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Case Law Review for the Weeks of May 26, 2014 and June 2, 2014

Palestrini v. Palestrini, Appellate Division, May 29, 2014 (Unreported Decision): In this case, the Appellate Court reviewed the trial court's post-judgment Order setting a revised alimony amount consistent with a specific provision of the parties' settlement agreement which was triggered when the Plaintiff had obtained employment after being unemployed at the time of the parties' divorce. The issue on appeal was the Plaintiff's claim that the Defendant should be imputed income. The Appellate Division affirmed the trial court's decision not to impute income to the Defendant based upon the fact that (a) Plaintiff failed to provide specific evidence to show that the Defendant was underemployed, especially when compared to the employment history of the Defendant during the marriage and at the time of the divorce and (b) the Defendant's claim that she was unable to pursue full time employment due to a need to care for her adult child was good cause for not imputing income.

Cusick v. Cusick, Appellate Division, June 5, 2014 (Unreported Decision): In this appeal from a post-judgment motion for termination of alimony upon retirement, the Appellate Division remanded the matter for a more complete explanation as to the factual basis for the decision. In doing so, however, the Appellate Division reviewed the relevant case law for considering a request to terminate alimony due to retirement. Specifically, the Court stressed that several factors should be considered when judging the good faith basis for the retirement, including "the age gap between the parties; whether at the time of the initial alimony award any attention was given by the parties to the possibility of future retirement; whether the particular retirement was mandatory or voluntary; whether the particular retirement occurred earlier than might have been anticipated at the time alimony was awarded; and the financial impact of that retirement upon the respective financial positions of the parties, as well as the reasonableness of retirement, degree of control of disbursement of retirement assets, and whether assets were transferred by the supporting spouse to reduce the amount of money available to meet his or her support obligations." The Court stressed, however, that "A judge considering a supporting spouse's good faith retirement is "required to decide one pivotal issue: whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse."

For more information about your rights and obligations incident to a divorce, please contact the divorce and family law attorneys of Miller & Gaudio today.

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