Lawsuits: Fiction v. Reality (part 2)

Step 1: Pleadings

The first step involves one party filing a complaint. This can include:

A complaint in which the plaintiff bringing the suit must set forth the facts supporting the claims and state the causes of action.

  • An answer during which a defendant must admit, deny or deny knowledge of any alleged facts in the complaint.
  • Affirmative defenses, which involve the defendant providing justifications to the complaint.
  • A counterclaim, which is filed when the defendant brings an action against the plaintiff. This means that if you file a lawsuit against someone, he or she might sue you back. If this happens, you now need to defend yourself.
  • A reply to counterclaims, which is similar to an answer.

Step 2: Discovery

After the pleadings, the lawsuit enters the discovery stage. Usually discovery entails:

  • Depositions, where the parties can depose (or interview) under oath the other party before the trial.
  • Interrogatories, which involve each party can ask written questions of the other party prior to trial.
  • Document demands, when each party can request relevant documents from the other party.
  • Subpoenas, which are orders compelling individuals or organizations to produce documents, answer written questions or be interviewed under oath.

Step 3: Motions

A motion is basically a request or an application to a court asking for a ruling. There are many different types of motions as there are pre-trial and post-trial motions. Some of the motions are:

  • To dismiss the case outright before answering the complaint.
  • For summary judgment for the court to make its decision when there is no dispute in facts and no need to proceed to trial,
  • To compel, usually when a party is not providing documentary evidence or required information;
  • To strike usually when a party is violating an Order.
  • To renew or re-argue a previous motion.
  • For pendente lite support, which is a temporary financial support sought during a divorce proceeding.
  • To enforce, this kind of motion asks the judge to enforce the Order and/or to hold the other party in contempt for not following the court’s Order. You can also ask the judge to award you any unpaid money, including child support or spousal support.
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Lawsuits: Fiction v. Reality (part 1)

Did you ever notice how in a television legal dramas almost every court case wraps up neatly during an episode? Unfortunately, in real life the process doesn’t move this quickly and court cases are usually quite lengthy. (That’s just one of the reasons why trials are so expensive.)

A civil lawsuit can be brought over a breached contract, a residential eviction after a broken lease, injuries sustained in a car accident, or countless other harms or disputes. Even an uncontested divorce is still a civil lawsuit. Even if you and your spouse agree to a divorce settlement, you can’t obtain a judgment of divorce until one of you files a complaint to begin the legal process.

A civil case is usually instigated by a private party — a person or business who has allegedly suffered some kind of damage, harm, or injury. In contrast, a criminal case is brought by a prosecutor or other attorney representing the local government. Unlike a criminal case, which is looking to punish the wrongdoer for a crime, a civil case is meant to compensate the alleged victim or right the alleged wrong.

Each state, as well as the federal government, has its own rules and procedures for a civil lawsuit, and may have different names for each of its proceedings. Your legal counsel can explain the procedures. Depending on the type of claim you have (or a claim that might be filed against you) the case may be in state or federal court. A divorce, which is also a civil case, usually will have specific rules applicable specifically for family law cases.

Lawsuits generally must be filed within certain deadlines, called the statute of limitations. The exact time period varies depending on the type of case and the state.

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New Year in New Jersey is Almost Here

Christmas fir tree and alarm clock

The end of another year is upon us, and it seems like 2018 came and went. 2018 brought a lot of changes including some new laws, some interesting legislative bills that may become laws, and some hot legal topics. Let’s recap for a moment:

  • In January 2019, New Jersey’s minimum wage will increase to $8.85, a 25-cent increase from this year’s $8.60 hourly rate.
  • A much-anticipated but controversial bill seeking to raise New Jersey’s minimum wage to $15 an hour was introduced on December 6, 2018.
  • In November 2018 state lawmakers advanced a bill that would legalize the possession and personal use of recreational marijuana.
  • On May 2, 2018, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, which took effect October 29, 2018. The Act, which applies to nearly all employers and employees in the Garden State, guarantees that almost every person employed in New Jersey will accrue paid sick leave.
  • New legislation signed into law on July 1, 2018, made several changes to the New Jersey Gross Income Tax Act at N.J.S.A. 54A:1-1 et seq. as part of New Jersey’s fiscal year 2019 budget. The changes include increases in the New Jersey Earned Income Tax Credit (EITC) and the property tax deduction, and the addition of a new Child and Dependent Care Credit for resident taxpayers.
  • The state’s controversial estate tax died in 2018. Lawmakers voted to phase out the estate tax in 2016 as part of a deal to raise the tax on gasoline to fund transportation projects in New Jersey. The exemption for estates increased from $675,000 to $2 million at the start of 2017. Now, it’s off the books. Note that the state still has an inheritance tax charged to non-lineal descendants who inherit property or money after someone’s death.
  • Thanks to the tax law passed by Congress and signed into law by the President in late 2017, we have a significant change coming to our law regarding alimony. Prior to the law change, any payment that met the legal guideline of alimony could be deducted by the payor on a pre-tax basis, and the receiver of alimony would have to claim the payment as taxable income. Under the new law, any divorce judgment entered after January 1, 2019, in which alimony is payable, shall no longer be tax deductible to the payor and shall no longer be taxable to the payee.

It is important to understand that the above is only general information. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, you should always consult with an attorney.

We hope that you have enjoyed this post and learned at least one new thing or tip that you may not have known.

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Parenting Time During Holidays

Pictures of Vintage Real Santa Claus carrying gift sack

Holidays often bring to us thoughts of presents, tasty treats, and time with family. For a recently divorced family, however, it can seem hard to partake in the holiday cheer, and instead the holiday season can stir up emotions of anxiety, stress and worry. There are ways, however, to make the most of this holiday season with your newly restructured, post-divorce family.

Stay Flexible

Keep in mind that the holiday dates are more important to adults than children. Don’t get caught up in thinking that only the “actual day” can be celebrated. Celebrating holiday time with your loved ones can be special any day of the week. For children, opening presents on December 23rd or even December 30th is just as exciting as Christmas Day or Christmas Eve. Your children are likely to reflect back your feelings and actions, so if you are excited about spending time with them, whatever the day, your kids are likely to share in that same excitement. You may think that you are losing out by not having your children on the actual Christmas Day/Christmas Eve, but your children are likely to view this new arrangement as being able to have two Christmases instead of just one.

Focus on What You Can Control and Do Not Dwell on Things Beyond Your Control

Whatever your parenting plan, you can always make your holiday time with your kids memorable and magical. Schedule your holiday plans around your parenting plan, particularly when there is the potential for conflict. Sticking to the schedule will provide consistency for the children so they learn what to expect and not be disappointed, and decrease the likelihood of any conflict during the holidays. Choose to focus on enjoying the time you have with your children instead of stressing over the time you will be away from them.

Create New Family Traditions

Sometimes engaging in your old family traditions can trigger feelings of loss. Instead, try something new and create new traditions. Perhaps serving meals to the homeless or driving around to look at all the Christmas lights, or baking cookies to gift to the neighbors can create some new family memories and activities.

If part of your holiday involves the children being with their other parent, then use the time your children are away from you to recharge. If you know you might be feeling sad spending your first holiday season without your children, keep yourself busy. Whatever you do, try to stick with the activities you will look forward to doing.

You do not have to turn into the Grinch, the holidays can still be peaceful and enjoyable for you. Stick to your parenting agreement, enjoy your time with the kids (no matter what day), create your new traditions, and your heart may grow three sizes this season 😊

If you have questions about your parenting agreement or co-parenting over the holidays after divorce, we can help. Contact us to talk with an attorney and set up your initial consultation.

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Family Law and Mediation

Family law mediation or divorce mediation is a low conflict process that you can use to help you reach an amicable agreement without a lengthy court battle.

In divorces, emotions can quickly spiral out of control, complicating matters and causing unnecessary problems. Unlike traditional divorce litigation, the primary goal of mediation is to help minimize hostility between the couple and reach a mutually satisfactory resolution. That is why divorce mediation or mediation for child custody, alimony, division of assets, etc., can be instrumental in helping you avoid the conflict, time and expense of litigation.

Parties participate in mediation for many reasons. Sometimes, the mediation is court-ordered. Sometimes, parties believe that mediation will allow them to save time and money. Whether the mediation is mandatory or voluntary, the parties coming to the mediator’s table must want to settle their differences for this process to be successful.

After the conclusion of negotiations, if the mediation is successful and parties reach an agreement, the mediator or the attorney for one of the parties, outlines the terms of the agreement, either verbally or in writing. Either way, the verbal communication of the terms reached in the mediator’s office or the written outline should contain a basic understanding of the parties’ agreement, which is to be incorporated into a settlement agreement or other form of consent order.

But what if one of the parties changes their mind and opposing counsel threatens to file a motion for a Harrington hearing? Is there a binding agreement or not?

There is case-law in New Jersey that dictates how post-mediation issues are to be resolved. For example, the name for the Harrington hearing comes from the 1955 case Harrington v. Harrington in which the court enforced a purported settlement reached during a court-ordered mediation session after a plenary hearing. Since then law has evolved, but it is still in your best interest to take the terms of your settlement agreement seriously or you may end up in court to see how that case-law applies to your situation.

That is why, always confirm your understanding of an agreement, as well as your adversary’s, prior to leaving mediation. If the agreement requires further consideration, speak up. If there are contingencies or conditions that must be met, take the time to address the unresolved issues. Set a follow-up date by which the parties may accept or reject the agreement or set a follow-up mediation date to resolve any other issues.

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Friendsgiving and Estate Planning

Carving the Christmas Turkey

Friendsgiving is the celebration of Thanksgiving dinner with your friends. This “holiday” usually takes place on the Wednesday before or the Friday after Thanksgiving Day, since Thanksgiving is usually reserved for family gatherings.

In the past few years or so, hosting a Friendsgiving among friends has become a standard part of the celebration for many young adults. Some are celebrating Friendsgiving because they are far away from family on Thanksgiving, but near friends. Others treat it as an additional celebration, but one that is just for friends.  

Friendships are important, and as families themselves have changed, and nonrelatives have assumed family-like roles in people’s lives, more and more people think about their friends while considering their estate planning. Estate planning is not just about distributing your things after you are dead, but it is about recognizing the relationships you have created while living – by stating what you wish to leave and to whom, whether to a family member, friend, your beloved charity or even your pet. To do that you need to know how to control the distribution of your assets according to your wishes.

Since the law dictates how property must be distributed in the absence of other instructions, such as when there is no Last Will and Testament; there are mechanisms that allow you to ensure that people who you choose, receive things you leave for them. So, would you rather wish to pass your belongings to the people most likely to enjoy or need them, or just leave everything to your genetic family, even if you do not know/like them? 

Inheritance laws do not recognize automatic distributions of your assets to anyone other than your direct family. The law will ensure that your spouse and children are provided for first, followed by parents, grandkids, and then other relatives. Even if you have no living relatives, your belongings will not go to your friends; they will go to the government. So, if you want someone other than your family or the government to take anything from your estate after death, you have to make that wish known.

You can leave items to people in your will or via a living trust, or you can give them away while you are still alive, but whatever you do – you must plan now while you are still alive and of “sound mind.” 

If you think your family might fight the transfer of your property to your friends, they may have a legal right to do so. A gift given during your life, when you are sane and able to make your own decisions, is much less likely to be subject to any challenge, than any gift you try to make after death. That is why your Will needs to be very specific and your distributions cannot contradict the law. 

In many states, you can make a separate list of items with information about and who you want to inherit them, then refer to that list in your Will. You will not be able to distribute money or other intangible property this way, but actual items of sentimental value can go to whom you deem most worth it. 

As laws pertaining to estate planning and inheritance rights vary between jurisdictions, for the best advice on estate planning and inheritance law, you should contact an attorney in your area.

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What NOT to do when going to court

Weight scale in courtroom. Legal system.When appearing in court you are expected to follow certain rules. One of the most important things to keep in mind is to make sure you do not miss your court date. Failing to appear for court can result in serious consequences such as having a default judgment entered against you or having a bench warrant issued out for your arrest. Unless your absence has been excused by the court, it is in your best interest to show up when expected.

Another thing that a lot of people forget is that the court room is a professional and serious place. As such, dressing appropriately is expected. Although there are no written rules on how you should dress, certain clothing is just not acceptable. Be sure that whatever you plan on wearing is clean and on the conservative side. Lawyers are required to wear suits, but you don’t have to dress quite this formal. Use your common sense, and don’t wear anything that can draw negative attention to yourself.

During your hearing, be sure to approach the judge and anyone else of higher authority with respect. You must stand and address the judge as “Your Honor” and refrain from speaking over them. If you are asked a question, do not just nod, answer verbally. Speak clearly and loud enough for the courtroom to hear you and get to the point. Avoid using profanity or any other remarks that may be inappropriate. Do not speak with gum in your mouth. Many people find it very disrespectful when they are spoken to by someone who is chewing gum while talking.

Be prepared. Know your case. This way the judge will know that you are taking the case seriously and that way, he or she will take you seriously. Have all of your paperwork organized and accessible and be ready to provide anything that your lawyer or judge might need.

 

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