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Military Families and Divorce

 

Military Families and Divorce

Divorce is difficult for all families, but especially trying for military families. The issues are compounded when the civilian spouse of an active duty service member does not work or lives on base. If the plaintiff spouse files for divorce, she does not have to move off of military housing until the divorce is final. In addition, if they share children together, the civilian spouse may be eligible for temporary spousal support (alimony) and child support after they file for legal separation or absolute divorce. In addition, there are specific conditions that must be met for a divorce to proceed in a New Jersey family court if one party is active-duty. There are additional process of service requirements to be met pursuant to SCRA, the Servicemembers Civil Relief Act.

What is the UCMJ?

The UCMJ is an acronym for Uniform Code of Military Justice. It is the code for all military law including consequences for active service members who engage in adultery. The UCMJ article for adultery is Article 134. This article includes disorder or neglect that adversely affects the service member’s character. If the service member is accused of adultery, they cannot state that a physical separation or distance is a valid excuse. The parties must be legally separated for the service member to withstand accusation under Article 134. Service members can also be punished under this article if they engage in an affair with a married service member and were aware of the legal marriage when they entered into the extramarital relationship. This means if you know your military spouse is cheating, it can impact the trajectory of your divorce and their service or employment.

Contact Our Family Law Attorneys at Eveland & Foster

If you or someone you know is contemplating divorce to a service member, it is understandable to be confused. There are specific procedural rules you must follow to ensure the military spouse is properly served and has adequate time to attend a hearing. Your case might be delayed, but you still deserve to end the marriage if that is your choice. It is important to hire attorneys who understand the mechanics of a military divorce and can help you to expedite the process. Our lawyers at Eveland & Foster only practice family law and can assist you each step of the way. Contact us today to schedule a consultation.

Emotional Infidelity

Is Emotional Infidelity Grounds for Divorce in New Jersey?

An emotional affair can be difficult to describe, and even harder to prove, but it is infidelity nonetheless. While no physical contact may have occurred between a married partner and their love interest, often an emotional affair escalates to physical infidelity. In addition, often sharing one’s innermost and personal feelings with someone other than a life partner or spouse can feel more invalidating and betraying to the other spouse. Physical attraction to another person is a natural response, but many married couples consider acting on that spark of chemistry to be a violation of the sanctity of the marriage and the trust one has with their life partner.

 

Defining Adultery

New Jersey statutes define adultery as sexual intercourse between a married person and someone other than their spouse. Most cases of adultery are not proven with physical evidence, as the other spouse would literally have to be caught in the act. However, a spouse can still use circumstantial evidence to prove that the cheating spouse is engaged in infidelity.

 

To do this, the plaintiff spouse must show that the cheating spouse has the disposition to commit adultery and the opportunity to commit adultery. Disposition could be established if the plaintiff sees her spouse holding hands, flirting, or kissing another person. Or, perhaps one spouse finds explicit text messages or video clips shared between a spouse and another person, or a months-long text message or chat thread discussing highly emotional or sexual conversations. In that case, emotional infidelity could be used to prove disposition. Opportunity can be proven if the plaintiff spouse or a witness sees the defendant spouse leaving a stranger’s house in the middle of the night.

 

Filing for Divorce

 

If you feel that counseling is no longer an option, you can file for a limited divorce or absolute divorce. Limited divorce, or pendente lite, provides the plaintiff temporary financial support from the defendant before a final divorce hearing. Pendente lite support allows the plaintiff spouse to maintain the family home and support themselves before a final trial date is assigned. Some parties choose to file for absolute divorce immediately, which will trigger a scheduling order for discovery to take place, and a hearing date. Remember that when you file a complaint, you must also file a writ of summons to serve the defendant and your financial statement.

 

While a plaintiff spouse may be dead set on proving that adultery occurred in the court of law, it is not necessary to file for divorce under the grounds of adultery. Because New Jersey is a no-fault divorce state, simply filing under the grounds of no fault is enough to meet the burden without having to hire a private investigator or snooping around the defendant spouse to prove the elements of adultery, but it does require an 18 month separation period. In addition, while emotional infidelity has destroyed marriages, courts are unwilling to recognize it as an independent ground from physical acts of adultery. If you have questions about how to file or when to file, contact our attorneys at Eveland & Foster.

 

Schedule a Consultation with our New Jersey Divorce Attorneys Today

If you are unhappy with your marriage, your partner’s infidelity, or suspect your partner has committed adultery, you do not have to put up with it. No one enters a marriage expecting to get divorced, but there is no shame in the “D” word. You deserve to be happy, and you deserve a partner who appreciates you. Our attorneys at Eveland & Foster, LLC understand the sensitivity of these issues, and if hired, will zealously represent you and your interests. With decades of combined experience serving clients throughout Morristown and Central New Jersey, we are the right attorneys for you. Call us today to schedule a consultation.

Prenuptial and Postnuptial Agreements for LGBTQIA+ Couples

Drafting Prenuptial and Postnuptial Agreements for New Jersey LGBTQIA+ Couples

Many people approach prenuptial agreements as a bad omen, as though drafting the prenup indicates that the marriage is expected to fail. While it is true that half of U.S. marriages end with a divorce, many couples did not have a prenup or postnuptial agreement, resulting in long, embroiled divorce battles and bitter fights about property division. While a prenuptial agreement for LGBTQIA+ couples cannot solve all issues before they arise, a prenup is especially beneficial for same-sex couples in a domestic partnership who share property.

Benefits of a Prenuptial Agreement for Same-Sex Couples

A prenuptial agreement can state terms for all shared or sole property acquired prior to legal marriage. This includes retirement accounts, 401K, pensions, investments, equities, real estate, personal property, gifts, jewelry, and other items. Because same-sex couples have often lived together, purchased property jointly, and built a life together before legally jumping the broom, sorting out what is and is not the marital property is increasingly convoluted if the same-sex couple seeks a divorce. Deciding how marital property would be divided, shared, or sold for split profits before tension and acrimony set in is one way to give the couple peace of mind while also taking stock of what they have amassed. Drafting a well-written prenuptial agreement can also help the couple decide if they would need spousal support should they file for divorce. The only issues that cannot be settled in advance concern child support and child custody.

Enforcing the Agreement in New Jersey

New Jersey and other states recognize prenuptial agreements and postnuptial agreements as enforceable, so long as both parties entered into the agreement willingly. A postnuptial agreement is drafted with similar terms, only executed after the marriage has taken place. If the couple does consider divorce, a prenuptial or postnuptial agreement is a crucial document to be entered into evidence. If all issues of marital property were previously decided upon in the agreement, it can make the actual divorce process more efficient. And, even if a same-sex couple is married in one state, moves to another state and then gets divorced in the new state, the agreement still remains in effect.

Contact New Jersey LGBTQIA+ Attorneys at Eveland & Foster, LLC

Planning for the worst and hoping for the best is applicable in almost all avenues of life, and this includes marriage and domestic partnerships. It is especially true if a couple is in a committed, monogamous relationship and has amassed a great deal of furnishings, digital assets, furniture, or property. Deciding what is on or off the table before walking down the aisle can eliminate hassle or heartache down the line. It also protects both parties in the event the relationship goes sour. If you have questions about prenuptial or postnuptial agreements and how it could benefit you, contact the family law attorneys at Eveland & Foster today to schedule a consultation

Navigating Summer Vacations with a Co-Parent

𝑁𝑎𝑣𝑖𝑔𝑎𝑡𝑖𝑛𝑔 𝑆𝑢𝑚𝑚𝑒𝑟 𝑉𝑎𝑐𝑎𝑡𝑖𝑜𝑛 𝑊𝑖𝑡ℎ 𝑎 𝐶𝑜-𝑃𝑎𝑟𝑒𝑛𝑡

School is out and summer is here. Millions of people are now vaccinated for COVID-19 and interstate travel is no longer discouraged. It makes sense that parents want to take the kids for a long-distance trip or out-of-state vacation. But how do newly divorced parents negotiate summer custody? What if one parent is comfortable with interstate or even international travel, and the other parent wants the kids to stay close to home? And wouldn’t a three week vacation interfere with the other parent’s joint custody schedule?

 Summer Custody Disputes

Usually parents will dictate what summer custody will look like in a parenting plan or marital settlement agreement. For example, co-parents might alternate who has custody of the kids for Fourth of July or Labor Day. Maybe dad gets odd years and mom gets even years. If both parents have joint legal and physical custody, they may agree to forgo the usual 2-3-2 or 4-3 schedule for a few weeks out of the summer so that each parent can take the children on an extended vacation.

However, if you or your ex plan to take your shared children out of state, and especially if you are planning international travel, you must notify the other parent well in advance, preferably before you book airfare or other travel arrangements. The other parent must consent to the travel and has a right to know about the itinerary including your plans and where you will be staying. The other parent also has the right to decline allowing the children to attend. If you and your co-parent are deadlocked about summer custody or summer plans, you may benefit from arranging mediation facilitated by attorneys for both sides, but refer to your custody order or parenting plan first. Courts do not like to get involved in summer vacation disputes, but if your spouse is threatening to take the kids out of state or out of the country, it is crucial you take action.

Summer Fun and COVID-19

While children over 12 are now eligible for vaccines, young children cannot be inoculated yet, and there is no indication from officials as to when smaller children and toddlers can receive the shot. Although many children do not seem to experience symptoms if infected with the virus, other children have developed serious side effects and secondary diseases, including Kawasaki Disease. Even if your child does not seem sick, it is possible they are positive and could unknowingly spread the disease to other family members, extended family, or complete strangers.

So, how can you travel safely this summer? Get tested for COVID-19 several days before leaving for your trip. If anyone in your family is positive, stay home and have a staycation. Obtain travel insurance and be sure to book a refundable rate on a hotel where you will not be penalized for a last minute cancellation. When you return back from your trip, get tested again to ensure you are not positive, and quarantine for a few days. Bring emergency supplies, important travel documents and plenty of hand sanitizer. Explain to your children that health and safety comes first. 

Contact Our Morristown Family Law Attorneys at Eveland & Foster, LLC

Summertime is supposed to be stress-free, and your kids deserve to relax and enjoy it. However, it is imperative you and your co-parent adhere to provisions of your parenting plan and notify the other parent of vacation plans. If your ex is not honoring your custody order or is threatening to take your children, contact our attorneys at Eveland and Foster, LLC. With decades of combined experience handling all types of family law cases and a convenient location in Morristown, we would be glad to assist you. Contact us today to schedule a consultation.

Default Divorce Judgement in New Jersey

Obtaining a Default Divorce Judgment in New Jersey

Alison filed a complaint about an absolute divorce against her husband, Jeff, two months ago. He moved into an apartment over a year ago since they separated, and she knows she has the correct address. After he did not respond, she sent a subsequent copy to his office location via a private process server, and he still has not responded by answer or pre-trial motion. How long must Alison wait until she contacts the Court, and can she obtain a default divorce judgment?

Procedural Steps for Obtaining a Default Order  

To obtain a default order in a family court case, the plaintiff must file a request to enter default with the family court where they filed the complaint. The request must accompany proof of previous filings and attempts made with the Defendant including proof of service of process or attempts of service of process, and that at least 35 days has passed since the complaint was filed. See Rule 4-43. Usually a court hearing is set within a month wherein the court will grant the Plaintiff a final judgment of divorce, but only if there are no other contested issues.

If the parties share children and there is a dispute as to custody, child support, alimony, or property distribution, the plaintiff must file a notice of proposed final judgment with their request to enter default. The notice contains a financial statement from the plaintiff itemizing assets and liabilities, monthly expenses and what, if anything, the plaintiff is requesting the defendant pay. The plaintiff must also serve a copy of both notices with the defendant at least three weeks in advance of a court hearing on the entry of default.

 Exceptions or Challenges to an Order of Default

If the defendant simply made a mistake or thought they filed an answer but did not, they may have a few options. The defendant can ask for the court to set aside the default judgment by filing a motion to vacate an entry of default. See NJ. Rules of Procedure 4-43. For the default judgment to be set aside, the defendant must show cause for why the default judgment should be overturned. They might argue they were unable to respond due to excusable neglect, meaning circumstances beyond their control prevented them from filing an answer. If the defendant was traveling out of the country for work, was not currently living at the location papers were served, or if the defendant was incarcerated at the time of service, he could argue that service was not proper and that he should be “excused” for not answering in a timely manner.

The defendant must establish that they have a meritorious defense, meaning there are significant issues ripe for settlement or a trial in the divorce case, perhaps pertaining to alimony determination, an incorrect child support calculation, or equitable division of property. The defendant must argue that they could prevail on one of these contested manners, and not allowing the case to continue would be unjust. Finally, the defendant must make a showing to the court that they acted in due diligence to set aside the default. Responding the next day would meet this requirement. Responding four months later is unlikely to change the outcome of a default judgment, and the onus is on the defendant to prove invalid or improper service.

Contact the Preeminent New Jersey Family Law Attorneys at Eveland and Foster, LLC

Divorce is complicated enough without worrying about whether your ex will respond to a complaint or show up in court. Plaintiffs are not expected to put their life on hold for a year while the defendant takes their time deciding how or when to respond, if at all. That is why the mechanism of default judgments exists. However, additional procedural rules must be followed in order for a hearing to be set. If you have questions about default judgments or the divorce process in general, call our family law attorneys at Eveland and Foster.

Morris County Top Lawyer of 2021

We are so honored to have been a part of the June/July edition of Morris | Essex Health & Life Magazine! Our partner Jason has been nominated as Morris County Top Lawyer of 2021
“Jason describes himself as being honest with clients, empathizing with them based upon his own experiences witnessing the effects of divorce on family and friends. He also knows how to treat someone going through the turmoil of challenging family matters. After working for large law firms where he honed his research, advocacy, and aggressive litigation skills, Jason saw where he could improve his clients’ outcomes. He opened his firm, Eveland & Foster Law,  to give clients full attention, aboveboard legal counsel, and fair rates. Jason, along with his law partner, Elizabeth Foster-Fernandez, Esq., works directly with clients from all walks of life to help them determine what’s worth fighting for and how to creatively solve problems. Jason’s degree in psychology and Master of Arts in Elementary Education deepens his insight into how both adults and children handle sensitive family issues. Clients describe Jason as always available to speak, extremely knowledgeable, and exceptionally detail-oriented with a reputation for keeping a close watch on cases so nothing falls through the cracks. If you feel your situation deserves better, contact Eveland & Foster Family Law.” ⚖️

Does Proof of Adultery Make a Spouse Ineligible for Alimony in New Jersey?

 

Does Proof of Adultery Make a Spouse Ineligible for Alimony in New Jersey?

A couple is married for 12 years with two kids. One spouse works full-time and is away on business half of the year, the other spouse is a stay-at-home parent. The supported spouse gets involved in an extramarital affair and conceals it for a few months, until the supporting spouse catches them in the act. Understandably frustrated and betrayed, the supporting spouse contacts an attorney to file a divorce. She is surprised to learn that even though her spouse cheated, he may still be eligible for alimony because of his non-monetary contributions to the marriage, and inability to support himself, at least temporarily. Are spouses eligible for alimony if they cheated? Does adultery affect the outcome of a divorce?

 Eligibility for Spousal Support

Courts determine eligibility for spousal support in New Jersey using several factors. This includes both spouses’ contributions to the marriage, a spouse’s education level, income, the need and ability of either party to pay alimony, the length of the marriage, as well as the age, and physical health of both parties. If one spouse is disabled, has not worked in over 15 years, has no formal education and no professional networking contacts, they may be eligible for indefinite alimony. If another spouse has a doctorate degree but has not practiced in over a year, the court might award them temporary alimony until they find full-time employment. Our attorneys at Eveland & Foster are available to answer your questions.

While courts used to weigh adultery as a determining factor when determining a spouse’s eligibility for spousal support, this is no longer standard practice. This is especially true if a plaintiff files for no-fault divorce. Unless the plaintiff files for divorce under the fault grounds of adultery, and proves the grounds in court, the judge cannot unilaterally weigh their testimony about an affair when deciding if the cheating spouse should receive alimony, and in what amount. This might seem fundamentally unfair. After all, your spouse cheated, why should they be rewarded with spousal support indefinitely? If you feel strongly about this, have hard evidence to prove your spouse committed adultery, and want to proceed on those grounds, that is your option. But understand that even then, your ex may still be eligible for temporary spousal support in the interim.

Adultery and Legal Recourse

You can file for divorce under the grounds of adultery, but there is a catch. You have to prove disposition and opportunity. In other words, you must prove that your spouse had both the inclination or drive to cheat, and the opportunity to act on his desires. This might be proven through evidence like phone records, bank statements showing your spouse spent large amounts on a new lover, evidence of frequent hotel stays, or surveillance of your spouse caught in the act or being intimate with their new beau. Because adultery is difficult to prove, and doing so may have no impact on the adulterous spouse’s eligibility for alimony, it often makes sense to simply file a complaint under no-fault grounds. This streamlines the process, minimizes cost and aggravation and can save you a lot of emotional stress. While it might feel good to put the blame on your spouse, or call them out in a public forum, if you do not adequately prove the grounds for adultery, you might have to appeal a divorce judgment.

What about your ex’s new lover? Can you sue them for alienation of affection, or breaking up the marriage? The short answer is No. There are only six states left in the U.S. that allow a scorned spouse to sue the person their spouse cheated on them with for breaking up the marriage. In New Jersey, the Heart Balm Act, passed in 1935, prevents a plaintiff from suing a mistress/mister in a personal injury action for causing detrimental damage to their marriage.

Call Our Attorneys at Eveland & Foster, LLC

Whether you just found out about a spouse’s affair, or have finally decided you will no longer tolerate your infidelity, know that you are not alone. Coming to terms with the end of your marriage or partnership is painful, emotionally wrenching, and private. Our attorneys at Eveland and Foster understand the sensitive nature of divorce and adultery. We only represent clients facing a family law issue, and we pride ourselves in providing our clients tailored advice for their specific dilemma. If retained, we will advocate for your interests and counsel you toward the best solution. While it may feel isolating, know that you are not alone. Our attorneys are standing by to help you. Call today to schedule a consultation and discuss your options.

 

 

 

Emotional Infidelity

 

Is Emotional Infidelity Grounds for Divorce in New Jersey?

An emotional affair can be difficult to describe, and even harder to prove, but it is infidelity nonetheless. While no physical contact may have occurred between a married partner and their love interest, often an emotional affair escalates to physical infidelity. In addition, often sharing one’s innermost and personal feelings with someone other than a life partner or spouse can feel more invalidating and betraying to the other spouse. Physical attraction to another person is a natural response, but many married couples consider acting on that spark of chemistry to be a violation of the sanctity of the marriage and the trust one has with their life partner.

Defining Adultery

New Jersey statutes define adultery as sexual intercourse between a married person and someone other than their spouse. Most cases of adultery are not proven with physical evidence, as the other spouse would literally have to be caught in the act. However, a spouse can still use circumstantial evidence to prove that the cheating spouse is engaged in infidelity.

To do this, the plaintiff spouse must show that the cheating spouse has the disposition to commit adultery and opportunity to commit adultery. Disposition could be established if the plaintiff sees her spouse holding hands, flirting, or kissing another person. Or, perhaps one spouse finds explicit text messages or video clips shared between a spouse and another person, or a months-long text message or chat thread discussing highly emotional or sexual conversations. In that case, emotional infidelity could be used to prove disposition. Opportunity can be proven if the plaintiff spouse or a witness sees the defendant spouse leaving a stranger’s house in the middle of night.

Filing for Divorce

If you feel that counseling is no longer an option, you can file for a limited divorce or absolute divorce. Limited divorce, or pendente lite, provides the plaintiff temporary financial support from the defendant before a final divorce hearing. Pendente lite support allows the plaintiff spouse to maintain the family home and support themselves before a final trial date is assigned. Some parties choose to file for absolute divorce immediately, which will trigger a scheduling order for discovery to take place, and a hearing date. Remember that when you file a complaint, you must also file a writ of summons to serve the defendant and your financial statement.

 

While a plaintiff spouse may be dead set on proving that adultery occurred in the court of law, it is not necessary to file for divorce under the grounds of adultery. Because New Jersey is a no-fault divorce state, simply filing under the grounds of no fault is enough to meet the burden without having to hire a private investigator or snooping around the defendant spouse to prove the elements of adultery, but it does require an 18 month separation period. In addition, while emotional infidelity has destroyed marriages, courts are unwilling to recognize it as an independent ground from physical acts of adultery. If you have questions about how to file or when to file, contact our attorneys at Eveland & Foster.

 

Schedule a Consultation with our New Jersey Divorce Attorneys Today

If you are unhappy with your marriage, your partner’s infidelity, or suspect your partner has committed adultery, you do not have to put up with it. No one enters a marriage expecting to get divorced, but there is no shame in the “D” word. You deserve to be happy, and you deserve a partner who appreciates you. Our attorneys at Eveland & Foster, LLC understand the sensitivity of these issues, and if hired, will zealously represent you and your interests. With decades of combined experience serving clients throughout Morristown and Central New Jersey, we are the right attorneys for you. Call us today to schedule a consultation.

Child Tax Credit Updates

The American Rescue Plan and Child Tax Credit Updates

The American Rescue Plan Act sent direct stimulus payments in the amount of $1,400 to Americans with a single adjusted gross income of $75,000 or less, and married couples with adjusted gross income of $150,000 or less, as well as their dependents. It also increased funding for COVID-19 relief and expanded the special enrollment period for healthcare. In addition to direct stimulus payments and an extension on unemployment benefits, the Act also increases child tax credits for families with children. Depending on the age and number of children a family has, they could expect to gain at least $600 extra a month for six months, starting in July 2021 from the IRS. How will the new tax credit affect divorced parents?

New Child Tax Credit Updates

The new child tax credit increases from $2,000 per child dependent to $3,600 per child under 5, for this year only. It increases to $3,000 for children ages 6 to 17. Even if you have already received your tax refund for 2020 taxes, if you have child dependents, you should expect to see an additional $600 monthly payment per child, starting in July of 2021. The payments, via direct deposit or paper check, will occur monthly through December 2021, amounting to $1,800 or $1,500, depending on the child’s age. Then, when parents file 2021 taxes in 2022, they will receive an additional $1,800 (or $1,500) lump sum child tax credit. The IRS states that parents can opt out of monthly payments and elect for one lump sum payment in July. To select this option, parents must notify the IRS in advance using a user portal that the IRS expects to be complete before July 2021. Payments are reduced or eliminated for married couples making more than $150,000 per year in adjusted gross income (AGI), and parents filing as head of household or single with an AGI of more than $75,000 per year.

Tax Implications on Divorced Families and Co-Parents

Divorcing couples should have completed a Parenting Agreement or incorporated parenting provisions into a Marital Settlement Agreement. These documents should contain provisions regarding tax implications, and which parent claims the child as a dependent each year. If both parents share legal and physical custody (50/50 overnights), they are both entitled to claim the child as a dependent on state and federal taxes. This means if the parents share one child, one parent might claim the child on odd years, and the other on even years. If parents share two children, they might agree that one parent claims one child every year, and the other parent claims the other child every year. More children on a return requires a strategy to determine what child is claimed by which parent each year. This should be discussed before either parent files their taxes.

 These provisions are only applicable to co-parents who share physical custody including overnight custody with their children during the previous calendar year. If one parent has visitation twice a month, they do not qualify for a child tax credit and cannot claim the child as a dependent, even if they pay child support. If a previously divorced party has recently sought a modification to custody or support, this might impact future tax implications. However, the IRS will look back on the previous calendar year (2020) to make determinations for the new increased child tax credit. Also remember that the child tax credit increase is only for the year 2021, it has not been extended for future years. If you have a child on the way or were divorced in the last few months, you can also update your filing status on the portal the IRS hopes to make accessible to filers by July.

Call Our Morristown Family Law Attorneys at Eveland & Foster, LLC Today

If your ex has wrongfully claimed your shared children as dependents on their taxes, demands their “share” of your economic stimulus payments, or is threatening additional actions against you, you need legal counsel. While there are economic and criminal repercussions for defrauding the IRS and the New Jersey Comptroller, a direct impact is felt on children of divorce and the primary caretaker. If you have primary custody of your children, your ex-spouse should not be claiming them to receive the additional child tax credit and is likely in direct violation of a court order. Our attorneys at Eveland and Foster possess decades of combined experience handling all sorts of family law cases, including post-divorce modification issues and drafting of parental agreements. We also understand the interwoven nature of tax issues in family law cases. We will fight for what is fair and equitable for you and your children. Call today to schedule a consultation.

Divorce and Student Loan Debt

 

Divorce and Student Loan Debt

Divorce is messy. Dividing assets and equitable distribution of property is often the most tedious and time-consuming part of divorce. While division of hard-earned assets can be painful, what happens to joint debt when couples go their separate ways? Joint credit card debt is one thing, but what about student loans? What if one spouse borrowed money for the other to attend college, only for that spouse to drop out of school? Is that spouse still on the hook for student loan payments?

Joint Marital Debt

 New Jersey laws require parties seeking divorce to undergo equitable distribution of assets and liabilities. This process entails a complete inventory of all personal and real property, gifts, vehicles, investment accounts, intellectual property, bank accounts, retirement and 401k accounts, and debt accounts such as credit cards, personal, installment or car loans, and student loans. Each party is required to submit a financial statement to the court detailing their monthly income and expenses. The court uses the financial statement and additional evidence to make awards of spousal support and child support, if requested.

When it comes to debt, the courts will look at the source of the debt and when it was acquired to determine if it is joint marital debt or the sole debt of each party. If the debt is joint, the court will work with the parties and their attorneys to determine an equitable division of that joint debt. Contrary to popular opinion, equitable does not always mean a true 50/50 split. If a debt account was opened prior to the marriage, the court views that debt as the responsibility of the sole debtor/party. Conversely, a joint mortgage or a car loan co-signed by one spouse for the other spouse would qualify as joint debt. Sometimes the parties will submit evidence indicating that they or the other party was already making payments out of their own bank accounts or with their income. But even a prior financial arrangement is sometimes not enough to defeat the fact that the debt was taken out jointly with both parties’ informed consent.

 

Next Steps for Student Loan Debt

Student loan debt is complicated for several reasons. Firstly, often student loans were acquired prior to the marriage when both parties were still in college. Second, the U.S. Department of Education will combine joint student loan debt for married couples if the borrower chooses an income based repayment option, and make financial aid awards based on the joint income and fiscal need of married couples as well. So, if both parties have student loan debt, how is it divided? If the student loan is a private loan obtained through a bank using only one party’s income prior to the marriage, that student loan is not joint debt. If a federal student loan is obtained during the marriage, both spouses are listed as borrowers and rates/amount was determined using the parties’ joint income at the time, it is considered joint marital debt, and therefore must be equitably divided between the parties. Sometimes the courts will view a college degree as a marital asset if both spouses made a collective decision for one spouse to obtain the degree after marriage, and doing so increased the spouse’s earning potential and the standard of living for the couple.

Dividing student loan debt can be fact-intensive and is not cut and dry. If you questions about your joint debt, student loan debt or your spouse’s student loan debt, contact our attorneys at Eveland & Foster. Remember that after divorce, it is important you update your loan servicers and account management or financial advisors about your new marital status, or if one borrower needs to be removed from an account. It is also possible to request deferment of a federal student loan or recalculate an income-based repayment plan accounting for your sole income after divorce.

Call Eveland & Foster, LLC Today

If you or a loved one is facing a divorce and dealing with division of joint debt, including student loan debt, you need assistance. Our attorneys at Eveland & Foster, LLC specialize in family law including equitable division of joint assets and liabilities. If retained, we will assist you to arrive at a desirable outcome and protect your interests. Do not settle for less than what is rightfully yours, and do not take on debt that does not belong to you, just to expedite the divorce process. Call us today to schedule a consultation and review your options.

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