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Philip Smith Burnham II
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Philip Burnham’s Answers

431 total


  • Alimony after 3 yrs of Divorce

    My father got divorce 3yrs ago from his non resident wife. They have a 6 yrs old child. My father only provides $ 400 monthly for the child's necessities I know its not enough!! The ex wife is demanding more money for the child because He is a...

    Philip’s Answer

    I agree with the other answers that an attorney would have to meet with your father, review all the circumstances, including his budget, the Judgment of Divorce, her budget and why she all of a sudden has a need for spousal support. Without reading his Judgment of Divorce, it is not impossible, but very difficult, three years later to be able to obtain alimony.

    She is asking the Court to modify a judgment, which usually has to be done within one year, New Jersey Court Rule, 4:50-1. There are exceptions to this rule, which is why your father should meet with an experienced attorney to review all circumstances before responding to his ex-wife.

    Good luck.

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  • When is my husband's paycheck not considered to be marital funds?

    We live in N.J. & have been separated since Feb, he is giving me next to nothing to pay the bills in our house yet he is making trips to see another woman 3000 miles away among other things. I work a seasonal job but have not worked consistently o...

    Philip’s Answer

    You will need to file in court to protect marital assets and to obtain spousal support. You do not mention if you have children, but you might be entitled to child support if you have children. You cannot get retroactive support to when he should have been paying you, so you should obtain counsel immediately to protect your rights.

    Good luck.

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  • What do I need to bring to court or say to prove that support should continue? What if acceptance letter has not yet arrived?

    Child is 22 years old, graduating from college and has applied to grad school. Father pays support ( I think he is at 40% of the guideline) and pays 40% of the interest on child's student loans. Father has attempted to discourage child from atte...

    Philip’s Answer

    You are correct, the new law does not go into effect until next year. While I know cost is always a concern, you should really try to get counsel to help you fight the application to emancipate your child. Additionally, you can request that the father continue to pay the child's student loans.

    The law of emancipation in New Jersey is not clear cut. then in New Jersey, our Supreme Court in Newburgh v. Arrigo set down the general rule that ''financially capable parents should contribute to the higher education of children who are qualified students.''

    It also sets forth the criteria to be applied, which are as follows:

    Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;

    The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;

    The amount of the contribution sought by the child for higher education;

    The ability of the parent to pay that cost;

    The relationship of the requested contribution to the kind of school or course of study sought by the child;

    The financial resources of both parents;

    The commitment to and aptitude of the child for the requested education;

    The financial resources of the child, including assets owned individually or held in custodianship or trust;

    The ability of the child to earn income during the school year or on vacation;

    The availability of financial aid in the form of college grants and loans;

    The child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance;

    The relationship of the education requested to any prior training and to the overall long-range goals of the child.

    Review the above factors with your situation, and that will be your starting point.

    Then, look at emancipation. In New Jersey, the emancipation of a child represents "the conclusion of the fundamental dependent relationship between parent and child." See, Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). Emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child. In New Jersey the law is: Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a
    presumption of emancipation at age eighteen, that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).

    You will need to provide information that your child is still under the sphere of influence of her parents.

    Good luck.

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  • How do I change divorce decree from full custody (my ex husband has) to joint custody?

    I gave my ex husband full custody of our now 10 year old daughter when we divorced 5 years ago. Due to my addiction to alcohol at the time, we both thought it best if he were to have full custody and we changed our original divorce decree from jo...

    Philip’s Answer

    Custody and parenting time can always be revised based on a substantial change in circumstances. You will have to establish a prima facie case for modification of a custody arrangement that affects the welfare of the child such that her best interests would be better served by modifying custody. This is done by filing a motion in court.

    Please get legal advice, this is a complicated area. Good luck.

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  • Disabled Child

    My post-judgment matter went to trial. One issue (there were several) was that one of our children is disabled. My ex lied and said child was not disabled and my lawyer did not submit any proofs that the child is disabled (there are/were numerou...

    Philip’s Answer

    I think it really depends on how long it has been since your hearing, and if anything else has changed since the ruling went against you. It sounds like the time to appeal has expired. However, parenting time and custody can always be reviewed, you need to prove a substantial change in circumstances, see Lepis v. Lepis, 83 N.J. 139 (1980).

    A court is required to analyze the situation if you have made a showing of a substantial change to do what is in the child's best interest. In making an award of custody, the court has to consider but not be limited to the following factors:

    •The parents' ability to agree, communicate and cooperate in matters relating to the child.
    •The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse.
    •The interaction and relationship of the child with its parents and siblings.
    •The history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent.
    •The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
    •The needs of the child.
    •The stability of the home environment offered.
    •The quality and continuity of the child's education.
    •The fitness of the parents.
    •The geographical proximity of the parents' homes.
    •The extent and quality of the time spent with the child prior to or subsequent to the separation.
    •The parents' employment responsibilities.
    •The age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

    See N.J.S.A. (New Jersey Statutes 9:2-4).

    I would also suggest you get an expert to state that the current arrangement is not in your child's best interest, and the revise scheduled should be ____________. The expert should be qualified to be able to discuss you child's disability in this context.

    Good luck.

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  • NEED HELP WITH GRANDPARENT VISITATION

    CAN YOU SEND ME SOME REFERENCES PLEASE. WKOPALA@YAHOO.COM NEED HELP WITH GRANDPARENT VISITATION.

    Philip’s Answer

    The attorneys are rated on AVVO, and have references from clients and other attorneys. Good luck with your search.

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  • Do I have a right to know, if my child is staying somewhere other then my X's primary residence, if it is in the state?

    I am the primary parent and our child lives with me. My X gets him for some overnights. Recently, I learned that our son stayed in a hotel for the weekend and not at my X's primary residence. My question is: Do I have a right to know, if my ch...

    Philip’s Answer

    Both parents have a right to know where the children are staying overnight. You should look at your current Court Orders to see if this is a requirement. It seems like common sense, because if you were together, you would talk about these issues. Perhaps you can reach agreement with the other parent that both of you will notify the other if the children are staying overnight at a different location. If you reach an agreement, you can submit this to the court with a consent order.

    if you can cannot agree, you will have to file a court action and get a court to Oder your ex to notify you in the future.

    Good luck.

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  • Disabled Adult

    If an adult child is disabled, can, will, child support continue past age 23 under the new child support law? Heard that child support will stop at age 23 no matter what.... What is the process of setting up a Special Needs Trust? Can a judge o...

    Philip’s Answer

    In order answer this question, it will depend on the type of disability to determine if support will continue beyond age 19 and 23 under the new child support law.

    Currently in New Jersey, the emancipation of a child represents "the conclusion of the fundamental dependent relationship between parent and child." See, Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). Emancipation is the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child. In New Jersey the law is: Emancipation may occur by reason of the child's marriage, by court order, or by reaching an appropriate age, and although there is a presumption of emancipation at age eighteen (on 2/1/17 age nineteen), that presumption is rebuttable. In the end the issue is always fact-sensitive and the essential inquiry is whether the child has moved "beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). A disability can mean the child never moves beyond the sphere of influence of the parents.

    As to the creating a Special Needs Trust, you need to seek the services of a lawyer who specializes in trust work, The trusts are highly specialized and need to be created carefully. Yes, a court can direct parents to set up this kind of trust and contribute, but again, seek experienced counsel to assist.

    Good luck.

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  • Is alimony considered income?

    My ex and her husband are getting divorced. She does not work and will be receiving alimony. Can this be calculated as income when it comes to determining my child support?

    Philip’s Answer

    The simple answer is yes, it can be considered alimony, but make sure it structured correctly.

    In order to deduct the payment, make sure the payments are:

    1. Make payments in cash or by check. You must pay alimony by cash or check for the benefit of a spouse or former spouse. The value of in-kind alimony—for example, giving your spouse your car—isn’t deductible.

    2. Follow the documents and designate payments as tax-deductible. Make payments in accordance with a divorce document, such as a marital settlement agreement, separation agreement, court order, or divorce judgment. Payments made under to a temporary support order also qualify. (Section 71 of the Internal Revenue Code.) Make sure the check says it is alimony, spousal support, or spousal maintenance. The documents should also clearly label the payments as deductible by the payor spouse and taxable to the recipient spouse.

    3. Don’t characterize payments as child support or a part of a property settlement. Child support payments, unlike alimony, are never tax deductible. So be sure that alimony payments are not tied in any way to support of your children.

    4. Specify that payments end at the recipient’s death. The marital settlement agreement or judgment must provide that alimony payments terminate when the recipient dies. (The document can also provide that the alimony obligation ends when the payor dies.)

    5. Live apart. If you are still living with your spouse or former spouse, alimony payments are not tax deductible. Payments must be made after a physical separation.

    6. Don’t file a joint tax return. If you and your spouse file a joint income tax return, you can’t deduct alimony payments.

    7. Don’t pay extra up front. Make sure to follow IRS rules against front-loading—the advance payment of alimony that’s due later. Alimony should not be excessively high or front-loaded in the first three post-separation years. Excessive payments are subject to recapture or being taxed to the payor in the third post-separation year.

    Good luck.

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  • How to Subpoena documents in family case?

    I don't have a lawyer but am I able to subpoena documents from the other parties place of employment? It will help prove that the other party is being untruthful and hopefully will help to keep my child safe.

    Philip’s Answer

    Refer the New Jersey Court Rules. Court Rule 1:9-1 states that “a subpoena may be issued by the clerk of the court or by an attorney or party in the name of the clerk.” This means you will have to generate a subpoena and sign it in the name of the clerk. If you are unsure how to prepare or serve the subpoena, you can go to the Court and ask them to issue the subpoena for you.

    Good luck.

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