DeTorres and DeGeorge - Divorce and Family Law Attorneys

Child-custody disputes are as fleeting as youth, but surnames last a lifetime. That reality was front and center as an appeals court denied a divorced mother’s attempt to strip her offspring of their father’s name. The court, in Emma v. Evans, A-2303-10, said a Burlington County judge erred in applying a presumption — arising in cases of children born out of wedlock — that a primary custodian has the upper hand on naming decisions. Here, the parties had joint legal custody, agreeing to share “authority and responsibility for making major decisions regarding the welfare of the children,” and “neither possessed a superior right in such an important matter,” the Appellate Division held on Jan. 20.

From The Wall Street Journal By Ellen E. Schultz

Is your mother getting shorted on her Social Security payments? If she is divorced or has been married more than once, or her late husband delayed taking Social Security, she might be entitled to a bigger monthly benefit than she is collecting. That can be important news for someone with a fixed or limited income. If you are one of the thousands of baby boomers who help their parents with their finances, reviewing their Social Security benefits ought to be at the top of your list. These days, couples getting divorced likely will hear about the ins and outs of how their Social Security will be affected, often from an attorney or accountant. But people who divorced years—or even decades—ago usually have no clue. This may include your parents. The rules apply to both genders, but because women typically earn less over their working lives than men, they are more likely to be collecting lower benefits than they might be eligible for based on the earnings history of a former spouse. The basics: A person can collect Social Security benefits based on her own earnings history, or 50% of her spouse or former spouse’s benefit, if it is greater than her own, and 100% if he is deceased.

Rules for Divorced Couples

For divorced spouses, there are a couple of catches: The marriage must have lasted 10 years or longer, and the person seeking a former spouse’s higher benefit must currently be unmarried, unless she remarried after age 60. Let’s say your mother was married in the 1950s or 1960s for at least a decade. Perhaps she was out of the work force raising children and subsequently worked at low-paying jobs, so her benefit might be, say, $800 a month. By contrast, her former husband—with more years in the work force and higher wages—might be eligible for a monthly benefit of $2,000. (Social Security benefits currently max out at $2,366 a month.) Your mother might not realize she can collect a total of $1,000 a month if her former spouse is alive, and $2,000 a month if he isn’t. If the Social Security Administration determines she is eligible for higher benefits, she also will receive retroactive amounts going back six months. For the woman in the example above, that would be a lump sum of either $1,200 (six times $200) or $7,200 (six times $1,200).

It doesn’t matter whether the ex-husband remarried; collecting on his earnings record doesn’t affect what his current spouse (or any other ex-spouse) will receive. Nor does this require any involvement with the former spouse: The Social Security Administration has information about a former spouse’s earnings history and whether he is alive or not, and makes its determination based on those records. If your mother is under full retirement age—65 or 66, depending on her birth date—there are other options. If the former husband is 62 or older, then regardless of whether he has begun collecting Social Security, your mother can begin receiving a reduced benefit at 62 based on the husband’s record, provided the divorce took place at least two years prior. She can later switch to her own benefit once she reaches full retirement age, if the benefit is higher.

If the former spouse is deceased, your mother can begin collecting a reduced widow/divorced widow benefit at age 60, then later switch to her own benefit at her full retirement age, if it is greater. Working while collecting Social Security, delaying receiving benefits, being disabled or having a dependent child also can change the equation. The Social Security Administration can answer initial questions about a benefits review over the phone (800-772-1213); the agency’s website has details.

A Bigger Bang

You might be eligible for a bigger Social Security benefit based on a former spouse’s earnings record if the marriage lasted at least 10 years, and:

- You are at least 62 years old and unmarried and your former spouse is currently collecting benefits.
- You have been divorced at least two years, your former spouse isn’t collecting benefits and you are both over 62.
- You are over 60 and your former spouse has died.
- Your spouse or former spouse delayed taking Social Security until after his full retirement age.

Reprinted from NJ.com, Published January 12, 2012

Thomas Leustek told a Union County judge his wife was a successful psychologist with a thriving practice who didn’t need additional money from him, but the judge overseeing the couple’s divorce disagreed. The judge reviewed the couple’s tax returns for the previous three years, two of which his wife spent in school earning her doctorate. Then he ordered Leustek, a professor of plant biology at Rutgers University, to pay her $3,000 a month indefinitely. That experience in 2007 led Leustek to become an activist and found New Jersey Alimony Reform, which pushes to eliminate permanent or lifetime alimony and restrict the wide discretion judges have in setting alimony payments. Now, he is working with Assemblyman Sean Kean (R-Monmouth) to introduce a bill that would set up a blue-ribbon committee to examine changes in alimony laws and “bring New Jersey into the 21st century.” The main problem, Kean and Leustek say, is permanent alimony awards, which thousands of state residents receive each year. “For some people, it’s a lifetime sentence and they’re not confident that spending money to go into court will make any difference,” Kean said. But changing the law may be a challenge because many among the state’s legal establishment don’t see an injustice.

Thomas Snyder, a Denville attorney who is the former chairman of the New Jersey Bar Association’s family law section, said any changes to the law should not “throw the baby out with the bath water.” “I don’t think the alimony laws are antiquated by any means,” Snyder said. “It actually sets up a framework for a judge who can use his or her discretion to fashion a solution for each case. If we lower the standard too much, we will be harming dependent spouses.” Under existing state law, judges use several factors in determining whether a spouse should get alimony, including the length of a marriage, the family’s finances and whether both spouses were employed. Although the law allows for modifications in permanent alimony when circumstances change — such as when a spouse loses a job or retires — it’s not automatic and people have to go to court to get the modifications.

Leustek said permanent alimony “devastates families,” because the divorcing couple is never truly divorced. The legal wrangling continues between the parties, keeping the anger and bitter feelings alive. He pointed out that said Massachusetts eliminated life time alimony from its laws in September 2011. Snyder, however, said most alimony payments include a portion applied to child support if there are children involved. “The problem people have is not with the statute but how the statute is being applied,” he said. “The remedy is the appellate division.”

Sally Goldfarb, a professor of family law at Rutgers Law School in Camden, said there are no studies on how many divorces in New Jersey include alimony, but national figures kept in the 1970s and 1980s showed fewer than 17 percent of all divorces included some form of alimony. “From my experience, that’s probably still the case,” Goldfarb said. “A grant of alimony is an exception, not the rule.” She said the law is deliberately vague to give judges the latitude to fashion solutions that fit each individual case.

But Leonard Weitzman of Bridgewater, an attorney who specializes in family law, supports Kean’s proposed bill. Weitzman believes the laws have to be modified to fit the realities of the current economy. “I would say the greater percentage of my clients are high income women and, in those cases, alimony can be rewarding bad behavior,” he said. “One spouse could have been loyal and committed for years and suddenly the other leaves the marriage for someone new. New Jersey law does not consider those actions when it comes to alimony.”

Lisa Manyoky, a self-employed consultant and mother of three young children, would agree with Weitzman. Manyoky, 49, was married almost 13 years before her husband told her he wanted a divorce in 2006. She said he moved in with a woman who worked for his business and had been a friend of hers for years. She said her husband owned his own chimney cleaning business but “there was a salary discrepancy between us.” “He asked for enough alimony to cancel out his child support and he succeeded,” Manyoky said, adding that continued until he remarried several years ago and the number was modified. “He now pays me a pittance for child support.”

While passions often run high on both sides of the alimony issue, Goldfarb said “it is understandable that individuals are angry, but we should not allow those kinds of emotions to lead to large scale changes in state law.” She said that would hurt both sides and society. “The people ordered to pay it feel its unfair and the people who get it don’t believe its enough,” Goldfarb said.

By Sue Epstein and Ben Horowitz/The Star-Ledger

A Hudson County judge has awarded full custody to the biological father of 5-year-old twin girls rather than to the woman who gave birth to them under a surrogacy contract. The decision by Superior Court Judge Francis Schultz, made public Wednesday, allows the girls to be raised by their father, Sean Hollingsworth, and Donald Robinson Hollingsworth, his New Jersey civil-union partner. The men are married in California. But the ruling, in A.G.R. v. D.R.H., HUD-FD-09-1838-07, also allows parenting time for the gestational carrier, plaintiff Angelia Robinson, who is Donald Hollingsworth’s sister. Two years earlier, Schultz voided the gestational carrier agreement and consent to adoption and held that Robinson had parental rights, although an unnamed egg donor was the twins’ genetic mother.

A North Carolina woman sued her husband’s paramour and won big, and I mean big. Cynthia Shackelford won $9 million in a law suit against Anne Lundquist, the woman who had an affair with Cynthia Shackelford’s husband, Allan Shackelford. North Carolina along with six other states (Hawaii, Illinois, Mississippi, New Mexico, South Dakota and Utah) recognize alienation of affections claims, in which spouses can sue third parties that they allege interfered in their marriages. Over a half a century ago, the State of New Jersey abolished the Heart Balm Act which allowed a wronged litigant to sue the third party for alienation of spousal affection.

According to a published article on Syracuse.com, the award to Ms. Shackelford was based on many factors including her loss of income from her husband, her mental health-related problems, and compensation for her legal and medical bills. Apparently, Mr. Shackelford was in the prime of his career as a lawyer making more than $300,000 annually when the marriage ended. Ms. Lundquist, who is the Dean at Wells College in Aurora, New York, and lives with Mr. Shackelford never appeared at trial that was scheduled to begin on March 15. She is now seeking to have a Judge toss out the $9 million judgment alleging that she did not receive adequate notice of the trial and that the award is grossly excessive in nature. by Erin D. DeGeorge, Esq.

A third-party “psychological” parent does not have the same autonomy as the child’s legal parents did before ceding custody, a state appeals court said Friday in a precedential decision. An applicant for visitation need only prove it is in the child’ best interests, and need not satisfy the higher avoidance-of-harm standard, the Appellate Division said in Tortorice v. Vanartsdalen, A-4260-09. While a legal parent may give up that autonomy in transferring custody to a third party — who be established as a de facto, psychological parent — the legal parent does not thereby transfer that authority to the third-party guardian, the court ruled.

Excessive texting” from one divorced parent to the other does not necessarily amount to harassment, a state appeals court said Monday in a published decision reversing a final restraining order. The husband’s sending of 18 angry messages in the space of three hours “shows only the convergence of modern technology and the foibles of human judgment,” the Appellate Division held in L.M.F. v. J.A.F., A-121-10. While texting is a good communication mode between estranged couples because of brevity and impersonality, it still is susceptible to “frustration and misuse” if parties do not cooperate, the court said, calling the husband’s behavior “dysfunctional” but not done with the requisite intent to harass.

DeTorres & DeGeorge, LLC along with friends and family will participate in a Charity Softball Tournament on September 20th and 21st at 6pm at Diamond Nation in Flemington, NJ to benefit SAFE in Hunterdon. SAFE provides free and confidential services to victims and survivors of domestic and sexual abuse. Please come out and support us and SAFE in Hunterdon.

In B.L. v. P.D., Plaintiff appeals from the portion of the Family Part’s order requiring the parties to attend family reunification therapy. Defendant had filed an application for unsupervised parenting time with his son, which was granted by order of December 10, 2010. The judge sua sponte broached the issue of reunification of defendant with his daughter. On appeal, plaintiff argues the Family Part judge neglected his role as the protector of the young girl when he sua sponte entered the order requiring she promptly participate in reunification therapy with her father contrary to all the evidence previously presented to the court, particularly the experts’ reports clearly indicating the significant harm she would sustain if she were prematurely forced into family reunification therapy with her father. Plaintiff also argues the order directing family reunification therapy violates the public policy of assuring victims of domestic violence the maximum protection from abuse the law can provide, and Rule 1:40-5, which prohibits parties from participating in any mediation regarding custody and parenting time issues if there is an FRO in existence. The appellate panel agrees with these arguments and reverses. 20-2-3168 B.L. v. P.D., App. Div. (per curiam) (11 pp.)

The State Supreme Court is poised to consider the denial of a woman’s request to be recognized as the mother of her husband’s biological child, conceived with the husband’s sperm and the egg of an anonymous donor, without recourse to adoption. The NJ Parentage Act confers automatic parental rights on women only as to children who have their DNA or whom they carried during gestation. Thus, the wife in this case was forced to proceed by way of any adoption to claim her parental rights over the child, whereas a man similarly situated would not have had to do so. The woman asks the court to determine whether the NJ Parentage Act violates equal protection by treating women differently from men because the law presumes a man to be the father of any child born to his wife during marriage and the father of a child born to his wife if she is artificially inseminated with another man’s semen. The case is called Matter of the Parentage of a Child by T.J.S. and A.L.S., C-1068.