Custody and Alimony: Sensitive Subjects in a Divorce
By Snyder Sarno D'Aniello Maceri & da Costa LLC on July 05, 2017
Issues of custody are typically a difficult subject for parents who have just been through a divorce. Regardless of each parents’ position on custody, the court will always side with the best interests of the child. The ex-couples’ relationship can become even more contentious, however, when issues of alimony come up. The following case discusses both issues and how the Appellate Court ultimately decided the case.
In Klyachman v. Garrity, the parties were married for thirteen years with one daughter who will be fourteen in December 2017. Upon their divorce, the parties entered a Property Settlement Agreement (“PSA”), of which the following two provisions were at issue on appeal: (1) defendant’s obligation to pay plaintiff limited duration alimony of $21,000 per year for six years unless plaintiff cohabitates with an unrelated person; and (2) addressing child custody and parenting time. The PSA describes protocols for each parents’ transparency regarding the child’s health and emotional well-being.
Defendant sought to terminate his alimony support, alleging that plaintiff was involved in a romantic relationship and cohabitating with someone. Specifically, he alleges that plaintiff has been involved in a romantic relationship for ten years and they present themselves as husband and wife when in public. He also moved to modify the current parenting time order designating plaintiff as the parent of primary residence to a shared-custody arrangement given that he had recently purchased a house with a separate room for the parties’ daughter. The judge denied defendant’s motion, finding that he did not establish a sufficient basis of changed circumstances to warrant a plenary hearing as to the custody issue.
As to the cohabitation issue, defendant asserts that the man plaintiff is in a relationship with rented the top floor of the two-family home where plaintiff resides and occupies the first floor. Plaintiff, however, argues that he is merely a neighbor, although admits he is her “boyfriend.”
A court will terminate or suspend alimony if the payee cohabits with another person. The court looks at the following factors as provided in N.J.S.A. 2A:34-23(n):
- Intertwined finances, e.g. joint bank accounts;
- Shared living expenses;
- Recognition of the relationship by the couple’s family and friends;
- Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
- Sharing of chores; and
- Whether the payee has any enforceable promises of support from another person.
The judge found that, while the parties had dated for quite a long time, there wasn’t any evidence regarding the intermingling of their finances. The motion judge found that defendant did not present a prima facie showing to warrant the termination or suspension of his alimony. On appeal, the court found the motion judge erred by denying plaintiff the opportunity to conduct limited discovery at a plenary hearing and remanded the case to determine his alimony obligation after a closer analysis of the factors described above.
Regarding child custody, the parties clearly have adverse positions with respect to the best interests of their daughter. The motion judge enforced the parties’ PSA from 2012 on child custody without addressing any factors in N.J.S.A. 9:2-4. The Appellate Court reversed the motion judge for failing to consider the factors and remanded the case to determine whether changing the custodial arrangement of the parties’ teenaged daughter serves her best interests, with special instructions to apply the factors.
A few of the most important factors in N.J.S.A. 9:2-4 that a judge must consider in addressing the best interests of the child are as follows:
- The parents’ ability to agree and communicate in matters regarding the child;
- The interaction and relationship of the child with its parents and siblings;
- the history of domestic violence, if any;
- the stability of the home environment offered; and
- the quality and continuity of the child’s education.
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