Tuesday, July 31, 2012

Helpful Tip Tuesday

Custody - Are you paralyzed at the thought of what is best for your children? Start out by writing them an imaginary letter like this: Dear Joe and Mary: I have been thinking of the plan for you and this is what I have developed so far . . . . If you start out with this exercise, you are more likely to think about their lives from their perspective. Too often, divorcing and separating couples are wrapped up in their own hurt, frustration and fear. They look at their children from their own, adult perspective. If you write them an imaginary letter, you will begin to collect your thoughts around their imaginary response --- and be more likely to align your own plans with the children's best interests.

Sunday, July 29, 2012

Sunday humor

If you think nobody cares if you are alive, try missing a couple of car payments.
- Earl Wilson

Saturday, July 28, 2012

Have a positive outlook!

The average pencil is seven inches long, with just a half-inch eraser - in case you thought optimism was dead.

(-Robert Brault)

Thursday, July 26, 2012

My Money, My Right to See Your Grades.

College-age children want privacy from their parents. But if the child is paying for college using child support, then, in New Jersey, that privacy about what they are doing in school goes away. 

In the April 2011 New Jersey case VanBrunt v. VanBrunt, the divorcing parties entered into a Settlement Agreement that said they would share joint legal custody of the children and Wife would be the parent of primary residence, meaning that the children would live with her. 

After Husband filed numerous motions to disclose the daughter’s college records or to have her emancipated, Wife failed to provide Husband with documentation showing that their twenty-one year old daughter was a full time college student. Wife gave many excuses as to why she did not have the records including: her daughter would not give her any documentation, that she was not allowed to obtain the information herself due to her daughter’s privacy rights, and that it was the daughter’s responsibility to provide Husband with that documentation.

The privacy law that Wife relied on is called the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. §1232(g), a 1974 federal law that gives students over the age of eighteen certain privacy rights when it comes to their education records. In most cases, the college or university that the student attends cannot release any information to a third party without the student’s written authorization. 

The trial court disagreed with Wife’s reasons for not handing over the daughter’s school records saying the daughter’s status as a student was directly tied to Husband’s obligation to pay child support and contribute to other finances, including the cost of college. The court held that Husband had a right to the documentation, but only as it pertained to enrollment, course credits and grades. The daughter could not use FERPA to prevent disclosing her college records while still asserting that she was unemancipated and entitled to mandatory child support and college contributions from her father.

Likewise, Wife, who is the one receiving child support, has an ongoing duty to provide the information about whether or not her daughter is still a student. If Wife cannot obtain this information from the daughter, then the daughter would no longer be under the control of the mother and should be emancipated for the purpose of child support and college contributions.

This case was never appealed and therefore is not binding on courts outside of Ocean County, New Jersey. If you have questions about child support that you are paying for a college-aged child, please consult with an attorney.

Written by Allyson Lutley, law clerk at The Law Offices of Linda a. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire.

Tuesday, July 24, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Personal property - Divide your "stuff" before you separate. Judges have little (actually make that no) tolerance for disputes over personal property such as furniture, accessories, photographs, toys, games, appliances, dishes, pots and the other accumulations of life. Act now to preserve what is not replaceable (i.e. you can buy a new collection of dishes but you cannot buy new baby pictures). Once "stuff" disappears, you will not get it back so make sure anything that is really important to you is in safekeeping.

Thursday, July 19, 2012

Calculating Child Support in NJ

Calculating child support in New Jersey–or any state–can be complicated. Generally, in New Jersey, the court takes eight steps to calculate child support. New Jersey Child Support Guidelines intend to predict the cost of raising a child based on the parents’ incomes and setting an equitable amount.

Step 1- Determining the Income of Both Parents: Just about any type of income you receive or earn can be considered to calculate child support. Even things like lottery winnings, unemployment benefits, money from illegal activities and overtime earnings can be considered. Usually, however, welfare benefits or other money given to the needy or disabled may not be included in the calculation of the parents’ income.

If one parent does not work but has the ability to work, then the court will impute (meaning assign) a certain income amount to that parent by figuring out how much that parent is capable of earning.  Then the court will use that figure to calculate child support.

Step 2- Taxes and Deductions: The only deductions that can be made on your income for determining child support are those that you cannot control like Social Security Tax, Medicare, and state taxes. After taxes and deductions, if any, are removed, you will have each parent’s net income. You may have other deductions on your paycheck, such as disability insurance or voluntary retirement contributions, but those amounts will be added back into income for the purpose of calculating support.

Step 3- Determine Combined Net Income: After taxes and deductions are taken out, both parent’s incomes are added together, resulting in the combined net income. The parents’ combined net income is put into a “pot.” The court then looks at the statutory Guidelines chart for the number of children in the family and the amount of money that is in the “pot.” That number on the chart is the basic child support award.

Step 4- Splitting the Child Support Award: If the parents have the same net income, then they split the amount in the chart equally. In most cases, one parent earns more then the other so it is usually split 60/40 or 70/30. If one parent is disabled or on welfare, then that may shift the burden onto the other parent to pay the full amount.

Step 5- Adjustments Based on Visitation and Shared Parenting: A special deduction can be calculated for the parent who pays support if he or she has custody of the children for a significant number of days.

Step 6- Add-On Expenses and Special Deductions: If a family has expenses like child care or health insurance for the children, those expenses are added to the child support award and split the same way as the amount from the Guidelines chart. Some special deductions, like one parent paying child support for other children or paying alimony to a previous spouse, can be deducted, but this deviation may be discretionary based on the individual situation.

Step 7- Poverty and Shared-Parenting Income Tests: Paying child support should not make a parent “poor” and unable to take care of himself or herself. The Guidelines have specific tests built in that can help keep a parent from paying too much. However, the tests always favor the children and make sure that the parent who has the children most of the time is receiving enough money to take care of them. Your income must truly be in the poverty range to affect your child support.

Step 8- The Final Child Support Order: After all the steps are taken for deductions, the resulting amount is the amount of child support to be paid. If the parents, lawyers, or court want to use a different amount, they must give a reason why they are differing from the Guidelines. In New Jersey, child support is paid through “Probation,” an agency that deducts the support from the wages of the Payor parent and turns the money over to the Payee parent.

If you have questions about calculating child support or about child support you are currently paying, you should consult with an attorney. Child support calculations, even though we have guidelines, can be very fact specific.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Linda A. Kerns, Esquire.

Wednesday, July 18, 2012

Need to place dad's name on the birth certificate in NJ?

The procedure for placing Father's name on the birth certificate in New Jersey is to fill out a Certificate of Parentage.  Visit New Jersey's Paternity Opportunity website to obtain more information.

Signing a Certificate of Parentage brings with it significant legal consequences.  Usually, you cannot undo a Certificate of Parentage so if you are not absolutely sure you are the father of the child, or are unaware of your legal responsibilities as a father, you should consult with an attorney.

Tuesday, July 17, 2012

NJ Child Psychologist license revoked

The  State of New Jersey, Office of Administrative Law, revoked the psychology license of Marsha J. Kleinman, Psy.D., because she mislead the court about a situation involving a child and based on evidence that she coached a child to accuse her father of sexual abuse.  Dr. Kleinman had frequently appeared as a family expert in court.   You can read the full opinion here.

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

After your divorce is finalized it is important to review the beneficiary designations on all of your accounts, including insurance accounts. If your ex-spouse is named as beneficiary, even after a divorce, a company may have no choice but to give the asset to the ex-spouse.

Monday, July 16, 2012

Second marriage... new will

Recently, the Superior Court of Pennsylvania (our appellate court), heard a case wherein a man died with two wills.  One was drafted and signed in 2005 naming one of his sons from his first marriage as executor.  In that will, he left the sum of $35,000 to his new wife and the rest of the estate to his two sons from his first marriage.  He died in 2009 and his son probated the will.

However, his new wife then petitioned to probate a will that had been drafted and signed in 2008.  That will disinherited the man's two sons and left his entire estate to his wife.  The Register of Wills refused to probate the second will and the parties went to court.

The Orphans' Court agreed with the man's sons that the second will was  invalid because the man lacked testamentary capacity, that is, he had dementia and other mental deficiencies and did not have the ability to understand what he was doing.  The Superior Court affirmed the Orphans' Court. The case included a lengthy discussion regarding weight of the evidence issues and the procedure for filing exceptions.

You can read the full opinion here: In re: Estate of William O. Smaling, July 2012.

Second marriages, stepchildren and children from previous relationships can raise all sorts of issues when dealing with estates, wills and inheritances.  Families should discuss these matters carefully and consult with an attorney familiar with this area of the law.

Wednesday, July 11, 2012


A QDRO is a Qualified Domestic Relations Order ---- the document used to divide certain retirement benefits in a divorce.  To understand the basics, visit the U.S. Department of Labor's website which includes basic information in an easy to read FAQ format so that you can learn about the process.

Tuesday, July 10, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

You should always retain the last seven (7) years worth of tax returns, in case the IRS decides to perform an audit. Likewise, tax returns are an invaluable source of information during both divorce and support litigation.

Monday, July 09, 2012


While there is a chance of the world getting through troubles, I hold that a reasonable man has to behave as though he were sure of it.  If at the end your cheerfulness is not justified, at any rate you will have been cheerful.

- H.G. Wells

Saturday, July 07, 2012

Happy weekend!

If you can spend a perfectly useless afternoon in a perfectly useless manner, you have learned how to live.

-Lin Yutang

Friday, July 06, 2012

The wisdom of Mark Twain

Twenty years from now you will be more disappointed by the things that you didn't do than by the ones you did do.  So throw off the bowlines.  Sail away from safe harbor.  Catch the trade winds in your sails.  Explore.  Dream.  Discover.

-Mark Twain

Thursday, July 05, 2012


Many people going through a divorce gloss over their health insurance needs post-split.  I have often heard clients say, "I'll just get COBRA."  However, COBRA is not available to everyone and, even if you are eligible, you can only obtain health insurance through COBRA for a limited time -- and sometimes at a great expense.

What is COBRA (Consolidated Omnibus Budget Reconciliation Act)?

This law, passed in 1986, provides certain individuals, whose health insurance would otherwise terminate due to a loss of job or a divorce (and certain other circumstances), the ability to continue the same coverage at a cost.  However, not all employers must provide COBRA and continuing health insurance coverage this way can often be more expensive than obtaining a new policy.

The United States Department of Labor provides a comprehensive Frequently Asked Questions page.  Visit that page to learn about the basics under COBRA.

Your plans for health insurance should be an integral part of any plans to divorce or separate.  Understand your options and discuss potential solutions with your attorney.

Wednesday, July 04, 2012

Happy Birthday, America!

Tuesday, July 03, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Good can come from difficult situations. Remember: “The best advice I have for other parents going through a divorce is that the kids need to know that both of their parents are good people. It’s easy to set the example of kindness and love and respect when the things are good. So if you can do that when things are hard, and wholeheartedly support their relationship with the other parent - you’re showing them a certain kind of resiliency.”
- Bradley Whitford

Monday, July 02, 2012

Yes, the Judge is Watching You!

Late last year, a defendant facing sentencing by a Federal Judge in the District of South Dakota, smiled as the Judge advised him he was being sent to prison.  The Court, not amused by this callous behavior, tacked on another six months.  The defendant appealed but the U.S. Court of Appeals for the Eight Circuit ruled that a sentencing judge has broad discretion.  You can read the story here.

I always warn clients to be careful of their facial expressions, body language and movements.  In civil court, a judge will not be sending you to prison, but he/she will be making a decision about your case.  Judges are humans too and the last thing you want is the judge to think poorly of you because of your reactions in court. Be respectful, avoid showing inappropriate reactions, do not mutter under your breath and control your body language.  You can only make your case worse by fidgeting, making faces, or otherwise irritating the judge.