Children

Support: Using Interest Earned from Inheritance in Calculation

December 26, 2006 | Kearns Rotolo Law

In New Jersey, inheritance is viewed as separate property and is not subject to equitable distribution irrespective of when the inheritance is received. Nonetheless, inheritance can play a major role in assigning child support and alimony obligations. Keep in mind, inheritance monies should never be intermingled with joint assets. Always keep your inheritance separate from joint assets to avoid it being subject to equitable distribution.

For example, if the payee has stayed home to raise children and tend to the home, she (typically’) may not receive all she believes she is owed if she has inheritance monies. The fact that inheritance cannot be divided between the parties, does not prevent the interest earned from investing the inheritance being calculated into support obligations. By this, the payee may actually become a “payor” as well, and be forced to contribute to her support or the support of her children through the interest received on her inheritance.

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).

Custody: Changing the Custody Arrangement

December 23, 2006 | Kearns Rotolo Law

More often than not, divorce decrees and settlement agreements are dispositive of physical and legal custody of the children born of the marriage. In most situations, the parties have joint legal custody while one party maintains sole physical custody. The non-custodial parent is awarded parenting-time.

In some situations, the custody agreement which was awarded or agreed to is no longer in the child’s best interests. In order to change the custody arrangement in effect, a party must file a motion for modification of custody.

An award of custody is always subject to modification at any time upon a showing of substantial change in circumstance. The primary considerations of the court are the best interests of the child. The court looks to the bona fides of the party seeking modification upon changed circumstances, and will not view a custody agreement entered into by the parties, even in open court, as binding. Sheehan v. Sheehan, 51 N.J.Super. 276 (App. Div. 1958).