Dealing with addiction during and after the divorce process can be difficult. New Jersey Family Lawyer Allison Williams discusses how addiction or mental health conditions in one or both spouses may affect issues regarding custody, finances and marital assets both during and after divorce.
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Divorce Magazine Podcast: Union, New Jersey Family Lawyer Allison Williams on the Impact of Addiction During and After the Divorce Process
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Allison Williams is a Union, New Jersey family lawyer who is certified by the Supreme Court of New Jersey as a matrimonial law attorney. Allison is the founder of the Williams Law Group – the only New Jersey law firm founded by an AAML Fellow – which has offices in Union and Wall Township. Named as a Rising Star Attorney as well as a Super Lawyer, she is dedicated to representing individuals in family law matters, particularly when child abuse, neglect, or maltreatment is taking place. To learn more about Allison and her firm, visit www.newjerseydyfsdefense.com.
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What are the tale tell signs of addiction someone should look for in his or her spouse?
Addictions vary from person to person, but you're going to see certain signs come up no matter what type of addiction it is. And what you're really looking for is behavior that is repetitive in nature and that continues in the face of adverse consequences. So, there are times when one person's behavior can be identical to another person but in the first person it's not an addiction, whereas in the second person it is.
We look for things such as the inability to cope with life's functions despite the behavior that's going on. So, with alcohol or prescription drugs or even illegal drugs you're going to see some type of impact on the person's ability to function at work, his or her ability or inability to have relationships, the individual’s parenting, and other types of functions.
What is considered an addiction in New Jersey? Does it always deal with drugs or alcohol?
Addiction is not limited to solely drugs and alcohol. It really is the presence of any type of behavior that is persistent in nature and that continues in the face of adverse consequences. So, if the person engages in a behavior that could be a perfectly normal, healthy, and legal activity, but it's starting to have consequences for his or her life, that's when we start to consider that they might be addicted to that behavior. And that can include things such as sexual addiction, gambling, shopping, or over-spending. Really addiction is a product of a neurological condition; it impacts your brain function. So, when you start to see changes in the mood, affect, or personality of a person when he or she may engage in certain behavior, that's when you know that there may be a sign that this person has an addiction.
Is having an addiction grounds for divorce in New Jersey?
In New Jersey there is no separate grounds for divorce based upon addiction. If you are asserting that your spouse has an addiction and you want to use that as the base for your getting a divorce, you're essentially asserting that there is cause for the divorce, not no cause. When you file a complaint based on a cause of action for divorce, you're going to have to assert your reasons and those reasons can include that your spouse has an addiction.
Typically that would be plead under the cause of action for extreme cruelty. You have to identify what the behavior is and how it has adversely impacted you. It's not sufficient to simply say that your spouse had an addiction, but rather you have to identify that that has had an ill consequence for your marriage, your children, your life . And then that it's no longer healthy or appropriate that you be required to remain married to the person as a result of the addiction.
What are the most common ways that addiction is cited for the breakdown of a marriage in New Jersey?
Well, the way that addiction impacts marriage varies as personalities vary within the context of a relationship. You really have to think about what the addiction is doing to the relationship between the spouses. Typically that comes up in the manner of finances. If someone has an addiction and he or she can't stop from engaging in certain behaviors, then finances are often impacted because a person may be spending excessively on, his or her drug of choice or behavior of choice. And sometimes it really just impacts the person’s personality. The person changes when he or she engages in the behavior. So, for instance with alcohol, if someone is drinking excessively, he or she may not necessarily become violent, but perhaps become sullen or depressed. And then the person disengages from the spouse, so it's going to have some ability to alter the way that the two people interact with each other. That's usually what we see when people file their divorce complaints based on the addiction of their partner.
Is someone entitled to a larger share of marital property if the person’s ex used the family's assets to fund the individual’s addiction?
Well, this is a very common question we see when people come to us and seek a divorce. Normally what I tell them is that New Jersey is an equitable distribution state; we are not a community property state. And what is equitable in one set of circumstances may be very different than in another set of circumstances. So, you have to look at how your overall financial relationship has been changed or been adversely impacted by the behavior of your partner. So, there are times when a court would award one party more of the martial estate as a result of the squandering of the resources by another party. For instance, if your spouse is gambling away the marital estate or if your spouse becomes addicted to sex and engages in extramarital affairs and spends on that behavior outside the marriage, the court can very well apportion more of the marital estate to one party versus another.
Normally we see that when you have a party who is truly economically dependent upon his or her spouse (much more often than not it is the wife dependent on the husband even though that is now changing in current days), like in which you have a stay-at -home mother and her husband is the sole financial support for the family, she's often not going to be able to earn at the same level of her spouse when they get divorced. And so, she's already having an adverse consequence simply by virtue of the marriage falling apart.
But if what would otherwise be her ability to fund her lifestyle and live a comparable lifestyle is based on equitable distribution of assets, and he takes the assets and spends them on some illicit purpose that was not something that she agreed upon during the course of the relationship, one could assert that she has been even harmed more of virtue of his behavior. So, some judges will afford that type of credit.
Many times judges say we take the good and we take the bad in a marriage, and so you're not more entitled to a credit for a greater portion of the assets simply because your spouse engaged in behavior you didn’t agree with. Because on the flip side, one could argue that perhaps she was spending on things that her husband didn’t agree on in the marriage, but he had to tolerate that so similarly, she should have to tolerate his spending on his addiction because he's impaired and he has a mental health condition.
It varies greatly from court to court. It varies greatly from attorney to attorney in terms of how zealously they will assert that position, but we do see those types of credit sought in divorce.
Have you ever seen a case where an addict was denied a share of any marital property and perhaps even had to repay funds that had been dissipated because of the addiction?
I have personally been involved in cases where there is no equitable distribution as a result of an addiction. The cases that I've been involved in are typically involving substance abuse, but as I said before there are definitely other types of addictions that can impair the marriage and ultimately, cause an erosion of the marital estate.
In New Jersey we do have a Supreme Court decision Manny versus Manny, wherein the court held that spousal support can be denied to a party in circumstances where there has been such extreme behavior that there's a financial consequence as a result of the behavior. Now spousal support of course is not the same as equitable distribution of property, but the same principles apply, essentially what is fair and equitable. In New Jersey, divorces are handled in the family part of the Chancery division. And so you're always in the Chancery Division looking for what's fair and equitable. There are times when it may be fair or equitable to say if one party has completely eroded the marital estate or eroded it to such a extent that the other party can never be made whole by getting even all of the estate, then it would be appropriate to simply deny the addict any share of the assets so that the other party can be made as whole as possible. We do see that, yes.
If someone doesn’t believe that the children will be safe alone with their ex spouse who is a recovering addict, can that person ask a judge to deny custody or visitation requests?
We will often see parents come forward and assert that their kids are not safe in the custody of the other parent. They have an absolute right to go to court and ask that the court deny access to a parent of a right of access to the children, or to require that that time be supervised. And it's not uncommon that courts will err on the side of caution as we say and afford that type of protection upfront.
Typically those issues are brought to court by way of an order to show cause. And there are times when either parent or the court may involve the child protective services agency in New Jersey, which is known as the Division of Child Protection in Permanencies. When those requests are made, normally a court wants to have some type of protective order put in place and some requirement that the addict parent get help so they're able to restore their normal access to the children.
Would the situation be any different if the parent were suffering from a mental health issue such as bi-polar disorder or schizophrenia, rather than an addiction?
Well, we should note that addiction is considered a mental health condition in the American Psychological Association's manual, which is the DSN, the Diagnostic and Statistical Manual of Mental Health Disorders. So, we know that addiction is a mental health disorder. Now, one could argue that there is some degree of choice in engaging in certain behavior that leads to addiction such as alcoholism or drug addiction, which may or may not be the case, and much more often is not the case with mental health conditions, such as bi-polar or schizophrenia.
However, in either circumstance you have a parent who is impaired or a person who is impaired by virtue of having a mental health condition. Judges will normally want to know a little bit about the evolution of the disorder before they start entering orders regarding a condition. So, you do have some people who have no history whatsoever of engaging in bad behavior. They don’t have DWI’s in their history. They don’t have any violent behavior while they're under the influence of a substance, and yet they became depressed, and ultimately fell into the use of a substance. That is often viewed differently than people who simply have a mental health condition.
Bi- polar disorder and schizophrenia are not latent disorders; in other words, they don’t manifest themselves typically much later in life. You usually are going to see them around the time that someone becomes an adult. So, typically by the time that two people get together in a marriage there are at least signs of the person's behavior and the behavior if it has an ill impact on either of the spouse or the children, is not going to be ignored by the court.
But the court is going to question, if you are able to have a relationship with this person and engage in a healthy manner at the inception of your relationship, what has changed now? Has his or her mental health declined now, or is it simply a matter that you're using the change in your relationship and the feelings that you had about this person to exploit the person because he or she has this mental health condition? And that concern is present whether you're dealing with an addiction to something such as drugs or alcohol, versus a more latent or a more organic condition, such as bi-polar disorder or schizophrenia.
Is supervised visitation after a divorce the norm for an addicted or mentally unstable parent?
Well, I wouldn’t say that supervised visitation is the norm. The situation does come up where parents are supervised. It is typically brought before the court as I noted before by way of an order to show cause. Someone brings the emergency before the court and says my children are in danger or I am in danger of being harmed by this person because of his or her mental health condition, which can be mental instability or addiction.
Once the issue is before the court, the court will often fashion a remedy, which includes supervised visitation. It's usually not customary that a court would simply terminate all contact between a mentally impaired person or an addict for that matter with the children because the children generally have some type of infinity for their parent. The exception to that is in cases where the parent has engaged in behavior as a result of addiction that has harmed the children. And we see that a lot in cases where the person is engaged in drug abuse; the children are aware that the parent is an addict and have started to manipulate their behavior around the addicted parent (i.e., they know when not to speak to their father because they know when he's under the influence). Or they know when their mother is not able to care for them after school because she may be intoxicated.
In those circumstances and when you bring that information before the court, the court is normally going to have some concerns about even supervised visitation – even though supervised visitation is the preference over no contact at all. But certainly it's not as a pro forma sort of order that's entered. It usually occurs only when brought before the court and typically by way of motion not even simply by way of complaint for divorce.
How long does a recovery addict need to be clean or sober before a judge will consider granting unsupervised visitation or even joint custody in New Jersey?
Well, in New Jersey, as is the case across the country, again the guiding principle for evaluating any type of mental health condition, including a substance abuse disorder is considered the DSN five, the Diagnostic Statistical Manual. This is the pole star, if you will, of the psychological community. And this book defines a period of recovery of 12 months or sustained non-use of the substance and the ability to abstain from further usage. Once you get one year, you're in full recovery. Now that doesn’t mean you have to wait one full year before you can consider any type of more liberalized access to the children or be considered safe from engaging in ill behavior because you have this addiction.
Obviously, the longer you get, the more time you get between when you were found to have had an active use and abuse of a substance, to the time that you're asking the court to allow you access to your children, the better. So, typically what I tell people is you need at least six months as that's typically what we see in the courts across New Jersey. You need at least six months before a court is going to feel comfortable with allowing you unsupervised contact or minimally supervised contact. And generally once you get past six months, you're in a much safer area for a court to say that you're not at great risk for relapse even though you have to be engaged in a recovery process and be engaged in some type of relapse prevention if you want to truly assure the court that you're not going to be at risk to harm the children.
What impact can a parent's addiction have on their children?
Well, as with spouses, the impact of a parent's addiction on children varies greatly from person to person. You know, we all experience things differently. Normally the older that a child is, the more aware that the child is, no matter what the other parent does, that his or her parent is impaired. The child sees it in bloodshot eyes and senses it in mood behavior changes. In fact, younger children are actually much more oriented toward perceptual cues as opposed to actually seeing and speaking to their parent about addictive behavior because they aren’t able to express themselves through expressive language the way that older children are.
But all children have some degree of impact by the behavior of their addicted parent. So, normally what we look for signs of the child having an inability to cope with daily life. The same sorts of things that we look for in the addicted parent, is he or she functioning at work? Is he or she able to sustain relationships? We look for those same types of cues in children. Is the child able to engage in school? Is the child able to make good grades, stay on course? Is the child starting to act out? Perhaps the child is engaged in aggressive behavior, or perhaps clingy to one parent versus another because the child is afraid of what's going on in his or her household. So, you really have to look at the personality of a child to kind of get some signs of whether or not a child is being adversely impacted. But I think most people would start with the premise that a child is inherently adversely impacted when a parent is impaired, whether those signs are showing up by something quantifiable as a drop in school grades or something more esoteric like, you know, a change in mood.
If the addicted parent is the mother and the children are afraid of her because of her erratic or confusing behavior, will a New Jersey court typically grant full custody to the father?
Well, in New Jersey our statute presumes that there's no preference by gender for one parent to have custody over another. Fathers are just as entitled to have custody as are mothers. But generally speaking, courts are going to look at what the life experience was of the child prior to the dissolution of the relationship and the marriage before deciding what is appropriate for custody. Now any time that we start a custody case, as attorneys, we always ask our clients what was going on in the life of your home, of your children in your home, before you and your spouse decided to separate? Who was doing the daily activities of cooking breakfast, helping with homework, getting the children up and dressed, getting them off to school, getting them home in the afternoon, doing homework, and going over the day's activities? And there's often a discrepant view of who did what in the relationship.
Many times parents just simply don’t agree. One parent thinks they did far more than the other person will acknowledge. So, we have that as our starting point but at any time that you have an addict parent coming into a custody dispute or any type of litigation regarding the divorce, and his or her access to the children is brought up, the court is going to want to know: is there a concern for safety? Safety is the paramount concern for any court dealing with children, whether it's in the course of the divorce or post judgment. So, if you bring before the court the concerns about the other parent being an addict, the court is going to want know what is the status of the addiction? Is it in remission? Is the person in recovery? Are the concerns for the parent's ability to take care of the children, something that is simply being exploited by one parent? Or is it something that's a viable concern that the court needs to be doing something about? So, those concerns are always going to be at the forefront of the litigation, and in my experience I know that fathers do get custody in those circumstances where the mother is impaired, even if the father was not the primary caregiver during the marriage. So, even though we start by asking who was the primary caregiver and the father may be at a disadvantage for custody if he did not serve in that role, as soon as we know that there's an addicted parent and that parent is the mother, the father has a much greater opportunity to secure custody if the children are at risk in the care of the mother.
In cases where both parents have addiction or other mental health issues, who gets custody of the children?
In New Jersey, again, we start with the premise that both parents are equally entitled to have custody of the children. The court wants to know that the children are safe in the case of both of their parents. If both of their parents are impaired, the court will normally look to other means for securing the children's safety, and that may be that neither of the parents has custody. Some times that happens by virtue of a grandparent or an aunt or uncle coming in and filing an application seeking a temporary order of custody. And usually it's almost always done as a temporary order. Because the goal is always to get the addicted parent or the mentally impaired parent to a point of safety that he or she can then resume the role as parent. If that can't happen in a short-term period, sometimes the parties will consent to have a third party be the caregiver for the children. The worst case scenario is always that the state becomes aware that one or both of the parents is addicted or has a mental health concern that puts the children in jeopardy.
When that happens, DCPP or the Division of Child Protection and Permanency is going to be notified and become involved. And at some point, DCPP is going to remove the children from both of the parents and place the children elsewhere. The first preference is to have the children placed with relatives and in those circumstances you still have the guillotine of the state's protected power over the child involved. This means that once the child has been removed from the parents, the parent's effectively have one year before we're going to move toward a more permanent arrangement for the children's custody.
But in circumstances where both parties agree, they can sometimes advert that by having the children granted temporary custody to a relative. But either way the court is not going to simply allow the lesser of the two evils of two impaired parents to have the children. In fact, the first concern ourselves is what is safe for the children.
Sometimes people stay in a marriage with an addict or mentally ill spouse because they still love the person or fear that the spouse may kill him or herself, either accidently or intentionally if the person leaves. What are some options to help the addicted or mentally ill spouse while minimizing the image to him or herself and/or their children?
Well, one thing we often see when people file for divorce or choose to separate is that the addicted or mentally ill parent/spouse does not want to raise the concern or get help for his or her addiction while going through the divorce process. The person fears that is going to be used against him or her, and that the court is ultimately going to punish the person by taking away custody. And because that concern is so prevalent, what I normally advise people to do is to take a step back and go try to address your issues before you file. Filing the complaint for divorce brings up all sorts of emotions for both of the spouses.
I mean whether you have an impairment or not it is the rare circumstance that you have somebody who's been married for any length of time who doesn’t have an emotional reaction to just the very nature of being redefined in our society as now a no longer married person or no longer in an intact family. And so all of those emotions often impair the parent's, the spouse's ability to interact with each other, to be reasoned and coherent to make good judgments.
Once you add to that the fact that you had a dysfunctional relationship because any relationship where you have an addict involved is inherently dysfunctional. Where you have this dysfunctional relationship and you're not trying to severe it, the addict is then going to have the additional pressure of not only redefining themselves as no longer married, but also trying to deal with an addiction in a fundamentally altered way because the person no longer has the support of their spouse. And so, if it's not possible for the addict parent to not pursue the divorce or to put a cease fire on the divorce while he or she is getting help, the person should still seek the help even in the divorce process. Much more often not you can have the court grant you additional time to complete your normal process of divorce in order for one part to go off to a rehabilitation center or seek the appropriate counseling that's necessary. That is typically the best route in order to get the person either reunified with the person if custody is lost as a result of it. Or to be able to make the best arguments that the person is at least capable as their spouse having custody.
If someone has decided to divorce his or her spouse because of an addiction but the addicted spouse wants to work on their issues and stay together, can the divorce proceed without consent from both parties?
In New Jersey our legislator has engrafted a provision of the statute governing divorce to allow for no-fault divorce. We plead a cause of action for no fault on the grounds of reconcilable differences. There are times when we plead reconcilable differences and we plead a cause grounds cause for divorce i.e, extreme cruelty. At the end of the day if one party wants to get a divorce, it's going to happen whether the other party consents or not. Typically that happens by way of the party who wants the divorce, filing the complaint and serving the other party. And if the other party doesn’t participate in the divorce action, by responding to the complaint within the 35 days that the person is allowed to or seeking additional time as may be necessary, then the person will be defaulted and the divorce can proceed without the person’s participation at all, simply on the testimony of the plaintiff, the person who filed.
There are other times where the person who is contesting the divorce will participate, but only enough so that they can obstruct the process for the person who wants to get divorced. So, if the plaintiff files the complaint for divorce and the defendant really does not want to be divorced, he or she can drag his or her feet, cannot participate or can participate only so much as necessary not to be defaulted, can supply some information but not enough information to get the full picture to be able to divide assets equitably and determine spousal support obligations. And those cases are usually very difficult for the entire family, including the person who does not want to be divorced because then tht person is really just putting up a barrier and creating more friction in the relationship of two people who will often have to continue because there are children.
The addiction in and of itself is not a grounds to be able to put a ceasefire on the divorce. As I said earlier, you can have the court grant you additional time to file papers to participate in the process based on the fact that you are going to seek treatment for your addiction, or based on the fact that you away at rehab and thus not able to speak with your lawyer and that sort of thing. But the fact that you are an addict does not give you an exception to not being able to participate in the proceeding. Nor does the fact that your spouse is an addict grant you the right to proceed without the person simply by virtue of the addiction. It's a normal process, despite the addiction being there.
Some high functioning alcoholics are also the major or even the only breadwinner in the family. What advice do you have for the stay at home spouse who has little or no access to funds to pay for legal and other professional fees if he or she has decided on divorce?
In New Jersey there is the provision in our court rules for the payment of council fees for one party to the other in circumstances where one party may not have access to resources. So, the resources that are accumulated during their marriage are considered marital property and they're going to be equitably divided. And there is case law that says in order to effectuate that equitable distribution or property as well as to determine what is fair and appropriate for spousal support custody and other issues in the divorce, you must have the parties on an equal playing field. You need to have them able to retain attorneys as well as to assert positions.
So, what normally happens in those cases is the stay at home parent has the same types of limitations, whether the person’s spouse is an addict or mentally impaired or whether it's a quote, a normal case. You're going to have to in some way get access to resources whether through your spouse or through perhaps borrowing from a friend or family member or even taking out a credit card to at least get somebody on retainer and get a lawyer that can start the process for you. And then after, immediately go into court and seek legal fees from your spouse.
If that's not an option, what I often tell people to do is use the resources that you have available before you actually file for divorce. You're as much entitled to the resources that you used during your marriage to use for your attorney and used for your litigation expenses as you were entitled to use them for groceries or other household expenses. So, you have to be careful not to dissipate any resources in your marriage. But most judges are not going to hold it against you if you take money out of a joint bank account or if you in other ways use your assets and sell perhaps some of your assets so you can get resources to litigate at least until your spouse is being held responsible through the court system or by consent to fund your litigation.
Certified Divorce Financial Analyst
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