A
semiannual newsletter designed to provide legal information
that family counselors and therapists can use to help
their patients.
SUPPORT ISSUES...
PARENT CONVICTED OF CAUSING
DEATH OF THEIR CHILD STILL ENTITLED TO ALIMONY
The parties were divorced
after 15 years of marriage. The Wife abused alcohol and
drugs over the years. She had visitation with her 14 year
old son and they got into a physical altercation. The
violence resulted in the son being hospitalized for neck
wounds. The son had bleeding in the jugular vein and a
tear in an artery in the neck. He bled to death.
The court agreed to allow
this mother to reapply for alimony after her release from
prison.
The Court found that the
dreadful conduct of this woman did not fit the standard
for non-economic “egregious circumstance”
sufficient to deprive her of needed support
The prior law they based
this on states that if a spouse arranges for the other’s
killing or deliberately infects the other with a deadly
disease, this conduct is considered “non-economic
egregious conduct. That this kind of conduct, “by
its very nature is so outrageous that it can be said to
violate the social contract, such that society would not
abide continuing the economic bonds between the parties.”
The moral of the story is,
you can’t kill your husband and expect support,
but you can kill your child!
What is this world coming
to ?
A Parent who did not support
a child can share in her estate
The child was born severely
handicapped at birth. The child was awarded a medical
malpractice award of $2.6 million dollars. She died at
22 years old. The child’s father had no relationship
with the child. Upon the child’s death, the father
wanted to share in the child’s estate. The mother
challenged this request by the father and she sought retroactive
child support, even though she had never sought child
support while the child was alive.
The law held that the Estate
Probate Code does not “condition a parent’s
right to take from a child’s estate on that parent
having contributed to the child’s support”.
Simply because he had a biological and legal relationship
he was able to share in the estate. The father was awarded
one-half of a trust valued at $1.1 million dollars.
MANY STATES ARE QUESTIONING
TRADITIONAL ALIMONY
Do judges have too much
discretion in deciding how much alimony should be paid
and for how long?... I say,” yes”.
Massachusetts is recommending
standards for determining reasonableness of amount and
duration of alimony. New Jersey should do the same. New
Jersey has “open” rules which allow a judge
to one day rule that an 11 year marriage is a long-term
marriage providing that spouse with the privileges of
someone married 25 years and on another day to rule that
an 11 year marriage does not warrant more than 3 to 4
years of alimony!
New York wants guidelines
for judges to follow when deciding alimony since the award
guidelings given now are ambiguous.
Most states are like New Jersey and have no specific formula
for determining alimony resulting in a wide range of awards.
Many times these awards are blatantly unfair. Honestly,
should someone be entitled to receive support for 28 years
if they were only married for 11 years?
Reimbursement of medical
expenses
One of the biggest complaints
I get are from parents who do not get reimbursed from
the non-custodial parent for medical expenses for their
children.
As a defense to not paying,
the non-custodial spouse will claim they were never consulted
regarding the medical care and therefore have no duty
to pay for it. Many times the bills are never sent to
the non-custodial spouse for reimbursement until years
have past.
What should you do?
If the Judgment of Divorce
indicates you need to consult with your spouse for medical
issues with your child, do so. Put it in writing (e-mail)
that the child has an issue and you want to see a doctor...give
them the ability to respond. If you don’t, you just
might get stuck with the bill.
Secondly, every quarter,
send the spouse (regular mail and certified mail) the
bills from the doctors, a copy of the insurance submission
form and proof of what you paid.
DEVELOPMENTS IN FAMILY
LAW
CHANGES IN PALIMONY LAW
Cohabitation was always
a requirement for a successful claim for palimony. New
Jersey has just ruled that cohabitation is no longer a
prerequisite for palimony. You only need proof that a
“marital type relationship” existed. Palimony
used to require that you prove a long-term, live-in relationship.
The Courts now allow for a “flexible approach that
seeks to achieve substantial justice in light of the realities
of relationships.” “It is the promise to support,
expressed or implied , coupled with a marital-type relationship
that are indispensable elements to support a valid claim
for palimony.”
Let’s hope that every
dating relationship does not start filing actions for
palimony.
CASES IN THE NEWS
a. CIVIL UNIONS IN NEW
JERSEY AND AROUND THE COUNTRY
California passes law allowing
gay couples to “marry”...
In New Jersey, civil unions
have not done well..gay couples are really not provided
with the protections that were promised. Many are denied
medical benefits for their partners; many are discriminated
against at work.
New York has de facto legalization
of gay marriage. New York will grant reciprocity to gay
marriages from other jurisdictions. If you can get married
in California and then move the New York...they will recognize
your marriage.
(How does one get recognized as married?)
b. TAX IMPLICATIONS
The federal law creates
problems for civil unions couples who are divorcing:
a) Limits the tax exemption
on the sale of a house; b) you can’t deduct alimony
on your federal tax return; c) property transfers have
significant tax implications; d) you can’t transfer
your retirement plan upon divorce as a tax free exchange;
e) you are subject to higher tax rates at death because
you are not married.
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