Divorce Attorney Lawyer New Jersey NJ, Pamela M. Cerruti, Esq.

Family Lawyer

Vol. 7, No. 1 {Spring 2002}

A semiannual newsletter designed to provide legal information that family counselors and therapists can use to help their patients.

Parents' Time with Children Affects Custody Issues

We all know how important it is for parents to spend time with their children. In cases of divorce, the amount of time parents spend with their children may have additional ramifications that affect child support and relocation.

Removing Children from the State

Although the law has never been consistent, in the past a custodial parent has been allowed to move out of the state if the reasons for the move were justifiable and in the best interests of the child. The fact that such a move interfered with the visitation rights of the non-custodial parent was not a major factor in the decision.

This is no longer the case. The courts are now analyzing how much time the non-custodial parent actually spends with the children. For example, if a settlement agreement stipulates joint physical custody but the non-custodial parent is with the children only 30 percent of the time, the courts will not consider the arrangement to be joint custody. In this instance, a petition by the custodial parent to move out of New Jersey would likely be granted, assuming all other conditions were met. However, if the non-custodial parent spends about 50 percent of the time with the children, regardless of the terms of the settlement agreement, the ruling will be more favorable to the non-custodial parent.

The lesson? Non-custodial parents who wish to limit the custodial parent's ability to move out of the state with their children should spend more quality time with their children now.

Child support

When a couple with children is divorcing, one parent is usually the parent of primary residence, that is, where the child resides when he or she goes to school. The other parent is referred to as the parent of alternate residence. Many times parents share parenting responsibilities equally.

Parents who share parenting equally in terms of time allocation should take care when child support is calculated. The New Jersey Child Support Guideline does not calculate child support correctly when children spend equal time with both parents. Under this guideline, the payor parent could end up paying double costs. It is worthwhile for parents to discuss this issue with their family lawyer.

Preparing a post-divorce budget

Once a divorce is imminent, both parties need to make plans about where they will live after the divorce. The most important document prepared during this time is the budget. It is the foundation for alimony and for determining the marital life style. Couples (togethe or individually) need to review their check registers or canceled checks for the last three years and categorize all the expenses. Then they should do the same thing with three years of credit card purchases. Finally, they should list all the things paid for with cash, and categorize them, too. This summary will help define their marital life style.

The spouse who is staying in the same home after the divorce need go no further. A spouse who is moving must also investigate living costs in the new residence, which will mostly be the cost of shelter.

A judge has no way of determining the life style or the needs of a divorcing couple without this information. The more thorough the information, the more likely it is that the parties receive what they need. It is also important to separate the expenses of the parent or parents from those of the children. The family lawyer has forms that can help couples organize their information.

Beware of bankruptcy after divorce

Many times a spouse will agree to pay support in lump sum installments and classify the payment as equitable distribution rather than alimony. BEWARE: Alimony is not dischargeable in bankruptcy, and equitable distribution may be.

New Jersey privacy rights for children

Genetic Privacy: Informed consent is required prior to the use and disclosure of a minor's genetic information. (There are some exceptions.)
Rape Shield: Minors receive the same benefit of the rape shield law's victim protection, and, consequently, their past sexual conduct may not be used. (There are some exceptions.)
Search and Seizure at School: A search can be done if it is for reasonable grounds, such as a school rule or legal violation. The scope of the search must be reasonably related to those grounds.
Profiling: Psychological profiling of students is not allowed. Adoption: These records are sealed unless the court determines a good cause for inspection.

Changes to the ADA

The US Supreme Court has narrowed the definition of a disability pertaining to the Americans with Disabilities Act. Until recently, the statutory definition was "an impediment which substantially limits one or more major life activities."

However, this definition was too broad. For instance, would a person who simply needs corrective lenses be considered disabled?

The Supreme Court has now ruled that an individual must have an impairment that prevents or severely restricts that individual from performing activities that are of central importance to most people's lives. Furthermore, the impairment must be permanent or long-term.

The test case involved a woman with carpel tunnel syndrome who sought to collect permanent disability payments, even though she could handle the activities of daily livingžshe just couldn't type! I believe that this is a much needed change.

Protecting a home from the costs of long-term health care

Many of my clients are afraid that if they enter a nursing home, they will lose their own home. If homeowners do not protect their primary residence, under state Medicaid regulations the value of the residence is considered an asset in deter mining whether or not a person is "resource eligible" for Medicaid nursing home benefits.

Effective June 2001, the law allows for four transfers that are potentially exempt from penalty in determining Medicaid eligibility. There are too many details for this newsletter. Call for more information.

Pamela Cerruti is now recognized as a Certified Matrimonial Law Attorney by the New Jersey Supreme Court

The Family Lawyer is published quarterly by Pamela M. Cerruti, Esq., for mental health and social service professionals. This publication is intended to provide information to its readers. It is not intended to offer legal or professional advice. For more information, please contact:

Pamela M. Cerruti, Esq.

45 Park St., Montclair, NJ 07042

Tel: 973-746-5590

Fax: 973-509-0308

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