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FAMILY COLLABORATIVE LAW NJ

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While alimony reform was the most talked about bill signed into law by Governor Chris Christie on September 10, numerous others were also signed, including the New Jersey Family Collaborative Law Act (A1477). The act, which is modeled on a proposal by the NJ Law Revision Commission and the national Uniform Law Commission, allows for family collaborative law NJ, a process similar to mediation to be used to dissolve a marriage without court intervention. New Jersey is the ninth state to allow the process after Alabama, Florida, Hawaii, Nevada, Ohio, Texas, Utah, Washington and the District of Columbia.

As stated in the bill, the legislature found that since at least 2005, NJ attorneys have participated in a dispute resolution method known as family collaborative law. This is defined as a process in which an attorney is retained for the purpose of assisting their client with family disputes in a “voluntary, non‐adversarial manner, without court intervention.”

collaborative divorceWhat sets collaborative law apart is that each party begins with the intention of resolving disputes without litigation. A family collaborative law participation agreement must be signed and in record that adheres to the requirements detailed in section 5 of P.L.2014, c.50 (C.2A:23D-5); some of which include: the parties’ intention to resolve a family law dispute through a family collaborative law NJ process, a description of the nature and scope of the family law dispute, identification of the family collaborative lawyers representing each party, the manner by which a family collaborative law NJ process begins and terminates, and the confidentiality of any communication of a party or a non-party participant.

When the parties meet they are accompanied by their respective attorneys and when necessary one or more non-attorney professionals such as certified financial planners, certified public accountants, licensed clinical social workers, psychologists, licensed professional counselors, licensed marriage and family therapists, and psychiatrists.

If either party or attorney commences a court proceeding related to the issues being addressed through the collaborative process, other than to seek the incorporation of a settlement agreement into a final judgment, the family collaborative process will be terminated. The process will also end if either party is subject to or obtains a temporary or final restraining order under the Prevention of Domestic Violence Act, files a motion for emergent relief, fails to provide necessary information to resolve the dispute, or the collaborative lawyer withdraws from the proceedings.

If the collaborative process is unsuccessful for any reason, both lawyers must withdraw from the case and the parties must seek new counsel. The new attorneys are not allowed to be associated with or from either of the collaborative lawyers’ firms, and any communication or information from the collaborative process may not be used in court.

Collaborative law and mediation differ in that a mediator should not be consulted for legal advice by either party. For example, if one spouse offers a lump sum alimony payment of $200,000, the receiving spouse would not ask the mediator for advice regarding the case law and probability of success if litigated before a judge. However, by using the family collaborative law NJ method, the spouse would have their own attorney to consult before accepting these terms.

collaborative divorceThe family collaborative law NJ process can be more cost effective than traditional litigated divorce. By requiring both parties to provide “timely, full and candid disclosure” of relevant information, neither side must resort to discovery. In a divorce, discovery is the process of obtaining important information from sources such as employers or banks. This can include depositions in which sworn statements to be used in court are taken from spouses, witnesses, or other relevant parties. Eliminating these procedures and the time spent at court proceedings – which can last an average of 2 to 4 hours per daily court appearance – will decrease overall attorney fees.

Because each person’s situation varies greatly, there is no one method of dissolving a marriage that is superior to another. At Armour Law Firm we recognize the importance of serving these diverse needs and provide collaborative family law NJ, traditional litigated divorce, and mediation services.

GETTING FAMILIAR WITH PRENUPS IN NJ

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What are Prenups in NJ?

A prenuptial agreement, also known as an antenuptial agreement or premarital agreement, is a written contract between two people planning to marry. It sets terms of possession of assets, management of future earnings, and control or division of property should a marriage end in divorce; however, it cannot adversely affect future child support.

Prenups in NJ go into effect immediately after a legal marriage takes place. It is possible to amend prenups in NJ after marriage; however, all of the changes to the initial agreement must be acknowledged and signed by both parties.

Although it is not required by NJ law, it is recommended that each party be represented by their own attorney to ensure their best interest.NJ prenups

Why is a Prenup Necessary?

Prenups in NJ are especially common when both or one party has substantial assets, high income, potential inheritances, children from a previous marriage, or a negative history regarding finances with a prior spouse.

Although prenups in NJ tend to have a negative connotation, they can actually serve to make a relationship stronger and open up a healthy financial dialogue. Many couples experience marital strife or divorce due to financial differences, but being open with one another from the engagement period may help avoid misunderstandings.

Prenups in NJ also help protect assets or property that has more than just monetary value. For example, an inherited family property may be of significant sentimental value to a person. Deciding what will happen with your spouse ahead of unforeseen circumstances will lead to a more fair settlement, as opposed to leaving such an important and sensitive matter for the courts to decide.

New Jersey Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act was adopted by NJ in 1988 and outlines the requirements of prenups in NJ. In addition to definition and formalities it covers the contents and enforceability of a premarital agreement.

According to section 37:2-34, the contents of a prenup may include:

a. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

b. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

c. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;

d. The modification or elimination of spousal or one partner in a civil union couple support;

e. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

f. The ownership rights in and disposition of the death benefit from a life insurance policy;

g. The choice of law governing the construction of the agreement; and

h. Any other matter, including their personal rights and obligations, not in violation of public policy.

The Uniform Premarital Agreement Act also states that if a party alleges that an agreement should not be enforced, the burden of proof falls on them to show that one or more of the following from section 37:2-38 is present:

a. The party executed the agreement involuntarily; or

b. The agreement was unconscionable at the time enforcement was sought; or

c. That party, before execution of the agreement:

(1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;

(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;

(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or

(4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law.

In 2012, Governor Chris Christie strengthened the enforceability of premarital agreements by signing a law that amended N.J.S.A § 37:2-38 and N.J.S.A § 37:2-32. This removed a provision stating that prenups in NJ could be invalid if unconscionable at the time of enforcement, and left unenforceability to those agreements which were unconscionable at the time they were executed.
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Considering a Prenup

Forbes.com contributor Jeff Landers provides an interesting perspective on prenups. He describes them as being very similar to wills in that they are carefully thought out documents centered on open communication. The estate of a person who passes away without a will is divided according to the government, not friends or family; should a marriage end in divorce without a prenup, assests and property are divided by the courts, not by the thoughtful agreement of both parties. In this way, a prenup, like a will, can help provide fairer distribution.

Contemplating a prenup can be intimidating, and broaching the subject with a future spouse during a time full of joy, excitement, and wedding planning can be very difficult. It is important to keep in mind that drafting a prenuptial agreement does not have to be a negative experience and it can be beneficial to both partners in the long run. While no one hopes for marriage to end in divorce, it can be in the best interest of both spouses to have control of their financial futures should it occur.

SUPREME COURT NJ TO IMPLEMENT NEW FILING FEES NOVEMBER 17

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court fees njOn October 31 the Supreme Court NJ adopted a new order to increase and create new filing fees. The order will go into effect on November 17. Documents that are received in person, electronically, or by mail after 4:30 p.m. on Friday, November 14 will be given a filing date of November 17 and be charged the new fees. The fees are expected to raise at least $42.1 million.  Twenty-two million will be used to implement and administer the pretrial services program, while $10.1 million will go toward creating the judiciary’s electronic filing system, and $10 million will be forwarded to Legal Services. The new rule 1:43 (“Filing and other Fees Established Pursuant to N.J.S.A 2B:1-7 and filing procedures”) provides a list of over 80 fees that have been either increased or newly created. In the area of family, one new fee was implemented, while four others were raised. Filing a divorce complaint will now cost $300 as opposed to $250, and the new post-disposition fee/motion in non-dissolution matters will be $25. Motions in dissolution matters and order to show cause were both increased from $30 to $50, while filing a first responsive pleading in a dissolution matter will be $175 instead of $135. The changes were proposed in September under the terms set by a new law enacted in August authorizing increases to fund a new system for assessing defendants for bail, a digital upgrade for the judiciary, and funding for Legal Services of New Jersey.Court fees were last revised in 2002.

UNDERSTANDING DOMESTIC VIOLENCE IN MIDDLESEX COUNTY: PREVENTION OF DOMESTIC VIOLENCE ACT AND FINAL RESTRAINING ORDER

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What is domestic violence?

Abuse can take many forms, whether it is physical, emotional, verbal, or financial. It can be difficult to understand what exactly constitutes domestic violence under NJ law, but it is important to know if you believe you are facing a harmful situation.

Under the Prevention of Domestic Violence Act (PDVA) of 1991, there are 14 criminal offenses: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, or stalking.

final restraining order

These are considered to be domestic violence acts when they occur between two or more adults who are currently in or have been in some type of intimate or familial relationship. This includes dating relationships, marriages, household members, or two people who have a child in common.

This act protects individuals regardless of their gender, immigration status, marital status, or any other factor.

 

What is a restraining order?

Typically, when an act of domestic violence occurs in Middlesex County, a temporary restraining order (TRO) is issued by either the police who respond to the incident or the family court, if the police have not been involved. This usually lasts for a minimum period of about one week, giving both parties time to consult an attorney should they choose. When the TRO is issued, a court date will be provided for a final hearing. The most recent act of domestic violence is examined first, but past history demonstrating the escalation of abuse also plays a role in the court’s decision.

If domestic violence is found to be present, a final restraining order (FRO) is granted. This provides the victim with protection by making it a criminal offense for the abuser to violate. Any contact, even in the form of a phone call, can result in arrest, giving the victim a greater sense of comfort and safety. In New Jersey, a final restraining order is a permanent order that does not have to be renewed after a certain period of time like in many other states; it will also be honored if the victim moves to another state.

Although violating a final restraining order is a criminal offense, simply having one in place does not eliminate the option to negotiate parenting time, and does not effect a person’s employment eligibility or criminal record. Many victims choose not to follow through with a final restraining order fearing these consequences for their partner, spouse, or family member, but unless it is violated, it will serve only as protection and not as a means to “ruin” another’s life.

Taking action

While this process can be undertaken alone, it is commonly a very emotional and confusing time for the victim or plaintiff, making the presence of an attorney very beneficial.

It is important to remember that even though one of the 14 acts of domestic violence may not be occurring directly, abuse can still be present and should be addressed. Domestic violence includes subtle factors that cannot always be seen by those who are not directly involved in the relationship. Many abusers exercise power and control in various ways to isolate, intimidate, and coerce their victims, making it more difficult for them to seek help. When children are involved, battling domestic violence with a knowledgeable attorney becomes even more crucial, as remaining in an unhealthy situation can have a severely negative impact.

At Armour Law Firm we have the experience and sensitivity to deal with domestic violence and understand how it can affect other legal matters such as divorce, mediation, child custody, and child support.

WHAT YOU NEED TO KNOW ABOUT NJ’S NEW ALIMONY LAW

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New Jersey’s alimony law recently received some major modifications after two years of negotiations.

Signed by Governor Christie on September 10, the bill (A845/971/1649) has become known mainly for its substitution of permanent alimony with open durational alimony; however, there are a number of other significant changes worth noting.

New Jersey Alimony Law Durational Limits

Under the new law, for any marriage or civil union lasting less than 20 years, the duration of alimony cannot exceed the length of the marriage or civil union. For example, an alimony recipient from a marriage lasting 10 years would be entitled to a maximum payment period of 10 years. Certain exceptions apply, but are granted based on a set of considerations.

Some of these include: the age of both parties at the time of the marriage or civil union, the degree of dependency of one party on another, a spouse or partner who has a chronic illness or unusual health circumstance, whether a spouse or partner has given up a career or supported the career of the other, the impact of the marriage or civil union on either party’s ability to become self-supporting (including either’s responsibility as primary caretaker of a child), and any other factors or circumstances deemed relevant by the court.

Retirement

Whereas the previous law dictated that permanent alimony should continue even after retirement, it will now terminate or be modified when the obligor reaches his or her prospective or actual retirement age. In this case, “full retirement age” is defined as the age at which a person is eligible for full benefits under the Social Security Act. If a person wishes to retire before this age, they must first demonstrate that they are doing so reasonably and in “good faith.”

Although the bill in its entirety applies mostly to future divorces, those who began paying permanent alimony before its enactment will be able to terminate payments upon reaching the full retirement age.

Loss of Income

Under the new law it is much easier for those paying alimony to reduce the amount of their payments should they become unemployed. An application to modify payments can be made if after 90 days the party remains involuntarily unemployed or has not found employment at his or her prior income level.

When considering an application by someone who is not self-employed, the court will take into account numerous factors, some of which include the reason for the loss of income, the effort made to obtain employment in any field or at any level, any severance compensation or award, the impact of the health of both parties on employment, and any other factors deemed relevant.

Any self-employed person’s application should include an analysis detailing the economic and non-economic benefits received from the business as compared to those received at the time of the initial alimony order.

Cohabitation

Also of great significance is the court’s ability to suspend or terminate alimony if the recipient begins cohabitating with another person. Cohabitating in this sense is described in the bill as involving a “mutually supportive, intimate relationship,” and does not only apply to those couples who maintain a single common household.  Although the previous law did order that payments stop when the payee begins cohabitating, the changes provide much stricter guidelines.

In addition to living together, factors such as intertwined finances (joint bank accounts, holdings or liabilities) and shared responsibility of living expenses are considered; however, less tangible factors will also be considered including the recognition of the relationship among family and friends, frequency of contact, duration of the relationship, sharing household chores, and other evidence relevant to establishing the presence of a marriage-like relationship.

Also to be taken into consideration is if the recipient has received “palimony,” which is defined as any enforceable promise of support from a partner.

The Future for  New Jersey Alimony

Already ordered Alimony will not be disturbed.  Alimony reform advocates would like to see more changes including retroactive modification of alimony orders.  As for new orders, each case is fact sensitive and requires an analysis of the law and how it applies to the case.