Divorce

Capacity to Contract and New Jersey Divorce Law

January 21, 2007 | Kearns Rotolo Law

Let’s say you and your spouse want a divorce but you don’t want to hire attorneys. The two of you feel that you can draft a reasonable property settlement agreement and work with the county court clerk regarding procedural matters.

Beware of your future. Your ex-spouse may challenge the validity of the property settlement agreement, although it will be difficult. New Jersey Courts have held it is a fundamental principle that “the settlement of litigation ranks high in our public policy.” Jannarone v. W.T. Co., 65 N.J. Super. 476, 168 A.2d72 (App. Div.) certif.. denied, 35 N.J. 61, 171 A.2d 147 (1962).

Courts encourage parties to settle. Therefore, Courts are not likely to overturn agreements entered into by the parties voluntarily.

New Jersey Guardian Ad Litems

January 19, 2007 | Kearns Rotolo Law

Is a person you care about going through a divorce? Do you think that person, not only needs an attorney, but needs someone to act in his/her best interest due to his/her cognitive disability?

If this person in your life is mentally incapacitated, it is likely his/her attorney will petition the Court for appointment of a guardian ad litem. A guardian ad litem protects, preserves and secures the interests of the individual that is mentally incapacitated.

Lepis and Anti-Lepis Clauses Defined

January 15, 2007 | Kearns Rotolo Law

As as initial matter, it is important to note the New Jersey court system encourages parties to a divorce to settle. The Courts prefer when parties can resolve financial and custodial issues without judicial intervention. The terms of settlement are embodied in a Property Settlement Agreement, also known as a Marital Settlement Agreement.

Oftentimes, a party files a motion for modification of a specific term in the property settlement agreement. New Jersey Courts permit this. The Courts allow parties to file post-judgment (post-divorce) motions for modifications of property settlement agreements (contracts).

In this respect, the contract, property settlement agreement, is treated vastly different in the family context than in a business or employment context. In the latter, there is very litttle room for change.

Support: How New Jersey Treats Underemployment

December 24, 2006 | Kearns Rotolo Law

UNDEREMPLOYMENT

In some circumstances, a party who is obligated to pay alimony and/or child support may change their employment, earn substantially less than before, and seek to have either obligation decreased on the basis of decreased income.

The New Jersey Courts will not overlook this event; it is not a matter of happenstance. In fact, New Jersey Courts may impute income to the payor up to the amount the payor earned at his/her prior employment.

In Mowery, the Court held it is not merely the present earnings of the payor, but the potential earning capacity that is the essence of this factor. Mowery v. Mowery, 38 N.J. Super. 92 102 (App. Div. 1955).