New Jersey Family Lawyer, Bari Weinberger, Speaks About The 5 Critical Risks of Divorce - Part 2

By Bari Weinberger
March 13, 2012

The seminar address the issues of alimony, child custody, support payment calculations and property division.

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Attendees learned from this Teleseminar

  • How alimony is calculated
  • How long alimony will last, and when permanent alimony may apply
  • How many types of child custody arrangements are there
  • The formula for calculating child support
  • If and how changes to child custody and support payments can be changed after the divorce
  • Whether you can keep everything that is in your name

Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speaker: Family Lawyer, Bari Z. Weinberger. Bari Z. Weinberger is the managing partner of her 10 lawyer family law firm, Weinberger Divorce & Family Law Group. Bari is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, a certification achieved by only 2% of the attorneys in New Jersey. Bari is the Associate Author of the New Jersey Family Law Practice, 14th Ed., 2010, a 5-volume treatise utilized by virtually every NJ family law judge and. She is working as the Associate Author of the upcoming 15th Ed. She was given an "AV" rating by Martindale-Hubbell which means that she is deemed by her peers to have very high professional ethics and preeminent legal ability in the field of family law. Her firm has created a new free webinar entitled The 5 Critical Risks of Divorce.

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Read the Transcript of this Podcast Below.

Can you tell me how alimony is calculated in New Jersey?

Bari Weinberger: Alimony is a very interesting situation in New Jersey. We do not have a fixed formula here. So it's not as though a judge says I'm going to implement this equation or the lawyers are going to implement an equation and suddenly a number is going to pop out. It is heavily based on a number statutory factors that exist such as need of the parties, age of the parties, health of the parties, earning capacity, history of earning, childcare taking responsibilities, standard of living during the marriage, educational background.,

The factors are looked at from a suggestive standpoint. Also the length of marriage is important. We try to figure that out. Some judges implement a rule of thumb which is you take the highest earner and you subtract the lower earner's numbers and then you multiply it by a third, so the difference in the incomes by a third, multiply it by a third and you come up with this magic range of where alimony might fall. But only a number of judges use that as a fallback. But there are subjective details that are necessary to consider when calculating alimony and it's a grey area which of course lends itself to quite a bit of litigation.

Now talking about visitation, an example of a person who has to move out of state because of their business or some other significant reason, are they able to relocate out of state if they have custody of their children, or what do they do in that case?

Bari Weinberger: Well it depends on the type of custody they have. They often times can and they often times can't. The parities are going to want to do the following. The person who wants to relocate is going to have to first look back at what type of custody they have, is it joint legal custody, is it sole custody, is it shared legal, or physical custody because if it's sole custody generally there's no problem. You can get up and go. You're the decision maker. You're the partner of primary residence and in fact the exclusive decision maker for the children.

When it comes down to joint legal custody it's a little bit more of a challenge because there's a shared element to this. Both parties have decision making authority. So the courts will expect that you're going to get consent from the ether parent before making that move or alternatively you're going to have to go and get a court order. You're going to want to suggest to the court that you have a good faith reason to leave. Sometimes moving for business is not a good faith reason. It just depends upon the judge.

But there's case law to support it and there's case law to attack it, there's a lot of room for argument either way. Some people want to move because they've been engaged and they want to get remarried and their fiancé is living out of state and that fiancé is the one that has the stable employment position and their flexibility to move is limited so this party wants to move. The court wants to see that the move is not going to be what we call inimical to the child's relationship with the other parent who wouldn't be moving.

If you have a shared legal and physical custody arrangement, that's that 50/50 or 60/.40 type arrangement it becomes even more challenging because the other parent is such an integral part of the child's day to day life. Ultimately it comes down to what is in the best interests of the children. Making that application which again is something that we do all of the time is left for scrutiny of a judge, and there's a tremendous amount of discretion of the judge, but there's case law to support both positions. You want to make sure that you do your due diligence, you meet with your lawyer and you gain the information necessary and you do the homework necessary to present the most viable application to the court possible, its strongest points.

You want to do research in that new location for is the child going to have the same medical attention available, is the child going to have the same education available or a greater education, what is the housing like in that new environment. There are a lot of elements that need to be put into place and presented to the court to make a case.

Bari, talking about relocating children, do you have any recommendations for parents that might specifically relate to relocating children or just helping your children in general as they're going through the divorce process. Is there anything they can do to make the process easier on their children?

Bari Weinberger: I absolutely believe there is. First and foremost I would encourage people not to involve their children in the process. All too often the children know too much about what's going on. It's generally an adult issue that should be addressed by the adults. Now easy for me to say because I'm not living in that household and there's often times tension and the parties are living together throughout the divorce in many circumstances so the kids are surrounded by it on a day to day basis and they know what's going on depending upon their ages and the dynamic of the home.

But as much as possible if you can, shelter them. Don't have them overhear conversations when you're disparaging the other parent over the telephone to a family member or a friend because it causes problems. There's no question about it. I mean my psychologist friends suggest getting the kids in therapy. If they're of the age don't hesitate. Let them have an outlet as well. You're going through a tough time. So too are your children. You might not know it. They might be internalizing everything. That's a possibility.

Give them a place so they have an outlet so they can express their issues and their concerns in a safe environment like a therapist's office. Don't hesitate. Often times you can find a therapist who's covered through your insurance policy and is local to you. If your child is amenable to, it can provide a great outlet for them. Also assure them that not only do you love them, but the other parent still loves them. That assurance can go a long way. When the parents present a united front to the children it eases their minds. Children tend to be reliant is what I hear from my child psychologist friends, but they get through the process fine, but they adjust, they adapt.

When they have to move from one house to another they'll do okay. You try to make it fun for them. You create a new room, oh you'll be able to decorate this new room, make it anything that you want, so that there's not always a negative connotation to the separation. You want to make sure that you're there for them, that you allow them an opportunity to express themselves, but don't necessarily give them the impression that they're making the decision because I've seen all too often where children think that their preference while important and it should be known depending upon their age of course, if they think that they're making the decision often times it leads to guilt into the future or they think the other parent who they didn't quote on quote select or chose to be with will come down hard on them or will never forgive them.

That's a big burden to hold. No child should be burdened with that. So it's just recommendation we make is to try to keep them out of it as much as possible.

In terms of child support how is that actually calculated in New Jersey?

Bari Weinberger: Oh, that's a good question. Unlike alimony, it is based on a fixed formula so long as you are within a certain income. When the parties have a combined net income in their intact household of x dollars, it goes up to I believe right now I believe it's about $150,800 net, like about $150,000 net. If you are a combined home with income up to that amount, the New Jersey child support guidelines are applied. We first figure out alimony because alimony is income to the person receiving it and it gets applied to this child support guideline and alimony is deductible by the person paying the alimony so it gets deducted from the child support guidelines from their column.

We tax effect it. We come up with a net number. We implement medical coverage, credits and overnight with the children type credits and a formula is ultimately used. It's a complex formula. It's this whole worksheet but ultimately we can give clients to a degree of certainty what their child support obligation or award will be.

When does that obligation stop?

Bari Weinberger: The obligation stops technically when a child is emancipated. The word emancipated really in the state of New Jersey means that the child is beyond the sphere of influence, so no longer dependant so to speak. Keep in mind that emancipation is not always when a child turns 18. In some states it is when a child turns 18 as an automatic emancipation. So the child support automatically stops at that time. But that's not the case here in New Jersey.

In New Jersey it depends. It's a horrible term; "it depends" because it doesn't give the client satisfaction of knowing exactly when that's going to happen. But it's a fluid situation and it's a moving target. If your child for instance graduates high school, is 18 years old, gets a full time job, gets an apartment and is no longer living with you and is not going to school for college or other higher education attendance then perhaps emancipation will take effect. In fact it probably will. But if your child graduates high school and then automatically or within a short period of time continues on to college and let's say they're living away at college emancipation is generally deferred.

Child support continues to be paid at a reduced rate until such time as emancipation takes effect. Again it's a subjective circumstance. I've had a number of cases where children even going to graduate school remain emancipated.

Talking about graduate school, who is responsible for the children's education? Is that part of the child support or is it a separate entity?

Bari Weinberger: It's generally separate and it's a question that I'm glad that you asked because a lot of people tend to defer dealing with this issue and I find that it's a horrible, horrible mistake because it lends itself to a tremendous amount of post judgment litigation. I'm going to highly recommend that the parties or whoever is listening deal with this during your divorce process. Try to come up with an understanding of what your responsibilities will be at that future date because what I see happen is a huge part of our post judgment business, people come here later having not dealt with it during their divorce, and then they can't agree. They have a dispute. They deal with the issue now and they end up spending perhaps a semester's tuition that could have been better applied for the child's actual education than costs fighting over it.

So it's a problem. The real answer is that New Jersey is progressive about supporting children's education and having the parents responsible. It's often times based upon a percentage allocation depending upon earned incomes, assets of the parties at that time, but it's something that could be utilized in negotiations during the process and it should be.

We'll wrap up with a few other financial matters seeing that we're on the finance track here. If I'm a divorcing person, am I able to keep everything that is in my name?

Bari Weinberger: The short answer again is it depends, but generally not. This is a huge misconception by parties or potential clients that come in. They say listen, I've got a 401-K and the 401-K is in my name so my spouse doesn't have an entitlement. Well the answer is actually your spouse probably does have an entitlement. The whole goal is to try to identify what is in existence and what is marital. What the parties should look for is what is the value of the asset as of the date of the marriage to the filing of the complaint for divorce.

So let me back up and explain that again. What is marital is from the date of the marriage to the date of the filing of the complaint for divorce. There are exceptions above and beyond that. But that is a general rule of thumb. So if for instance there was a 401-K or an IRA or a securities account that's only in one person's name, but it was acquired during the marital period, from the date of the marriage to the date of the filing of the complaint for divorce, it's subject to equitable distribution. The other spouse whose name is not on that account in effect does have an entitlement.

What about our debts? Are those shared equally as well in this formula?

Bari Weinberger: Often times that's the truth, I know so many people come in and they say: "the good news is that I have these assets and they are n my name, the bad news is I don't know what is mine and I need some clarification." Then they follow-up and say: "I think it's also good that my spouse has credit card debt of XYZ dollars and I'm not going to be held accountable." That's just not the case. Again, if it's marital debt and what has been charged on those credit cards for instance was utilized to support the family or for expenditures for the family, household expenditures or vehicle expenditures or even entertainment and food, that could be considered marital and that can be considered shared liability obligation.

Keep in mind that just because it's in your name doesn't mean that it's going to be exclusive to you and just because it's in your spouse's name doesn't mean that you don't have some type of payment obligation. One thing you can consider also is that if a party has overspent because of an anticipated divorce, that can be analyzed. So if suddenly the tradition of marriage was not to use credit cards or to use them seldomly?, and now suddenly there's been overspending and the spouse has gone on a shopping spree to load up a whole new apartment or a new condo, well some of those might be exclusive to that person. It becomes a subjective analysis.

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