A trial judge may grant prejudgment interest at his or her discretion. Cnty. of Essex v. First Union Nat’l Bank, 186 N.J. 46, 61 (2006); see also Meshinsky v. Nicholas Yacht Sales, Inc., 110 N.J. 464, 478 (l988). An appellate court should not interfere with such award unless the award represents a manifest denial of justice. Cnty. of Essex, supra, 186 N.J. at 61. Prejudgment interest in contract actions are not subject to the mandates of Rule 4:42-ll, which apply only to tort actions, but rather are “assessed on a discretionary basis as the result of the application of equitable principles.” DialAmerica Mktg., Inc. v. KeySpan Energy Corp., 374 N.J. Super. 502, 508 (App. Div.), certif. denied, 184 N.J. 212 (2005).

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Prejudgment interest in contract actions are assessed on a discretionary basis as the result of the application of equitable principles originally appeared on NJ Family Issues on February 2, 2012.

A spouse cannot convert or diminish marital assets so as to diminish the other spouse’s distributable share. Vander Weert v. Vander Weert, 304 N.J. Super. 339, 349 (App. Div. 1997).

“Public policy concerns require divorcing spouses to deal fairly with each other.” Tannen v. Tannen, 416 N.J. Super. 248, 262 (App. Div. 2010), aff’d, 208 N.J. 409 (2011).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Public policy concerns require divorcing spouses to deal fairly with each other originally appeared on NJ Family Issues on February 2, 2012.

In two cases — Ronan v. Adely, 182 N.J. 103 (2004) and Gubernat v. Deremer, 140 N.J. 120 (1995) — the Court authorized application of a presumption in the parent of primary residence (PPR)’s favor in name-change disputes when the child was born out of wedlock.

In this matter of first impression, the court rejected the adoption of such a presumption when the child was born in wedlock to parents who subsequently divorce.

Regardless of whether a name change is sought by motion in an existing family action or by a new and separate action in the manner provided by N.J.S.A. 2A:52-1, the trial court remains obligated to ensure that the parties have a full and fair opportunity to present evidence and arguments regarding the application’s merits.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Name-change disputes when the child was born in wedlock to parents who subsequently divorce originally appeared on NJ Family Issues on January 26, 2012.

Newburgh [Newburgh v. Arrigo, 88 N.J. 529 (1982)] factor four, a parent’s ability to pay, is acknowledged to be the most significant with regard to college contribution. See Moehring v. Maute, 268 N.J. Super. 477, 481 (Ch. Div. 1993); Weitzman v. Weitzman, 228 N.J. Super. 346, 357 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

A trial judge’s authority to impute income in the process of assessing child support is well-established. The Child Support Guidelines indicate that the “‘[t]he fairness of a child support award . . . is dependent on the accurate determination of a parent’s net income. If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent . . . .” Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2504 (2012).

In deciding whether to impute income, a court considers:

(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,
(2) the reason and intent for the voluntary underemployment or unemployment,
(3) the availability of other assets that may be used to pay support, and
(4) the ages of any children in the parent’s household and child-care alternatives.

[Ibid.]

A trial court’s decision to impute income must be “based on a realistic assessment of capacity to earn.” Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A trial court’s decision to impute income must be based on a realistic assessment of capacity to earn originally appeared on NJ Family Issues on January 24, 2012.

In a long line of decisions, our Supreme Court has “emphasized repeatedly that matrimonial agreements between spouses relating to [equitable distribution], alimony and support, which are fair and just, fall within the category of contracts enforceable in equity.” Petersen v. Petersen, 85 N.J. 638, 642 (1981) (citing Carlsen v. Carlsen, 72 N.J. 363, 370-71 (1977); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)). “Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability.” Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995) (citing Petersen, supra, 85 N.J. at 642; Dworkin v. Dworkin, 217 N.J. Super. 518, 524 (App. Div. 1987)).

Nevertheless, strong public policy considerations mandate that marital settlement agreements be closely scrutinized. Any marital agreement that is unconscionable or is the product of fraud or overreaching may be set aside. Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992); Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988). “[T]he law affords particular leniency to agreements made in the domestic arena . . . .” Massar, supra, 279 N.J. Super. at 93. “Marital property settlement agreements ‘involve far more than economic factors’ and must serve the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages.” Conforti v. Guliadis, 128 N.J. 318, 323 (1992) (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)). “Even when a divorce order incorporates agreements reached privately between the parties, such orders can be modified ‘in light of all the facts’ bearing on what is ‘equitable and fair.’” Ibid. (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

If there has been moral compulsion sufficient to overcome the will of a person otherwise competent to contract, any agreement made under such circumstances is considered to be lacking in voluntariness and therefore invalid. Rubenstein v. Rubenstein, 20 N.J. 359, 365 (1956). The legal concept of duress is based upon the “unreality of the apparent consent” of a party. Id. at 366. “In determining whether a contracting party is entitled to be absolved from his [or her] contractual obligations due to duress, the court must . . . look to the condition of the mind of the person subjected to coercive measures.” Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212 (App. Div. 1987). “‘The question is whether consent was coerced; that is, was the person complaining induced by the duress or undue influence to give his consent, and would not have done so otherwise.’” Ibid. (quoting Rubenstein, supra, 20 N.J. at 366).

“[T]he test for duress is subjective, rather than objective, and does not turn on whether the duress is of ‘such severity as to overcome the will of a person of ordinary firmness.’” Id. at 212-13 (quoting S. P. Dunham & Co. v. Kudra, 44 N.J. Super. 565, 570 (App. Div. 1957)). All the attendant circumstances must be considered. Id. at 212. In addition to considering the subjective mindset of the complaining party, the pressure imposed must be wrongful. Rubenstein, supra, 20 N.J. at 367. “The act or conduct complained of . . . [must be] ‘so oppressive under given circumstances as to constrain one to do what his free will would refuse.’” Ibid. (quoting First State Bank v. Fed. Reserve Bank, 219 N.W. 908, 909 (Minn. 1928)); see also Segal v. Segal, 278 N.J. Super. 218, 223-24 (App. Div. 1994).

As the court held in Dworkin, supra, 279 N.J. Super. at 523, “any [matrimonial] agreement may be set aside when it is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship or is unconscionable.”

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Any matrimonial agreement may be set aside when it is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship or is unconscionable originally appeared on NJ Family Issues on January 17, 2012.

Rule 5:3-5(c) permits the Family court to award attorney fees in a matrimonial action, within its discretion, based on a number of factors, including: the financial circumstances of the parties, the ability of the parties to pay their own fees or contribute to the fees of the other party, the reasonableness of the positions advanced, the extent of the fees incurred by both parties, and the results obtained. See also Williams v. Williams, 59 N.J. 229, 233 (1971) (stating that when awarding counsel fees, “courts focus on several factors, including the wife’s need, the husband’s financial ability to pay and the wife’s good faith in instituting or defending the action”); Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000) (holding that where a Rendine [Rendine v. Pantzer, 141 N.J. 292 (l995)] lodestar “analytical framework is followed and the judge makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion”).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

The Family court may award attorney fees in a matrimonial action, within its discretion, based on a number of factors, including: the financial circumstances of the parties, the ability of the parties to pay their own fees or contribute to the fees of the other party, the reasonableness of the positions advanced, the extent of the fees incurred by both parties, and the results obtained originally appeared on NJ Family Issues on January 17, 2012.

“Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise.” Gordon, supra, 380 N.J. Super. at 66. Limited duration alimony is available to a spouse who made financial contributions to a relatively short-term marriage, because such a spouse is not entitled to permanent alimony or is in need of training or education to re-enter the workforce. Id. at 65. However, limited duration alimony may not be used if permanent alimony would otherwise be available. N.J.S.A. 2A:34-23(c); Gordon, supra, 380 N.J. Super. at 66.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Limited duration alimony may not be used if permanent alimony would otherwise be available originally appeared on NJ Family Issues on January 17, 2012.

Alimony is “an economic right that arises out of the marital relationship and provides the dependent spouse with ‘a level of support’” that approximates the standard of living that existed during the marriage. Mani v. Mani, 183 N.J. 70, 80 (2005) (quoting Stiffler v. Stiffler, 304 N.J. Super. 96, 98 (Ch. Div. 1997)). Because the trial court has discretion to award alimony, review is limited to instances where the court made findings that were inconsistent with the evidence, or unsupported by the record. Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005); Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002).

“[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.” Crews v. Crews, 164 N.J. 11, 16 (2000). In divorce actions, courts may award permanent, rehabilitative, limited duration or reimbursement alimony to either party, provided the factors enumerated in the alimony statute are considered. N.J.S.A. 2A:34-23(b).

The primary source to be considered in setting the amount of alimony is the supporting spouse’s income. Steneken v. Steneken, 183 N.J. 290, 299 (2005). Central factors to be considered in awarding alimony are the duration of the award and the need for one spouse to receive and the other to pay. Stiffler, supra, 304 N.J. Super. at 98-99.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Alimony is an economic right that arises out of the marital relationship and provides the dependent spouse with a level of support that approximates the standard of living that existed during the marriage originally appeared on NJ Family Issues on January 17, 2012.

Our State’s strong public policy favors arbitration, an alternative means of dispute resolution, EPIX Holdings Corp. v. Marsh & McLennan Companies, 410 N.J. Super. 453, 471 (App. Div. 2009), particularly in matrimonial matters, Faherty v. Faherty, 97 N.J. 99, 105-06 (1984).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Our State’s strong public policy favors arbitration, an alternative means of dispute resolution, particularly in matrimonial matters originally appeared on NJ Family Issues on January 8, 2012.

In awarding counsel fees, courts consider the bad faith of a party. N.J.S.A. 2A:34-23. Bad faith can be established by the “intentional misrepresentation of facts or law” to avoid or unfairly limit equitable distribution or alimony. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992). See Brown v. Brown, 348 N.J. Super. 466, 474 (App. Div.) (defendant acted in bad faith in misrepresenting his income and assets subject to equitable distribution), certif. denied, 174 N.J. 193 (2002).

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Bad faith can be established by the intentional misrepresentation of facts or law to avoid or unfairly limit equitable distribution or alimony originally appeared on NJ Family Issues on January 8, 2012.