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January 2021


What is a Prenuptial Agreement?

A prenuptial agreement is a written document outlining the terms between two betrothed parties. Essentially, the prenuptial agreement establishes parameters regarding assets should the marriage end in divorce. The attorneys at Eveland & Foster prepare both prenuptial and postnuptial agreements for clients seeking to marry or already married, whether it is their first or fourth marriage. Preparing a prenup now prevents unnecessary heartache and turbulence later.

Preparing for the Worst, Hoping for the Best

No one gets married expecting to get divorced, but statistics unfortunately indicate that more than half of all marriages end in divorce. Without a prenuptial agreement, the parties may delve into a contested dispute about all major assets, including financial accounts, pensions, personal property, furniture, vehicles and the home. Even gifts, which are considered separate from marital property under the law, may come into play during divorce proceedings. If one partner is wealthy, owns a business, or has children from a previous marriage, they may want to shield assets or items they wish to bequeath to relatives in the event of marriage dissolution. A prenuptial agreement is a logical solution to settling property division prior to marriage.

Sadly, prenuptial agreements are mired with negative stigma. Some people feel it is an insult to even broach the discussion, let alone ask their partner to sign an agreement. There is no reason for negative misconceptions to stop you from discussing the subject with your partner. Discussing the subject of finances, property, and the worst-case scenario of divorce allows parties to speak openly about their wishes, interests, and mutual understandings.

Drafting the Prenuptial or Postnuptial Agreement

When drafting a prenup, the parties make a list of all assets and liabilities, copies of existing wills, trust accounts, gifts, etc. If one party owns a business, it is also wise to provide copies of operating or partnership agreements in preparation of the prenup. Because these agreements concern the interests of two parties, it is usually suggested that each party hire counsel for the drafting process. Our firm can assist couples in obtaining advice from another attorney for the other party.

Couples who are already married also have the option of drafting postnuptial agreements. A postnuptial agreement is similar to a prenuptial agreement in that the couple makes recitals about the joint property and sole property. However, a judge is much more likely to scrutinize a postnuptial agreement, as the longer a couple waits, the more likely finances, assets, and property are commingled.

On that note, while you can choose to draft your own agreement, understand that a judge is much more likely to scrutinize an agreement that was not drafted with advice from opposing counsel for both parties. This is because otherwise, it may appear that terms were included to the benefit of one party and detriment of another, or that coercion or undue influence factored into agreement terms. In any event, if you have children from a previous marriage or relationship, a trust fund, your income is disparate from your partner’s or you simply wish to have security regarding your individual assets, we strongly advise you consider drafting a prenuptial agreement.

Contact Our Attorneys at Eveland & Foster, LLC

If you are considering a prenuptial or postnuptial agreement and want to learn more about the process, call our attorneys at Eveland & Foster, LLC. We are available to discuss your needs and explain the property and asset allocation process.

Child Support Calculations

Some couples contemplating separation and divorce worry if they can afford their current lifestyle after divorce. In addition, many couples worry that the court arbitrarily assigns a figure to their mandatory child support payments. This is not true. While some lifestyle and living arrangements will change after divorce, child support calculations are based on imputed income and contributions to the marriage. If you have shared children with a soon-to-be ex-spouse and are worried about child support, call our attorneys at Eveland & Foster.

Completing Financial Statements

 During the divorce process, while you are gathering important documents and drafting a marital settlement agreement, it is important you give some thought to preparing a financial statement. Both parties prepare their own financial statement even if the prepared forms are identical. This is one of the most integral exhibits you will enter as evidence. The presiding judge also relies heavily on the financial statement in determining child support awards. The financial statement allows the parties to detail a list of assets and liabilities along with contributing income and an itemized list of monthly expenses. Every item from the mortgage to monthly subscriptions is listed on the financial statement. It is important that you do not guess and that you use true figures from monthly bills when preparing your statement because it is submitted to the court and shared with the other party.

Child Support Calculator

 Prior to a scheduled hearing or settlement conference, you can use the New Jersey Child Support Calculator. It is a state-provided service that approximates your monthly child support calculation based on your monthly income and number of children. The calculator is a rough estimate of your contribution. The court will also use non-monetary contributions and the terms of your marital settlement agreement as well as custody arrangements to determine child support. If one parent has primary physical custody the other parent will generally contribute a proportion of support. If both parents have shared physical custody, the parent who contributes more income will likely be required to pay a portion of child support to the other parent accounting for physical time shared. The court will also look at factors like the age of the child, who carries the child on their health insurance plan, cost of education, special needs considerations, and other unique factors. No two child support orders are alike, and you should not make assumptions based on popular culture or the income disparity or equality between yourself and your ex-spouse.

 Modifications and Arrears

If a child reaches the age of majority, a parent becomes unemployed or another major life change occurs, a party can petition the court for modifications to the order, but they must also serve the other party. Only the court can grant modifications. Even if the other party falls behind in making timely payments, arrears( missed payments) cannot be waived or discharged in bankruptcy. In fact, if non-payment continues the owed party can petition the court and a writ of judgment can be ordered, or the court can order wages or benefits garnished until the arrears are paid off.

Call Our Attorneys Today

 Our attorneys at Eveland & Foster, LLC specialize in all aspects of family law including child custody and child support orders. If you have specific questions about what you may owe or are entitled to after divorce, call today to schedule a consultation. We can assist with filing modifications as well.

Equitable Property Division: Modifying QDROs and Life Insurance

When parties are faced with divorce, they often wonder who will receive which possessions, personal property, and the home. Less thought is given to the division of intangible assets, including employee pensions, and life insurance policies. If you are divorcing a spouse, it is important that you understand all your options, preserve copies of all tax and accounting records, and consult an attorney before making any concrete decisions. Eveland & Foster, LLC divorce attorneys can provide crucial advice to potential clients regarding equitable distribution of assets in a divorce.

What is a QDRO, Anyway?

A QDRO is an acronym for Qualified Domestic Relations Order. It is issued by the Employee Pension Plan Administrator.  I.R.C. § 504 (2020). A QDRO is the only document that must be completed by the employer so that pension distributions can be made. If you are currently considering divorce or have already filed and do not have representation, and you or your spouse have an employer-sponsored pension plan or 401K, you should review your options with our lawyers. Only a court order can dictate how the plan participant(employee) will distribute plan assets with the non-participant (soon-to-be ex-spouse). QDROs only apply to 401K pension plans and some IRAs if the accounts are managed by the employer.

Modifications to Life Insurance Policies and Beneficiary Plans

Life insurance distribution and beneficiary plans also require review during divorce proceedings. Usually, the spouse is the de facto beneficiary when a life insurance policy is paid. If you want to change the beneficiary distribution or remove your ex-spouse as a beneficiary entirely, you should discuss it with our attorneys during your family law case consultation. If you and your spouse share children together, whether or not the policy is term life or whole life insurance, making necessary adjustments is critical for their financial protection. Prior to divorce hearings, both beneficiary and policy ownership documents require modification to remain effective.

In New Jersey, a family law judge can make life insurance benefits determinations unilaterally. If it is not explicitly clear in your marital settlement agreement that the parties have reached a compromise regarding beneficiary clauses, the judge will make a decision in the best interest of the child(ren). Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 129 S. Ct. 865 (2009). It is critical that you discuss changes you want to make with your attorney prior to calling your life insurance adjuster. The lawyers at Eveland & Foster, LLC can provide pertinent advice on these matters. Making changes without prior written consent or a divorce judgment can jeopardize your case and the marital settlement agreement you will draft or have drafted between the parties.

Schedule a Consultation Today

At Eveland & Foster, LLC., our attorneys work with divorce and family law clients during tumultuous times in their lives. Our attorneys are well-versed in all areas of family law including real property, personal property, and financial property distribution. Divorce can be messy and combative. it requires level-headed, strategic thinking, and decision making for a party’s needs and desires to be effectuated. Parties must consider all options, including distribution of intangible financial assets like pension plans and life insurance policies, when they are seeking counsel or drafting a marital settlement agreement. Contact our attorneys today for a consultation to learn about your potential options.

Family Law Appeals NJ

In the event of an unfavorable outcome regarding divorce or child custody, parties do reserve a right to family law appeals the trial court’s decision. However, filing a family law appeal can be a long and arduous process, and it may not result in the outcome the appellant desires. That being said, if you want to contest the trial court’s custody decision, support award amount, or a property distribution, it is critical you obtain legal counsel with experience in appellate matters. Eveland & Foster, LLC is a team of seasoned divorce and family law attorneys who have represented many clients in appellate matters, seeking favorable outcomes on their behalf. Our attorneys can assist you in  appealing a trial court’s order.

Mistakes of Law and Mistakes of Fact

In New Jersey, the trial courts hear family law issues. Usually a judge with experience in family law matters presides over the family court docket, but that is not always the case. Many judges are appointed with experience as a state’s attorney in criminal matters, but they have limited breadth in civil cases, including family law matters. While it is rare, occasionally a judge does make a mistake of fact or a mistake of law. A mistake of law means the judge interpreted the statute or applicable rule incorrectly in regards to your case. This is extremely rare and usually only occurs if a new law applies or there is limited precedent regarding a unique facet of your case. More often, a mistake of fact occurs. A mistake of fact is unique to your case. Both parties (ex-spouses or ex-partners) prepare their side or case to the presiding judge. If a judge misinterprets a crucial fact that went into factoring his or her decision, that could completely alter the outcome to your detriment.

For example, in New Jersey, property is not considered marital property if it was a gift acquired prior to the marriage. If you were bequeathed a valuable family heirloom while still single, that item is not marital property and therefore would not be factored into equitable distribution. N.J. Title 2A:34-23.1 Equitable Distribution (2013). If the judge missed this crucial fact, he or she could mistakenly include that item in a financial statement interpretation when dividing assets. Similarly, if there is abuse in the home, that is a crucial element of determining child custody, and if the facts were misconstrued it could mean the difference between shared custody or only supervised visitation. While the appellate court does give deference to the trial court when reviewing the record for errors of fact, it is possible that a decision could be overturned.  Whatever your unique situation may be, it is critical that if you want to appeal a trial court’s decision, you preserve your right to seek an appeal.

Appellate Process

Filing a family law appeal NJ from a family court decision is a stymied process. It requires finesse and a strong understanding of the applicable laws. In New Jersey, a party has 45 calendar days from the entry of a judgment to appeal the lower court’s decision. N.J. Rule 2.8:1 Motions (2018).  Doing so requires a copy to be served with the clerk’s office and the other party. It is crucial to remember that filing an appeal is not an outlet for expressing your frustration or disagreement with the lower court judge’s decision. Rather, filing an appeal requires reflection upon the case and whether there was a substantial issue of fact or law that was overlooked or wrongfully applied. Remember that the trial court judge is given a wide berth and the appellate court will not allow the introduction of new evidence or new testimony when they review the trial court judge’s decision.

It is important to weigh your options when considering an appeal but also to ensure you do so properly if you want to move forward. The assistance of legal counsel can make a real difference in the appellate process and the outcome for your case. You can also file a Motion for Reconsideration within 20 days with the trial court judge, which is not a new trial but does give the presiding judge an opportunity to reconsider their decision and the possibility that they overlooked a fact when making their decision. N.J. Rule 4:49-1 (2019). Filing a Motion for Reconsideration is not a guarantee that a presiding judge will render a new judgment, and also does not prevent the party from later filing an appeal.

Call Eveland & Foster, LLC Today

The Law Offices of Eveland & Foster, LLC are experienced family law attorneys. They know how to prepare an appellate brief and guide their clients through the arduous and sometimes difficult appellate process. If you feel strongly about filing for an appeal, or believe there was a mistake of law or fact applied to your case, you must seek legal counsel. You only have 30  days to file an appeal after a trial court judge has rendered a decision in the State of New Jersey. If you need assistance with your appeal, call Eveland & Foster, LLC today for a consultation and discussion of your appellate case.

Disclaimer: This website and information presented are for the purposes of legal marketing and general education. No part of this site should be construed as legal advice. Please consult with an attorney regarding your specific situation. Please do not submit any confidential personal information through this website either by email contact form or chat. No aspect of this advertisement has been approved by the Supreme Court of New Jersey. We welcome your inquiries and offer consultations, however neither contacting our firm nor receiving a consultation establishes an attorney-client relationship.

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