Archive for the ‘Family Law’ Category

Obtaining a Temporary Restraining Order (TRO)

Posted on: March 19th, 2013 by RWarner No Comments

By Robert Panzer

Victims of domestic violence who require the protection of a restraining order may apply for a Temporary Restraining Order (TRO) with the Family Part of the Superior Court. The police may also assist in obtaining a TRO before a municipal court judge on holidays, weekends and other times when the Superior Court is closed.

When applying for a TRO, victims should list all predicate acts of domestic violence that form the basis of the Complaint. In addition, a detailed account of all prior acts of domestic violence should be included in the Complaint. Under the Domestic Violence Act, prior history of domestic violence is both relevant, and often crucial, in determining whether a FRO should be granted.

• Prior history may include incidents that did not result in the police being contacted and did not result in the issuance of a TRO or criminal complaint;

• It’s important to include all acts and prior acts of domestic violence because failure to do so may preclude introducing evidence or testimony regarding the particular incident at the final hearing.

After a victim applies for a TRO, a hearing is conducted, usually without the defendant (the person accused of domestic violence) being present. Due to the fact that these hearings are unopposed and the Court hears only the victim’s version of events, TRO’s are usually granted so long as a prima facia case of domestic violence is established. A TRO provides victims immediate protection by prohibiting the defendant from having any contact or communication with the victim, as well as other ancillary relief that the Court deems necessary.

After a TRO is issued and served on a defendant, a final hearing is scheduled to determine whether a FRO should be entered. At the final hearing, both parties present testimony and evidence regarding the allegations of domestic violence. If a Court determines that an act of domestic violence has been proven by a preponderance of the evidence and that the issuance of a final restraining order is necessary to prevent further acts of domestic violence, the Court will issue a FRO.

Although the issuance of a FRO does not constitute a conviction of a criminal offense, New Jersey Courts have recognized that it, “has serious consequences to the personal and professional lives of those who are found guilty . . .” For example, once a FRO is entered, a defendant is fingerprinted, is required to forfeit firearms and weapons and is included in the central registry maintained by the Administrative Office of the Courts. Furthermore, violation of a TRO or FRO constitutes contempt, and a second or subsequent non-indictable domestic violence contempt violation requires a minimum jail term of 30 days imprisonment. The issuing Court may also impose a number of other wide-reaching sanctions.

Due to the serious consequences that can result from the issuance of a FRO, our Courts have reiterated that the Domestic Violence Act is intended to assist those who are truly victims of domestic violence and that the process should not be trivialized. Furthermore, our Courts have stressed that “domestic contretemps” or marital bickering should not be mistaken for matters of consequence warranting the protections afforded by the Domestic Violence Act.

Due to the fact that certain relief afforded by FRO’s impact issues that are often the most contentious between divorcing spouses (custody, parenting time and financial support), our Appellate Division has expressed concern that parties may attempt to misuse the Act in order to gain an advantage in a companion matrimonial action. Clearly, the Domestic Violence Act was not intended for such purposes and our Courts serve as “gatekeepers” to filter out complaints that fail to constitute true domestic violence.

If you have any questions about domestic violence and the legal process, it is important that you seek legal advice to be sure that you are informed of all of your rights in light of the serious consequences involving domestic violence law in New Jersey. You can reach me at (609) 275-0400.

Obtaining a Final Restraining Order (FRO)

Posted on: March 11th, 2013 by RWarner No Comments

By Robert Panzer

In cases of domestic violence, there are legal proceedings that can protect victims. In my prior blog, I started discussing Final Restraining Orders (FRO). There’s a two-pronged test that must be satisfied for a victim to obtain a FRO.

1. A victim must establish that a “predicate act” of domestic violence occurred. An act of domestic violence includes one or more of the following: assault; terrorist threats; kidnapping; criminal restraint; false imprisonment; sexual assault; criminal sexual contact; lewdness; criminal mischief; burglary; criminal trespass; harassment; and stalking.

2. It must be established that a domestic violence restraining order is necessary to protect a victim from immediate danger or further acts of domestic violence.

A plaintiff (the victim) is responsible for establishing his or her case by a preponderance of the evidence, which is a lower burden of proof than that required in criminal cases. In addition to the lower burden of proof, domestic violence hearings are conducted relatively quickly and parties can’t seek pre-trial discovery (information, testimony and documents) without prior Court approval.

In order to be eligible to obtain a restraining order, one must qualify as a “victim of domestic violence.” A victim includes:

• A person who is 18 years or older (or is an emancipated minor) who has been subjected to domestic violence by a spouse, former spouse, or other person who is a present or former household member,
• Any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant, and
• Any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

There’s also a limitation on whom a defendant can be. He/she must be 18 years of age (or be an emancipated minor) in order for a victim to pursue relief under the Domestic Violence Act.

In my next blog, I’ll write about how the process works.

New Jersey Domestic Violence Law

Posted on: February 26th, 2013 by RWarner No Comments

By Robert Panzer

It’s an unfortunate fact that domestic violence is a pervasive problem both in New Jersey and throughout the United States. In a 2011 report, the New Jersey State Police stated that 70,311 domestic violence offenses were reported by police that year. That averages to an alleged act of domestic violence every seven minutes and 29 seconds. It’s important to understand the legal process and protections afforded to victims, and those accused, of domestic violence in New Jersey. I’ll be writing a series of three blogs on the issue.

In New Jersey, there are two mechanisms for providing protection to victims of domestic violence. Victims can pursue protection under both criminal and civil law. A victim may pursue filing criminal charges against a defendant by contacting the police. In such cases, the State is required to prove beyond a reasonable doubt that a criminal act occurred. The police are required to file charges if a victim exhibits signs of injury, even when victim refuses to do so.

In addition to criminal charges, a victim of domestic violence may pursue protection under civil law. Under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, et seq., a victim can request a Final Restraining Order (FRO). A victim need not pursue criminal charges in order to obtain a FRO and vice versa.

A FRO prevents a defendant from engaging in any contact or communication with the victim and prohibits subjecting the victim to any further acts of domestic violence. A FRO may also award a party exclusive possession of a residence, address custody and parenting time issues and award monetary relief (including emergency support for minor children and the victim). The Court can also grant many other protective measures and “grant any relief necessary to prevent further abuse.” 2C:25-29b(1)-(18).

I’ll write more about FRO’s in my next blog.

Divorce & Small Business: Imperfect Together

Posted on: February 8th, 2013 by RWarner No Comments

By Jeffrey Epstein

If you’re facing a divorce, you may see it as the failure of a once promising relationship, or the start of a new beginning.  If you own a business and are getting a divorce, you may see it as a major complication to your business plans.  During a divorce, a spouse may seek an equitable interest (a court ordered, partial ownership, created in the interests of fairness given the particular circumstances) in the business.  For the business owner, there are many issues that need to be considered and addressed.

The court system in New Jerseyhas very liberal discovery rules (which allow both parties to obtain relevant information and documents pertaining to a case).  A judge may allow a party to have access to virtually any document pertaining to the ownership and value of the business.  Any employee with knowledge of these issues could be questioned.  Unless there is a Protective Order of Confidentiality, these documents and information will be public record for all, including competitors, to see.

Both parties should understand a business entity should be protected.  A party may request a Receiver or Fiscal Agent be appointed to ensure the business is being run properly and not just drained of revenues for the benefit of one of the parties.  A business owner needs to be aware this kind of appointment may happen.

As part of a business plan, there should be a buy/sell agreement for partners or principals.  A predetermined method of a party is essential to avoid costly valuation issues.  Though it’s not binding on a spouse seeking an ownership interest in the business, a court should find it relevant (but not determinative) of a shareholder’s interest in a small, closely held business. 

Courts will try to determine the business’ “fair value” (not “fair market value”).  This is appropriate when a closely help corporation is involved, with no ready market for its shares.  Valuation relies heavily on the cash flow of a business.  Then there are “add backs” (payments for pension plans, insurance, travel, auto expenses, etc.) to the calculation.  This is to come up with the actual income of the titled spouse to determine figures for spousal support and the actual value of the shareholder’s interest.

An issue that shouldn’t be overlooked is taxes.  The federal tax code allows for a tax-free transfer of assets or liquid funds as compensation for an equitable interest in a business.  However, if a business owner sells his/her share of a business, it’s a taxable event.

How much of an equitable interest might the spouse get?  Typically 25% to 40%, though it could be more or less.  Even if the business owning spouse started it prior to the marriage, or became an owner through an inheritance, the other spouse may seek equitable distribution of the appreciation in value of the business during the marriage.

It’s in everyone’s interests they be rational and reasonable in compensating the spouse who will no longer be involved with the business, but who has an equitable share of it.  The ability of the business to function and generate cash flow must be protected, because it will support the family and the titled owner.  The sooner the parties realize that the better.  Once that realization is met, the divorce process should proceed easier and faster, to everyone’s benefit.

Divorce and Debt: Protecting Yourself and Your Credit – Part 2

Posted on: October 9th, 2012 by RWarner No Comments

By Robert Panzer, Esq.

Disagreements over finances and debt are a common cause of marital problems and divorce.  Last week, I wrote about the impact of a divorce on a person’s credit worthiness generally, and real estate issues in particular.  This week, I’ll wrap it up, discussing auto loans, credit cards and the impact of an ex-spouse not living up to his/her obligations.

Automobiles

Generally, automobile loans and leases are easier to address than mortgages because the amounts owed are usually much less and are typically easier to refinance.  If your spouse will be retaining a vehicle with an outstanding loan in your name or joint names, to the extent possible, he/she should either refinance the outstanding balance into his/her own name; or pay-off the entire balance upon the divorce.  Once the debt is refinanced or satisfied, you will no longer be liable for payments or exposed to an adverse credit rating if your ex-spouse fails to make any car payments after your divorce.

Credit Cards

Joint credit card accounts are extremely common.  If you are not sure of all of your joint credit card accounts (or any other debts), you can obtain a copy of your credit report from any of the major credit reporting agencies – Experian, Trans Union and Equifax.  You can order a free copy of your credit report from each of the major credit reporting agencies by visiting the website annualcreditreport.com.   

To prevent your ex-spouse from incurring credit card debt in your name post-divorce, you should have your name removed from any joint credit card accounts or close all joint credit card accounts as soon as possible.  Once your name is removed from a joint account or the joint account is closed, you are no longer liable to the creditor for any charges incurred.  However, until such time, you will remain liable for charges made by your ex-spouse even if he/she incurred the debt after your divorce and even if your divorce decree or settlement agreement requires your ex-spouse to be responsible for any post-divorce obligations that he/she incurs.

If your divorce decree or settlement agreement requires that your ex-spouse be responsible for paying an outstanding joint credit card account balance, you remain legally responsible to the credit card company until the debt is satisfied.  As part of a divorce decree or settlement, it should be requested that your spouse either pay off the balance immediately or  transfer the debt into a credit card account in his/her own name.  Although these options may not always be possible, it is the most preferable resolution to avoid issues in the event that your spouse fails to abide by his/her obligations.  At the very least, a request can be made to the credit card company to prohibit any further charges on the joint account and that it be “frozen” until such time that the balance is satisfied and that account be closed to avoid additional liability.   

Options In The Event That Your Credit Report Is Negatively Impacted By An Ex-Spouses’s Failure to Abide by His/Her Obligation To Pay A Joint Debt

The harsh rule is that if you obtain an account in joint names, you are responsible for paying the entire debt in a timely fashion.  As I stated before, this rule applies regardless of whether your ex-spouse is responsible for paying the obligation pursuant to a divorce decree or settlement agreement. 

If you discover that your credit report/score has been adversely impacted because of your ex-spouse’s poor payment history, you can contact the creditor to request that it remove the blemish due to the circumstances.  If that request is denied, the federal Fair Credit Reporting Act permits you to submit an explanation of one hundred (100) words or less to the credit reporting agencies, which is known as a “Consumer Statement.”  The Consumer Statement will be attached to your credit report and provided to any person or entity requesting a copy thereof.  Although such an explanation may be considered by a creditor when applying for credit, the usefulness of such a statement is doubtful since many creditors base credit applications on credit scores alone rather than a review of your credit file. 

If you have any questions regarding any family issues, please feel free to contact Robert Panzer, Esq. at (609) 275-0400 for a consultation.

Divorce and Debt: Protecting Yourself and Your Credit

Posted on: October 2nd, 2012 by RWarner No Comments

By Robert Panzer

It is no secret that disagreements over finances and debt are a common cause of marital problems and divorce.  A divorce, in and of itself, will not impact your credit worthiness or credit score.  However, if you have joint debts with your spouse, how these issues are handled in your divorce could have a substantial impact upon your credit and your ongoing obligation to creditors long after your marriage has ended. 

There are many potential issues, so the topic will be discussed in this blog and the next (which will cover car loans, credit cards and ex-spouses who fail to live up to their obligations to pay off debts).

A Divorce Decree Or Settlement Agreement Does Not Bind Your Creditors

A Final Judgment of Divorce or Marital/Property Settlement Agreement will not change your financial and contractual obligations to your creditors.  Such legal documents are binding upon former spouses, not creditors.  No matter what your divorce decree or settlement agreement provides for with respect to a debt in joint names, a creditor will be able to seek collection from either party.  Even if your divorce decree or settlement agreement requires your ex-spouse to indemnify/reimburse you for any money that you pay as a result of his/her failure to pay a debt incurred in your name or joint names, you must spend time and money filing a Motion in the Family Court to compel your ex-spouse to abide by his obligations.  Such an indemnification agreement will not terminate your responsibility to the creditor.  As a result, if a party obligated to pay a joint debt pursuant to a Final Judgment of Divorce or settlement agreement fails to honor his/her obligation, both spouses will suffer a negative notation on their credit reports and potentially be subject to legal action by the creditor seeking to collect the debt.

With this important point in mind, there are steps that you can take to protect yourself from legal action from creditors and to preserve your credit post-divorce.  Set forth below are examples with respect to a few of the most common types of debts that arise in the context of a divorce.

Real Estate

If you own a home with a spouse and both names appear on the note and mortgage/home equity loan, there are two ways to avoid liability to the mortgage company and adverse credit issues. 

  • Selling the home and paying off the note and mortgage/ home equity loan upon the sale of the property is the most straightforward way to do so.  Once the home is sold and the note and mortgage/home equity loan is satisfied, the mortgage company will not have any claims against either spouse, or
  • If one party retains ownership of the home after the divorce, the party keeping the property should refinance the joint note and mortgage/home equity loan into his/her own name.  By doing so, the party relinquishing the home with be relieved of any liability related to the joint note and mortgage. 

If your spouse is retaining the residence after the divorce, it is not enough to simply agree that he/she will be responsible for continuing to make the payments.  You will still be legally responsible for the mortgage and suffer an adverse credit report if he/she fails to abide by your agreement.  If the original note and mortgage remains in joint names, you will have difficultly qualifying for a mortgage of your own due to the fact that your are still legally responsible for the original joint note and mortgage.  As a result, purchasing a home post-divorce may not be possible so long as the original note and mortgage remains in joint names.

If you have any questions regarding any family issues, please feel free to contact Robert Panzer, Esq. at (609) 275-0400 for a consultation.

Prenuptial Agrrements – Your Answer to the What Ifs of the Future

Posted on: August 29th, 2012 by RWarner No Comments

By Lindsey Moskowitz Medvin

When basking in the bliss of engagement and impending marriage, people often don’t want to have to think about the “what ifs” of the future. And if they do, their soon to be spouse, may not.  Maybe they are even afraid to raise the issue with one another, embarrassed to discuss it and unsure if it is the right thing to do. But, in today’s world, where people are getting married later in life, getting married for the second or third time and where divorce is more prevalent, we have no choice but to think about the future while living in the present.

Despite what people may think, prenuptial agreements are not taboo, they are not wrong, and they certainly do not mean that you are giving up on marriage before even saying “I do”.  Rather, prenuptial agreements are a way to plan for the future and to organize your finances.  It is a way to communicate the “what ifs” and ensure that you and your soon to be spouse are on the same page.

Prenuptial agreements can be crafted to address various different issues. Customarily, they fall into 2 categories; the terms of settlement in the event of divorce; and the rights and liabilities of the surviving spouse in the event of death.

In New Jersey, a Prenuptial or Pre Marital Agreement must meet certain statutory guidelines to be deemed valid and enforceable. The Agreement is guided by N.J.S.A. 37:2-31 to -41, which requires that it be in writing, with a statement of assets and liabilities annexed thereto and that it be signed by both parties. It is strongly recommended that both parties be represented by independent counsel. Furthermore, the over arching idea is that the Agreement not be deemed unconscionable at the time it is enforced.  The underlying purpose of attaching a statement of assets and liabilities is to ensure a complete disclosure between the parties. After all, an individual cannot waive their right to something that they do not know exists.

With respect to the content of a Prenuptial Agreement, the statute permits parties to contract with respect to their rights and liabilities pertaining to their own property, the right to support, the drafting of will or trust documents, ownership rights regarding life insurance, choice of law and any other matter which includes their personal rights and obligations, which are not in violation of public policy. See N.J.S.A. 37-2:34.

It is no secret that there is a high level of acrimony commonly associated with divorces. Consequently, it makes sense that a well thought out, well communicated plan for support and a division of property, would be best negotiated and resolved when the parties are getting along. Moreover, a Judge has wide discretion in applying the law to the facts of each case.  Isn’t it best to take matters into your own hands, rather than leave them to chance in the Court?

If you have any questions on prenuptial agreements, or other aspects of family law, you can reach Ms. Moskowitz Medvin at (609) 275-0400.

New Jersey Law and Same Sex Marriage

Posted on: April 12th, 2012 by Szaferman Blog Team No Comments

Written by Lindsey Moskowitz Medvin

Naturally, the community of matrimonial attorneys should be concerned with who can marry and in turn, who can divorce.  Exactly who has the right to marry, remains a hot topic and one of much controversy in New Jersey.   Initially, New Jersey was one of the first states to implement a domestic partnership scheme.  Then, on December 14, 2006, the New Jersey Legislature passed a bill providing for civil unions.  The Civil Union Act came into effect on February 19, 2007. Under the Civil Union Act, same-sex couples who enter into a civil union are provided almost all the rights granted to married couples under the New Jersey state law.  However, under the provisions of the federal Defense of Marriage Act, same-sex couples in marriages, civil unions or domestic partnerships do not have any right or entitlement to the 1,138 rights that a married couple has under federal law.

Continue reading “New Jersey Law and Same Sex Marriage” »