DIVORCE AND FAMILY LAW

Divorce 

PSA/MSA Agreements

Motion Practice

Trial Litigation

973.652.7989

No one realizes how emotionally challenging divorce will be. You also may not realize that your financial situation takes a different turn, sometimes for the worst.
Seek some legal advice. Even if you represent yourself, the advice you may receive is worth every penny and could save you thousands of dollars.   

If you have any questions or would like to discuss your options you can contact me at (973) 652-7989 or email me at scbrennan.esq@gmail.com.


10 STEPS TO DIVORCE

1. Complaint: filed by the plaintiff. The defendant is then served by the Sheriffs’ Department.
2. Answer, appearance, or counterclaim: Filed by defendant within 35 days after service of the complaint. If no response is filed by the defendant, a Notice of Default is filed by the plaintiff's attorney or the plaintiff (if self-represented) and a default hearing is scheduled by the court.
3. Case Information Statement (CIS): Required to be filed by each party within 20 days after the filing of an Answer or Appearance if the case is contested and custody, support, alimony, or equitable distribution is an issue.
4. Notices of Motion: An application to the court for an order to resolve certain issues such as property, support, custody, or shared parenting time. Pendente Lite is a Latin term used to address requests that are made before a formal hearing or final judgment is entered. Motions must be filed 16 days in advance of the hearing date for oral argument. Litigants are permitted to be present during the motion hearing.
5. Orders to Show Cause: May be filed in case of emergencies. (Such as a party taking the children out of state or mortgage foreclosure)
6. Discovery: Includes the answering of interrogatories, depositions, appraisals and evaluations. It must be completed within 150 days from the filing of the complaint.
7. MESP: After completion of discovery (6 months from the date of filing), the contested financial case should be scheduled for hearing by a Matrimonial Early Settlement Panel (MESP). If the case is settled, a divorce will be granted the same day.
8. Case Conference with the Judge: A Case Management Conference (discovery scheduling), or Settlement Conference may be scheduled with the Court at anytime. Litigants (parties) must be present with their lawyers.
9. Trial Date: If both parties cannot settle case, a trial date is assigned to allow both parties to give testimony before a judge makes a decision on the issues.
10. Final Judgment: A judgment granting the divorce and stating the settlement terms of all issues pertaining to the dissolution of the marriage is submitted to the Court for signature by a Family Division Judge.

|Essex Family Division| |Back to Essex Vicinage Main Menu| 


Helpful Sites
https://www.lsnjlaw.org/Publications/Pages/Manuals/DivorceGuide.pdf

http://www.judiciary.state.nj.us/prose/

ESTATE ADMINISTRATION

Proper administration of a decedents estate involves a variety of steps. When an individual passes away, an executor is typically appointed in a will to handle the administration of the estate. In the absence of a will, an administrator is appointed. Regardless of title, either is the representative of the estate and is legally responsible to ensure that all necessary steps are taken to comply with the laws regarding creditors, taxation, and distribution to beneficiaries.

In New Jersey, the executor must initially file the will for probate with the Surrogate of the county in which the decedent resided at the time of his or her death. After this step is taken, the executor is charged with the responsibilities of opening an estate account from which any claims against the estate are to be paid and to retitle the assets from the decedents name into the name of the estate. In order to undertake these steps, a tax identification number must be acquired because an individuals social security number becomes invalid upon death.

In addition, the executor should file a variety of forms with the Internal Revenue Service and the Surrogate to ensure that he or she is not held personally liable for any debts of the estate. There are three primary taxes which are levied upon an individuals death: (1) the federal estate tax, (2) the New Jersey State Transfer Inheritance Tax, and (3) federal and state income taxes. The executor needs to determine whether or not the first two taxes are to be paid. However, the income taxes must always be addressed by an executor on income generated on estate assets between the decedents date of death and the date of distribution to beneficiaries.

In order to properly conclude an estate, an accounting must be given to all beneficiaries and a release and refunding bond signed by each beneficiary which is then filed with the Surrogate in which all beneficiaries acknowledge the receipt of their share of the estate, discharge the executor from further obligation to the estate, and accept pro rata responsibility for any proper debts imposed upon the estate subsequent to receiving distribution.

In many cases, a trust is established either as part of a will or as an independent document. The trustee has a very serious responsibility to all beneficiaries of the trust. The trustee is responsible for complying with the Prudent Investor Act. This law requires that the trustee invest the trust assets prudently. Prudently means that not only must the assets be preserved but they must be invested for grown for the benefit of the beneficiaries. Non-professional trustees are best advised to delegate this function to professional trustees or trustee advisors. Family member can continue to serve as trustee under this arrangement.

Another law, which the trustee must comply, is the Principal and Income Act. Under this act, certain items are designated as income and other items are designated as principal. This is extremely important under trust law, as it will affect distributions to various beneficiaries.
Periodic accountings must be rendered by the trustee and they must comply with the Principal and Income Act.

In addition to these two laws, the trustee must file appropriate tax returns. These include federal and state 1041’s, which are income tax returns for the trust and K-1’s, which are given to beneficiaries to indicate income distributions.

An executor, an administrator and a trustee have significant personal liability to taxing authorities and to all of the beneficiaries of an estate. A good faith effort by the fiduciary to be fair and reasonable will not protect the fiduciary from this liability. Serving as fiduciary is a complex undertaking, which should not be attempted without professional assistance.

If you have any questions or would like to discuss your options you can contact me at (973) 652-7989 or email me at scbrennan.esq@gmail.com.

ESTATE PLANNING

A Will declares who shall inherit an individual's assets (the beneficiaries) and who shall be responsible for distributing them to such beneficiaries (the executor). For young parents and couples, a will can also be used to appoint a guardian for their children and a trustee to manage a child's money until they are old enough to handle it themselves.

A Power of Attorney should be executed appointing an agent to protect ones person and property in the event of disability. Individuals, who become disabled mentally and do not have a power of attorney, can only be protected by an expensive and humiliating procedure known as a guardianship, whereby they are judged to "incompetent" in the public forum of a court.

A Living Will or Advance Directive should be signed to set forth ones intentions in a situation where there is no reasonable hope of their recovery or regaining a meaningful quality of life. A living will is often combined with a healthcare power of attorney appointing a loved one as healthcare representative to assist in making end of life decisions.

An often overlooked aspect of estate planning is the coordination of benefits. A will disposes of assets forming part of the probate estate. The probate estate or assets only in the name of the decedent. Jointly owned property, life insurance, retirement plans, annuities and other assets pass outside the probate estate and are not governed by the will. All of these assets must be coordinated to accomplish the individuals estate plan.

What does a Will do?
A Will is the legal document that allows you to distribute your property to those you choose. A Will allows you to designate beneficiaries to receive specific items from your estate, and other beneficiaries to receive everything else. For example, if you want your house, your car, or your antique thimble collection to go to a certain person or organization, you designate that person or organization as the beneficiary.

Who's going to make sure that your antique thimble collection goes to the proper person? The executor of your Will. The executor's the person you designate to carry out your wishes.

A Will also gives parents of minor children the chance to nominate a guardian. The court makes the final decision when appointing a guardian for your children after your death, but the court will usually accept your nomination. A guardian’s legal responsibility is to provide for your child’s physical welfare.

What does a Living Trust do?
A Will comes into play only after you die, but a living trust can actually start benefiting you while you are still alive. A living trust is a trust established during your lifetime. It is revocable, which allows for you to make changes. You will transfer substantially all of your property into your living trust during your lifetime, and any omitted assets can be transferred into the trust at the time of death through the use of a simple Pour-over Will. You should always make a Pour-over Will at the time that you establish your trust.

A living trust will be used as the mechanism to manage your property before and after your death, as well as provide how those assets, and the income earned by the trust, are distributed after your death. If you should become incapacitated or disabled, the trust is in place to manage your financial affairs, usually by a successor trustee, if you were serving as trustee. A living trust is not subject to probate, and therefore, all provisions of the trust will remain private.

Joint living trusts are also possible. They simply combine the assets of a husband and wife into a single trust, governed by a single trust document. However, if estate tax minimization is important (for combined estates which will exceed $625,000), the joint living trust must be very carefully drafted with the help of an attorney in order to achieve the desired goals.

What happens if I don't have a Will or Living Trust?
The legal term for dying without a Will is dying intestate. If you do not specify through a valid Will or Living Trust who will receive your property, state law controls and generally distributes your property to your spouse and/or your closest heirs. This may or may not be what you intended. Furthermore, if you fail to nominate a guardian for your minor children, the state could appoint someone you don't trust as a legal guardian of your minor children. Finally, by failing to appoint someone to carry out your wishes, the state can appoint anyone to be the administrator of your property, and the administrator may have to pay certain fees or post a bond at the expense of your estate, before he or she can begin to distribute your assets.

If you have any questions or would like to discuss your options you can contact me at (973) 652-7989 or email me at scbrennan.esq@gmail.com.



DOMESTIC PARTNERSHIPS/CIVIL UNIONS

New Jersey appellate court, in N.M. v. Division of Medical Assistance and Health Services, 405 N.J. Super. 353 (App. Div. 2009), certif. den., 199 N.J. 517 (2009), held that an annuity purchased for the sole benefit of the community spouse after the effective date of the Deficit Reduction Act of 2005 (DRA) may be considered in determining whether the resources of the institutionalized spouse exceed the resource limit for Medicaid eligibility. This case is one of major importance in the Medicaid estate planning area, and it is a major setback for those trying to help couples protect sufficient assets for the community spouse to live on when the ill spouse is institutionalized. However, based upon recent case law developments in other states, it appears that the New Jersey court’s analysis in the N.M. case may be less persuasive than anticipated. In that regard, courts in Ohio and Massachusetts have recently ruled, contrary to the court in New Jersey, that a community spouse’s annuity purchase is not an improper transfer.

Civil Unions are not recognized under federal law. As a result, Medicaid, which is a quasi state and federal program for the elderly, disabled or indigent, does not allow for distribution of assets protection. Therefore, we must be creative in establishing alternative avenues for gay and lesbian couples, domestic partners or civil union couples.

Having a prudent estate plan is one solution. Planning ahead of the Medicaid five year lookback period by establishing a Family Trust or transferring real property by deed, are the kinds of vehicles one can use to provide for a surviving partner.

If you have any questions or would like to discuss your options you can contact me at (973) 652-7989 or email me at scbrennan.esq@gmail.com.

ELDER LAW

Elder law covers an area of legal practice that places an emphasis on those issues that affect the growing aging population.

GUARDIANSHIP
A Guardianship is a protective arrangement established by the court system on behalf of a mentally incapacitated individual. Most frequently, Guardianships are established on behalf of older adults who have lost mental capacity due to senile dementia, major strokes, and severe mental illness, among other conditions. A guardianship is a protective arrangement covering the personal, medical and financial well being of a minor or a mentally incapacitated adult.

Is a Guardianship necessary?
Typically, Guardianships are established when an individual has lost mental capacity and no one can lawfully act for him or her due to the absence of a Living Will and Power of Attorney. However, a Guardianship can also be established even if these documents exist when there is evidence that the individual who is the Agent under a Living Will or Power of Attorney is abusing their authority.

There are two types of Guardianship: 1) Guardian of the Person, and 2) Guardian of the Property. The Guardian of the Person is in charge of making personal and medical decisions on behalf of a mentally incapacitated individual. The Guardian of the Property is in charge of making financial decisions on behalf of such an individual. More than one person can serve as Guardian. Also, there can be Co-Guardians where two or more individuals will have equal authority over both personal and medical matters and financial matters.

How to Become a GuardianIn order to become a Guardian, a petition must be filed with the Superior Court, which is located in the County where the mentally incapacitated individual is domiciled. The paperwork to establish a Guardianship is filed in the Surrogates Office and is heard before the Judge who presides over the Probate Part of the Chancery Division.

Although any responsible adult may serve as a Guardian, there is a State statute, which designates a priority of who can serve. The first person who has the right to serve as a Guardian is the mentally incapacitated individuals spouse. If a spouse is unable or unwilling to serve, an adult child may serve. Afterwards, the State statute details priority as to parents, siblings, and more distant relatives and/or friends.

Three documents must be filed with the court in order to start a Guardianship. They are a Verified Complaint, Affidavit as to Estate, and Order to Show Cause. The Verified Complaint is the centerpiece of the papers, which must be filed. The Complaint must contain a variety of information including the health and limitations of the alleged incapacitated individual, a list of the names and addresses of immediate family members, and a statement as to the need for a Guardianship. The person who is filing this Complaint must sign the Complaint personally to affirm that the facts in the Complaint are accurate. More importantly, the Complaint must be accompanied by two Certifications from physicians who have examined the mentally incapacitated individual. These Certifications must be based upon examinations that occurred no longer than thirty (30) days prior to the filing of the Complaint.

The Affidavit as to the Estate details the income, assets and liabilities of the mentally incapacitated individual. The Order to Show Cause is a document which the Judge executes that sets forth: 1) a date for hearing at which the Guardianship will most likely be established, 2) the names of addresses of the individuals who must be notified of the proposed Guardianship, and 3) the appointment of an independent attorney to represent the interests of the alleged mentally incapacitated individual.

After the hearing date has been established, notices to interested family members about the hearing are sent via certified and regular mail. The mentally incapacitated individual is served as well. He or she is served personally. The court appointed attorney visits with the mentally incapacitated individual to determine whether or not he or she is indeed incapacitated, and to annunciate any reasonable wishes from his or her client. This attorney will frequently meet with the petitioning family member as well. After the attorneys visit, he or she usually files a report with the court indicating that the Guardianship is appropriate. In the event that the individual may actually be competent or that the person who wants to be Guardian is not an appropriate choice, that attorney may file an Answer Contesting the Guardianship Complaint.

After some routine paperwork is filed with the court, a hearing is set. The requirements for the hearing vary considerably from county to county. In some counties, neither the attorneys nor the proposed Guardians need to attend if the matter is uncontested. In most counties, the presence of the attorney and clients is required. In most counties in Southern New Jersey, the petitioning attorney and the court appointed attorney merely ratify the Complaint before the Judge, and the Judge grants the Guardianship. In Central and Northern New Jersey, however, live testimony is taken from the proposed Guardian as to the medical condition of their proposed ward and their desire to be Guardian.

After a Guardianship has been granted, the proposed Guardian needs to execute Qualification Forms before the Surrogate. Afterwards, the Guardian will be issued Letters of Guardianship. In most cases, the Guardian will also need to acquire a bond, which ensures against potential mismanagement or abuse of the mentally incapacitated individuals assets.

CONSERVATORSHIP
Similar to a Guardianship except that it is Voluntary. In New Jersey, it is utilized as a protective arrangement for individuals who are not mentally incapacitated but are frail and do not feel that a power of attorney can protect their interests. It is important to note that a conservatorship only provides for property management. It does not allow for decision making as to an individuals personal or medical needs.

If you would like more information on guardianships and Elder Law issues, you can contact me at (973) 652-7989 or email me at scbrennan.esq@gmail.com.

MEDICAID PLANNING

According to a study published by the New England Journal of Medicine almost half of all Americans will spend some time in a nursing home. The average cost of a nursing home in the United State is approximately $9,000 per month, and in some areas it exceeds $10,000 per month.

There are five ways to pay for a nursing home: private pay, long-term care insurance, Medicare, Veterans benefits, and Medicaid. Only about 5% of Americans have long-term care insurance. Many are uninsurable or cannot afford such insurance. At most, Medicare pays part of 100 days. Less than 1% of nursing home residents are receiving Veterans benefits.

The major alternative to private pay is, therefore, Medicaid. By carefully designing a thorough Medicaid plan, security can be ensured for the Community Spouse and a legacy can be preserved for children. Failure to design a sophisticated plan may result in the Community Spouse being unable to maintain his or her standard of living. In some instances, the family home may have to be abandoned.


There are also asset limits. A Medicaid recipient is usually allowed to retain a small amount of assets, usually in the neighborhood of $2,000. If the person is married, the Community Spouse is allowed to retain a portion of the couple’s assets. Some states permit the Community Spouse to retain one-half of the countable assets with a ceiling of $101,640 for calendar year 2008 and a floor of $20,880. In other states, the Community Spouse is able to retain all of the countable assets not to exceed $104,400.

Certain assets are not counted, such as a home, under certain circumstances, personal effects, wedding and engagement rings, medical equipment, and certain types of burial funds. In a situation where there is a married couple, the assets of both the husband and wife are combined. This is true notwithstanding the fact that a prenuptial agreement may have been signed.

For Medicaid penalty purposes there is a 60 month lookback for transfers of assets. That means Medicaid will review the applicant’s relevant financial records going back five years to determine whether funds have been transferred during that time period. If assets were transferred during the lookback period, Medicaid imposes a penalty. That penalty, which is a period of ineligibility for Medicaid, is calculated by dividing the amount transferred by the average cost of a nursing home in New Jersey as determined by the Division of Medical Assistance and Health Services. The penalty may be for a period of months or partial months. The larger the transfer, the longer the period of ineligibility. The penalty does not begin until the applicant is eligible for an institutional level of care, is otherwise financially eligible (i.e. has spent down assets to $2,000.00) and has no other period of ineligibility outstanding.

Transfers by either Institutional Spouse or the Community Spouse are penalized, however, transfers between Spouses are not penalized. Certain additional transfers are exempt from Medicaid transfer penalty. These include transfers of a house, in certain circumstances, and transfers to certain disabled persons.

Medicaid planning involves a number of tax considerations. These relate to income tax, gift tax, and, possibly, federal estate tax. Failure to comply with the tax law in designing a Medicaid plan usually results in the payment of significant extra taxes. By designing a Medicaid plan taking advantage of the tax law, significant savings can be achieved.

Failure to properly plan for a nursing home stay well in advance might cost approximately $6,500 in additional nursing home costs.This works out to about $78,000 annually.



If you need help in determining if you need medicaid planning or have any questions you can contact me at (973) 652-7989 or email me at scbrennan.esq@gmail.com.

CRIMINAL EXPUNGEMENT 
Expunging Your Criminal Record

Maybe you were arrested for Shoplifting in 1984. Maybe you had a drug problem in a past life and were arrested for simple possession. Whether you pled guilty and you paid your fines, or whether the charges were dismissed, you MUST have the ARREST expunged. Until you go through the court process, your criminal record will never be clean and any background check will show your criminal history. So get your record expunged as soon as possible.

FAQ
How does New Jersey law define expungement?

According to New Jersey law, expungement "shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detention, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system."

How long does the expungement process usually take?

N.J.S.A. 2C:52-9 states that the Court must hear your matter within 35 to 60 days of the date it is filed. Generally, however, the process usually takes a few months from the time you engage our services, but there is no set answer to this question because scheduling depends largely on the Court and its caseload. Various things such as incomplete records that need to be investigated, court scheduling, and/or opposition to your petition from a law enforcement agency may cause the process to be delayed. As much as possible, however, Dan will work to ensure that your expungement is completed as soon as possible.

Can I truthfully state that I have not been arrested/convicted once I have an expungement completed?*

Yes, you can answer that you have never been arrested/convicted once your expungement is complete. The Order that the Judge signs to officially grant your expungement states: "that the arrests, charges, and convictions which are the subject of this Order shall be deemed not to have occurred and the Petitioner may answer accordingly any questions relating to its occurrence."

* - However, New Jersey law states that the expunged records may still be used in certain contexts. For example, the records can be used by the Dept. of Corrections for classifying a prisoner, can be used by a Judge solely for purposes of setting bail, etc. Additionally, N.J.S.A. 2C-52-27(c) states that "Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law."

Can you expunge an old DUI arrest/conviction?

No. However, while permanent, these arrests/convictions are part of your driving record, not your criminal record. While any points will eventually come off (up to three points can be subtracted from your point total each year -- from NJ-DOT-Motor Vehicle Services) the arrests/convictions will remain a part of your permanent driver's record.

Are there any types of arrests/convictions that cannot be expunged?

Yes, arrests/convictions relating to the following generally may NOT be expunged:

- Homicide;

- Kidnapping;

- Luring or Enticing;

- Aggravated Sexual Assault;

- Aggravated Criminal Sexual Contact;
- if the victim is a minor

- Criminal Sexual Contact;
- if the victim is a minor and the offender is not the parent of the victim

- Criminal Restraint;

- False Imprisonment;

- Robbery;

- Arson and Related Offenses;

- Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child;

- Endangering the welfare of a child;

- Perjury;

- False Swearing;

- Distribution or Possession With Intent to Distribute* any CDS, except:

25 grams or less of marijuana, or,
5 grams or less of hashish;

- Conspiracies or Attempts to commit any of the above;

- Crimes or conspiracies/attempts to commit such when committed by a person holding any public office, position or employment, IF the crime "involved or touched such office, position or employment."

*- In certain limited circumstances, intent to distribute charges may now be eligible for expungement. If this may apply to your case, you should call Dan to discuss the details and find out whether your case is eligible. This new interpretation of New Jersey expungement law does not apply to distribution except for the marijuana/hashish exception described above.


Can you have records of federal arrests/convictions expunged?

[a] - Unfortunately, federal law only permits expungements in a few very limited number of circumstances such as expungement of records of young drug offenders, or those where the Court finds "exceptional circumstances." These circumstances are truly exceptional such as proof of government misconduct, statutes later found unconstitutional, etc. Unfortunately, federal courts have squarely rejected those whose circumstances consist of one dumb mistake and now can not find a job to support their family.

[b] - It should be noted, however, that the expungement of arrest[s]/conviction[s] on your state criminal record will cause your federal criminal record to be expunged of those arrest[s]/conviction[s]. As above, however, records that are the result of federal arrests/convictions generally can not be expunged.

I completed PTI and was told my charges would be expunged after six ("6") months.

Will they automatically be expunged?
No. Attorneys and/or Judges in the criminal Courts often advise defendants that the charges they are pleading guilty to are eligible for, will be, or can be expunged, however, there is no automatic expungement in New Jersey. Whether the charges were just dismissed, you participated in PTI, even if you were acquitted at trial, there is typically an arrest and/or other type of record that exists. If unsure, the best way to check whether a record still exists is to check your record with the New Jersey State Police as described below. This record check can be done prior to contacting Dan regarding consultation or can be done as the first step in the expungement process if you may have arrests/convictions that you cannot recall.

If you have any questions or would like to discuss your options you can contact me at (973) 652-7989 for a Free Consultation or email me at scbrennan.esq@gmail.com.

Helpful Site
http://www.lsnjlaw.org/publications/pages/manuals/cyr.pdf