Family Lawyer

CIVIL UNIONS...
DISTRIBUTING PROPERTY AT DISSOLUTION

The courts are required to analyze the following factors in distributing property by dissolution of the civil union:
1. Duration of the civil union;
2. Age, physical and emotional health of the parties;
3. Income and assets brought to the union;
4. Standard of living during the union;
5. Pre-nuptial agreements;
6. Current economic circumstances;
7. Current income and earning capacity;
8. Contribution to the partners earnings;
9. Financial contribution or contribution as homemaker;
10. Tax consequences;
11. Value of property divided or retained;
12. Need to stay in the joint home;
13. Debts and liabilities;
14. Deferred career goals;
15. Other

Problem: Partners are together for 20 years. In the 20th year they enter into a civil union. Three years later they want to dissolve their relationship. The couple did not have the ability to enter into a civil union before their 20th year together. A court could reasonably consider this a 3 year relationship instead of a 23 year relationship for the division of property. If one party was out of the workforce for 20 years raising the children and now enters the workforce, spousal support could be based on 3 years instead of 20 years. Is this fair? No...there is no precedent so be sure to stand up for your full property rights and the right to be support according to your life style during the full relationship.

...other changes affecting civil union partners

The federal government does not extend civil union couples the same rights as married couples. You will have no right to social security, veterans benefits or marital filing status on the federal income tax return.

New Jersey now allows civil union couples to hold property as tenants by the entirety. This gives the parties the automatic right to receive the property after their partner dies regardless of a will.

On June 17, 2007, New Jersey amended the Law Against Discrimination to prohibit employers from discriminating against individuals based on gender identity or expression.

International Abduction

How can you ensure that your child will be returned from your spouses’ native country?

The burden of proof is difficult for the parent who opposes the overseas visitation. You must have a “real” risk not just a suspicion or fear that your child won’t be returned. Real risk would be evidence of their strong emotional and cultural ties to the other country;. a criminal record in the US; financial ties to the other country; desire to stop paying support in the US
Remember that courts tend to protect the interest of the parent whose rights are alleged to be obstructed. History of a country being corrupt or dangerous may not be enough.

Be prepared with expert testimony to back up your case. Know whether the country is a party to the Hague Convention. Do not rely on your spouses’ promises. Don’t wait to the last minute to file with the court as emergent orders are much harder to get.

BEWARE OF THE PRE-NUPTIAL

Before marriage, the parties entered into a pre-nuptial agreement which indicated that the Husband’s tax deferred savings plan was not subject to equitable distribution. Upon divorce, the trial court ruled that it was...The Judge opined that because there were contributions made to the savings plan during marriage that were not anticipated in the pre-nuptial, the savings plan was subject to equitable distribution.

DISABILITY PENSIONS

These pensions are treated differently than pure retirement pensions. The portion that represents the retirement share is subject to equitable distribution. The portion that represents compensation for personal disability and personal economic loss is not. This is especially important for spouses of police officers or firemen as it affects the amount of retirement pension they get.

DEVELOPMENTS IN FAMILY LAW

Children in Court

1. Federal Statutes recently enacted:
*The Safe and Timely Interstate Placement of Foster Children Act of 2006- requires 60 day deadline to complete home study.

*Child and Family Services Improvement Act of 2006- Establishes grants to deal with substance abuse issues to improve the well-being, permanency outcomes and safety of children in out of home placement.

2. State changes in Adoption:

*In step parent adoptions you now need to attach to the adoption complaint a criminal history background check of all members of the house over 18 years which must be done within 12 months of filing the adoption complaint.

CASES IN THE NEWS

a. FORENSIC INVESTIGATION BY THERAPIST

A therapist hired to investigate an allegation of sexual abuse caused by a child’s father may have coached the child and manipulated the situation to suggest there was sexual abuse. A complaint has been filed with the Attorney General’s office charging that the therapist committed gross or repeated malpractice by:
1. Failing to separate the roles of therapist and forensic investigator.
2. Overstating to the judge the risk of harm to the child by the father.
3. Taking upon herself to instruct the mother to cut off visitation to the father.
4. Failing to investigate other reasons for the child’s emotional distress besides sexual abuse.
5. Failing to tell the judge facts that showed the father did not abuse the child.
6. Undertaking an investigation which was beyond the therapist’s competence, education and training.
7. Failing to maintain adequate records.

Lesson to be learned: When dealing with children, don’t leave any stone unturned; make sure you are up to the task at hand and don’t overstep your boundaries.

b. DO I HAVE TO RETURN THE ENGAGEMENT RING?

In New Jersey, the engagement ring is a conditional gift which must be returned in the event there is no marriage, regardless of who broke the engagement. If you get married and later divorce, the ring belongs to the gift taker.

Pamela M. Cerruti, Esq.

45 Park St., Montclair, NJ 07042

Tel: 973-746-5590

Fax: 973-509-0308

Website: http://www.Cerruti-FamilyLaw.com