Family Law Frequently Asked Questions

• Inherited Money From My Parents during our Marriage, Do I Need to Share That With My Soon-to-be Ex?
• Should I Move Out of the House, Will it Affect the Results of My Divorce?
• Can Divorced Parents be Ordered to Pay for Their Children's College Education?
• How is Child Support Calculated and What Expenses are Covered by Child Support Payments?

I Inherited Money From My Parents during our Marriage, Do I Need to Share That With My Soon-to-be Ex?

It depends on how and when the inheritance was used. The case law in the state of New Jersey provides that if with your inheritance you bought assets that you placed in your spouse’s name or in joint names, then those assets are presumed to be a gift to your spouse and you have to share those assets with him/her. The same is true if you place all or some of the money in an account in your spouse’s name or in joint names. The amount placed in your spouse’s name or in joint names is presumed a gift to your spouse. If, however, this was done close to the filing date of the complaint for divorce, then you can make an equitable argument that had you known your spouse wanted a divorce (or had engaged in conduct that led you to file for divorce such as an affair), you would never have gifted the money to your spouse and thus, your spouse should not get any of it or he/she should get less than 50%.

If you used any part of your inheritance or all of it to purchase an asset or assets in just your name, then it is exempt from equitable distribution and thus, your spouse does not share in it. However, you have the burden to prove that the money was in fact inherited and placed into the asset or assets as you claim. Thus, you need a paper trail that shows the money you inherited was deposited into the accounts and/or was used to purchase assets you allege they did.

However, even if an inheritance is exempt, it can be used for support purposes. If you or your spouse has an alimony and/or child support obligation, a court can impute interest on your inheritance or use the interest that your inheritance is generating and add it to your annual gross income for purposes of determining support. For example, if you have $500,000 inheritance that is exempt, a court could impute interest of 3% per annum and thus, $15,000 will be added to your gross annual income for purposes of determining support.

Jennifer Fortunato, Esq.

Should I Move Out of the House, Will it Affect the Results of My Divorce?

Generally, you should not move out of your house until you have a written agreement signed by you and your spouse that resolves all of the issues in connection with your divorce for the following reasons:

First, if you move out, you lose leverage, especially if you are seeking physical custody of your children and/or more parenting time than your spouse wants to agree to and your spouse will not let you move out with the children. You also lose leverage if your spouse does not want to resolve your case or if your spouse wants to drag it out. If your spouse is in the marital residence without your presence, he/she has no incentive to settle the case, especially if all of the bills are being paid.

Second, if you move out and you are entitled to support, you will probably receive less support than you would otherwise receive when your case is resolved because the court will consider the fact that the supporting spouse is maintaining the residence and thus, preserving your equity, in determining pendente lite support (which is what the court calls support prior to your case being resolved).

Lastly, if you are the supporting spouse and you move out, the court will seek to maintain the status quo that existed financially during your marriage. Thus, if you typically paid all or part of the bills in the marital residence, this will continue to some degree. Thus, you will be contributing toward your spouse’s shelter expenses, as well as paying all of your own. Sometimes the spouse in the marital residence receives more support until your case is resolved than he/she is entitled to because the court considers part of the support award as a benefit to you - to preserve your investment/equity in the marital residence. If this is the case, then your spouse will not want to resolve the matter quickly because it will mean a reduction in support.

Jennifer Fortunato, Esq.

Can Divorced Parents be Ordered to Pay for Their Children's College Education?

New Jersey is in the minority of states that allow courts the discretion to require divorced parents to pay for their children's college education. In the case of Newburgh V. Arrigo, the New Jersey Supreme Court held that in "appropriate circumstances" parental responsibility includes the duty to assure children of a college education. The Court established the following factors for the court to consider in determining whether these "appropriate circumstances" exist:

1. Whether the parents, if still living with the child, would have contributed toward the cost of the requested education;
2. The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
3. The amount of the contribution sought by the child for the cost of higher education;
4. The ability of the parent to pay that cost;
5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
6. The financial resources of both parents;
7. The commitment to and aptitude of the child for the requested education;
8. The financial resources of the child, including assets owned individually or held in custodianship or trust;
9. The ability of the child to earn income during the school year or on vacation;
10. The availability of financial aid in the form of college grants and loans;
11. The child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

The Family Courts in New Jersey support the public policy of encouraging the higher education and ultimate success of children. The divorce of one's parents should not prevent a child from obtaining a college degree. If a child has the aptitude and commitment to seek higher education, his or her parents are usually ordered to contribute in accordance with their abilities to pay.

How is Child Support Calculated and What Expenses are Covered by Child Support Payments?

Our New Jersey statute, N.J.S.A. 2A:34-23b sets forth factors to be considered when determining child support which include, but are not limited to:

1. Needs of the child;
2. Standard of living and economic circumstances of each parent;
3. All sources of income and assets of each parent;
4. Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children, including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
5. Need and capacity of the child for education, including higher education;
6. Age and health of the child and each parent;
7. Income, assets and earning ability of the child;
8. Responsibility of the parents for the court-ordered support of others;
9. Reasonable debts and liabilities of each child and parent; and
10. Any other factors the court may deem relevant.

However, the New Jersey Supreme Court has promulgated Uniform Child Support Guidelines that apply to all cases where a combined income of both the mother and father is $187,200 combined net or less. Under the guidelines calculation (which is done by computer software, or can be located on the internet, or in the New Jersey Court Rules), the total gross weekly gross income of both the mother and father are inputted into the guidelines. The concept behind the guidelines is that parents in different income levels spend a certain percentage of their combined incomes or a specific amount of money toward raising their child or children.

The sources of income to be included in the guidelines include income from employment as well as other sources of income which are outlined in the Child Support Guidelines and its Appendix IX that are notes explaining the Guidelines analysis such as rents, bonus and royalties and alimony and separate maintenance payments received from current or past relationships, the alimony paid is added to payee's income and deducted from the payor's income, as well as other sources of income.

In the event a party is voluntarily unemployed or underemployed, income may be imputed (attributed) to that party for purposes of calculating a support obligation.

Included in the Child Support Guidelines analysis may also be the cost of health care for the children, as well as childcare costs.

The guidelines provide an overall amount of support necessary to provide for the needs of the party's children (based on income and number of children) on a weekly basis. The guidelines then apportion each parties' respective responsibility. The non-custodial parent pays the support to the custodial parent. There is also a worksheet for Shared Parenting that apportions the responsibility as well.

The Guidelines take into consideration the number of children and Court ordered obligations toward children of other relationships.

Expenses covered by child support paid include such items as housing, food, clothing, transportation, entertainment, unreimbursed healthcare up to and including $250 per child per year and miscellaneous items. Items under housing include such things as lawn care, cleaning supplies, linens, light fixtures, computers and software, sewing materials, laundry, postage, etc., enumerated in the Appendix to the Child Support Guidelines. Food includes restaurants, tips and school meals. Clothing is also included, along with footwear except special footwear for sports, diapers, repairs and alterations to clothing, storage, dry cleaning, laundry, watches and jewelry. Entertainment includes such items as fees, memberships and admissions to sports, recreation and social events, lessons and instructions, movie rentals, televisions, radio sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games and recreational exercise or sports equipment, such as personal care products and services such as haircuts are included under miscellaneous items under the guidelines. As a result, these aforementioned items along with those enumerated in the Appendix IX-A of the guidelines is not shared separately by the non-custodial parent; the custodial parent is expected to pay for those items with the child support received.

Note, there may be upward deviation from the Child Support Guidelines if the parties agree as part of a Divorce Settlement Agreement or in an interim agreement when guidelines are not followed pending the divorce.

Linda Mainenti-Walsh, Esq.