. When you first leave the marital home during the pendency of the action, chances are you will be moving to a temporary location or a smaller living space. The further the geographical distance between you and your spouse the more difficult mid-week parenting time becomes. The smaller the housing, the more difficult it is to have appropriate sleeping accommodations for the kids. You get the picture.

Also consider that if moving out means less time with your kids over the next several months this could become the “norm” and the court may consider your lack of parenting time with your kids when fashioning custody and parenting time orders. The process of justifying why you are not exercising more extensive parenting time may be a matter of “he said-she said” with your spouse alleging that they are the primary caretaker and you have not made the kids a priority. If the children seem to be adjusting well and thriving in school, this may suggest that there is value in continuing this type of custody and visitation arrangement. Do not set yourself up for failure.

Remember, any consent or court order entered into during the pendente lite phase is temporary and will likely be different by the end of the case, but if you are moving out, you want something in writing saying what the arrangement is and that it is temporary.

Cost of Separate Households: One of the biggest challenges for married couples during the divorce process is that the same income that was supporting a single residence must now fund dual households. The financial stress of financially supporting a second residence can be intense. If you are the primary breadwinner or the other parent is essentially a stay-at-home parent, during your divorce you will have an obligation to maintain the roof and other marital roof expenses and provide access to marital funds or non-taxable unallocated support to your spouse and children. If you voluntarily remove yourself from the marital home, the court will not likely alleviate you of your financial obligations to the marital home, spouse and children.

Impact on Equitable Distribution of Property: While it may be possible to move out of the marital home and still be awarded the home in the divorce, this does not routinely occur. If one of the spouses in a divorce is going to keep the home as part of the equitable distribution of property, the spouse who receives the home will usually be the one who continues to live there during the pendente lite period. This outcome is even more probable if your kids are living in the home with your spouse. The judge may also be influenced by providing stability to your kids derived from their continued ability to live in the marital home.

If you are involved in a pending divorce where continuing to live together with your spouse seems unbearable, you should contact experienced NJ divorce lawyer Sylvia S. Costantino to discuss your options before you make any decisions. Because moving out can have such a significant impact on equitable distribution, support obligations, parenting time, and child custody issues, we invite you to schedule a free initial consultation in our Holmdel office in Monmouth County so that we can help you mitigate the potential adverse consequences of vacating the marital residence during your divorce. Call us today to schedule your free consultation at (732) 615-9100 or email us.

In a divorce, debt is considered part of the equitable distribution analysis just like assets.  However, debt is one of those thorny issues that complicate a divorce. Debt may even be the cause for the demise of your marriage.  To add to this, you may find yourself with ruined credit and facing bankruptcy, sometimes through no fault of your own.  Or you may not be aware that your spouse incurred substantial credit card debt as a joint card holder, or that they took out a loan from their 401(k) for unknown purposes, etc.  Be wary however, because whether or not it was actually you who incurred the debt, if it is labeled as marital in nature you could be responsible to repay a percentage or even half of it at the time of divorce.

If you claim that debt incurred by your spouse is immune from the equitable distribution analysis (or in other words that you are not responsible), in the State of New Jersey the burden is on you to prove the immunity.  One way to accomplish this may be to show that the debt was not incurred to benefit the “marital estate.”  For example, let’s say that one spouse took a vacation with a paramour and used the parties’ joint credit card to pay for it.  If this is discovered, then clearly you should not be responsible for this expense and should receive a “credit” at the time of equitable distribution.  However, sometimes it is not so clear whose debt it is or it may not be feasible to go so far back in time to trace debts.  Some debts will just be categorized as marital if they were incurred during the marriage, even if you did not consent to them being incurred or know about them.  The theory behind this is that a marriage is a financial partnership. The parties have assets and they have debts.  Both need to be distributed in a divorce.

Remember, even if you and your spouse ultimately agree on the allocation of assets and debts at the time of the divorce and put this in your divorce agreement, should your spouse fail to pay certain debts in his or her name, the lender can take whatever steps available to them under the law to hold you in default or otherwise repossess the property attached to the debt.  This means that if you are driving around in a car that your ex-spouse is supposed to make monthly payments on because the loan was in his or her name, then regardless of what your divorce agreement states, no payments — no car.  Issues like this make some divorces a nightmare of trying to allocate responsibility for debt or refinancing certain loans or mortgages to remove one party’s name.  You can see how easily post-judgment litigation can rear its ugly head just when you thought you were done with the divorce.

Sometimes the services of a forensic accountant may be needed to trace certain transactions to figure out who incurred the debt, what the debt was incurred for, and whether the debt is still outstanding in whole or in part.  This is especially so when one spouse is utilizing marital monies for their own benefit, charging on multiple credit cards, and/or transferring monies between and among bank accounts to hide these transactions.

If you are not yet officially divorced, you need to understand what is happening around you regarding the marital finances before your divorce gets underway. Some spouses make this impossible because they cut off your access to information to try and retain.  What can you do to protect yourself?  Here are a few pointers:

• Keep careful records and copies of credit card and bank statements going back three to five years.  If this information has been cut off by your spouse but you are still a joint account holder, contact the financial institution or lender and get online access or request the copies that you need.
• Review credit card, bank and other statements each month and highlight anything that does not look right to you.  Ask your spouse about it and if you do not get a satisfactory answer, keep note of it.
• Attach receipts to credit card statements and make notes.
• Do not use a credit card that your spouse also uses.
• Run your credit report to see what debts are in your name.
• Close joint credit cards and other joint accounts.  Even after you are divorced, if you signed the credit application to open the account, you can be on the hook.
• Keep separate checking accounts for day-to-day expenses.  It is not unheard of to allocate certain monthly expenses between you and your spouse.
• Do not co-sign for loans for automobiles or big ticket items and do not put your name on loan applications if you do not need to.  Just because an asset is titled in one spouse’s name, if it was obtained during the marriage, it is still subject to equitable distribution at the time of the divorce.
• The information about the marital finances that you are not privy to will need to be produced during the discovery process. If you know where the information exists, one way or another it is usually obtainable.
• Avoid paying off your spouse’s pre-marital debts using your pre-marital retirement or other funds; otherwise what was their debt likely just became yours.

New Jersey Divorce Attorney Sylvia S. Costantino, Esq., LLC, starts gathering documents and information from the very beginning of your divorce to get a sense of the marital finances including the nature of the debts.  If you think you there is debt that should be immune from the equitable distribution analysis, then you should hire a New Jersey Family Lawyer who is vigilant about going after the necessary discovery during your divorce case.  Call the Law Offices of Sylvia S. Costantino, Esq., LLC today for your free initial divorce consultation so that you can learn more about equitable distribution, marital debt, and the documents and information to start gathering now.

When parties divorce, marital property that went into the “pot” on the date of the marriage up to the filing date of the divorce complaint (which is usually considered the end date for the marriage partnership) is subject to equitable distribution.  This includes things such as the split of the proceeds of the sale of the marital home and division of other assets like the parties’ 401(k)’s, pensions, and bank accounts, etc.  It also includes division of debts. The money you receive as a result of your divorce may the largest lump sum you will ever have to deal with.  What to do with it?  Who to turn for advice?

Make a new budget. 

This is the “b” word no one wants to hear and most people cannot stick to a budget.  When divorce clients fill out their Case Information Statements (monthly budget), they are shocked to see how much money it takes to run a household in today’s economy.  While it may be hard to accept, you should not hold onto the assumption that there is an “entitlement” to be maintained at the marital lifestyle. Although the marital lifestyle is an important part of the analysis in setting support in a divorce, it is a nearly unattainable goal post-divorce in today’s world.  If you have more reasonable expectations and budget yourself, you will adjust and carve out the money for the things that are really important to you.

The same Case Information Statement that was prepared in your divorce action can be the start of your new budget planning post-divorce.  Look over each section to see where you can improve the numbers and what expenses have decreased now that you are single.  Try to anticipate how much you will have on an annual basis and carve out your standard fixed expenses (mortgage or rent, car payments) and variable ones (groceries, utilities, etc.)  Always consider tax consequences, especially if you are receiving alimony.

Invest in your future

Taking some of the money you received from the divorce and invest it for retirement.  It may be the last thing on your mind but it must be done.  Not only are there tax advantages to doing this but if you get in the habit of putting money aside for this each year you will be taking positive strides towards a secure retirement starting today.  You cannot and should not rely solely on Social Security benefits when you retire, if they are even still available at that time.

Get in the “know”

You should budget some money to engage a financial planner or consultant.  The first step to mastering money is to understand it.  Your new jersey family law attorney can refer you to a financial planner who specializes in offering advice to those newly divorced.  It is even a good idea to meet with the financial planner during the divorce.

Carve out your own credit

Many spouses trusted the other spouse and never bothered to check their credit during the marriage. You should pull your credit report and clear up any erroneous information with the credit bureaus.  As soon as possible, start applying for separate credit in your name.  At first, you may be denied but keeping working at it.  If you do wind up getting a credit card, remember that this is not carte blanch to go out and buy whatever you want.  Be reasonable because that bill will be coming every month too.

Back to school

If you have been out of the workforce for many years, whether you were a homemaker or have children to care for, contributing to your own support post-divorce is a must in today’s world.  However, for parents who have to pay a babysitter, it does not even make economic sense to work if you are going to be earning minimum wage.  If possible, take night courses at a community college or even an online degree program. Getting an education or training in a field with career opportunities will go a much longer way in securing your financial future.  The benefits to an education cannot be stressed enough.  Plus, your future will be brighter as you look forward to your new single life and a new career.

A marriage is a financial partnership just as much as it is an emotional partnership. The choices you make during the course of the divorce process and ultimately in your settlement will affect the rest of your life and your children’s.  At the Law Offices of Sylvia S. Costantino, Esq., LLC we stand ready to assist you in this and all areas of Family Law.  Getting divorced — the smart way, may be one of the most difficult things you will ever have to do.

If your spouse has lied to you in the past, chances are that same spouse has been hiding money through his employment or his business.  (I use the words “him” or “his” in this blog as an example only and it could easily be interchangeable with “her” or “hers”).  Finding out where and how is the hardest part.  Keep in mind that as soon as the divorce process starts, the supporting spouse will likely start crying poverty in the hope that they can convince the Court and their spouse that they should pay a lower amount of alimony and child support.  It is sad to say but it is usually case that after a divorce, the supporting spouse’s finances go up and the supported spouse’s finances and hence standard of living go down.

Job Perks

If your spouse has perks through his or her employment in addition to their regular income, the value of these perks should be added back to their salary.  Some companies have generous perks in the form of a fully paid for car, car insurance, cell phone, meal plan, health club memberships, entertainment, etc.  Obtaining employment records including expense account records to verify what your spouse’s entire compensation package consists of is very important.  Keep in mind, however, that it is not easy to convince a Court of just how much should be added back to the spouse’s income.

Pay Me Later

Obtaining commission statements and employment records from your spouse’s employer is crucial.  In fact, you should get five years’ worth of these records if possible.  Commissions can be held either because the employee asks their employer to defer paying them until after the divorce or it could be that some contracts or sales could still be pending and the commissions will be paid out later.  In many cases, when a divorce is pending, the supporting spouse’s income and commissions sharply decline.  This is also why an average of the supporting spouse’s last three to five years of income is used when calculating support. Again, wild fluctuations in commissions could be a ploy to try and show an involuntary reduction in income to lower alimony and child support obligations.  On the other hand, you need to understand that commissions do vary and fluctuations can be legit.  If that is the case, sometimes alimony and child support will be calculated using your spouse’s base income and a percentage of commissions paid to you as additional support.

Commissions are not the only part of your spouse’s pay that can be deferred.  Be careful about getting the details of any bonuses and when they are paid out each year.  Part of the bonus may also be paid out and the rest deposited into another account.

“It’s on Me!”

Your spouse could have a huge expense account as part of his or her job.  Some accounts are more flexible and generous than others.  Your spouse could be charging all of their meals to the employer, or they could be taking friends and/or customers to Broadway shows, concerts, restaurants and sporting activities.  Think of it this way, if your spouse does not have to pay for his or her own meals, then they have more income available from which to pay alimony and child support.  This is not an easy “sell” in Court and it could require obtaining extensive records and credit card statements.

With meal plans, your spouse might get a certain amount of money each day for meals.  If they don’t use this money or all of the money, they are likely pocketing it.

Mysterious Loans

If your spouse has taken out 401(k), pension or other loans, then you need to find out (if you do not know already) what exactly the loan proceeds were used for.  As part of the discovery process during the divorce, you should ask for documented proof of how the loan proceeds were used.  Some spouses who took out such loans may have the money sitting in a bank somewhere for their personal use after the divorce.  Others may have started a side business, paid down their credit cards, or just plan dissipated the money.  If you are able to show that the proceed from these loans were not used to benefit the marital estate, then you should be able to hold the other spouse 100% responsible for paying back the loan.

Sylvia S. Costantino, Esq. understands how frustrating the divorce process can be.  Part of that frustration is born out of trusting the person you were married to for years and now feeling betrayed at financial decisions that were made without your consent.  The right New Jersey divorce attorney can assist you in being an active participant in the divorce process.  To make informed decisions that will help you and your children be as financially secure as possible under the particular circumstances of your case.

Call the Law Offices of Sylvia S. Costantino, Esq., LLC today for your in-depth consultation.  We understand that the issues in matrimonial law are complex and emotional.  Whether we are handling divorce, support, custody, domestic violence or division of assets, our family law firm has the knowledge, experience, compassion and skill to meet the needs of every client.

These and many other questions are commonly asked about parenting time in any divorce action.  Custody and visitation (parenting time) are naturally some of the most contentious issues in New Jersey divorces.  This is understandable as nothing is more important for parents than the best interest of their children.  In the past, visitation issues were somewhat more straight-forward than today.  Back then it was a given that the mother would be the primary caretaker of young children and fathers were relegated to a more limited role.  This was called the “tender years doctrine.”  Fathers would likely have parenting time only on alternate weekends which Family Law Attorney Sylvia Costantino calls the “cookie cutter” parenting time schedule.

These days parents truly are presumed to have equal rights to the children when it comes to parenting time.  Remember however that each case is unique in family law and the facts of your case may be similar to someone else’s case that had a different outcome.  One thing to remember is that if you seek a shared parenting plan, you need to assert this at the very start of your divorce case.  In some cases a custody evaluation may be necessary if the other parent disagrees with a shared parenting plan or it just may take time for the idea to settle in.

Understanding Shared Parenting in New Jersey

Misunderstandings abound regarding New Jersey custody and visitation issues.  For one thing, shared parenting is often assumed to be less than ideal, leading to children being bounced back-and-forth without the stability or familiarity they need.  While there is not a one-size fits all approach to any family law case, it is important to clear up some misconceptions about shared parenting.

Misconception:  A shared parenting time plan means 50/50.

This is not true.  A shared parenting plan does not mean that each parent gets exactly “half” the time with the children.  You can still have a shared parenting plan and have less than equal time.  It is quality that counts; not quantity.  It makes more sense to be able to spend time with the children when they are awake rather than making sure you get the maximum amount of overnights.

Misconception: It is best for children to spend most of their time in one home.

In reality, children are quite flexible and sharing time between two homes does not have to be this huge negative.  Making sure the child is comfortable in both your home and your ex-spouse’s home should be top priority, including that they get to take familiar belongings with them for the time they will spend at the other parent’s home.  Make spending the night at the other parent’s home a positive and fun experience for the child.

Also, it is important not to forget that there is flexibility in New Jersey parenting plans such that parenting can be shared while “changeovers” are minimized.  In other words, children do not need to alternate between homes every single day.  Unique agreements can be crafted which provide both parents an equal opportunity to see their children yet keep “ping ponging” to a minimum and still allow children to get into a stable routine.  You can work with a family law attorney to craft a plan that best accounts for your specific situation and you should strive to do this as early in your divorce case as possible.

Misconception: Infants always need to remain with their mother.

In reality, the benefits of shared parenting discussed above usually exist no matter how old the child.    Overnight stays with a father are often just as crucial for an infant as their connection to their mother.  This does not mean that infants don’t need some special consideration.  But, the automatic assumption that shared parenting will not work with young children is misguided. Remember, however, that in the case where a child is very young (usually under one year of age), the Court may be inclined to step up the number of overnights over time.  This does not mean that you should give up on getting shared parenting.  It just may evolve into that over time and you should try to put the step-up plan in place as part of the divorce settlement agreement.  Get involved in both your children’s education and home life.  The more “hands on” you are as a parent the better off you will be after the divorce.  There are even parenting classes available to brush up on skills.

Misconception: Shared parenting will not work if there is conflict between Mom and Dad or if they live far apart.

In reality, the focus always must be on the best interest of the child.  In most cases, that means that the child is able to develop full, meaningful, and lasting connections with both parents.  Keep in mind that the Court will examine how the parents communicate with each other and how far they live from one another. The inability to cooperate with each other usually becomes evident to the Court during motion practice when the Court reads the parent’s certification (also known as an affidavit).  The statutory custody factors are considered very carefully by the Court and the ability of the parents to communicate with one another is one such crucial factor.  Being at odds with your ex-spouse does not necessarily mean that you cannot and should not put your emotions aside and continue to keep the line of communication open regarding important decisions about the children’s health, education, and welfare.

Legal Help with Parenting Issues

At the end of the day, there are no easy answers to custody and parenting decisions.  The most important thing to remember is that just because you will no longer see your child every day, they need to know that you love them and that it is okay to express to you how they are feeling about the divorce.  Parents need to communicate with each other and put their personal feelings for one another aside.  You and your ex-spouse are inexorably linked with each other through your children.  Just because your marriage to one another is about to end, does not mean that the love you each have for your children is any less.  Whether you are going through a divorce or you have post-judgment issues regarding parenting time, a New Jersey family law attorney working with you can act as a crucial guide ensuring the best resolution is ultimately reached in as efficient a way as possible.

The Law Offices of Sylvia S. Costantino, Esq., LLC represents residents of New Jersey with regard to their family law issues in Holmdel and other towns throughout Monmouth County, as well as Ocean, Middlesex, Mercer, Somerset, and other counties in New Jersey.

(Photo courtesy of Cia de Photo)

• Most courts will not order a marital home sold during the pendency of the divorce action. However, you should know that a family judge in the State of New Jersey has the ability under the law to order the marital home listed for sale if the facts warrant it. For instance, if the marital home has equity and that equity is needed to pay attorney’s fees so that both spouses have legal representation throughout the divorce or the equity from the marital home may be needed to pay support for a spouse and/or children.
• You should decide as soon as possible whether either you or your spouse can afford to stay in the marital home and whether they will qualify for a loan based on their individual income or assets. If one party will be buying out the other party’s interest in the marital home, a real estate appraisal will be necessary to determine the exact value of the home. If the parties cannot agree on a value, the court will need the appraisal, and a current market analysis by a realtor will be insufficient.
• The party buying out the other party’s interest will need to refinance the existing mortgage debt(s) to remove the other party’s name from the note. This will entail the purchasing party to take on the existing mortgage debt in their name and cash out additional funds to buy out the other party’s share of equity in the home. This can be an expensive proposition and some supported spouses will not qualify for such a high mortgage.
• If you are the supported spouse, consider bargaining for the right to stay in the marital home for a period of twelve (12) months after the divorce is final before the marital home is listed. If you are unemployed, this may afford you the time you need to get reintegrated into the workforce or gain employment skills, and also time to build up your credit and show a history of income. Staying in the marital home will also give the children an opportunity to get acclimated to family life post-divorce. As it is, the children will now be spending time at the other parent’s new residence. For most children, going from one household to two is stressful enough including the fact that their parents are divorcing. Having their stable and familiar environment in the marital home preserved for them for a period of time will make the transition easier on them.

At the Law Offices of Sylvia S. Costantino, Esq., LLC, we understand the difficult decisions that you face during a divorce, including what will happen to the marital home. We offer you the expertise in Family Law that you need at this time in your life. With that comes life experience so that we can honestly say that we understand the decisions that you make now will affect your family and financial future forever.

We assist clients from Holmdel to Freehold to Toms River and beyond to help them through their divorce. We offer convenient appointments that fit with your family’s schedule. Contact a New Jersey Divorce Attorney today at the Law Offices of Sylvia S. Costantino, Esq., LLC for more information.

You’ve tried reasoning with the other party and maybe you have even tried shouting, yelling, emails, or repeated text messages to no avail. All you want to know is, when am I going to get my alimony and child support payments? Why doesn’t the other party ever pay on time? Why doesn’t he or she pay in full? But the $1,000,000 dollar question is what can you do about it without spending a lot of time, money and aggravation yet still be assertive and aggressive in your approach? While you may have thought your divorce was one of the worst things to every happen to you, post-judgment issues that arise after the divorce can be just as painful and upsetting.

This article will provide you with a cursory look at the process of enforcing child support and/or alimony in Monmouth and Ocean Counties. This article is not intended to offer legal advice and there is no substitute for consulting with a family law attorney who can help steer you in the right direction.

In today’s economy here in NJ, people find themselves laid off, taking an involuntary reduction in income, or the jobs that were once available are being given to younger people who will work for less money. This offers little comfort to a payee (the person who receives and relies on child support and/or alimony) to meet their monthly budget. It leaves one wondering if it the obligor (the person who is obligated to pay child support and/or alimony) is purposefully trying to take advantage of a depressed economy by dodging their responsibility to pay support. If the payor is truly experiencing a change in circumstances and they no longer have the ability to pay, it is the payor’s responsibility to file a motion with the Court, not your burden to put up with non-payment from your ex.

Having Your Support Payments Made Through Probation

Are your alimony and/or child support payments paid to you through Probation? If not, and you receive payments from the obligor via direct pay, you may want to consider having your attorney file a motion to have your support payments paid through Probation via wage garnishment and here is why:

You get the benefit of support payments direct deposited into your bank account every time that a payment is collected from the obligor;

• You can have the obligor’s wages garnished (a/k/a income withholding) by their employer (which means support will be deducted from the obligor’s paycheck and sent directly to Probation);
• You get the benefit of COLAs (“Cost of Living Adjustments”) which are automatically done by Probation every two years (the parties will receive a notice from Probation and have an opportunity to contest it);
• You can track how much is owed and how much is paid simply by logging onto Probation’s website;
• More importantly you get the advantage of enforcement through Probation. The ramifications of not paying child support in New Jersey are very serious and include driver’s license suspension or revocation or a bench warrant.

There is a definite downside to direct pay in that the recipient of support payments needs to keep accurate and complete records, including documented proof in the form of canceled checks or receipts showing how much was received and when. Imagine the parade of horribles when you walk into a New Jersey Court and the Judge asks how you arrived at the amount of support arrears that you believe your ex owes you. Your motion could be denied if your documentation is not accurate and complete.

Accepting support payments outside of the Probation system also creates a problem since there is no way for Probation to know that you accepted a payment directly from the obligor. Therefore, the Probation account will have charged and the amount owed by the obligor will still be showing on their system as arrears. Either you or the obligor can file a motion with the Court asking for a direct payment credit or Probation can give you a form to fill out to credit the obligor. However, if you continue to accept direct payments Probation could ask the Court to make your case a direct pay and close your account.

Filing a Motion with the Court to Enforce Litigant’s Rights

When all else fails and enforcement through Probation is not working, you may want to consider consulting with a family law attorney to file a motion in the Family Part. You may be thinking that this is something you can take care of yourself by filling out motion papers however, I ask you to consider the following that in the long run will save you time and money:

• Your attorney may want to include other requests for relief in the motion simultaneously with your motion to enforce child support and/or alimony, i.e. a higher arrears weekly payback amount, a two-missed payment bench warrant stipulation, and even something unrelated to enforcement of support that has come up in your case post-judgment. In the long run, you will save money this way rather than having to file for the other relief separately.
• Motions filed by an attorney are generally viewed as being more credible versus when a litigant files pro se (without legal representation). Most family law attorneys in Monmouth and Ocean Counties regularly appear in these Courts and know the appropriate terminology and format to use when seeking relief. That being said, the more precise and exacting your requests for relief are, the more
• The other party may respond to your motion for enforcement by claiming a change in circumstances and seeking to lower their support payments
• When making such an application, the obligor has a burden to prove as set forth in case law. This is known as making a prima facie case of changed circumstances. This is a much more difficult analysis and if you do not know the appropriate way to analyze their response in order to defend this type of a response, you will have wanted to have the advice of a family law attorney. At the Law Offices of Sylvia S. Costantino, we are here to protect your interests every step of the way.

Seeking a Bench Warrant for the Obligor’s Arrest

If only I had a dime for every time that a client called and demanded that I file a motion for a bench warrant to have their ex arrested for non-payment of alimony and/or child support. It is important to note that a bench warrant that results in the obligor’s arrest is not to “punish” the payor which is often what the person who is not getting support payments wants. A bench warrant that issues for non-payment of support is to coerce the obligor to come before the court and be compliant with the support order or to show why they are incapable of meeting their obligation (Enforcement of Litigant’s Rights Hearings).

Also, you should consider the ramifications of your ex being thrown in jail before you steam roll ahead and ask for a warrant. They could lose their job all together, and any professional license could also be at risk.

Agreeing to a Temporary Reduction of Support

You might say “no way” right out of the gate when the issue of a temporary reduction in support is raised by your ex, but even if you are considering accepting a lower payment thinking that something is better than nothing, before you act I urge you to Stop! and consider the following:

• What you may believe will be “temporary in nature” as promised by the payor when you enter into the agreement, may in fact become a precedent going forward and could become the basis for a Court Order.
• Whether you sign an agreement or not, your oral agreement with your ex can be enforced in Court.
• You may be agreeing to too much of a reduction.
• The case law may be on your side. In order to get a reduction in support, the obligor has a burden to meet which is set forth in the seminal case of Lepis v. Lepis.

Reducing Support Arrears to a Judgment

When you file a motion to enforce litigant’s rights, the Court will usually “set” or “fix” arrears but not reduce them to a judgment unless a request is made. That judgment should be filed with the Court Clerk by requesting that it be entered on the Civil Judgment and Docket.

At the Law Offices of Sylvia S. Costantino, Esq., LLC, online at http://NJFamilyLawDivorce.com , we are here to help you with the enforcement of your child support and alimony obligations. We can assist you in choosing the best course of action under the circumstances for your particular case. Remember, no two cases in family law are ever the same. What may have worked best for your friend or family member may not be what is best for you.

Call 732 615 9100 for your consultation today to learn how we can help protect your interests and help you choose the best course of action to take under your set of circumstances. Caring and competent representation awaits you at the Law Offices of Sylvia S. Costantino, Esq., LLC.

The answer to the first question is dependent for the most part on how the parties conduct themselves during the divorce process. Obviously, parties who have had a total breakdown in communication on everything from child related issues to finances may find themselves in Court battling it out with expensive motion practice unless their attorneys can find some common ground. The more one party digs their heels in and refuses to compromise even though the other party is compromising, will ultimately cause both parties to expend more money for the divorce. While the client may not be able to do anything about how the other party conducts themselves, the client can help minimize the cost for a divorce in many ways.

So, the answer to the second question is YES. In a divorce action, there are several things a client can do to help the divorce process move more smoothly and avoid costly motion practice or even a trial.

1. Make sure your lawyer answers all of your questions. Have your lawyer explain the system to you in a way that you can understand it. Take notes if necessary. Avoid asking the same questions more than once.

2. Find a good therapist or life coach. This point is not meant to be derogatory or suggest that the client is in need of these services. However, often clients use their attorney like a therapist or life coach because the lawyer is accessible to them, they may not have a therapist that they trust like their lawyer, or the client figures the lawyer knows the answer because they have been through the same family law issues over and over. Family lawyers often get put in the position of being asked more than legal advice. This too costs money because the lawyer is billing for their time. Clients retained their lawyer for their experience and expertise in family law, not to be a therapist.  However, a caring family lawyer will take the time to listen to your cares and concerns because that is part of the process.  A lawyer that understands where their client is coming from is an effective lawyer.  That being said, therapists and life coaches offer an expertise that your family lawyer cannot.  They are a great resource to you during this difficult time because they can help you think positively and look forward toward change so that the divorce process will cease being an emotional stumbling block.

3. Do not talk to your friends about your divorce. While friends and family members mean well and want to help you through this difficult time, their advice may wind up costing you more for your divorce. What I mean is, suppose your friend tells you about the great settlement she got when she was divorced, and in turn you go back to your attorney and ask why you cannot get the same deal. The attorney will now have to take the time to explain to you how the facts of each family law case are uniquely different and that no two outcomes will ever be the same even though the same Court Rules, case law and statutes apply. From that moment on, my experience has been that the client may develop unrealistic expectations that negatively effects settlement negotiations. Do not let this happen to you. Keep an open mind. Listen to other’s advice but do not let it blind you to the fact your “friend” who went through the divorce process may have a hard time seeing things from both sides. They know whether they were satisfied with the result or not but may not understand how the judge reached that particular result or why the case was settled in that way.

Your divorce should not cost you your life savings.  The right lawyer will advise you in all the ways that you can help your case.  At the Law Offices of Sylvia S. Costantino, Esq., LLC, you can be assured that you will get the legal advice you need, the answers to your questions, and be an active participant in the process.