Family Law Review– Three Significant Changes in the Law

Grandparents’ Rights In Question New Jersey statutes have long afforded grandparents the right to seek court intervention if the death, divorce, or separation of their grandchildren’s parents has meant that the grandparents have little or no access to the children. However, a recent ruling by the United States Supreme Court may impact their ability to actually obtain the visitation they want.

New Jersey’s law was not at issue before the U.S. Supreme Court in Troxel v. Granville, but the Washington law that was is similar in some respects to ours. In Troxel, the grandparents saw the two daughters of their deceased son one evening a month, but wanted more visitation. They sought a Court Order giving them visitation one weekend a month, one week during each summer, and four hours on each grandparent’s birthday. The children’s mother objected, agreeing only to the original schedule of one evening a month. The Trial Court agreed with the grandparents, but Washington’s Appellate Court and Supreme Court sided with the children’s mother. So did the U.S. Supreme Court. Writing for the Court, Justice Sandra Day O’Connor (a grandmother herself) said that parents’ interest in the care, custody and control of their children is “perhaps the oldest of the fundamental liberty interests recognized by this Court”. Thus, a state is only permitted to interfere with parents’ right to rear their children as they choose if there is a need to prevent harm or potential harm to the child. Parents are generally free to keep grandparents out of their children’s lives for any reason they want – or no reason at all.

The full impact of the Troxel decision on New Jersey family law has not been felt yet. However, the clear directive from the highest Court in our land is that a Court’s judgment will not be substituted for a parent’s unless there is substantial overwhelming need.

Courts Now Required To Take Lifestyle Into Account In All Cases Where Alimony Is Awarded

For more than a decade, judges trying contested divorces in New Jersey have been required by statute to make specific findings of fact about a couple’s marital lifestyle before deciding alimony issues. Courts have to hear and rule on evidence about, for instance, the types of cars the parties drove, the size of their house, the quality of their furnishings and clothing, and the number of vacations they took.

This year, a landmark state Supreme Court ruling, Crews v. Crews, directed judges finalizing settled cases to consider those factors, too. Lifestyle information has not been a part of most settlement agreements up until now. For one thing, there is simply not enough money in most middle class families to keep the standard of living the same after the divorce. Two households are more expensive to maintain than one, even when everyone is acting in good faith. Moreover, gathering lifestyle data can be onerous and require the services of experts like accountants. If the parties disagree with what the experts say, the case can become harder, instead of easier, to settle.

The Supreme Court was not trying to make divorce litigation more costly or traumatic with Crews, though. Crews involved a very common post-divorce motion; that is, one for an increase in alimony. The basis for the motion was a “change in circumstances.” The Court said that in order to decide matters like these fairly, judges need information about all “the circumstances.” Evidence about how things have gotten better or worse since the divorce is not enough. Judges need to know how the couple lived when they were together since a goal of our alimony laws is to provide enough money for a dependant spouse to maintain a standard of living reasonably comparable to the one enjoyed during the marriage.

In practice, the Crews ruling will add a few steps to the uncontested divorce process. General questions about lifestyle may have to be asked of settling parties or they may have to be asked if they waive the right to certain judicial findings. While this is extra work and effort up front, many family practitioners think that it will likely save parties time and money in post-judgment proceedings, if they become necessary.
New Law Is Another Tool For Enforcing Child Support Orders
New Jersey’s Court system has a new weapon for chasing deadbeat parents. This past summer, Governor Whitman signed into law a bill that bars parents from collecting judgment or settlement payments for themselves until all of their child support debts have been paid. The new lien law applies to net proceeds of a settlement or judgment in excess of $2,000.

In order to place a lien on such proceeds, the parent receiving support must first petition the Court to enter a judgment against the payor parent for the amount of the arrears. Then, that judgment has to be docketed with the County Clerk, where it becomes part of the public record that can be searched. Before an attorney can pay settlement proceeds to a client, he or she must search the Court record for docketed liens. The amount of any such lien must be paid before the attorney can send any of the proceeds to the payor parent.
Cheryl Morrissey is a partner at WJ&L, LLP who practices in the areas of Litigation and Family Law.

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