Premarital and Cohabitation Agreements

Some people (often those with businesses or other assets of value, second marriages, etc.) want to enter into a premarital agreement before getting married; others do not wish to marry but want to live together and desire to enter into  an agreement that governs their rights and obligations to one another while they live together (cohabit) and in the event of a divorce. It is critically important in either premarital agreements or cohabitation agreements that the parties allow sufficient time before the wedding or cohabitation commences to properly negotiate the terms of such agreements.  All of the attorneys in the firm have experience in negotiating and drafting such agreements.  Our attorneys also have experience in litigating the enforceability of such agreements.

Alimony and Spousal Support

In New Jersey, a spouse may be entitled to ongoing financial assistance from his/her former spouse during the divorce process or litigation and after the divorce. This monetary support can be requested by either party. The court may require one spouse to make temporary payments to the other while the divorce is pending. This is called pendente lite spousal support.  After the divorce, alimony may be paid for a short or long period of time, a limited time or indefinitely.  There are four types of alimony in New Jersey; permanent (more appropriately defined as indefinite), rehabilitative, limited duration, and reimbursement.   Whether support is awarded depends upon factors such as (1) length of the marriage; (2) the income and earning ability of each party; (3) the educational background of each party; (4) the extent to which a party may have had his or her education or career interrupted by raising children; (5) the physical and emotional health of the parties; and (6) other financial and personal circumstances of each party as set forth in our state statutes. Which type of alimony, if any, might be appropriate in your case will depend upon many facts and factors that will have to be determined, weighed and analyzed before an opinion on alimony can be rendered by any attorney. Alimony may be modified at any time based on a substantial change in circumstances of one of either party.  Retirement, at or after the age of 65, is generally considered a change in circumstances which requires a review and possibly modification of alimony.  There is currently legislation pending before the New Jersey Legislature which may change the nature of alimony in the State of New Jersey. If you require more information about alimony, please contact our office to schedule a consultation with one of our experienced divorce and family law attorneys.

Child Support

In New Jersey, BOTH parents have a legal obligation to financially support their children. Depending on the custody agreement, one parent is typically required to pay child support on a regular basis to the other until the child or children are emancipated, which may continue beyond the age of 18 if the child is a full-time student or there is some other reason that the child is not emancipated. The amount of child support paid varies, depending on the parent’s income and the needs of the dependent children. Child support is generally determined by the Child Support Guidelines which have been promulgated by the Supreme Court of New Jersey, unless the parents’ joint NET income exceeds $3600.00 per week.  If that is the case, the child support is determined based upon statutory factors.  Child support is paid either directly to the receiving parent or through the New Jersey Family Support Center (Probation Department) and often by income withholding (wage execution).  For more information about child support, contact our office.

Divorce Mediation

Divorce mediation involves parties in a dispute retaining a neutral & trained mediator to serve as a facilitator to assist them in reaching a settlement of the issues in dispute in a safe and amicable setting. Parties (divorcing couples and others) meet together with the mediator, often on a weekly or bi-weekly basis.  During mediation sessions the parties negotiate directly with one another in the presence of the mediator who facilitates the discussions and negotiations, without imposing his/her opinions on the parties or advocating for either. The divorce mediator keeps the parties focused on the issues being discussed and makes sure they address all of the issues which require resolution in their dispute (divorce or other family law matter). Mediation may involve experts or other professionals such as forensic accountants, real estate appraisers, psychologists who serve as custody and parenting-time experts, or others as are necessary and appropriate. Some mediators will allow attorneys to participate in mediation sessions.  In appropriate situations, a coach may also be involved outside of the mediation sessions in order to assist the parties navigate through the emotional turmoil and devastation of divorce or other family law disputes.

Although many mediators are attorneys with family law experience, the mediator does not represent either spouse and should not give any legal advice to the parties. It is recommended that the parties meet with an attorney first to gain an understanding of New Jersey law as it pertains to their specific situation.  In mediation parties are not bound by the law, but can fashion their own settlement terms without regard to what a judge might impose upon them based on the law after trial. This gives parties the freedom to create an agreement that meets their needs and the needs of their entire family, free from the restraints of the law. A mediator should not recommend resolutions which he/she thinks are appropriate, but may make suggestions for the parties to consider.  The parties in mediation have all of the power to reach a settlement and it is what they believe and determine to be fair and reasonable that matters, not what the mediator believes to be fair.

If the parties reach an agreement through mediation, either on all or some issues, the mediator will draft a memorandum of understanding or settlement agreement which memorializes the settlement terms. Parties are encouraged to have independent attorneys draft or review the agreement on their behalf.  Mediators cannot represent either party in court, and therefore, cannot file a complaint for divorce on behalf of either or both parties.

Mediation may not be an appropriate means of dispute resolution if there is an imbalance of negotiating power between the parties, where there are psychological issues with one or both parties, subtle intimidation by one against the other, where there has been as history of domestic abuse, or other issues.

Mediation is an excellent means of resolving disputes in most situations.  It can be far less expensive than the traditional litigation model, especially in divorces.  It can help the parties maintain an amicable relationship, craft a resolution that is best for their entire family, does not only address the present circumstances (which is all the court can do), but also looks forward and addresses the future.  Statistics show that parties who mediate spend less money on their divorce, feel vested in the settlement, are far less likely to engage in litigation in the future, and enjoy a healthier relationship.

Collaborative Divorce in New Jersey

Collaborative Law offers divorcing couples an alternative to litigation which is based upon mutual problem solving. The parties and their attorneys, along with other professionals involved (e.g., custody experts, forensic accountants, etc.) agree in writing to work together toward an agreement without litigating in court.

 

Collaborative Law provides divorcing couples with a viable, meaningful, less contentious alternative to litigation which is all too often expensive, time consuming, emotionally draining and devastating to families. Gary Borger and Bruce Matez attended advanced training in December 2010 and are founding members (along with a small group of other South Jersey divorce attorneys, family therapists, and forensic accountants) of the South Jersey Collaborative Divorce Professionals (the first of its kind in the area). Deena Betze Esq. has also acquired training and is a member of the South Jersey Collaborative Divorce Professionals and the International Academy of Collaborative Professionals. BorgerMatez  offers Collaborative Divorce in addition to mediation as alternatives to traditional divorce litigation for its clients.

Dissolution of Civil Unions and Domestic Partnerships

New Jersey now recognizes marriage between same-sex couples!  As a result, same-sex couples who marry have the same rights and obligations as heterosexual couples who marry, and the laws related to separation and divorce apply to all. At one time New Jersey had a Domestic Partnership Act for LGBT couples who were unable to marry and heterosexual couples of age 62 or over who live together (cohabit) who chose not to marry. NJ then adopted a Civil Union Act bringing the status of LGBT couples closer to that of married heterosexual couples.  Although same-sex marriage (gay marriage) is now legally recognized in NJ, some Domestic Partnerships and Civil Unions remain valid.  We represent members of the LGBTQ community seeking to divorce or dissolve Domestic Partnerships and Civil Unions in NJ either through mediation, Collaborative Law, negotiation, or litigation.  We are prepared to draft agreements and assist individuals in Domestic Partnerships and Civil Unions to protect themselves and their rights regarding their children, support, the distribution of assets, allocation of debts, insurance, and other family law issues.  For more information or a consultation, call our office.

Domestic Violence (Temporary and Final Restraining Orders)

At BorgerMatez, our attorneys represent both victims of domestic violence and defendants who have been accused of domestic violence. The most common forms of domestic violence are assault, threats, and harassment. Abuse does not have to be physical, but can be any behavior that causes the victim to fear for his or her safety. Some examples include verbal threats to strike, kick or sexually assault the victim, sending harassing e-mails or text messages, excessive phone calls without a legitimate purpose. In New Jersey, victims must be 18 years old or older to file a domestic violence complaint in court. The courts do not distinguish between victims based on physical or psychological condition or by sexual orientation. The Prevention of Domestic Violence Act is not limited to protecting only married individuals but includes persons who are cohabiting and even only dating.  A Temporary Restraining Order (TRO) may be entered by a hearing officer, Judge of the Superior Court or Judge of the Municipal Court, upon the application of the alleged victim who must testify about what happened and that he/she is in fear of his/her safety and a restraining order is necessary to protect him/her.   If a TRO is granted, the court will schedule a hearing within approximately 10 days and the defendant will be served with the TRO advising him/her of the date for the final hearing. At the final hearing, the parties will have an opportunity to testify, bring witnesses and evidence, and the court will ultimately determine if the defendant committed an act of domestic violence, and, if so, if the victim requires the protection of a Final Restraining Order (FRO). In addition to entering an FRO, upon a finding of domestic violence, Judges have the discretion to also grant other relief such as custody and parenting time, spousal support, child support, sole occupancy of a home, possession and use of vehicles and other assets, monetary damages, and more.

A Restraining Order does not necessarily guarantee a person’s safety from another, but does provide that if the defendant violates the order, he/she will be arrested and charged with a fourth degree crime.  Domestic Violence Restraining Orders in New Jersey are permanent; they never expire.  Upon a finding of domestic violence and the entry of an FRO, the defendant’s name is placed on a national Domestic Violence Registry which may impact his/her ability to obtain security clearances, work with or near children, adopt a child, enter the law enforcement field, and which may have other consequences. If you are a victim of physical abuse or verbally threatened or harassed, you should call the police immediately. Once you are safe, contact an experienced attorney in our office at BorgerMatez to assist you. If you’ve been charged with committing an act of domestic violence and a TRO has been entered against you, call one of our experienced attorneys at BorgerMatez to represent you and protect your interests and your future.

Are open adoptions enforceable by NJ courts?

At present, NJ courts do not recognize open adoptions. Under NJ law, once an adoption is finalized, all rights of the biological parents are terminated. Therefore, such agreements cannot be enforced by the court.

Division of Marital Property and Debt

The distribution of marital assets and allocation of marital debt between the parties in New Jersey is called “equitable distribution.”  The meaning of this term is generally what is considered to be fair under all of the circumstances.  Equitable distribution of assets is determined by a review of many statutory factors. Although the law does not automatically require a 50/50 distribution of assets and allocation of debt, the practical application of the statute by the courts tends to be 50/50.  Generally, assets acquired prior to a marriage which have remained the separate property of one spouse are considered exempt from equitable distribution, as are inheritances and gifts which remained separate property.    Assets subject to equitable distribution generally include the marital home, other real property, vehicles, bank accounts, savings/investment accounts, retirement accounts and pensions, personal property (furniture, electronics, appliances, jewelry, virtually everything in a home), and businesses.  Debts or liabilities subject to equitable distribution are typically mortgages, car loans, credit card debt, student loans and other personal loans.  With regard to the marital home, generally there are three options available to spouses; sell it and equitably divide the proceeds between them, or one of the parties retains the home and “buys-out” the other’s equitable interest either by refinancing the mortgage and taking more of a loan from the equity, or through creative offsets against other assets or liabilities. Generally, a party who retains real property which is subject to a mortgage in joint names will be required to refinance that mortgage in order to remove the other spouse’s name as an obligor of it.  It is important to note that marital fault (e.g., adultery, extreme cruelty, etc.) has no effect upon distribution of property or debt.

College Expense Contribution

New Jersey is one of the few states that requires divorced or non-married parents to contribute to their children’s college expenses and authorizes judges to allocate the cost of college between the parents. Many factors are taken into account in such a determination, including but not limited to the financial circumstances of the parents and child, the child’s ability, the financial resources and financial aid available. The court must also consider how the continuation of child support while the child attends college impacts the parties financially.