5. EXCHANGE INFORMATION WITH THE OTHER DRIVER:

Obtain the names and addresses of all other drivers involved, along with the names and addresses of other passengers. Write down the vehicle information from the registration cards of all cars involved in the accident, as well as the insurance information [name, address and policy numbers]. If you notice that their insurance or registration has expired, inform the police

6. DO NOT ASSUME THAT THE POLICE REPORT WILL CONTAIN ALL AVAILABLE INFORMATION:

This is particularly true of names and addresses and telephone numbers of eyewitnesses, so make sure you get this information yourself. This is extremely important when there are different stories as to how the accident happened, for example, when both drivers at an intersection accident claim to have had a green light, when it’s only possible for one of them to have had a green light.

If you don’t obtain witness information at the scene, it is probably lost forever.

7. POINT OUT ANY PHYSICAL EVIDENCE TO THE POLICE:

By physical evidence, I mean any debris from the cars in the roadway, any skid marks from the vehicles involved, damage to each of the vehicles, as well as any physical signs of injury (bruise, laceration, etc.).

8. WRITE DOWN THE DETAILS OF THE ACCIDENT:

It is a good idea to write down what happened soon after the accident. The sooner you make notes of the details of the accident, the more information will be preserved for later, before your memory may fade and some of the specifics are lost. Your note should include date and time, road conditions, weather conditions and speed of all other vehicles involved. It is also a good idea to draw a diagram of the accident showing the position and direction of the vehicles just prior to and after the accident.

9.  REPORT THE ACCIDENT TO YOUR INSURANCE COMPANY:

Your insurance company is responsible for the payment of your medical bills, and must be promptly notified of the crash and of your injuries. Frequently the insurance company will ask you for a tape-recorded statement, and I suggest that you do not do so without an attorney. I give this advice because your insurance company often is your adversary when you present claims, and also because I may have serious problems with the way the questioner interrogates you  – they may be suggesting answers that may not be true, may suggest facts in their questions, or other tricky or confusing questions.

10. IF YOU ARE INJURED IN THE ACCIDENT:

If you are in pain, go to the Emergency Room or see a doctor as soon as possible.  Potentially serious and costly injuries may not be evident at first; let these experts evaluate you and determine if your injuries require treatment.

11. TAKE PICTURES:

Take pictures of the accident scene, skid marks, and damage caused to your vehicle.  If you were bruised or have other obvious signs of injury, you should also have someone take pictures of any bruises on your body – black and blue marks, bruises from seatbelts, anything that proves that there were forces to your body from the crash.  This evidence proves that your body experienced a forceful blow, and the photos will help contradict the defendant’s insurance company’s doctor who will certainly have a great resume, and who will say that you are not injured at all, or not as seriously as your own doctor testifies.

The entire  article can be found here.

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1. CALL THE POLICE:

If you are involved in a motor vehicle accident causing injury to person or property, you are required to stop and give, your name, address, and show your driver’s license and insurance identification card to the person who is injured or whose property is damaged, or to a police officer. By doing this you are making an official record of the event, obtaining an independent witness [the police officer] of some facts of the event, and documenting a statement from the other driver

2. .INJURED PERSONS RECEIVE FIRST CONSIDERATION:

If anyone is injured, inform the police officer who will then call an ambulance immediately.  Before help arrives, you should not move an injured person. Keep the person warm with blankets or coats if necessary. Do not give an unconscious person anything by mouth. If you are injured, get to an emergency room.

3.  PROTECT THE SCENE:

Make every effort to prevent further accidents. Vehicles should not be left in a position of danger on a highway if they can be moved, nor should passengers remain in such a vehicle. If the highway is obstructed at night, have someone with a flashlight warn approaching motorists, activate your flashers and set out flares or reflectors if they are available.

4. MAKE A COMPLETE REPORT TO THE POLICE:

Give the police officer the basic facts e.g., how it happened, the color of the light, what the other driver told you, etc. Ask the police officer how you can get a copy of the accident report and write down the police officer’s name and badge number. Inform the officer of any symptoms that you are experiencing.

The balance of this article can be found here.

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New Jersey DWI/DUI Penalties

Driving while intoxicated (DWI) and driving under the influence of CDS constitute very serious offenses in New Jersey. The consequences of driving while intoxicated, as well as driving under the influence of CDS include personal injuries, property damage, and even death. As a result, New Jersey has some of the strictest laws in the United States of those convicted of DWI/DUI charges; the severe penalties are intended to deter drivers from getting behind the wheel after drinking or while under the influence of controlled dangerous substances.

First Offense – DWI

In most states, driving while intoxicated is a crime. In New Jersey there are neither misdemeanors nor felonies. New Jersey takes the position that an offense for driving while intoxicated (as well as DUI) is a “quasi-criminal” offense, which means that there is a potential for incarceration, which becomes mandatory on the third or subsequent offense for a DWI, under most circumstances. In New Jersey, DWIs are segregated by tiers. If an individual’s blood alcohol is at least .08%, but less then .10% then there is a presumption of intoxication at that level of reading resulting in, upon conviction or a guilty plea:

• A license suspension of 3 months
• A fine of $250 to $400
• A fee of $230 to the Intoxicated Driver Resource Center (IDRC)
• A fine of $100 payable to the Drunk Driving Fund
• A fine of $100 to the Alcohol Education and Rehabilitation Fund (AERF)
• A surcharge of $1,000/year for 3 years imposed by the NJMVC, which is a law applicable to all out of state drivers
• A $75 fee to the Neighborhood Services Fund
• A prison term of up to 30 days, which can be suspended
• A mandatory 12 to 48 hours on 2 consecutive days in an IDRC program
• Additional surcharge of $100.00
• Possible installation of an alcohol interlock device for 6 months to 1 year

The balance of this article can be found here.

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21. How does the SCRA affect my divorce case?

From a New Jersey divorce, legal separation or paternity perspective, the SCRA applies to all proceedings, including post-decree matters, etc. The SCRA does not protect servicemembers in administrative proceedings or criminal cases. The SCRA also covers active duty servicemembers, reservists and members of the national guard.

Many servicemembers erroneously believe that the SCRA provides them with total immunity from being sued. This is another major myth in military law. The SCRA does not provide a servicemember with a blanket immunity against being sued or from being made a participant in a litigation proceeding. The primary remedy under the SCRA is that it halts a lawsuit(s) and a divorce case. In legal terminology the SCRA “stays the proceedings” issued by any tribunal or a court. These stay orders are uniquely useful in a divorce case. They provide a means for suspending the divorce until the servicemember who is a party is available to participate.

22. How does the SCRA enable a servicemember to “stay” a divorce case?

When a servicemember has not made an appearance, the family court’s next step is to decide whether to grant a stay of the divorce case. For a servicemember’s defense, the SCRA states that the court shall stay the proceedings for at least ninety days (upon application of counsel on the court’s own motion) if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant.

Pursuant to 50 U.S. Code App. 202, the court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the divorce proceedings for at least 90 days if the:

1. The applicant is in the military service, or within 90 days after it ended;
2. The applicant has actual notice of the proceeding;
3. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear; and
4. The application includes a communication from the servicemember’s commander that the military duty prevents appearance, and leave is not available.

The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for a longer stay. The same criteria is used to evaluate any request for a longer stay. The court may deny an additional stay. However, the court is required to appoint a lawyer to represent the servicemember if a request for a longer stay is requested.

It is important to emphasize that simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a servicemember’s ability to appear at court. Many servicemembers are permitted to take a leave from their duties. The family courts are well aware that servicemembers accrue 30 days of leave per year. DOD Directive 1327.5 section 6.25 provides in pertinent part:

When a servicemember requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave.

A servicemember who invokes this protection must justify the need for a stay, and have his base commander write the request. Please keep in mind that the family law courts in New Jersey which also has several military installations, work with servicemembers by allowing telephonic testimony, or scheduling hearings during periods of authorized leave. The result is that military personnel are protected, but family law proceedings can still continue. Finally, if a request for a stay is denied, the servicemember cannot then invoke the protections of the SCRA to try to set aside the default judgment.

23. How does the SCRA protect servicemembers from default judgments in a divorce case?

The SCRA also offers many protections for a servicemember from the entry of a judgment by default in a divorce case. A divorce judgment entered by default may not be lawfully entered against a servicemember in his or her absence unless the court follows the procedures as set out in the SCRA. As explained earlier, when the servicemember has not made an appearance, 50 U.S.C. App. 521 governs. The court must first determine whether an absent or defaulting part is in the military servicemember. Before the entry of a judgment of divorce or for an order for support, the moving party or the plaintiff must file an affidavit or a certification that sates “whether or not the defendant is in the military serve and showing necessary facts in support of the affidavit.” There are criminal penalties that are provided for filing a knowingly false affidavit or certification of non-military service.

50 U.S. Code App. 201, which applies to any divorce or a family law case provides servicemembers with relief against a default judgment for divorce. A plaintiff seeking a default judgment in a divorce case must first submit an affidavit or a certification stating whether the defendant is or is not in the military, or that the plaintiff does not know whether the defendant is in the military. The plaintiff must also attach a military search from the Defense Manpower Data Center DMDC. The military search is attached to the affidavit or certification of non-military service. The military search can be obtained from the DMDC website. A divorce judgment that is obtained without the affidavit and/or certification of non-military service is voidable if the servicemember later shows that his or her military service prejudiced the presentation of a defense.

24. How can an ex-spouse oppose a stay issued by the SCRA?

It is clear from the above that there are an abundance of protections that are provided to servicemembers from the SCRA. However, family law attorneys will be quick to recognize that these protections, especially the stay of the proceedings, can be an extreme hardship in many cases. Unpaid support and custody and visitation problems all confront military families. Therefore, in many cases it may be necessary for a military spouse to oppose a request for a stay of a divorce case.

Counsel for the military spouse can file a motion to vacate the stay based on the grounds that it is not made in good faith. Most courts hold that a servicemember must exercise due diligence and good faith in trying to arrange to appear at court. When a servicemember demonstrates bad faith in his or her dealing with the court, no stay will be granted.

The lawyer opposing the stay also should absolutely examine whether the servicemember’s presence is necessary. In many family law cases, the issues presented to the court are only by the pleadings and by paperwork, and not by live testimony. In the alternative, when the servicemember’s testimony is necessary, counsel for the civilian spouse can argue that this does not require personal presence. It might be possible to convince the court that technology makes testimony by video-teleconference by use of the Internet almost as good as live testimony. Sometimes the case can proceed on an interim basis with a temporary hearing. There is New Jersey caselaw that suggests that granting a temporary hearing(s) with regard to the determination a child support award, as a general rule does not significantly affect the servicembember’s rights. The reason for this holding is because child support orders are only interlocutory (temporary or interim) orders, and they can be subject to a modification in the future.

25. How does the SCRA impact the collection of a child support award?

A uniquely problematic area involves the initial determination of a child support award and the stays imposed by the SCRA. New Jersey law requires an “expedited process” in child support determinations. This is at odds with the concept of a stay of the proceedings while the servicemember parent is unable to appear in court due to military duties. In most cases, a preliminary determination of child support must be made within sixty days of the filing of the FD case or the complaint to determine child support.

The child support guidelines usually proscribe a formula for child support based on the income of one or both parents. In New Jersey child support cases, the family courts will still conduct a child support hearing even if the servicemember is not available. The family courts only need to have the parties’ income information to calculate a child support award. In most cases, the civilian spouse already has in her possession the couple’s tax returns and her husband’s pay info. In the majority of cases, this evidence is all that is needed by the court to calculate a child support award. Therefore, for routine child support cases the stay protections of the SCRA will not be rigorously applied. Moreover, the family courts will also try to have the servicemember participate in the child support hearing via a phone conference or by video-teleconferencing.

Former Spouse Military Benefits

26. What type of military benefits does a former spouse of a servicemember receive after a divorce?

A former spouse of a servicemember has available to him or her a wealth of military benefits. Upon obtaining a New Jersey judgment of divorce, the former spouse of a servicemember has a right to receive military benefits so long as he or she meets certain enunciated criteria. As the benefits are statutory entitlements, they are automatic and not subject to negotiation or any deviation by a divorce court in New Jersey.

27. What type of military benefits does a spouse receive during a legal separation?

Until a New Jersey divorce court issues a final judgment of divorce, a civilian spouse that separated from a servicemember retains full military privileges. These privileges include possessing an ID card, medical, military exchange, commissary, etc. Even though the servicemember can and he certainly should terminate the civilian spouse’s ability to cash checks on post by going to the PX/BX, he or she cannot confiscate the spouse’s ID card or otherwise suspend the spouse’s military privileges.

A civilian spouse that is separated still retains military medical benefits in New Jersey. If a civilian spouse has a medical condition, then it may be feasible and practical to only seek a legal separation instead of getting a full divorce. A permanent legal separation is called a “Divorce from Bed and Board.” A “Divorce from Bed and Board” is a remnant from the past. This type of proceeding is designed for spouses who do not intend to remarry. The main benefit of a “Divorce from Bed and Board” is that it will permit the civilian spouse to retain medical benefits. The civilian spouse will still be permitted to receive her Tricare benefits if there is only a permanent legal separation. I have recently seen a resurgence of “Divorce from Bed and Board” filings. The price of obtaining health insurance has gotten so cost prohibitive, that divorcing couple’s have to resort to having a permanent legal separation to enable both spouses to have adequate health insurance coverage.

The bottom line is that there is only so much money to go around in a military divorce. A servicemember may be able to save significant dollars in spousal support or alimony if a permanent legal separation is pursued instead of a full divorce. If there is a long marriage, most family courts will order a servicemember to contribute to the costs of the civilian spouse to obtain new health insurance. These additional costs may be overwhelming to a servicemember. Therefore, a “Divorce from Bed and Board” deserves a close look by any military couple that is planning to divorce.

Military housing is generally only authorized to servicemembers residing with their families. A military base will typically give a civilian spouse a reasonable time after separation to vacate on-post housing.

28. When is a former military spouse entitled to full Benefits under the “20/20/20″ rule?

Pursuant to 10 U.S. Code 1072, a former spouse of a servicemember is entitled to all military benefits and installation privileges, including medical, commissary, and military exchanges (PX/BX). A former spouse is also entitled to use such other amenities such as bowling alleys, theaters, etc.

The criteria to receive 20/20/20 benefits are as follows:

1. The ex-spouse must be married to the servicemember at least 20 years;
2. The servicemember must have had at least 20 years of creditable service; and
3. There must be at least a 20-year overlap between the marriage and the military service.

Any Medical benefits are suspended while the former spouse is covered by an employer-sponsored health care plan. Moreover, any medical benefits are terminated if the former spouse’s should remarry.

Commissary, military exchange (BX/PX) and other installation privileges are suspended while the former spouse is remarried. However, these privileges are reinstated upon the remarriage is terminated due to a death or a divorce.

29. When is a former military spouse entitled to full benefits under the “20/20/15″ rule?

An unremarried former spouse is entitled to one year of military medical care only (no commissary, military exchange, etc.) The unmarried spouse can only receive medical benefits if he or she is not covered by an employer-sponsored health care plan. Moreover, the following criteria must also be met;

1. The ex-spouse must be married to the servicemember at least 20 years;
2. The servicemember must have had at least 20 years of creditable service; and
3. There must be at least a 15-year overlap between the marriage and the military service.

30. Can a former military spouse receive COBRA health benefits offer the divorce?

Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Tricare will provide a divorced civilian spouse with 36 months of health insurance. This type of program is called the Continued Health Care Benefit Program. Unfortunately, the COBRA program is very expensive, and it is cost prohibitive for many military families. However, if the civilian spouse has a preexisting medical condition, it could be worthwhile.

A former military spouse has to be very prompt to apply for COBRA. The military spouse must submit a DD Form 2837 Continued Health Care Benefit Program Application within 60 days of the divorce, and mail it in with proof of your eligibility and a check for the first quarter of coverage.

31. Child Support information for recently activated national guard and reserve soldiers.

The NJ Office of Child Support & Paternity Programs (OCSPP) realizes that under Operation Enduring Freedom, many of you may be called to active duty, both at home and abroad. First and foremost, we join those who thank you for your service to our country.OCSPP also realizes that some of you may be involved with our program as either a custodial parent or a noncustodial parent. You may have an order to receive child support, or you may be ordered to pay support for your children.

OCSPP wishes to inform you of our policies that address those of you called to active duty, particularly in the areas of review and modification, income withholding and medical support.

After reading the following, should you have additional questions, please contact:

* The local Child Support office to which your case is assigned;
* The OCSPP Customer Service Unit via telephone at 1-877-NJKIDS1

Review and Modification

A custodial parent or noncustodial parent who has been called to active duty for a period of more than 30 days may request a review and modification due to an income change. The income change is considered a substantial change in circumstances for purposes of review and modification. That means the Child Support Program will complete a review of the order regardless of the age of the order and complete a modification regardless of whether the new amount differs by 20 percent from the existing obligation.

If you request a review of your order and a modification, please include:

* A copy of your latest leave and earning statement; and
* A copy of your orders to appear for active duty.

Send your written request and this documentation to the Child Support unit at the county Board of Social Services in which you have an order. For the address, click on Local Offices in the frame at left.

Medical Support

If you are ordered to provide health care coverage for your child(ren) and have not done so, we will ask the military to enroll the child(ren) in the appropriate health care plan.

For more information about  NJ Divorce Law or to find a New Jersey Divorce Lawyer.  Additional lists of NJ Law firms can be found here.

11. What is the best tip that I can use to collect child support from my “deadbeat” husband who is also a servicemember?

Whenever possible, use the military command structure to assist you to collect any child support or spousal support. If the lowest unit commander cannot help you or if he or she does not respond, then take your request to the superior of that officer. Document your requests, keep records, and use fax or e-mail transmissions whenever possible to send your requests and communications.

12. My ex-girlfriend has filed a child support case against me. I am now stationed in Iraq. Can I contest the determination of the paternity for the child?

In many child support cases, a preliminary consideration is the determination of the paternity of the child. Any litigation as to the paternity may be barred by a prior judicial determination establishing the servicemember as the father of the child. The most common example is the adjudication of paternity that is present in most divorce judgments. It is usually an essential element necessary to obtain a judgment for divorce. Likewise, it is an essential finding in the divorce judgment. The purpose of this requirement is to bar a subsequent litigation of paternity matters that should have been settled in the divorce case. Accordingly, the court will ordinarily deny any attempt by the former husband to reopen the issue of paternity as to the children shown to be his on the face of the divorce judgment. The servicemember also may be estopped from litigating paternity if he has signed a paternity affidavit or an acknowledgment of paternity.

If a servicemember has never acknowledged paternity in either a divorce case or a prior child support hearing, then he may have a right to a paternity test. In New Jersey most paternity tests are performed by Cell Mark labs. These tests are very simple, and the lab techs take a swab from the servicemember’s mouth. The DNA obtained from this sample is then compared with the DNA obtained from the child’s sample. The paternity results are usually available in 30 days or less. The cost to conduct the paternity test is usually around $250. The servicemember will have to pay Cell Mark directly to conduct the paternity test. If the test results are negative, then the State of New Jersey will reimburse the servicemember for the costs. If the paternity test reveals that the servicemember is the parent, then he is responsible for the costs to conduct the paternity test.

Garnishment of Military Pay

13. Can the military garnish my paycheck for my child support obligations?

In New Jersey divorce, legal separation or paternity cases involving child support or maintenance, the spouse can receive payments through a wage garnishment. A garnishment is authorized for child support and alimony (also called spousal support or separate maintenance). The military pay subject to a garnishment has several exceptions which are BAS, BAH, travel allowances. For many Service members, it means only their base pay is subject to garnishment.

14. What are the garnishment procedures that I must follow to collect from my “deadbeat” servicemember husband?

Federal law (42 U.S.C. 659) authorizes the garnishment of the pay of all members of the military. Moreover, the pensions of retired military members can also be garnished. The procedure for garnishment as follows: First, obtain a court order for garnishment. Second, you must serve the garnishment order to the Garnishment Operations of the DFAS. Once the papers are properly served, then the DFAS will then notify the servicemember and it will suspend the payment of any funds necessary to comply with the garnishment order. The DFAS is then required to serve notice of the garnishment order to the servicemember no later than fifteen calender days after the receipt of the garnishment order.

Division of Military Retirement Benefits

15. Can a military pension be subject to equitable distribution in a divorce case?

Yes. A servicemember’s military pension is often the most valuable asset in a New Jersey divorce. Many spouses often overlook the value of a pension. Since a military pension is also a marital asset, New Jersey can divide it just like any other marital asset. Therefore, it is paramount that each spouse should be knowledgeable as to how New Jersey divorce courts handle the equitable distribution of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).

A review of New Jersey caselaw specifically holds that a military pension is subject to equitable distribution. A military pension is divisible. Castiglioni v. Castiglioni, 192 N.J. Super. 594 (1984); Whitfield v. Whitfield, 222 N.J. Super. 36 (App. Div. 1987); (Holding that non-vested military retired pay is marital property); Kruger v. Kruger, 139 N.J. Super. 413 (App. Div. 1976); aff’d, 73 N.J. 464 (1977), (Holding that a post-divorce cola adjustment for a military pension is divisible.)

In a military divorce, almost all of the work done by the lawyers with regard to equitable distribution involves the division of the military pension. The bottom line is that the military does not pay their servicemembers adequately enough to enable them to accumulate any decent savings. However, the military does provide substantial health and retirement benefits to their servicemembers. In a military divorce context, it is very rare to have any vexing issues as to the equitable distribution of marital assets. In most military divorces the most valuable asset is the military pension. Therefore, in a military divorce it is of the utmost important to insure that the civilian spouse receives her fair share of the military pension.

16. What is the biggest myth about dividing military pensions?

First, to dispel the myth, all states, including New Jersey, have the authority to divide a servicemember’s military retirement, regardless of the length of the marriage. In the year of 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). This landmark act permits, but does not require, the state courts to divide military retirement upon a divorce or a legal separation or annulment. 10 U.S. Code 1408.

There are no restrictions imposed on a New Jersey divorce court’s authority to divide a military retirement based solely on the the length of marriage. Many people, including many divorce lawyers mistakenly believe that a military pension can only be subject to equitable distribution if the marriage lasted at least 10 years. This is the biggest mistake that most divorce lawyers make when they handle a military divorce case.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse’s share of the military pension if there were at least 10 years of marriage. The marriage also must coincide with 10 years of creditable military service. This rule is also commonly known as the 10/10 rule.

Many misinformed lawyers “sell out” their client, and they don’t pursue a fair share of a military pension. The major reason for this error is because many lawyers simply do not understand the concepts of dividing a military pension in a divorce. In New Jersey the family court can still divide a military pension for a couple that has been married less than 10 years. The main distinction is that in a marriage that is less than 10 years, the servicemember has to cut the check to pay his ex-spouse. The military or the DFAS will not pay a portion of a pension directly to the ex-spouse if the marriage was shorter than 10 years.

17. Can a military thrift savings plan (TSP) be subject to equitable distribution in a divorce case?

Yes. The National Defense Authorization Act allows servicemembers to contribute up to 7% of their basic pay to a Thrift Saving Plan (TSP). The Military does not offer any matching funds from the federal government. In summary, a military thrift savings plan is very similar to a private sector 401(k) plan. The individual’s taxes are deferred on the contributions and appreciation until they are disbursed. A military thrift savings plan is treated just like any other retirement asset. The thrift savings plan must be valued and it will be distributed via a Qualified Domestic Relations Order (QDRO).

18. What are the mechanics to effectuate a distribution of a military pension?

New Jersey caselaw has consistently held that military retirements are just like other pension plans, and they are “property.” Therefore, a military pension or retirement has consistently been subject to equitable distribution in a divorce.

A military retirement is a federal entitlement and it is not a qualified pension plan. Therefore, no Qualified Domestic Relations Order is required. The procedure to effectuate a division of a military pension is to simply send to the DFAS a DD Form 2293, Application for Former Spouse Payments from Retired Pay. Moreover, a certified copy of the court order or judgment of divorce that divides the retirement must accompany Form 2293. The order or divorce judgment should contain the following information:

1. An indication that the servicemember’s rights under the Servicemember’s Civil Relief Act were respected,
2. An indication of the New Jersey divorce court’s jurisdiction over the servicemember (either residence, domicile, or consent to jurisdiction, including not contesting jurisdiction),
3. The marriage date, and an indication that the 10/10 rule has been met, and
4. The percentage share (or a dollar amount) awarded to the former spouse.

It is important to be patient when you are dealing with the DFAS. It may take up to 90 days to receive the first payment. The DFAS will send the servicemember notice of the application. Thereafter, the servicemember then has 30 days to contest the payment(s).

19. What are the maximum payments that an ex-spouse can receive from the DFAS?

The maximum portion of a retirement that DFAS will pay to an ex- spouse as part of the equitable distribution is 50% of the servicemember’s disposable retired pay. This does not prevent a divorce court from dividing the military retirement and awarding a former spouse more than half. If a servicemember should be in this most unfortunate situation, then he or she will have to make up the difference between what the DFAS pays directly, and what the divorce court’s has ordered.

In cases where military pay is both awarded to a former spouse through equitable distribution, and subject to garnishment for child support or maintenance, then the maximum that the DFAS will pay to the former spouse directly is 65%. However, if the court order or the judgment of divorce requires payment that is greater then the 65% limit, then the servicemember would have to make up the difference between the amount DFAS pays out and the amount ordered.

Servicemembers Civil Relief Act

20. What is the Soldier’s and Sailors Civil Relief Act?

The most important law that protects the rights of our military men and women is the SSCRA, or the Soldiers’ and Sailors’ Civil Relief Act. Congress initially passed legislation at the start of World War II called the Solders’ Sailors’ Civil Relief Act (SSCRA) to provide protection to these in the armed formed. It was enacted in 1940, and the SSCRA was updated after the Gulf War in 1999 but it was still largely unchanged as of 2003. The Servicemembers Civil Relief Act (SCRA) was written to clarify the language of the SSCRA, and to update the SSCRA to reflect the changes in American life since 1940.

The Act was passed by Congress to enable those serving in the military to devote their entire energy to the defense needs of the nation, and to provide for a temporary suspension of any judicial and administration proceedings and transaction that must adversely affect the civil rights of servicemembers during their military service.

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General Info

1. What are the residency and filing requirements for a servicemember to file for a divorce?

The state of New Jersey will allow a military member or a spouse to file for a divorce where he or she is stationed, even if neither the servicemember nor the spouse is a resident of New Jersey. New Jersey will often reduce or eliminate the residency requirement for military divorces.

A servicemember or a spouse has a choice of the following three states in which to file for a divorce;

1. The state where the spouse resides.
2. The state where the servicemember is stationed.
3. The state where the servicemember claims legal residency. This is where the servicemember’s home state, or where he or she plans to live after discharge or retirement.

In my experience, military divorce cases and child support disputes can become extremely convoluted. In a typical military divorce, the parties are divorced in the county court where the military base is located. Almost invariably, both spouses move back to their home state, or the servicemember is transferred to another base out of state. Consequently, the state where the original divorce case was filed retains jurisdiction over any post-judgment issues. I have had a case wherein New Jersey retained jurisdiction over a military divorce for more than 15 years even though the civilian spouse moved to Michigan, and the servicemember was transferred to California.

The above type of scenario makes it extremely difficult for the civilian spouse to file any type of a post-judgment support motion(s). Accordingly, it is quite common that the servicemember’s child support is never increased or subject to any type of a periodic review. Moreover, it is extremely difficult for the civilian spouse to file any type of post-judgment motion(s) to seek any contribution from the servicemember for college tuition costs for the children. To avoid these problems, it is strongly advisable for the civilian spouse to try to have the jurisdiction of family law case transferred to his or her home state. If no spouse continues to live the state with the original jurisdiction, then it is almost certain that the new state will grant any motion to transfer jurisdiction.

As a side note, I have also noticed that in many military divorces the ex-spouses have extensive legal battles to determine which state has jurisdiction. It is quite common that ex-spouses will engage in an extensive legal battle to determine which state’s child support guidelines should be used. In many military divorces there are three or more states that may have “significant contacts” to the divorce case. The bottom line is that the child support guidelines vary tremendously all throughout the United States. Therefore, in many military divorce cases the civilian ex-wife will try to have jurisdiction declared to be in the state that has the highest child support guidelines. Meanwhile, the servicemember ex-husband will use his efforts to try to have jurisdiction declared to be the state that has the lowest child support guidelines.

2. What are the most common mistakes that a divorce lawyer makes in handling a military divorce?

It is extremely important to obtain the services of an experienced divorce lawyer who also has an extensive background in military divorce law. There are many quirks and intricacies of military divorce law that must be mastered by an attorney. A shrewd military divorce lawyer can provide you with invaluable legal advice that could benefit you for the rest of your life.

There are several mistakes that ordinary lawyers commonly make in military divorces. The most common mistakes are as follows:

1. Not understanding the “10″ rule for dividing military pensions.
2. Not understanding the special protections of the Servicemembers Civil Relief Act.
3. Preparing a Qualified Domestic Relations Order to effectuate the equitable distribution of a military pension.
4. Not understanding all of the different components of military pay.

Military Pay & “Gross Income”

3. How does a family court determine a service member’s gross income to calculate his child support award?

When a service member is getting a divorce, the first stage of the case is to determine the amount of the child support award. The court will need to have the income information from both spouses to determine the child support award. Both spouses will have to give the court their pay stubs, their W-2’s, and their income tax returns. Moreover, in a military divorce the servicemember will have to provide the court their Leave and Earnings Statement.

You can learn a lot from a Leave and Earnings Statement, including the service member’s pay grade, years of service, and gross pay. A service member’s gross monthly pay primarily consists of:

1. Basic Pay, which varies depending upon the service member’s pay grade and years of service.
2. Basic Allowance for Housing (BAH). Service members receive BAH unless they reside in military housing or the barracks. The amount varies, depending upon pay grade, dependent status, and home station zip code.
3. Basic Allowance for Subsistence (BAS).
4. Cost of Living Allowance (COLA), if the service member is stationed overseas.

A court must critically review the Leave and Earnings Statement when it calculates a child support award. It is important to review the LES, since there are many other allowances a service member may be receiving. These allowances may include such items as jump pay, family separation allowance, hostile fire pay, flight pay, hazardous duty incentives, hardship duty location pay, professional pay for medical officers, sea pay, submarine pay, dive pay, clothing allowances, overseas per diems, partial BAH, etc.

4. How does the New Jersey family courts treat military pay and allowances?

For purposes of calculating child support and maintenance, New Jersey divorce courts use a very broad definition of “gross income.” In a nutshell, the New Jersey child support guidelines include every dollar the service member receives on the LES, even though some of the allowances are invisible to the IRS and not taxable.

Moreover, New Jersey family law courts also impute income to a service member who receives lodging or food in lieu of BAH or BAS. The reason for imputing income to a service member is because military housing is considered an “in-kind payment,” much like a company car provided by a private-sector employer. Even though no rational person would claim that a barracks room at Fort Dix or at Maguire Air Force Base was the financial equivalent to proper family housing or the full BAH at the with-dependents rate, New Jersey divorce courts may pretend that they are.

Military Family Support

5. How does the military administer the child support laws on their servicemembers?

Child support problems are not as pronounced in the military as in the civilian world. Under Article 133 of the Uniform Code of Military Justice, it is a criminal offense for an officer to engage in conduct unbecoming of an officer and a gentleman. For enlisted personnel and officers, Article 134 makes it a crime for any member of the armed forces to dishonorably fail to pay a just debt that has become due and payable, provided that the individual’s actions were to the detriment of the armed forced or were such as to bring discredit upon the armed forces.

The military default rate in cases involving support orders is one-half that of the nationwide default rate in similar case. The military success in this area is primarily due to the fact that the military society is much more disciplined than the civilian community. There are rules governing a military members conduct, including requirements to pay just debts or face criminal prosecution. These rules virtually guarantee that servicemembers will comply with child support orders, unless they are willing to fact adverse administrative or criminal actions. This unique combination of the authority that permits the employer (the military services) to take adverse administrative and criminal sanctions against its employees (military members), makes the enforcement of child support orders far less problematic within the military community as compared to the civilian community.

Each branch of the military has their own individual regulations that require its servicemembers to pay support to their family members after any separation. If there is a court order or an agreement in effect then they take priority over any of the military regulations. The military regulations are only stopgap measures, and they focus on the particular circumstances of each case. These circumstances include issues such as “fault,” income levels, and/or number of children.

It can’t be over emphasized that the servicemember or the civilian spouse is almost always better off to file a support action in the local county court, instead of seeking support through the military chain of command. The military is adept at protecting the United States and in fighting terrorism. The family courts are experts at determining a fair child support award and enforcing it.

In the event that a servicemember is a “deadbeat” parent, then the civilian spouse seeking support can request assistance from the servicemember’s commander. If the local commander is of no help, then the local JAG office or Inspector General should be contacted. Unfortunately, in the military family support cannot be garnished unless there is a court order. Moreover, a commander has not authority actually divert a servicemember’s pay to the civilain spouse. However, a servicemember who fails to pay support could be punished under Article 92, UCMJ for violation of a lawful general regulation.

It is very tiresome to have to chase down your spouse each and every week for the payment of the child support. The benefits of having child support garnished can’t be overemphasized enough.

I always advise my military divorce clients to obtain a child support through the family court system instead of going through the military chain of command. A valid court order will subject the servicemember to an immediate wage garnishment. Therefore, if you receive a court order for child support then your child support checks can soon be “rolling in.”

If you are a servicemember, or spouse of a service member, stationed at Fort Earle, McGuire AFB, Fort Dix, Fort Monmouth, contact your legal assistance office for more information. However, if you are thinking of filing for a New Jersey divorce, legal separation or paternity action, you may need an attorney who knows both New Jersey law and military regulations for family support, child support, and maintenance/alimony.

6. What are the military guidelines for child support when there is no child support order?

There are administrative regulations that are adopted by the branches of the military service that state what to do in the absence of a court order or agreement for family support. Each branch of the military service has different rules for the support of the family members. While the Department of Defense (DOD) policy is that servicemembers will not use military service to avoid their family support obligations, each branch of the service implements the DOD policy through it’s owns rules and regulations. There is no set “military allotment” for family support.

7. How does the Army determine child support and spousal support?

Army Regulation 608-99, Family Support, Child Custody and Paternity requires soldiers to pay temporary support depending upon the family situation:

1. Civilian spouse/children not in military housing: BAH-II (aka “BAQ”) at the with-dependents rate.
2. Civilian spouse/children in military housing: Difference between BAH-II at the with-dependents rate and the without-dependents rate.
3. Civilian spouse/children not in military housing and not living together: Pro rata share of BAH-II to each.
4. Military spouse with no children: No support obligation.
5. Military spouse with children split between parties: No support obligation.
6. Military spouse with all children: The difference between BAH-II at the with-dependents rate and the without-dependents rate.

In-kind payments do not generally count toward the support obligation, except in very rare situations. In kind payments include paying for food or for lodging. A battalion/squadron commander may relieve the soldier of the spousal support obligation only in very limited circumstances, such as the civilian spouse having a higher income, being in jail, or committing physical abuse against the soldier, or the soldier having already paid support pursuant to AR 608-99 for 18 months. Finally, infidelity or abandonment does NOT constitute grounds for relief from paying the child support.

8. How does the Air Force determine child support and spousal support?

The Air Force Instruction 36-2906, Personal Financial Responsibility requires all airmen to “provide adequate financial support of a spouse or child or any other relative for which the member receives additional allowances for support. Members will also comply with the financial support provisions of a court order or written support agreement.”

Family support includes not only cash payments, but in-kind payments like buying groceries, paying bills, etc. Unlike the other branches, the Air Force does not attempt to define a specific dollar figure for child support and for spousal support. Instead, the Air Force leaves it up to the parties’ to work out an agreement as to the terms of support. The Air Force also encourages the parties to file a complaint for separate maintenance to determine the terms of family support. If a spouse makes a formal complaint of non-support to a commander, the commander cannot define an adequate level of support. Basically, the Air Force does not want to get involved in the family disputes of their Service members. The Air Force takes a “hands off approach,” and they encourage their airmen to resolve their separations and divorces in the local family courts.

9. How does the Navy determine child support and spousal support?

The Navy regulations provide a guide for family support, expressed as a fraction of the sailor’s “gross pay.” “Gross pay” is defined as base pay plus BAH, if entitled, but excludes all other allowances, such as BAS, hostile fire pay, etc. The Navy nonsupport policy provides that, in the absence of an agreement or an order, a unit commander must use the following as a guide fo the adequacy of support:

1. Spouse only: 1/3
2. Spouse and 1 minor child: 1/2
3. Spouse and 2 or more children: 3/5
4. 1 minor child: 1/6
5. 2 minor children: 1/4
6. 3 minor children: 1/3

A sailor may request a waiver of spousal support based on desertion without cause, physical abuse, or infidelity on the part of his or her spouse. The waiver request should be submitted to the Director, Navy Family Allowance Activity. It must include a complete statement of facts, the recommendation of the servicemember’s commander, and any substantiating evidence.

10. How does the Marine Corps determine child support and spousal support?

The Marine Corps regulations provide a guide for the monthly support standards that the Marines must follow. The standards depend upon the status of the family member. However, a Marine is never obligated to pay more than 1/3 or his/her “gross military pay” (defined as total pay and allowances):

1. Civilian spouse/children in military housing: $200 per supported person.
2. Civilian spouse/children not in military housing: The greater of BAH with-dependents or $200 per supported person.
3. Multiple families: The greater of the pro rata share of BAH with-dependents or $200 per supported person.
4. Military spouse: No support obligation.
5. Military spouse with all children: The greater of BAH with-dependents or $200 per supported person.
6. Military spouse with children split between the parties: the greater of the pro-rata share of BAH with-dependents or $200 per supported person.

A commanding officer may relieve the Marine of the support obligation in certain extenuating cases. These types of cases may occur where the Marine cannot determine “whereabouts and welfare of the child concerned,” the civilian spouse committed documented physical abuse against the Marine, or the family member to whom the support obligation would be owing is in jail.

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For more information about NJ  Divorce  law or to find a New Jersey lawyers. Additional lists of NJ Law firms can be found here.

IF YOU LOSE YOUR JOB-
WHAT YOU NEED TO KNOW ABOUT
UNEMPLOYMENT COMPENSATION & MEDICAL INSURANCE

The American economy lost more than 2 million jobs in 2008, the most of any year since the end of World War II. Manufacturing activity is at its lowest level in nearly three decades. Experts believe unemployment could reach double digits if no action is taken.

In response to these challenges, on February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (Act).  It has been hailed as an unprecedented effort to jumpstart our economy and create or save millions of jobs. The Act has been called an extraordinary response to a crisis unlike any since the Great Depression, and includes measures to modernize our nation’s infrastructure, enhance energy independence, expand educational opportunities, preserve and improve affordable health care, provide tax relief, and protect those in greatest need.

While the Act affects many people in many different ways, there are two major changes affecting those who have lost their jobs in these tough times.  First, the Act extends the Emergency Unemployment Compensation (EUC) program through December 2009, increasing weekly Unemployment Insurance benefits, and providing financial incentives for states to modernize their Unemployment Insurance systems to expand coverage and handle higher workloads.  Second, the Act changes the potential avenues available to continue medical insurance coverage after a termination of employment.

In New Jersey, all individuals receiving regular Unemployment Insurance (UI), Extended Unemployment Compensation (EUC), Self-Employment Assistance (SEA), Trade Act (TRA), Unemployment Compensation for Federal Employees (UCFE) and Unemployment Compensation for Ex-Servicemembers (UCX) benefits will receive an additional $25 payment for each week of benefits paid beginning with week ending February 28, 2009, and extending through the week ending July 3, 2010, provided that the claim for benefits is dated no later than December 20, 2009.  Therefore, if you are uncertain if you are eligible, you should contact a qualified attorney to discuss your particular situation.Â

In addition, the Act has changed the potential avenues available to continue medical insurance coverage after a termination of employment.  One change is that eligible individuals now pay only 35% of the Consolidated Omnibus Budget Reconciliation Act (COBRA) or New Jersey Continuation premium and have no responsibility for the remaining 65% of the COBRA or New Jersey Continuation premium. The premium reduction applies to periods of medical insurance coverage beginning on or after February 17, 2009 and lasts for up to nine months.

Generally, COBRA applies to employer groups who employ twenty or more employees.  COBRA is the Federal law that allows persons who lose medical insurance coverage for a variety of reasons to continue coverage under the group plan of their employer for fixed periods of time.

In New Jersey, Continuation usually applies to employer groups who employ fewer than twenty employees. New Jersey Continuation is based on a New Jersey law that allows persons who lose coverage for a variety of reasons to continue coverage under the group plan of their employer for fixed periods of time.

There are some exceptions to the twenty or more employee guideline for COBRA and less than twenty employee guideline for New Jersey Continuation, so the best way to find out which law applies to you is to contact your lawyer.

*The laws are continually changing to meet the needs of the nation’s economic situation.  To insure that your benefits and rights are accurately being served, contact a reliable attorney specializing in Labor and Employee Matters.  Kamensky Cohen has attorneys whose area of practice is devoted to these issues.  You can reach them at info@kc-law.net or visit http://kc-law.net.

For more information about New Jersey unemployment law or to find a New Jersey lawyers.   Additional lists of NJ Law firms can be found here.

Auto accidents are, unfortunately, an ordinary part of our lives. They are costly, not only because of our auto insurance expenses but also because of the impact on our lives both economic and as a result of pain and inconvenience they cause.

Having practiced law in the areas involving personal injury for almost forty years I have seen the impact on my clients lives ranging from minor soft tissue (muscle, tendons and ligaments) to lifetime disabilities such as burns, brain damage, crippling fractures and nerve damage causing paraplegia and even quadriplegia. Our office has also handled many cases resulting in death which certainly impacts significantly on the lives of a family and friends of the unfortunate victim.

While some accidents can certainly be avoided by careful, attentive and defensive driving you cannot always protect yourself from the negligence of others, especially in the age of cell phones, GPS guidance systems and text messaging.

So if you do find yourself in an automobile or other moving vehicle such as motorcycle, bicycle or truck accident, shown below are the important steps you should take to protect yourself from possible legal, medical and/or financial problems that might arise from that accident:

At the scene:

a.) Contact police immediately so that a proper accident record is created that describes the events that led to the accident and the consequences of the accident. Be certain the report the accident to the police officer in a concise statement (please do not talk to much) and in a light most favorable to you. While you may be tempted to make polite apologies to another driver, they can be construed as an admission of fault, so do not do it. Even if you might be at fault, do not make any statements of fault. Let the police make there own judgment.

b.) Never tell the officer at the scene of the accident that you are not injured even if you think you feel fine. A statement that you are shaken up unsure if you are hurt will help should litigation become necessary. We are not suggesting you lie, just letting you know that most soft tissue injuries such as muscle, ligament and cartilage damage will not become apparent for 12-24 hours. A statement that you are not injured at the scene of the accident will, without doubt, be used against you in any later settlement discussions, trials and even insurance claims for medical attention should injuries later show up as a result of the accident.

Insurance Claims:

Make sure you get the name of the other driver’s or drivers’ insurance company at the time of the accident. Report the accident to your insurance company immediately giving them the date and time of the accident and the other driver(s) insurance information. DO NOT GIVE YOUR INSURANCE COMPANY ANY OTHER INFORMATION WITHOUT FIRST SPEAKING TO AN ATTORNEY. Neither the other driver(s) NOR your insurance company is looking out for your best interest. Trust me on that…your insurance company may talk of “good hands” but they are looking to pay the least amount of money on any claims you make as possible.

Repairing your vehicle: Take your vehicle to a qualified Auto Body Shop. If you have property damage coverage on your insurance policy, your own insurance company will arrange for the repairs. Your deductible or a portion of it may be paid by the other driver’s insurance company depending on the assessment of who is at fault for the accident. That is another good reason to speak to your attorney first before any further steps are taken. BE CERTAIN TO OBTAIN PHOTOS OF THE DAMAGE BEFORE REPAIR FROM THE BODY SHOP. Digital copies are best.

Medical Care:

a.) Always see your family physician within three days of the accident and if you are feeling any pain at the scene of the accident you would like to go to the hospital. If an ambulance is necessary because you are not feeling up to driving or your vehicle is not capable of being driven, ask the officer to arrange for an ambulance for you.

b.) At the emergency room and any subsequent visits always report any pain that you are feeling no matter how small you think it is at the time. The reason is that if your pain gets worse and becomes a permanent problem, it is extremely important that you are able to “connect the dots” back to the accident. Consistent reporting of areas of pain that increases and even decreases over time will establish the connection to the accident. Throughout your treatment be very careful what you say. I recently had a case in which my client was severely injured in an accident required pain surgery and was left with a severe permanent injury to his leg. After the surgery he advised his physician that he was feeling “80% better”. This was used against him at the time of trial. Report your accident truthfully but in a light most favorable to you. At the ER people tend to focus on the place in their body where they are feeling the most pain. That is not always what ends up to be the real problem so be certain to report all pain, if it is present in any place in your body as it can get a lot worse. After specific descriptions of pain, a statement to the triage nurse and or treating ER doctor to the effect that “I ache all over” (if true) can assist later in evaluating your case should new symptoms appear at a later date.

Medical Expenses:

a.) PIP coverages on your auto policy – Most drivers in New Jersey have personal injury protection coverage (PIP) on their automobile insurance policies. This coverage is considered one of the best in the nation as it provides $250,000.00 of medical coverage. In exchange for that substantial amount of coverage you are liable for a copay and deductible of $1,200.00 on the first $5,000.00 of medical expenses. That money is non refundable, however, if a doctor treats you for a substantial period of time they will sometimes be willing to reduce the copay obligations. In addition, if you have your own health insurance, you should report both policies to your physician because the copay and deductible can, in some cases, be picked up by your health coverages.

Health Insurance alternative – Some people have opted out of the PIP coverage when selecting their policy coverages, have no auto insurance or may not be eligible for PIP¹ for reasons to complex to go into here. If you have substituted your own health insurance policy as primary on your auto policy or have no auto insurance and use private health insurance or medicare/medicaid coverages you may be required to reimburse your insurance company for the money they lay out for your care related to the injuries sustained in the accident. If you settle with the other driver’s auto insurance company without this being taken into consideration you could be stuck for those bills. A knowledgeable attorney who is experienced in auto accident injury cases will know to include the amount of the bills in your settlement so you are adequately protected. This is one of the reasons that the insurance industry likes to settle before the lawyer is involved.

c.) In addition there are complex insurance issues that arise when you are injured in a state in which you do not reside. These are called conflict or choice of law issues. Our lawyers are admitted to practice in both Pennsylvania and New Jersey . In those cases where a Pennsylvania licensed and insured driver is injured in New Jersey and/or the reverse, the insurance laws can get quite complex and it is very important that you become aware of, and your attorney is familiar with, those complexities. Jerrold Kamensky and Philip Cohen teach those matters for continuing legal education courses.

Selecting your lawyer:

a.) Of course you knew that I would get to this point and I have a good deal of bias in this area. Kamensky- Cohen & Associates has been practicing personal injury and insurance law since 1972. It is not the only area of our practice and I would suggest you see our website to explore other areas that we can help you with. We have exceptional depth of experience in both New Jersey and Pennsylvania and we have taught other lawyers on the inter-relationship of automobile insurance law between the two states.

If you click on the friends and family link below you will connect to our website and you can sign up to become a member of our “friends and family”. So long as you are a member thirty days or more before you are involved in an accident you will be treated with a special rate as set forth in the friends and family section.

Once you are a member of friends and family we will assist you, without charge in reviewing your automobile insurance and provide you with advice on how to get the best protection for the least amount of money. We are here to help you.

For more information about  NJ Personal Injury Law or to find a New Jersey Personal Injury Lawyers Additional lists of NJ Personal Injury Law Firms can be found here.

37. I have just lost my job and I simply can’t keep up with my alimony payments. What are some good tips to enable me to try to reduce my alimony?

If you listen to the news, then you are constantly hearing about how the banks are failing, the stock market has crashed, people have lost one half of their retirement savings, and how the auto industry is dying. However, unfortunately you don’t hear all that often as to how the economic meltdown is wreaking havoc on many New Jersey families. In this day and age a new harsh reality is lurking all throughout the Garden State; many people are unable to keep up with their child support and alimony payments no matter how hard they try. As the economic meltdown show no sign of stopping, many newly unemployed divorcees simply can’t find work to enable them to pay for their alimony and child support payments.

With the unemployment rates New Jersey at record high rates it is no surprise that many New Jersey’ites are unable to keep up with their alimony payments. These distressed alimony payors simply do not have the ability to pay anymore. There are legions of good, hard-working, and solid New Jersey citizens who are not irresponsible deadbeats. On the contrary, they are just unable to meet their financial obligations in this tough economy. Don’t despair! There are many legal options within the New Jersey court system to try to have  alimony payments reviewed, and possibly reduced, and even in some cases terminated for good. However, it is imperative that you must provide detailed proof that you have lost your job, or you have received a sizable cut in your paycheck, your commissions are not coming in, or your overtime has been cut.

Here a seven tips for an economically distressed person who is having a difficult time keeping up with his alimony, and who is also considering filing a motion for an alimony reduction.

a. You should contact an experienced family lawyer and immediately file a motion to reduce/terminate alimony. The family courts are fully aware of the terrible economy, and they will provide you with alimony relief if you can prove to them that you deserve it. The worst thing that you can do if you have lost your job, or if your income has been drastically reduced is to simply do nothing and hope that your alimony just disappears.

b. If you are on good terms with your ex-spouse, then you should immediately talk to her and explain to her your predicament. Moreover, you should ask her if she would be willing to accept a reduced  alimony payment until you are back on your feet. If you are suffering  really hard times, then you could even ask her if she would give you a grace period of not making any alimony payments until you find a new job. If you are fortunate, and if you are able reach an agreement with your ex-spouse, then you should retain a lawyer to formalize your agreement so that it becomes legally binding!

c. Even if your ex-spouse does not agree to a modified alimony plan, then you should at least make some good faith payment partial payment(s) each week. You should try to pay as much of your alimony as possible. If you file a motion to reduce alimony, then if you submit proof that you have made partial alimony payment(s), then this will be viewed most favorably by the court.

d. You must be prepared to provide detailed documentation to the court to prove that your income has bee substantially reduced. If you are unable to provide adequate documentation, then the court will deny your motion”in a jiffy.” Under New Jersey law, you must prove that there are a material “change of circumstances” to justify a reduction in your alimony. There is no set percentage that your income has to be reduced in order to file a motion for an alimony reduction. However, the reduction in your income must be substantial enough so that it impacts upon your ability to “make ends meat” and to keep up with your child support and alimony payments.

e. If you file a motion to reduce your alimony, then you also should keep detailed records of your job search. In your motion, you should attach any agreements that you have with headhunters, any e-mails that you have send to potential employers, any listings that you have placed with Monster.com or any other employment related websites, and copies of any rejections letters. The family courts are obsessed with documentation. The more documentation that you can provide the better.

f. If you have lost your job, and if your former spouse is gainfully employed, then you might want to consider whether you might qualify for receiving alimony from your former spouse. You may consider filing a motion for alimony against your former spouse to help you meet your financial needs until you are able to find another job.

g. Finally, you should consider whether you should try to file a motion to terminate alimony because of the passage of time since the date when the judgment of divorce was originally filed. There are many major grounds to terminate alimony. Perhaps your ex-wife now earns even more money than you do. If this is the case, then there is no longer an economic need for alimony for your spouse to still receive alimony, and you would have an excellent chance to prevail on your motion. Perhaps, you can file a motion to reduce alimony based on your health condition. Maybe, you can file a motion to reduce alimony based on the grounds that your business has failed. A motion to reduce alimony can also be filed if you have retired. Get the point, there are many reasons why alimony can be reduced or even terminated. However, only an experienced family lawyer can give you the “low down” on your chances of success.

38. I have just lost my job as an accountant at a major accounting firm where I was making $100,000 a year. I just accepted another job as an accountant, however, I am now only making $50,000 per year. This was the best job that I could find after many weeks of searching. I now pay $250 per week in child support for my two kids, and $200 per week in alimony. What are my chances of success if I file a motion to reduce my child support and alimony?

In my professional opinion, I believe that you have an excellent chance to prevail on your application to reduce your alimony. However, the standards to reduce child support are even more difficult than the Lepis standards. The key issue is whether you are voluntarily underemployed. If a court finds that you are underemployed, then it will deny your motion to reduce support, and impute income to you. A very illustrative case is Dorfman v. Dorfman, A-1462-97T3, and A-1754-97T3. Here, the defendant/husband was an accountant and he married in 1988, and he was divorced in 1995. He had two kids. The judgment of divorce provided that his child support would be $310 per week and alimony of $150 for three years. These support figures were calculated when the defendant was employed as an accountant for a major accounting firm and earning a six figure salary.

In September 1996, the defendant was terminated from his seventeen year employment with a major accounting firm. Shortly thereafter, he accepted another job at another accounting firm for only $60,000. Thereafter, the defendant filed a motion to reduce his alimony and child support based on a change of circumstances. The family court judge denied the motion. The court found that the defendant did not demonstrate a change of circumstances, and he also imputed his former salary of $100,000 to the defendant. Thereafter, the defendant appealed.

On appeal, the Dorfman court held that the defendant was not underemployed. The court noted that Mr. Dorfman was involuntarily terminated from is job. The defendant was not fired for any type of misconduct. Moreover, the court was impressed that Mr. Dorfman immediately looked for work immediately after he lost his job. Thus, the Appellate Division reversed the denial of his motion to modify his child support and alimony.

In summary, the Dorfman case is an important one in the Lepis progeny. This holding indicates that the court will evaluate whether the applicant is making a good faith application to reduce support. Some key areas of inquiry are whether the applicant has made earnest efforts to find another job.  Has the applicant “loafed” around since he lost his job? Has the applicant made partial support payments even if he has lost his job? How is the job market for the applicant’s field? Does the applicant have any type of savings available to pay support from? Each case is made on a case by case basis. However, your scenario appears to be similar to the Dorfman case. Nonetheless, you will be legally required to prove to the court that the new job that pays you only one half of your old salary is the best opportunity that you have available. If you accept a lower paying job in good faith, and if it is the best opportunity available to you, then most judges will still grant you a reduction of child support and alimony. However, most judges will require you to come back to court in six months, and then evaluate whether you have any other more lucrative employment opportunities available.

39. My husband filed a motion to terminate my alimony payments. Unfortunately, the family court granted the motion and now I feel helpless. I am shocked that the motion was granted, especially given the fact that my ex-husband is an former bank executive and he still enjoys a very high standard of living. What are my chances of obtaining a reversal if I file an appeal?

If you should file an appeal, then you have a very good chance of winning. However, you will have to prove to the Appellate Division that the family court overlooked the fact that your former husband still enjoys a very fine standard of living. An illustrative case is Welland v. Welland, A-5560, November 5, 2008. Here, this was a post-judgment matrimonial case. The plaintiff-wife appealed an order that terminated her alimony payments. The parties were married on December 22, 1968 and divorced on April 21, 1997. In the PSA, the parties agreed that the husband would pay the wife $120,000 a year in alimony at the rate of $10,000 per month. The defendant was employed as a senior vice president of Citicorp. In 1999, the defendant was terminated by Citicorp after an investigation revealed that he had accepted lavish trips from vendors. The defendant claims that he has been unable to obtain employment in his field since he was terminated from Citicorp.

In the year of 2000, the husband filed a motion to terminate alimony based upon a chance of circumstances. The parties entered into a consent order that reduced alimony to $8,000 per month.

In the year of 2007, the defendant once again filed another motion to terminate alimony. The grounds for this motion was that the defendant was now retired because of his age of 64. Moreover, the defendant alleged that his age precluded him from obtaining employment. The defendant’s motion was granted and alimony was terminated on March 15, 2007. At the time of the motion, the defendant still owned two homes, one in Long Branch, NJ and the other one in Lutz, Florida, with his new wife. Moreover, the defendant also owned several vehicles and motorcycles. The court noted that the defendant did not live a lifestyle commensurate with a $40,000 income.

The wife appealed the termination of her alimony. Moreover specifically, the defendant alleged that the family court erred in failing to analyze the defendant’s motion under the changed circumstances doctrine. The plaintiff maintains that the defendant is voluntarily unemployed and should not be relieved of his alimony obligation. The case was reversed. The Appellate Division held that the family court should not have ruled on this motion be simply relying on conflicting certifications. Moreover, the court held that the family court made credibility determinations based solely upon the defendant’s certification and documents submitted in support of his claims. Thus, the Appellate Division remanded the case back to the family court for a plenary hearing.

There are two major points to the Welland case. First, if you are defending against a motion to terminate alimony, then it is important to focus on the lifestyle of the payor. If the payor still enjoys a lavish lifestyle then there may be no legitimate need to reduce alimony. Second, the major trend in alimony reduction cases is to grant the parties a plenary hearing. As long as the certifications are conflicting, and they are in all of the cases, the progeny of alimony reduction cases all indicate that a Lepis hearing should be granted. The termination of the right to receive alimony is an important legal right. Certainly, an alimony recipient can cite the Welland case in support of the proposition that she is entitled to a full plenary hearing before her alimony is terminated.

40. Does a career change constitute a “change of  circumstances” to  justify a reduction in child support and/or alimony?

This is a very difficult question, and the answer it would most likely depend on the individual judge that handles your Lepis motion. Moreover, you will have to give a real concrete explanation why you are forced to change to change your career. Your case will depend on a careful evaluation of the “reasonableness” of your decision, and the “relative advantages” of your decision. The court will weigh the totality of the circumstances. See, Storey v. Storey, 373 N.J. Super 464 (App. Div. 2004).

The court will weigh the following factors when it rules on your motion;

a. The reasons for the career change;
b. The reasons for leaving your prior employment;
c. The reasons for selecting the new job;
d. The disparity between prior and present earnings;
e. Your efforts to find work at a comparable pay;
f. The extent to which the new career draws or builds upon education, sills and experience;
g. The availability of work;
h. The extent to which the new career offers opportunities for enhanced earnings in the future;
i. Age and health;
j. The former spouse’s need for support.

See, Storey v. Storey, 373 Super. 464 (App. Div. 2004)

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33. I made a terrible divorce deal and I have to pay my ex-spouse $300 per week in alimony. I have only been divorced for nine months. I have just lost my job and I can’t afford to pay such a high alimony payment any more. Even though I have only been divorced for a short time,  can I still file a Lepis motion to reduce my alimony?

Probably not, your chances to reduce your alimony are not that great. The ink on your divorce decree has barely dried. The major problem with motion is that you will not be able to prove that your job loss is a permanent one. An illustrative case is Ashwood v. Klenart, Docket No. A-6363-06T3. Here, the defendant appealed the denial of his motion to terminate his permanent alimony. His major argument to the family court was that he suffered a change of circumstances because his business collapsed since the date of the divorce.

Here, the defendant and plaintiff, Janet Ashwood, formerly known as Janet Klenert, were married on April 14, 1973. After a 29 year marriage the parties got a divorce. The family court judge ordered the defendant to pay plaintiff $3,000 per month in permanent alimony. Only after two months after the JOD was entered, the defendant then filed his first motion to terminate his alimony. In his first motion, he maintained that his monthly income had plummeted because he had been laid off from his employment. In November 2006, the family court denied the defendant’s motion to terminate his alimony. The court concluded that the defendant’s reduction in income had lasted for only a few months, and it was was premature to consider a serious motion to terminate alimony so soon.

Only a mere four months later, on March 23, 2007, the defendant filed his second motion to terminate his alimony. The motion was once again denied again by the family court. Thereafter, the defendant appealed. On appeal, the Appellate Division held that it believed  defendant’s good faith effort to find employment. However, the court noted that Mr. Klenart’s motion was filed too quickly. The court cited the case of Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006). In the Larbig case, the Appellate Division upheld a motion judge’s ruling to deny an alimony reduction motion on the grounds “a mere twenty months after the parties’ execution” of a property settlement agreement.” In Larbig, the family court concluded, and the Appellate Division affirmed, that the defendant-movant had failed to demonstrate the change in circumstances was anything other than temporary.

In summary, in the Ashwood case the Appellate Division held that  filing two motions to terminate alimony within a mere nine months of the entry of the JOD was an insufficient period of time in which to conclude that the reduction in defendant’s income was anything other than a temporary one.The defendant’s extreme remedy to terminate his alimony obligation, in two motions filed only months apart, was unwarranted. Therefore, the defendant’s loss of employment had not lasted long enough to justify the conclusion that his loss of income as only temporary.

The Ashwood case is important. This case illustrates that a payor’s change of circumstances must be a permanent one and not only temporary. This case illustrates that a reasonable period of time must pass after the JOD to go back to court and to challenge alimony. In this case, the payor’s best chance for some type of relief is to focus on his ability to pay alimony. He may be able to get some relief on these grounds. Many of my clients are obsessed with trying to reduce or terminate alimony. Having alimony reduced/terminated is often more involved and time consuming the the original divorce case. It is not uncommon for a payor to file a motion for alimony/termination on a periodic yearly basis. Many alimony payors believe that sooner or later they will catch a break, or get another judge who will see their case in a different light. In light of these circumstances, if possible I always advise my clients who receive alimony, to explore a buy of their alimony if possible. It is better to get your money up front, then having to possibly deal with endless motions to terminate/reduce alimony.

34. I owe my wife $30,000 in child support and alimony arrears. These arrears are almost 25 years old. My ex-wife has been off my back for 20 years, however, now she is on the “war path” to collect these ancient arrears. Do I have defense to her collection efforts to collect these ancient arrears?

Yes, you certainly do have an equitable defense to the collection of these very old child support and alimony arrears. A very on point case is Adler v. Adler, New Jersey App. Div., February 9, 2009. Here, the family court judge ruled that the ex-wife’s motion collect alimony and child support arrears was barred on the doctrine of laches.  The wife waited 28 years before she instituted legal action to try to collect past due support payments. The family court held that the wife waited way too long to try to collect these past due support. The case was then appealed. The Appellate Division upheld the family court.  In summary, the Appellate Division held that the wife’s claims to collect the past-due support was barred based upon the doctrine of laches because she waited 28 years to try to collect these arrears.

35. I am a stock broker and I was recently divorced. At the divorce trial, the judge averaged my yearly income for the past five years, and he then used the mean average of my yearly income to establish a ridiculously high alimony award. Two years later, my yearly income has been slashed in half. Is the concept of income averaging a fair and reasonable way to determine alimony?

Trying to negotiate an alimony award is a very heated and debated type of art form. Many people lose their temper and some people even pretend to faint when they are told how much alimony they will have to pay. When a court must determine the length and the amount of an alimony award it is faced with a most difficult task. Determining alimony is not as clear cut of a task as it has been in past generations. In the prior generations, a husband would often have a steady job at a corporation, and he would earn steady paycheck. Now fast forward to our generation X;  companies are now brought out and sold at a rapid pace, they go under in a blink of an eye, and they  also disappear in an instant. Moreover, companies get rid of employees “in a jiffy” just like they are a worn out business machine such as a copier or a fax machine that no longer works. Corporate America certainly does not value human resources as much as they used to. Given this unfortunate scenario, the income of many New Jerseyites fluctuates on a yearly basis. A stockbroker may have earned a high six figure income for most of the past decade. However, after the recent market crash many stockbrokers will be fortunate if they even approach a six-figure income.

A never ending debate is what level of support should a payor’s income be set at to determine alimony if his income fluctuates. Many judges use income averaging to determine a base level of income to determine alimony. Basically, many courts will take the last three to five years of that person’s yearly income and then average them. Unfortunately, in my professional opinion, I believe that there is an over reliance of income averaging to determine alimony. There are many divorce cases wherein income averaging simply does not produce a fair and equitable result. Industries crash and burn. People are downsized. Entire industries are outsourced to India. Companies go under. Income averaging just does not take the X factor into consideration. Thus, a strong argument can be made that income averaging is too simplistic of a formula to determine the correct level of income to determine alimony.

An insightful case is Platt v. Platt, A-1555-04T21555-04T2. Here, the husband/plaintiff and wife/defendant were married in 1980. They had two children. The parties separated in 2001, and they separated in November of 2001. The plaintiff also filed for divorce in 2001. During the marriage, the husband opened up an auto repair shop called Platt’s Performance Plus. At the divorce trial, the court determined that the husband earned $100,000 of annual income, and he awarded the wife $250 week in permanent alimony and child support of $123 per week. The court based this ruling on averaging the companies business income over a five year period.  The husband strongly disagreed with this ruling. He believed this figure of $100,000 was not a fair number, and also that it did not reflect the true income of the company. Thereafter, the husband appealed. The main thrust of the defendant’s appeal was that the judge erred in averaging his income in fixing alimony and child support. The Appellate Division upheld the rulings of family court. The Platt court further held that in the circumstances of this case it was completely logical and reasonable to average the plaintiff’s income over a five year period. Thus, the court held that there was no abuse of discretion in the family judge’s analysis and conclusion.

In summary, many courts are entirely sold on the legal principles of income averaging. However, in many types of industries and fields the principles of income averaging does not always produce a fair and reasonable result. Each type of industry is fact specific, and a different twist of income averaging must be used for each one. In some fields, income averaging may provide the perfect solution to address many pernicious alimony issues. However, in other fields the principles of income averaging may be utterly useless to address any Lepis issues. In closing, using income averaging certainly has its place in determining alimony. However, it should not be the sole method used by a court to determine a reasonable income level for a payor who is either self-employed, or who is in a field wherein his income fluctuates. Just like everything else in the law, income averaging should only be used on a case by case basis. In the stockbroker scenario, if the court followed the Platt reasoning, then it would use the principles of income averaging. However, if the court used basic common sense, then it would realize that given the mini-depression, and the carnage on Wall Street, using income averaging to set support figures for a Wall Street worker would only yield a fair and just result.

36. I was recently let go from my job as a computer technician. I was earning $110,000  per year. I was recently retrained to be a nurse’s assistance. I now only earn $300 per week. My alimony obligation is $450 per week based on my prior earnings. What are my chances of being able to have my alimony reduced?

Your chances of being able to reduce your alimony would depend on many factors. The most significant factor is which judge you reviews your Lepis motion. In my professional opinion, you could have five different judges review your alimony reduction motion, and you would receive five different results. This is simply the reality of the family court system. At the every least, you will probably receive a plenary hearing to enable you to try to convince the court that you need some relief.

An illustrative case is Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004). Here, the plaintiff/husband Mr. Storey appealed from a post-judgment order that denied his request to terminate his alimony. Mr. Storey’s main argument was that alimony must be determined on his present income and not on imputed income. At the plenary hearing, the family court judge imputed $60,000 to him based on prevailing wages for computer service technicians. Thus, the court reduced his alimony from $480 to $280 per week. However, Mr. Storey was still not satisfied because he wanted to terminate his alimony. Therefore, Mr. Storey still appealed even though his alimony was reduced by $200 per week.

On appeal the Storey court upheld the decision. The main focus in the opinion is that when an alimony payor changes his career, he is not free to disregard his pre-existng duty to provide support. See, Deegan v. Deegan, 254 N.J. 350 (App. Div. 1992).  The court also held that an alimony payor who is seeking a reduction based on a reduction of pay because of a career change, must prove that he is working at a capacity that is consistent with his skills and experience. The court held that Mr. Storey did not prove that his career choice was reasonable.

In analysis, there is no easy way out to terminate alimony or to reduce it. An alimony payor is not free to change careers on a whim, and then rush to the family court and tile a motion for an alimony reduction. If you review the case law, it appears that the family courts will only seriously consider an alimony reduction motion based on loss of income from a career change if there is a sense of desperation or compelling circumstances.  For instance, if you are highly paid executive, and if you decide that you want to become a teacher, then you would have to prove to the court that the stress of corporate life is damaging your health. If you a lawyer, and if you want to go into social work, likewise you would have to provide proof to the court that practicing law is damaging to your health. If you want to change careers then you must have a compelling reason(s), and hard proof to court to justify your decision. Some industries are dying. In your situation, it is commonly known that the computer tech jobs are being given to Green Card holders who can do the same job for half the price. Moreover, much of this work is being shipped overseas. If you can provide proof to the court that your job may be phased out, then the family court may buy your plan to be re-trained in the nursing profession.

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