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By:  Albertina Webb, Esq.

In response to the increase in the number of emergent appeals, both to the Appellate Division and the Supreme Court challening orders of incarceration for nonpayment of child support obligations, the Supreme Court approved a revision to the Order for Relief to Litigant – Enforcement of Litigants Rights (ELR Order) to help litigants try and avoid going to jail.  The revision to the form require that the court make specific factual findings regarding the courts determination of the litigants lack of financial ability to pay the child support and the litigant obligor’s ability to comply with prior child support orders.

The Court took action on Monday in an attempt to make sure that litigant’s constitutional rights are not violated, especially for people who cannot truly afford to pay the court ordered child support amount.  But how do you know when a litigant is really telling the truth?

Judges will now have to advise parents charged with violation of a court order that they have a right to obtain counsel.  The Judge will also have to make two additional findings, i.e., whether the parent is indigent for representation.  If the answer is yes and counsel is not provided, the parent cannot go to jail.  If the answer is yes and counsel is provided or they are found not to be indigent, the court must then make a finding whether they can afford to pay the child support obligation, i.e., their ability to pay.

These additional requirements should permit parents the fair opportunity to either obtain counsel, present adequate information regarding their true ability to pay the child support obligation or prepare them for the impending incarceration if they continue to avoid paying their child support obligation or are found to be less than truthful in their ability to pay.

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

Posted by:  Albertina Webb, Esq.

Believe it or not, your participation or lack thereof, with your attorney, can either help or hurt your divorce process.  That could mean the process taking longer, costing more or actually proceeding to trial as opposed to being resolved either through mediation, four-way or after an early settlement panel (ESP).   Keep in mind that it is your divorce and your attorney is just a tool or, for lack of better words, a mouth piece to advocate for you.  If you give your attorney all relevant information (whether verbally or through documents or other ancillary proof and if you are not sure if it is relevant, just ask your lawyer) you will be helping to complete the paperwork necessary to formulate a global settlement agreement which will lead towards your ultimate goal…. a divorce.

If you give your attorney false information, that does nothing but hinder the process, show bad faith to the adversary, your soon to be ex-spouse and possibly the judge.   It lets your attorney know that you will be a difficult client and will make them consider filing a motion to be relieved or to withdraw from representation in your case.   If your false information involves the children, you can possibly risk a change in custodial arrangements.  The best road to take is the high road and avoid the cliche of a knock-down dirty divorce.

If, on the other hand, you are compliant with your attorneys requests, ask questions and take an active role in participating with the process, you may find (despite having an angry spouse on the other side) that you will understand and appreciate the process, the process should move along faster and smoother, and you will ultimately end up spending less money to your attorneys and leave extra money for yourself and/or your children.  If you are having difficulty with emotions, seek help or advice from a mental health professional or a religious advocate.  A divorce is a process and can be long or longer.   In the long run, the only thing that matters is that you are healing and heading towards a better way of living.

Posted by:  Albertina Webb, Esq.

In a case of first impression for the Third Circuit, Judge Maryanne Trump Barry has held that a husband’s estate can sue to enforce a provision in his divorce agreement which resulted in the ex-wife’s waiver of his retirement account.

The agreement, resolving the parties divorce issues, was finalized approximately nine months before he died without a will.  The ex-wife, sought to receive those very same benefits, despite signing the agreement confirming her negotiated agreement that she would not receive those benefits in equitable distribution in exchange for other benefits.  The snafu occurred because after the divorce, Mr. Kensinger forgot to notify his employer to remove his ex-wife as his beneficiary from his 401-K plan with his employer, URL Pharma, Inc.

In In Estate of Kensinger v. URL Pharma Inc., the panel was unanimous in its decision, which partially reversed a District of New Jersey opinion.  This is a good reminder that immediately upon divorce, all beneficiaries must be changed in accordance with the parties agreement.

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

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.

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.