Click here to view the firm’s Annual Family Law Digest, Summary of 2011 New Jersey Family Law Published Opinions,Court Rules and Statutes.
Prepared by the Family Law Department: David M. Wildstein, Jay J. Ziznewski, Albertina Webb, Joseph J. Russell, Jr., Cheryl E. Connors
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By: Albertina Webb, Esq.
As reported today, a Family Part judge may order continued state custody of a child even without a finding of parental abuse or neglect. This precedential decision was reported by the Appellate Division that permits continued court assistance under Title 9, or a determination based on a best-interests analysis under Title 30, warranting continuation of state custody of the child/children. The court held that determination is enough to continue custody by the Division of Youth and Family Services, the Appellate Division ruled in DYFS v. I.S., A-5793-09.
This ruling ends a mother’s attack on a trial judge’s order that permitted DYFS to retain custody of her twin daughters which it held for two years and forced her to go through proceedings that resulted in her losing custody of one of the girls.
Posted in Uncategorized | Tagged Abby Webb, children, custody, divorce attorney, DYFS, family law, family law attorney, loss of custody, middlesex attorneys, new jersey, Ocean County Attorney | Leave a Comment »
By: Albertina Webb, Esq.
The Internal Revenue Service has recently announced that it has changed the two year limit imposed on a spouse claiming innocent spouse status to help those innocent spouses try and get certain relief the provision provides. The innocent spouse relief is meant to protect spouses who are unaware that the spouse who earns the money has properly declared all taxes and/or filed their taxes properly. Most times during a divorce, the non-monied spouse learned that the wage earner has been properly declaring taxes or not declaring taxes at all. Because the parties are married, both parties would be subject to fines, additional taxes and penalties. The award of the “innocent spouse” would relieve that spouse from that obligation.
The IRS has reportedly conducted a review of the equitable relief provisions for the innocent spouse program earlier this year. Policy and program changes with respect to that review will become fully operational in the fall and additional guidance will be forthcoming. Significant changes are as follows:
1. The IRS will no longer apply the two-year limit to new equitable relief requests or requests currently being considered by the agency.
2. A taxpayer whose equitable relief request was previously denied solely due to the two-year limit may reapply using IRS Form 8857, Request for Innocent Spouse Relief, if the collection statute of limitations for the tax years involved has not expired. Taxpayers with cases currently in suspense will be automatically afforded the new rule and should not reapply.
3. The IRS will not apply the two-year limit in any pending litigation involving equitable relief, and where litigation is final, the agency will suspend collection action under certain circumstances.
The change to the two-year limit is effective immediately, and details are in Notice 2011-70, posted today on IRS.gov.
Posted in Uncategorized | Tagged attorney, divorce, innocent spouse, irs, middlesex, Ocean County Attorney | Leave a Comment »
The Appellate Division in Villanova v. Innovative Investigations Inc. says yes. Plaintiff, Kenneth Villanova, sued Innovative Investigations, Inc. and its principal Richard P. Leonard for invasion of privacy. Because Leonard had difficulty with his surveillance of the plaintiff, he suggested to the plaintiff’s wife (now ex-wife) that she place a global positioning system (GPS) in one of the family vehicles. Plaintiff’s wife placed the GPS device in the glove compartment of the vehicle primarily driven by the plaintiff. The private investigators ultimately observed the plaintiff leaving the driveway of his suspected paramour with her in his car. The court held that “the placement of a GPS device in plaintiff’s vehicle without his knowledge, but in the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, does not constitute the tort of invasion of privacy.” In other words, there was no evidence that the GPS device had invaded his privacy or led to an invasion of his privacy as he was observed from a public street where he could not have an expectation of privacy. The court granted summary judgment in favor of the defendants and dismissed the suit.
Posted in Uncategorized | Tagged car, cheat, cheater, custody, divorce, GPS, husband, Middlesex County Attorney, Monmouth, new jersey, new jersey attorney, paramour, privacy | Leave a Comment »
In a recent decision, Justice Virginia Long of the Supreme Court, who writes the most prolific family law decisions, held that a State Court judge improperly barred a woman from moving to Massachusetts with her children over her husband’s objection. This opinion was a unanimous decision from the Supreme Court. The decision, Morgan v. Morgan, offers guidance on the correct standard of proof for relocation cases.
Where the objecting spouse failed to establish shared custody, the correct test for relocation was whether there was a good-faith reason for the move, the Court held. The father tried to argue that he had a de facto shared custody arrangement. This argument failed after the father filed a motion to apply the best interests standard. The removal application was denied after a hearing.
The Court found that a reversal of the decision was warranted, and nevertheless remanded for a full evidentiary hearing to account for changes in the parties circumstances since the case was first decided. “Four years have elapsed since the evidence was adduced before the trial court,” Justice Virginia Long wrote. “Enormous changes in the parties’ lives have occurred.”
Posted in Uncategorized | Tagged justice long, Middlesex County Attorney, move out of state, new jersey, Ocean County Attorney, relocation, shared custody, Supreme Court | Leave a Comment »
By: Albertina Webb, Esq.
Yes, according to the Appellate Division in New Jersey recently. In the case of C.M.F. v. R.G.F., App. Div. (Espinosa, J.A.D.) the court ruled that if the language was said to disturb or annoy another, then it is covered under New Jersey’s domestic violence act and a restraining order for protection is in order.
The underlying predicate act was admitted by defendant/husband. He admittedly shouted offensively coarse names at his wife at their children’s basketball game. Obviously, he let his temper get the better of him. She filed for domestic violence protection. A temporary restraining order was granted and the matter proceeded to trial.
The husband argued that he was motivated by anger and had no intent to harass or annoy her. Therefore, domestic violence protection should not have been afforded to her. The court reasoned, however, that pursuant to State v. Hoffman, 149 N.J. 564 (1997), and N.J.S.A. 2C:33-4(a), the requisite intent for domestic violence protection was “to disturb, irritate or bother.” Clearly, under this premise, defendant was guilty.
The court affirmed the issuance of the final restraining order against the husband reasoning that just because he was admitting he was angry, did not mean that he didn’t have an intent to harass as well. Further, when considering the totality of the circumstances, the evidence supported the conclusion that defendant’s purpose in directing the offensively coarse language at plaintiff was to harass her.
Posted in Uncategorized | Tagged Appellate division; cursing; annoy, Domestic Violence, Middlesex County Attorney, Monmouth County Attorney, New Jersey divorce attorney, Ocean County Attorney, order of protection | Leave a Comment »
Posted by: Albertina Webb, Esq.
If you or your spouse are employed or were previously employed, you may own a pension that is subject to equitable distribution in your divorce. Many employees receive the benefit of a pension when they retire as a result of their employment. A pension is a type of savings plan for the employer to prepare for financial security when they are no longer working. However, pensions plans did not always exist. They became increasing popular after World War II as a result of labor unions negotiating for same as part of their collective bargaining agreements. Congress passed ERISA in 1974. ERISA is the Employee Retirement Income Security Act of 1974, which is a federal statute that established minimum standards for pension plans in private industry.
There are different types of pensions. The most widely known plans are defined benefit plan and defined contribution plan. The defined benefit plan is a pension plan that is set by an employer’s promises to pay the employee a set amount of money when the employee retires. This distribution or payment to the employee can be paid in a lump sum, monthly payments or a mixture of both.
ERISA does not apply to all pension plans, i.e., government pension plans, church plans, plans for workers compensation or unemployment, plans maintained outside the United States for the benefit of nonresidence aliens and excess benefit plans are specifically excluded from ERISA. A pension is subject to equitable distribution in New York and New Jersey when parties divorce.
The defined contribution pension plan is established by contributions from the employer and employee throughout the employment of the employee. When the employee retires, he can receive the whole pension plan and can submit the entire account to be converted to cash. The amount a spouse is entitled to can be calculated and determined and thus distributed upon the event of divorce.
As part of equitable distribution, a pension can be distributed. This is accomplished with a QDRO - qualified domestic relations order. The Department of Labor defines a QDRO as ”a domestic relations order that creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a retirement plan, and that includes certain information and meets certain other requirements.” The Department of Labor previously managed QDRO’s, but was turned over to the Internal Revenue Service by President Carter in 1978. The QDRO must meet specific requirements set forth in the Retirement Equity Act (REA), which was an amendment to ERISA by Congress in 1984. Your attorney will know how to get a QDRO established so that you can share in your spouse’s retirement benefits as a result of your divorce. Contact one of our attorneys to discuss your pension entitlements as a part of your divorce.
Posted in 1 | Tagged 401-k, divorce law, ERISA, Middlesex County Attorney, Monmouth County Attorney, Ocean County Attorney, Pension, QDRO, REA, Retirement | Leave a Comment »
Posted By: Albertina Webb, Esq. and Heather Chiang, Paralegal
When you hire a family law attorney at Wilentz, you will most likely meet one of the department’s paralegals. Our paralegals are specially trained to perform a variety of functions and tasks which support and complement the attorneys in their representation of our clients.
A paralegal is an educated and specially trained professional who is detailed, organized and is capable of multi-tasking. She is an important member of the family law team who works directly under the supervision of the team attorneys. The paralegal may manage specific details of the client’s case to ensure that the process is moving along as smoothly as possible. Once the case commences, the client and the paralegal work very closely together to gather information necessary to assist the attorney. For some cases, the paralegal maintains hands-on, day to day involvement. With this level of involvement, the paralegal is usually capable of recognizing issues which are important to the client and the case and is in close proximity to alert the attorney and address the issue head-on.
A typical day for a family law paralegal at Wilentz is dictated by the needs of the team attorneys and the clients. There could be days when the paralegal is spend the most of her time working with the client in preparing the Case Information Statement. Other times, the paralegal is reviewing a file to pull exhibits to attach to the client’s motion or in opposition to a motion served upon the client.
Other days, the paralegal could spend her time contacting the client to bring in documents for the case, reviewing the client’s file, analyzing discovery received from an adversary, preparing exhibits for a trial and telephone or in-person contact with our clients. Preparation of subpoenas and other boiler-plate document is also a part of a typical day for a family law paralegal. These are just a few of the many tasks which our paralegals tackle each day.
A paralegal is bound by the same Rules of Ethics that the attorneys are bound by. The major differences are that a paralegal may never give legal advice and can never represent the client in court. Like our attorneys, paralegals must prepare time sheets which accurately reflects the work they do in accordance with the hourly rate charged to the client. Naturally, a paralegal’s rate for services is significantly less than the attorney’s rate, which reduces the costs to the clients, when the paralegal can undertake the task instead of the attorney.
The paralegal may go to court to assist at the time of trial or complex oral argument, attend mediations or conferences. You will find that our paralegals are educated, compassionate listeners and are willing and ready to assist our clients however possible.
Contact us if you have any questions about what our paralegals can do to assist you throughout your divorce.
Posted in 1 | Tagged child support guidelines, family law department, Middlesex County Attorney, Monmouth County Attorney, Ocean County Attorney, paralegal | Leave a Comment »
Posted by: Albertina Webb, Esq.
The Appellate Division has upheld a decision of a Middlesex County Judge’s decision to award temporary custody of a young child to the maternal grandparent instead of the child’s father. In Hargrove v. Hassell, New Jersey App. Div., May 25, 2010, the court affirmed a June 5, 2009 Family Part order that had authorized and Ordered defendant’s nine-year-old son to remain in the physical custody of his maternal grandmother for a period of one year while the child’s mother, plaintiff Lorene Hargrove, served a one-year tour of duty in Kuwait.
The Appellate Division refused to reverse the Order and deliver the child to his father because of the temporary nature of the order (child to remain in grandmother’s custody for one year or until the child’s mother returned from active duty) and the disruption of the child’s life if he were to be transferred to the father in Georgia. The father, who for all purposes was a willing, fit and able custodian. However, the court noted that the child had never lived with his father. The child had special needs since he was diagnosed with severe ADHD. According to the court, the child was doing well in New Jersey in his proscribed 504 educational program.
Furthermore, the defendant father had voluntarily enjoyed few parenting hours with the son. The court weighed the harm to the child by removing him to live with the father against the harm to the father in ignoring his constitutional right to raise his child.
Speak with one of our specialists about custody if you have any similar concerns or issues.
Posted in Uncategorized | Tagged ADHD, constitutional, custody, Middlesex County Attorney, Monmouth County Attorney, parenting time | Leave a Comment »
