Feeds:
Posts
Comments

New standard of Proof for relocation cases in NJ?

July 19, 2011 by Wilentz Family Law Blog

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 , , , , , , , |

IS CURSING AT YOUR SPOUSE DOMESTIC VIOLENCE?

June 15, 2011 by Wilentz Family Law Blog

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 , , , , , , |

VICTIMS OF DOMESTIC VIOLENCE CAN GET A NEW SOCIAL SECURITY NUMBER

November 9, 2010 by Wilentz Family Law Blog

Posted by:  Albertina Webb, Esq.

Many people may not know but under extreme circumstances, a victim of domestic violence may be able to obtain a new social security number under the HALE Program by the federal government [Harassment, Abuse & Life Endangerment],  to protect against an abuser’s stalking, invasion of privacy and other safety concerns.  This program became effective in November 1998 and was implemented by the Social Security Administration to aid victims of domestic violence.  The concept for the change in policy was to make it easier for victims of domestic violence to elude their abuses and reduce the risk of further domestic violence and possibly death.   Many people are still not aware of this change.  You should speak with your attorney about whether or not you qualify or speak with a representative at the local office.

Applying for a new social security number is almost the same as initially applying for a social security card.  You are required to appear in person at any social security office.  You cannot do this over the phone or on-line.   You must complete a statement explaining why you qualify for a new social security number.  The representatives will assist you in completing the statement as well as an application for a new number.  You should bring your temporary or final restraining order with you or any consent order that you have obtained documenting the domestic violence.

Additionally, you will also need to present your current Social Security number; an original documents establishing your U.S. citizenship or immigration status, age, identity and evidence of your legal name change if you have changed your name.  Also, any document that shows the custodial arrangement regarding your children will also be required if you are requesting new numbers for the children as well.

You should know that if you legally change your name because of marriage, divorce, court order or any other reason, you need to tell Social Security so that you can get a corrected social security card. If you are working, you should also tell your employer so they can update their personnel file.   One reason for making this change is so that your income is correctly posted to your Social Security record, which may affect your receipt of the proper amount of future social security benefits.  

You should know that changing your social security number could also present problems for you in the future.  As a result of the new number, you will have no credit history under your new number, so it may be very difficult to secure credit cards, car loans or mortgages. Changing your number with SSA will not automatically change it with the IRS, banks or credit bureaus.  You will have to notify these entities individually.  This is something that you should do in writing just in case you are questioned that you never provided the agency with notice.
Domestic violence is serious and will not stop unless the perpetrator is stopped from continuing with the pattern of abuse and violence.  If you are a victim of domestic violence, or know someone who is a victim, please do not hesitate to speak with your attorney, police, pastor or someone at the National Domestic Violence Hotline, 1-800-799-SAFE (7233), (TTY) 1-800-787-3224. 

Posted in Uncategorized | Tagged , , , , , , , , |

Do you know what type of pension your spouse has?

September 9, 2010 by Wilentz Family Law Blog

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 , , , , , , , , , |

The Role of the Family Law Paralegal At Wilentz

September 9, 2010 by Wilentz Family Law Blog

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 , , , , , |

GRANDPARENT AWARDED TEMPORARY CUSTODY OF CHILD, DESPITE FATHER’S DEMAND

July 17, 2010 by Wilentz Family Law Blog

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 , , , , , |

NY Court Goofed by Returning Engagement Ring

July 17, 2010 by Wilentz Family Law Blog

Posted by:  Albertina Webb, Esq.

As recently posted in the New York Law Journal, July 12, 2010, a unanimous panel of the Appellate Division, Second Department, ruled that a Rockland County judge made a mistake by ordering a Hassidic woman to return her $100,000.00 engagement ring to the man who claimed he did not know that at the time of their religious wedding, she was already legally married to someone else!

The case  Lipschutz v. Kiderman, involves the claim of investor Larry Lipschutz and his ex-fiancee, dentist Nadia Kiderman which occurred in 2006.  He said he gave her a six carat diamond engagement ring that he purchased for $100,000.  One problem, was that Ms. Kiderman was still legally married to another man.

The court decided that the issue of whether she was legally married or that the plaintiff knew that she was legally married at the time he gave her the wedding ring and they participated in the Jewish religious ceremony, is an issue of fact that should not have been decided on summary judgment. 

According to Civil Rights Law Section 80-b, the ring would have to be returned if it was given in contemplation of marriage and the marriage never occurred.  His replevin action, demanding the return of the ring or in the alternative, $150,000.00, an estimate of the ring’s fair market value, relied on the Civil Rights Law.  This section, 80-b, would allow for the recovery of all gifts given during an engagement on the basis that such gifts are made in consideration of the marriage.  If the marriage does not take place, the gifts are to be returned.

Back to court they go with this – so stay tuned.

Posted in Uncategorized | Tagged , , , , , , |

« Newer Posts - Older Posts »

Follow

Get every new post delivered to your Inbox.

Join 99 other followers