Linwood New, Jersey family lawyer Cynthia Ann Brassington is certified by the Supreme Court of New Jersey as a matrimonial law attorney, and helps people resolve their divorce related issues across all areas of the process. In this podcast Cynthia answers questions regarding alimony, child support, and child custody including living arrangements for children, the duration of alimony in New Jersey, and what happens if your ex-spouse moves the children out of state.
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Guest speaker: Cynthia Ann Brassington, Matrimonial Law Attorney
A panelist on the Matrimonial Early Settlement Panels in both Atlantic and Cape May Counties, Cynthia has also taught family law as an adjunct professor for Atlantic Cape Community College. She is certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
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Read the Transcript of this Podcast Below.
1. How does a divorcing couple decide whether the children should live with one parent most of the time, or split their time between both parents’ homes?
Well, every case begins with the best interests of the children, Diana. In reaching a parenting plan that is in the children’s best interests, we look to several factors. We look to the history of the parties, the parties’ schedules, the children’s schedules, and other factors reflecting the needs of the children.
For example, we look to their schedule for soccer, the hours that the parents work and things of that fashion because the goal is always to enter into a parenting plan that fosters the children’s relationship with both parents, as it is in the children’s best interest to have a positive relationship with their parents and also have continuing and frequent contact.
2. If the children are going to split their time between two homes, is it always 50/50? What are the most common types of arrangements for children’s living situations post-divorce, that you’ve seen?
Well, parenting plans are designed to accommodate a specific family so it may or may not be 50/50, which would mean equal time. It may be every other weekend and depend on the parties and the needs of the children.
If the parties agree to live in close proximity to each other and each is able to provide the care to the children on a day-to-day basis, and both parents are involved parents, then an equal parenting plan may be appropriate. However, if the parties don’t reside in close proximity to each other, then a weekend parenting plan may be more appropriate. Again, each plan needs to be designed specifically for the family.
3.So, how do divorcing couples decide whether sole custody or joint custody is best for their family?
Well, most parenting plans are not sole custody as the courts, again, encourage both parents to be involved with the children. However, if one parent is an absent parent or maybe has issues that deem that parent should have supervised contact, for example, then a sole parenting plan may be more appropriate in that circumstance. Joint legal custody with the designation of a parent of primary residence is very common, with the other parent designated as the parent of alternate residence. This means that the parent of primary residence makes the day-to-day decisions concerning the children and the parties confer with each other on major issues.
Some parties desire a joint legal and physical custody arrangement so that the parties confer on all decisions, including the day-to-day decisions. Now, Diana, these are simplistic explanations, as many plans are a fusion of joint legal and physical custody and the parties agree in advance to what the parent of primary residence will do, such as [well] visits, taking a doctor, and things of that fashion.
Sometimes the parties agree that the parent of primary residence has the ability to pick the nursery school. Other plans have the parent of primary residence having to confer with the parent of alternate residence on the choice of nursery schools or the choice of churches, or religion, and things of that fashion so it really depends. If one parent has always been the parent that took care of the doctors, the teachers, the schools, then the parties may agree that that parent will continue in that function.
However, if the parties are now divorcing and the parent of alternate residence feels that they now want to be more involved, it’s appropriate, because they’re getting a divorce. Then the parties may agree that neither party will choose a doctor without conferring with the other parent and entering into an agreement.
4. Cynthia, is there a difference between physical custody and legal custody of children, in New Jersey?
There is. With joint legal custody we would have a parent of primary residence and as I earlier stated, the parent of primary residence will be responsible for the day-to-day decisions concerning the children. With that joint legal custody then, that parent would have to confer with the other parent, regarding major decisions. And this may be the child needs some medical care — specific — not a flu shot, but maybe something more specific. Braces would be a major decision, for example.
But with joint legal custody, it’s implied that the parties will confer on everything. They will confer on the doctors and the dentists and the nursery schools because they’re sharing physical custody. That means they’re really sharing decision-making.
But, again, sometimes parents enter into what I call a fusion which they may agree to joint physical custody but then they will specifically state what duties the parent of primary residence would have so that way they know exactly what the expectations are from each parent, and it does help them get along better when they know exactly what to expect from the other party.
5. If a parent removes the children from the state without the other parent’s consent, what can that other parent do to have their children returned?
It really comes down to what do you mean by remove to another state, and the issue is why? For example, if a parent takes the children to the Philadelphia Zoo, from where we are here in Atlanta County, that is removing the children to another state but that’s really not actionable. I mean, it’s not unreasonable to take your children to the zoo for the day. However, if you mean to remove the children to another state without the parent’s consent or a court order, that is different.
For example, from time to time a parent will announce that they are moving to another state; they’re moving to South Carolina, they’re going to move to Pennsylvania or what have you, and they don’t have the consent of the other parent, nor do they have a court order. That’s different. And that consent by the other parent should be in writing, in a very formal agreement such as notarized, signed by counsel so that nobody can say, well, they said I can move. It can’t just be an email. It has to be a written agreement.
By statute, here in New Jersey, a parent cannot remove a New Jersey resident child from the state of New Jersey, without the consent of the other parent, and if a parent does that, I go to court on an emergency application.
6. Cynthia, let’s consider child support now. In New Jersey, how does the court determine the amount and duration of child support?
Well, the amount of child support is affected by several factors. That will include the gross income of the parents and those gross incomes, then, are affected by the federal and state taxes and they are also reduced by whether one or both parents have union dues obligations or a pension obligation, and that pension obligation has to be mandatory. It cannot be a voluntary obligation such as a 401K or something of that fashion.
It also depends upon the ages of the children and it depends on how many children are receiving child support. Once the New Jersey child support guidelines worksheet takes those numbers down, by formula, into an amount of child support, that is a gross child support, then that child support is then divided between the two parents by their income share.
To arrive at an income share we add the two net incomes of the parents, we then divide the net income of the payor by the total gross income and that then gives us the payor’s percentage of the gross child support amount and then that amount comes due. However, that amount can then be adjusted.
There are factors that could have changed it, such as whether or not that parent then falls below the poverty guideline, then that could then reduce that amount of support. There also can be other factors such as travel, because if the parents had decided to live further apart and the one parent has the expense of travel to see that child, the court may then deviate from the guidelines because the court has discretion to do so. They can deviate from the guidelines and then reduce that child support so that parent has money to travel. These are very specific and they do change from time to time depending on, again, the number of children and the incomes of the parties.
When child support terminates depends upon the ages of the children as well as what they’re doing. If a child is emancipated — let’s assume that child is 18 and graduates from high school but is not going to college — that child is going to be emancipated and no longer need child support.
But let’s assume that the child is special needs. Some children are not able to ever support themselves. In that case, child support would continue until the child is 23. However, at age 23, the Probation Department — if child support is paid through the Probation Department by wage execution — they will no longer collect in that fashion through the Probation Department because at that point it becomes financial maintenance. It is no longer child support.
There are also factors that can extend child support such as if the child goes on for college and then, in that event, the court would evaluate the claim for college, considering the child, whether or not they have their grades, the goals of the parents, the relationship of the parents, the course of study of the child, the loans, grants and scholarships available and various other factors that may affect the length of emancipation of the child.
So in New Jersey we don’t have a specific emancipation age. Again, it depends on the child, whether or not they go on for higher education or whether or not that child has special needs, and these are the factors that we consider.
7. How does a judge determine if someone qualifies to receive alimony or spousal support in New Jersey?
Well, both spousal support and alimony are both terms that we use to really say the same thing. In New Jersey we have four types of alimony; we have open-duration alimony and open-duration alimony was previously known as permanent alimony; we have limited-duration alimony; rehabilitative alimony; and reimbursement alimony. Open-duration alimony and limited-duration alimony are the most common.
And looking to whether alimony is appropriate, we look to the factors in the statute and we begin with the party’s need and the other party’s ability to pay. We also consider the duration of the marriage as the alimony in a marriage that is less than 20 years, is limited to the number of years of the marriage. This does not mean that if you’re married for ten years you get ten years of alimony, but it does mean that the alimony cannot exceed ten years so it may be negotiated for a lesser period of time.
There are exceptions, however, because there are always exceptions that will affect the duration of the alimony and they include the age of the parties at the time of the marriage or civil union, the duration or degree of dependency of one party or another, whether a spouse has a chronic illness, just to name a few.
8. Can you explain the differences in tax treatment of spousal support versus child support?
Well, spousal support, or alimony, is taxable to the recipient and tax deductible to the payor. Child support is not taxable or tax deductible. So, in other words, alimony is really paid out of your gross income but child support is paid out of your net income.
9. So if spousal support is deductible to the payer and child support is not, can someone declare that all payments to his or her ex, including child support, are spousal support, to save the taxes?
Well, the parties can negotiate their agreement however they want to negotiate their agreement, so long as they do so with the guidance of counsel and with the guidance of a tax expert, especially when we’re dealing with tax consequences. There are times when parties may agree to pay more or less in alimony and therefore adjust the child support accordingly depending on the incomes of the parties and deductions to which the parties have agreed.
If one spouse is a high-income spouse and the other spouse is not, then by paying more or less alimony to the other spouse may give one spouse more in his or her pocket while the other spouse has a greater tax deduction. However, keep in mind that child support is not a taxable event.
So I would not recommend that all payments be taxable to the payee, as then the person is incurring tax consequences on child support that would not be a taxable event. When we deal with these issues, again, I try to sit down, we really have to look at the numbers and look to what’s in the best interests of our client to make sure they’re getting the best deal that they can and that is why, sometimes, I will turn to experts to assist us to make sure that we’re considering factors, since I am not a tax attorney.
10. Cynthia, if a new romantic partner moves in with the primary custodial parent and the children, does the other parent still have to pay spousal and child support?
Well, they would have to still pay child support because child support belongs to the child, it does not belong to the parent. So that obligation does not change but spousal support, yes, can change. In New Jersey we do have an anti-cohabitation statute that does affect that, and interesting enough, in New Jersey, your former spouse to whom you are paying alimony, does not have to live with their paramour physically in order to affect that. We look to the intertwined finances such as joint bank accounts, sharing joint responsibility and recognition of the family. Basically whether or not that party is living in an intimate relationship.
So, therefore, if you do suspect your spouse is now residing or in a cohabitation event and you are paying alimony, I encourage anyone to come see me and discuss that.