Toms River Attorney Charles Novins handles all Family Law and Divorce Matters
Many questions we get regarding the "family" laws cannot be answered with certainty because this area defies application of very specific regulations or requirements that could apply to every case. Despite our criticisms of the law, below, we understand that each family's situation is unique, perhaps too much so for the laws to properly address.
Technically, family-law courts are explicitly not called "courts of law." It sounds a bit odd, but they're actually courts of "equity." The goal is "fairness," which is not the same as "equality," and is explicitly opposed to following a pre-determined set of legal requirements.
Still, some things are indeed specified precisely and/or firmly established. Here's an interesting example:
Back around Y2K, New Jersey passed a law giving grandparents the right to visitation. Quickly therafter, the NJ Supreme Court interpreted this law to mean grandparents have no right to visitation. Go figure, but the Supreme Court does have final say, and that is the law, period (with slight qualification, consult a lawyer if this is a crucial matter for you.)
Other laws can vary a lot from case to case, and there is an infinite mix of possibilities. Sometimes, your particular judge is well-known to behave and rule a certain way. Other times, all of the judges in a given county are known to hew to a certain standard.
Too often, the judge is the law, and we deem that a bad thing. In fact, the only thing we regard as worse than that would be to go into court on a wing and a prayer pretending it wasn't true just because we disapprove.
Then there are the specific nuances of your circumstance, which just might include any detail of your life.
For example, consider parents fighting for custody; What kinds of TV shows do you watch when the kids are present? Is this something that should be argued in a courtroom? In a family-law matter, such things might - or might not - come into the case.
Notice the two layers of uncertainty there. First, the lawyers will war over whether the topic is even appropriately a part of the case. Then, there might be a second fight over...what's on TV(!)
No law governs any of this in fine detail, just the judge's specific views, and the overall stated goals of the system (which is where this is going, keep reading..)
Therefore, to explain what follows, imagine that there were no speed limits, but police could decide whether or not you were going too fast. Because we aspire to be a "nation of laws, not (dictatorial) men," the state establishes "guidelines" for the police. So the police can ticket you for speeding, but they need to look at a checklist of "suggestions." Was it raining? Was visibility poor? Night or day? Highway congested? and so on.
(This actual scheme was tried and ruled unconstitutional for criminal law, including traffic enforcement, most famously in Montana.)
This is generally how family-law operates, however. So where's the checklist? There are actually a few, and you're about to see them, below.
Conceptually, most divorces break down into four subject areas. There are disagreements over money and property. And when kids are in the mix, the disagreements are about custody and child support. These areas dominate most litigation, and a few others only come up occasionally, so we won't bother with them here.
THE LAW CITED BELOW IS FOR THE PURPOSE OF INFORMING YOU AS TO WHAT THE FUNDAMENTAL PRINCIPLES ARE UPON WHICH ALL THE REST IS FOUNDED. ALTHOUGH IT IS THE LAW ITSELF, IT IS NO SUBSTITUTE FOR ADVICE FROM AN EXPERIENCED ATTORNEY. MANY VOLUMES OF LAW FLOW FROM THE BASIC "MASTER" PRINCIPLES BELOW. PLEASE ALWAYS REMEMBER THAT "THE DEVIL IS IN THE DETAILS."
THE FINE PRINT: Naturally, none of the complimentary materials we supply to our clients can substitute for informed, specific, and detailed initial consultation with a qualified attorney. We provide just that, at no cost to you. But these materials can give you a general idea of the basic law, and hopefully a framework for any inquiries you may have. We consider it a significant obligation of our profession to answer your questions. Please review, only if you desire, with our compliments. Commentary below represents the views of Charles Novins, Esq., solely, and only the statutory citations below the commentary should be relied upon in any way and for any purpose.
LAWS CONCERNING MONEY AND PROPERTY IN DIVORCE
This area subdivides in two, though "alimony" has become less of a factor as women's wealth and independence has increased in recent decades.
"Equitable Distribution" deals with money and valuables you now own or possess (such as a home or car,) along with those items (usually money payments) you are entitled to in the future (such as a pension, 401K, or disability payment.)
"Alimony" instead concerns itself with whether one spouse or the other ought to help support the poorer spouse going forward.
To understand just how inexcusably vague these laws are, take a look at factor number 15, immediately below, concerning "Equitable Distribution." But vague or not, these are the laws, and we work within them as well as possible to acheive justice.
- THE DURATION OF THE MARRIAGE.
- THE AGE AND PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES.
- THE INCOME OR PROPERTY BROUGHT TO THE MARRIAGE BY EACH PARTY.
- THE STANDARD OF LIVING ESTABLISHED DURING THE MARRIAGE.
- ANY WRITTEN AGREEMENT MADE BY PARTIES BEFORE OR DURING THE MARRIAGE CONCERNING AN ARRANGEMENT OF PROPERTY DISTRIBUTION.
- THE ECONOMIC CIRCUMSTANCES OF EACH PARTY AT THE TIME THE DIVISION OF PROPERTY BECOMES EFFECTIVE.
- THE INCOME AND EARNING CAPACITY OF EACH PARTY, INCLUDING EDUCATIONAL BACKGROUND, TRAINING, EMPLOYMENT SKILLS, WORK EXPERIENCE, LENGTH OF ABSENCE FROM THE JOB MARKET, CUSTODIAL RESPONSIBILITIES FOR CHILDREN, AND THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY TO BECOME SELF-SUPPORTING AT A STANDARD OF LIVING REASONABLY COMPARABLE TO THAT ENJOYED DURING THE MARRIAGE.
- THE CONTRIBUTION BY EACH PARTY TO THE EDUCATION, TRAINING OR EARNING POWER OF THE OTHER.
- THE CONTRIBUTION OF EACH PARTY TO THE ACQUISITION, DISSIPATION, PRESERVATION, DEPRECIATION OR APPRECIATION IN THE AMOUNT OR VALUE OF THE MARITAL PROPERTY, AS WELL AS THE CONTRIBUTION OF A PARTY AS A HOMEMAKER.
- THE TAX CONSEQUENCES OF THE PROPOSED DISTRIBUTION TO EACH.
- THE PRESENT VALUE OF THE PROPERTY.
- THE NEED OF A PARENT WHO HAS PHYSICAL CUSTODY OF A CHILD TO OWN OR OCCUPY THE MARITAL RESIDENCE AND TO USE OR OWN THE HOUSEHOLD EFFECTS.
- THE DEBTS AND LIABILITIES OF THE PARTIES.
- THE NEED FOR CREATION, NOW OR IN THE FUTURE, OF A TRUST FUND TO SECURE REASONABLY FORESEEABLE MEDICAL OR EDUCATIONAL COSTS FOR A SPOUSE OR CHILDREN.
- ANY OTHER FACTORS WHICH THE COURT MAY DEEM RELEVANT.
N.J.S.A. 2A:34-23 (B):
- THE ACTUAL NEED AND ABILITY OF THE PARTIES TO PAY.
- THE DURATION OF THE MARRIAGE.
- THE PARTIES AGE, PHYSICAL AND EMOTIONAL HEALTH.
- THE STANDARD OF LIVING ESTABLISHED IN THE MARRIAGE AND THE LIKELIHOOD THAT EACH PARTY CAN MAINTAIN A REASONABLY COMPARABLE STANDARD OF LIVING.
- THE EARNING CAPACITIES, EDUCATIONAL LEVELS, VOCATIONAL SKILLS, AND EMPLOYABILITY OF THE PARTIES.
- THE LENGTH OF ABSENCE FROM THE JOB MARKET OF THE PARTY SEEKING MAINTENANCE.
- THE PARENTAL RESPONSIBILITIES FOR THE CHILDREN.
- THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY SEEKING MAINTENANCE TO FIND APPROPRIATE EMPLOYMENT, AND THE OPPORTUNITY FOR FUTURE ACQUISITIONS OF CAPITAL ASSETS AND INCOME.
- THE HISTORY OF THE FINANCIAL OR NON-FINANCIAL CONTRIBUTIONS TO THE MARRIAGE BY EACH PARTY INCLUDING CONTRIBUTIONS TO THE CARE AND EDUCATION OF THE CHILDREN AND INTERRUPTION OF PERSONAL CAREERS OR EDUCATIONAL OPPORTUNITIES.
- THE EQUITABLE DISTRIBUTION OF PROPERTY AND ANY PAYOUTS ON EQUITABLE DISTRIBUTION, DIRECTLY OR INDIRECTLY, OUT OF CURRENT INCOME, TO THE EXTENT THIS CONSIDERATION IS REASONABLE, JUST AND FAIR.
- THE INCOME AVAILABLE TO EITHER PARTY THROUGH INVESTMENT OF ANY ASSETS HELD BY THAT PARTY.
- THE TAX TREATMENT AND CONSEQUENCES TO BOTH OF ANY ALIMONY AWARD INCLUDING THE DESIGNATION OF ALL OR A PORTION OF THE PAYMENT AS A NON-TAXABLE PAYMENT.
LAWS CONCERNING CHILDREN
The two areas concerning children are easier to understand. There is the question of where and with whom the kids will reside, and the related but separate question of paying for the costs of raising the children.
Most people understand - correctly - that the Courts are guided here by the childrens' best interests. The division of assets, by contrast, is based upon keeping both parties on a relatively even playing field. As I've remarked in the column to the left, the laws are poor in this regard, with the basic rules for children, set out below, little better (again, look at factor number 10 under "Child Support," below.)
In both areas, therefore, the role of a good lawyer, becomes larger than it ought to be. But we ignore the reality, however unjust, at our peril.
- THE PARENTS� ABILITY TO AGREE, COMMUNICATE AND COOPERATE IN MATTERS RELATING TO THE CHILD.
- THE PARENTS� WILLINGNESS TO ACCEPT CUSTODY.
- ANY HISTORY OF UNWILLINGNESS TO ALLOW VISITATION NOT BASED ON SUBSTANTIATED ABUSE.
- THE INTERACTION AND RELATIONSHIP OF THE CHILD WITH ITS PARENTS AND SIBLINGS.
- THE HISTORY OF DOMESTIC VIOLENCE, IF ANY.
- THE SAFETY OF THE CHILD.
- THE SAFETY OF EITHER PARENT FROM PHYSICAL ABUSE BY THE OTHER PARTY.
- THE PREFERENCE OF THE CHILD WHEN OF SUFFICIENT AGE AND CAPACITY TO REASON SO AS TO FORM AN INTELLIGENT DECISION.
- THE NEEDS OF THE CHILD.
- THE STABILITY OF THE HOME ENVIRONMENT OFFERED.
- THE QUALITY AND CONTINUITY OF THE CHILD�S EDUCATION.
- THE FITNESS OF THE PARENTS.
- THE GEOGRAPHIC PROXIMITY OF THE PARENTS� HOMES.
- THE EXTENT AND QUALITY OF THE TIME SPENT WITH THE CHILD PRIOR TO OR SUBSEQUENT TO THE SEPARATION.
N.J.S.A. 2A:34-23 (a):
- NEEDS OF THE CHILD.
- STANDARD OF LIVING AND ECONOMIC CIRCUMSTANCES OF EACH PARENT.
- ALL SOURCES OF INCOME AND ASSETS OF EACH PARENT.
- EARNING ABILITY OF EACH PARENT, INCLUDING EDUCATIONAL BACKGROUND, TRAINING, EMPLOYMENT SKILLS, WORK EXPERIENCE, CUSTODIAL RESPONSIBILITY FOR CHILDREN INCLUDING THE COST OF PROVIDING CARE AND THE LENGTH OF TIME AND COST OF EACH PARENT TO OBTAIN TRAINING OR EXPERIENCE FOR APPROPRIATE EMPLOYMENT.
- NEED AND CAPACITY OF THE CHILD FOR EDUCATION, INCLUDING HIGHER EDUCATION.
- AGE AND HEALTH OF THE CHILD AND EACH PARENT.
- INCOME, ASSETS AND EARNING ABILITY OF THE CHILD.
- RESPONSIBILITY OF THE PARENTS FOR COURT-ORDERED SUPPORT OF OTHERS.
- REASONABLE DEBTS AND LIABILITIES OF EACH CHILD AND PARENT.
- ANY OTHER FACTORS THE COURT MAY DEEM RELEVANT.