Cherry Hill Family Legal Blog

Marriage is the beginning of an exciting adventure undertaken by two people in New Jersey with the usual intention of remaining together for life. Although the divorce rate is believed to be declining, the possibility does exist. While no one wants to begin a marriage worrying that a divorce may result, there are steps that can be taken to protect oneself in the event of property distribution that may happen down the road. These steps can also promote openness and honesty regarding property and finances. Financial disagreements can cause issues that may lead to a divorce.

Prenuptial agreements are seen by some as evidence that one party doesn't trust the other. In reality, the agreements may be able to reinforce that trust as each person's finances will be fully disclosed in the process. A prenup can also be looked at as a will of sorts. It determines how property will be handled in the event of the death of the marriage.

In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties' earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage.Anderson v. Anderson, 822 A.2d 824, 830-31 (Pa.Super.2003)

New Jersey Courts are authorized to impute income for the purpose of determining child support when a parent is found to be voluntarily unemployed or underemployed without cause. See Caplan v. Caplan,182 N.J. 250, 268-70, 864 A.2d 1108 (2005) (stating parent's ability to earn income, or "his [or her] human capital," should be "theoretically activated for the purpose of evaluating his [or her] support obligation" and the amount of income that "should be imputed to him [or her]"). "`In treating the matter of support, our courts have always looked beyond the [parent's] claims of limited resources and economic opportunity. They have gone far to compel a parent to do what in equity and good conscience should be done for [the] children.'" Lynn v. Lynn, 165 N.J.Super. 328, 341, 398 A.2d 141 (App. Div.) (quoting Mowery v. Mowery, 38 N.J.Super. 92, 102, 118 A.2d 49 (App.Div. 1955), certif. denied, 20 N.J. 307, 119 A.2d 791 (1956)), certif. denied, 81 N.J. 52, 404 A.2d 1152 (1979). Thus, a "`court has every right to appraise realistically [a] defendant's potential earning power,'" ibid. (quoting Mowery, supra, 38 N.J.Super. at 102, 118 A.2d 49), and examine "potential earning capacity" rather than actual income, when imputing the ability to pay support. Halliwell v. Halliwell, 326 N.J.Super. 442, 448, 741 A.2d 638 (App. Div.1999).

Your spouse is not entitled to receive any property that you acquire during the marriage by way of gift or inheritance. N.J.S.A. 2A:34-23. Premarital property which was owned at the time of the marriage also remains separate and cannot be claimed by your spouse. Painter v. Painter, 65 N.J. 196, 214 (1974). In order for your spouse not to receive these assets, they must not be commingled with other "marital" assets during the marriage.