Implications on Divorce and Custody if an Ex-Spouse/Partner is in Jail
Consider this scenario: A married couple or domestic partners have mutually decided they no longer work as a couple. The plaintiff is prepared to file a complaint and start the divorce process, when she learns that her ex was arrested. Not only was he arrested, he cannot post bail and will be remanded for months. What does this mean for the plaintiff’s custody or divorce case? Can she proceed with filing if the other party is incarcerated? If the scenario is all too familiar or if you know someone facing a similar dilemma, contact our attorneys at Eveland & Foster to learn about your options.
Contested Custody Disputes
If your spouse or partner was arrested for a domestic violence or child abuse charge, and you or your children are the victims, you can file an emergency protective order against him or her. The protective order will grant you exclusive access to the family home, vehicle, and monetary assets, and it will also order the respondent to pay utilities, mortgage, and upkeep, remain away from you and your children, and surrender all firearms. The court can also ask the respondent to attend counseling or other rehabilitative treatment.
The repercussions of a criminal domestic abuse charge on an ongoing custody dispute can be dire for the defendant. The court will examine the defendant’s criminal history, culpability, and likelihood to commit an offense against you or your children. Most importantly, the family court judge will make his or her determination based on what is in the best interest of the children. If the children are in danger, are emotionally, physically or mentally abused or are otherwise unsafe with the defendant due to a history of violence, drug abuse or other incapacity, the court may award the plaintiff with primary legal and physical custody. In that case, the court would grant supervised visitation the defendant provided he or she is no longer incarcerated.
Proceeding if the Other Party is Incarcerated
If incarcerated, the defendant still has the right to speak at a court hearing for custody or divorce issues. He or she would need to arrange for a video or teleconference with his detention or prison board so that they could attend the hearing. They are not entitled to a lawyer for a family law issue, but are entitled to representation for criminal defense matters. In addition, if the parties are already divorced and the plaintiff learns the defendant has been arrested, the plaintiff can file a motion for an emergency hearing to modify custody if the parties previously shared joint custody or a modified 50/50 plan. If this is the case, it is important you act urgently to protect your child’s safety and interests.
Even if the other party is still in jail, you can proceed with a divorce filing. You must ensure that the defendant is served with a writ of summons and a copy of all pleadings filed with the court. This might require contacting the detention center or jail where the defendant is jailed to determine his or her mailing address and confirming receipt to certify service of process. Also keep in mind that in New Jersey, the plaintiff or party to a suit cannot serve the defendant personally or mail pleadings directly. The plaintiff can hire a private process server or hire an attorney who would handle all aspects of the divorce and custody case. Ultimately, the presiding judge will want to ensure that the defendant was notified of a potential hearing date, and the nature of the suit. If you are contemplating divorce or are already divorced and need to request a modification to custody or support arrangements, contact our lawyers as soon as possible.
Call Eveland & Foster Family Law Today
If you or someone you know is contemplating divorce, but your partner has a criminal record, or you recently learned they were arrested, you may be wondering what your options are. Because advice will be narrowly tailored to your unique circumstances, it is critical that you speak to a family law attorney as soon as possible. Our lawyers at Eveland & Foster possess decades of combined experience handling all family law matters. We are a small, local law firm practicing in Morristown, New Jersey with a focus on providing our clients with personalized and driven results. Even the most contentious cases are not too much for our firm to handle. Contact our office today to schedule a consultation.
Navigating a Divorce with Infants and Toddlers
Divorce can be a challenge when it is limited to a couple with no children. Divorcing with older children or adult children can put undue burdens on them. But divorcing with young children, infants, or toddlers can seem insurmountable. Toddlers and infants thrive on routine and consistency. They need a safe, loving environment to learn and grow. This can be difficult to maintain as a young child’s parents are dealing with animosity, disagreement, and dispute. How do you navigate child custody when your child is still an infant? How do you explain to a young toddler why they are transported back and forth multiple times a week, or why their parents do not love each other anymore? The most important item you can remember is to be civil, be respectful, and do not argue in front of your kids.
Tips for Divorcing with Young Children
Divorce is not easy for anyone, but it can be extremely tumultuous when young children are involved. Young toddlers thrive on consistency, regular schedules, sleeping in the same crib or bed each night, and seeing a familiar face in the morning. It can be difficult to explain to a toddler why one parent will be living in another place, why they suddenly have two rooms, or why some toys are at mommy’s house and other toys are at daddy’s home. Similarly, infants may need constant access to their mother if they are breastfed, making shared physical custody virtually impossible. Infants need a highchair, diapers, a crib, a safe place to play and crawl, along with a car seat. Divorced parents will need to find room in the budget to purchase duplicates of all the child’s items or decide which parent will have primary custody. At the same time, infant bonding requires meaningful time to be spent with the baby, and that can be difficult to come by if one parent has primary custody and the other parent has visitation. Remember that the court will seek a resolution that is in the best interest of the child, no matter the age. Also keep in mind that one party can seek a modification to a child support or child custody order if circumstances have significantly changed.
Maintaining a Safe, Stable, Loving Home
If you are legally separated and want to move forward with a divorce, speak to your children candidly, at their level, in words they will understand. Explain that even though mommy and daddy are no longer a couple, you are still your child’s parents, and always will be, and that your love for your child is unconditional. Also explain that even though logistically things may change, you are still a family. However, if your ex is being combative, physically or emotionally abusive towards you or your child, or refuses to communicate or compromise, you may need to involve the courts. If abuse is ongoing or escalating, you can seek a protective order. If your ex refuses to compromise, litigation gives you several options. Our lawyers at Eveland & Foster can use discovery measures and request a pre-trial mediation or settlement conference to discuss issues in the presence of a judge or magistrate. We can also work on your behalf to achieve mutually attainable goals and find a solution in the best interest of your child.
Schedule a Consultation Today
If your soon-to-be ex spouse is unstable, combative, abusive, or threatening, it is important that you seek refuge for yourself and your child(ren). If you are already legally separated, your ex may become obstinate, irate, or demanding regarding child custody arrangements. Even if you have a handshake agreement with them, nothing can substitute a court-ordered child custody and child support agreement. Our attorneys at Eveland & Foster will help you navigate the divorce process, protect your rights, and advocate for the best interest of your child. Schedule a consultation today.
Tax Considerations for Divorced Couples
If you are considering divorce, or already received a final divorce judgment, you may have questions about your tax filing status, what deductions you can claim, or which parent claims the child as a dependent for tax purposes. Fortunately, most tax considerations are contemplated and agreed upon in a marital settlement agreement. But, not all parties adhere to those terms even if all provisions were incorporated into a final divorce judgment. If you have questions about filing post-divorce, or if your ex-spouse/co-parent is not honoring those terms, call the family law attorneys of Eveland & Foster, LLC for guidance.
Filing Status Questions
If your divorce is finalized within the same calendar year, for example by December 31, 2020, then you cannot file joint tax returns for the year 2020. But if your divorce is still ongoing throughout 2021, you can file jointly for 2020, but would file as single or head of household in 2022 for 2021 taxes. You can only file as head of household status if you and your spouse agree to designate you because you both share children. But you must have custody of the child for more than half of the year and contribute to most of the household upkeep expenses to qualify.
If you sold real property during the divorce, such as the marital home or an investment property, you may have to pay additional taxes or capital gains on rental property, but consult with your accountant or real estate agent to be sure. Keep copies of all W-4s, paystubs, 1099s, and income statements from interest-bearing accounts or retirement accounts. Also keep a copy of your marital settlement agreement handy when you start the filing process, and consult our attorneys if you have any lingering questions.
Claiming Dependents
Usually co-parents who share more than one child together will choose one child each to claim on their taxes each year. If parents have an odd number of children, some parents choose to alternate between odd and even years in claiming the third or fifth child. Similarly, if you share one child together, you might alternate odd or even years when claiming the child dependent tax credit. However, this only applies if the parents share joint physical custody with overnights.
If one parent strictly has visitation every weekend, every other weekend or a similar arrangement, they can almost never claim the child as a dependent for year-end tax filing purposes. This is because they do not meet qualifications, even if they contribute to the child’s expenses via monthly child support payments. Also, if you have stepchildren and file jointly with your spouse, you, your spouse and your spouse’s ex-spouse/co-parent need to decide who is filing what years for which dependent. A stepparent can claim a stepchild as a dependent because they are related by marriage, as long as the child lives with the stepparent for more than half of the calendar year.
Schedule a Consultation Today
Whether you have simple or complex questions about tax implications after divorce, our lawyers at Eveland & Foster are prepared to answer them. We specialize in family law and can assist you no matter how difficult or trying the problem may be. If necessary, we can also provide referrals to tax attorney specialists in the event you are audited or investigated by the Internal Revenue Service. But, if you have not filed yet, or if your ex-spouse wrongfully claimed your shared children as dependents when he or she does not have primary or joint custody, you need to take action as soon as possible. Our attorneys are conveniently located in Morristown, New Jersey and are ready to assist you. Call today to review your options.
My Ex-Spouse/Partner is an Absentee Parent
Even after you and your child’s other parent have a final custody order in place, including parenting plan details for drop-off/pick-ups of shared children, issues may still arise. Just because a final judgment has been issued, does not mean both parties will adhere to it. What do you do if your child’s other parent is not using the visitation they have been allotted? What if they are habitually late or blow off drop-off and pick-ups, or decide they will choose when they want to see their kids? Unfortunately, this situation is not unfamiliar to our attorneys, but we can assist families dealing with post-judgment issues or parental absenteeism. If you are experiencing communication issues, obstinate behavior, or simply cannot convince your ex to see his or her children, contact our family law attorneys at Eveland & Foster, LLC.
Determining Why Visitation is Missed
Before requesting a modification with the court, determine if missed visits are an issue of time or communication. Do established pick-up and drop-offs present a conflict with work? Is your ex no longer able to transport the children between school and each residence due to financial strain? Is your ex dating a new partner or living in a new state without prior notification? Starting a new relationship is not an excuse for missing scheduled visitation time. And, co-parents cannot move out of state without notifying the other parent, gaining approval, and notifying the family court. This is because long distance custody orders can be difficult to enforce or carry out. The distance is cumbersome for both parties and the children and can make it logistically impossible to share physical custody.
Modifying Custody, Visitation, and Support Orders
If your ex-spouse refuses to communicate with you, continues to miss visitation and custody drop-offs, is no longer communicating with your child, or is failing to pay child support without request for a modification, you can request an emergency custody or support modification hearing with a family law judge. You can also file a motion for contempt against the other party for failing to adhere to terms of the custody order, parenting agreement, or divorce judgment delineating split custody or visitation schedules. Assistance is available from the New Jersey Department of Human Services. Tolerating an absentee ex who picks and chooses when they choose to be present for your shared children is not necessary. Inconsistent presence in a child’s life is confusing and unfair. The court may order the other party to attend supervised visitation at an agreed upon location, compel the other party to pay child support arrears, or adjust the child custody arrangement to primary physical custody for you. Modifying custody would most likely change current child support calculations for both parties.
Schedule a Consultation Today
If you are divorced and share children, you understand the challenges that come with coparenting. Even with an existing parenting plan agreement and a court order, some parties refuse to adhere to the terms of the agreement. If your ex-spouse or ex-partner is no longer taking visitation with shared children, picks and chooses when they decide to see their children or refuses to pay child support, you can file for contempt in court. Your children deserve a constant parental presence in their lives. If their other parent refuses to compromise and does not prioritize time spent with their kids, then the court order should reflect that. Contact Eveland & Foster, LLC. today for a consultation.
Pre-Pups and Pet Custody in New Jersey
In New Jersey, pets are no longer considered personal property when it comes to equitable distribution in divorce. Most pet lovers would agree that pets are family, not property, so it makes sense for pet valuation to be akin to custody. Parties are now drafting custodial agreements for pet custody similar to child custody and support orders. In many states, dogs are assigned a monetary value based on property valuation. The party seeking to retain the dog would indicate what monthly expenses and upkeep are for the pet in the financial statement. The court would also consider who brought the dog into the marriage and who cares for the dog on a daily basis. Now, some couples are seeking a “pre-pup” or prenuptial agreement that indicates who will retain custody of the pet if they should divorce or break-up. If you have questions about pet custody due to a divorce, contact our family law attorneys at Eveland & Foster.
“Best Interest of the Pet” Standard
Because pets are still considered property in many states, they are usually assigned a monetary value similar to real property or tangible personal property. This is inaccurate because pets have sentimental value and they are living animals with emotional attachment and feelings. Also because a pet cannot be replaced, it seems unfair to classify him or her as personal property. Because of this, some courts arbitrarily determine ownership of the pet without considering all relevant factors, such as who cares for the pet on a daily basis, who purchased or adopted the pet, or who has more of an affinity for the pet. In some jurisdictions, courts are now recognizing pet custody agreements, pet prenups, and pet “parenting plans.” As long as the parties can agree amicably about terms, courts are willing to incorporate these terms into final judgments.
What if Pet Custody is Disputed?
If you and your soon-to-be ex partner cannot decide who should care for the dog post-divorce, the courts are reluctant to get involved at the same level they would for a child. However, the court will determine who cares for the dog(or other pet) on a daily basis, takes the dog to veterinarian appointments, and who is most equipped to provide the dog with the love and care it requires in the future.
Although these cases are relatively new and may seem unorthodox, some judges in other jurisdictions are also granting visitation rights to the other party if they desire to see the dog after a divorce is final. Again, most jurisdictions do not recognize pets as anything more than personal property, but there have been a few cases in the United States in which judges have granted leniency and heard arguments regarding pet custody. Because these cases are so novel, it is important to hire a family law attorney you can trust. Our attorneys at Eveland & Foster understand the nuances of family law and can sympathize with pet parents regarding their pets’ welfare after divorce. If retained, we will do everything in our power to ensure you retain custody of your pet.
Call to Schedule a Consultation
If you are caught in a contentious divorce and are fighting over custody of the family pets, you do not have to settle with accepting the loss of your pet. You also do not have to agree to your ex-spouse taking the dog or cat that you owned and loved prior to entering into the relationship. New Jersey law now recognizes that pets are not tangible personal property, but family. Pets have intrinsic and sentimental value and cannot simply be replaced. If you need help arranging a pet pre-pup or with any other family law issues, contact our lawyers at Eveland & Foster. We are conveniently located in Morristown, New Jersey serving the needs of clients throughout the state. Schedule a consultation today.
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