Estate Planning & Divorce

Will & Testament Once you are divorced, your former spouse is usually not entitled to inherit any money from you upon your death. But can you protect your assets from your soon to be ex-spouse during a divorce, should you die during your divorce proceedings? Assuming you have a Last Will and Testament, and you left assets to your then-beloved spouse to protect him or her in the event of your death, contrary to what you may think destroying your Will is not a solution here. Why? It is because under the New Jersey probate law, if you are married and die without a Will (which is what will happen if you destroy your Will without creating a new one), a large portion of your assets, possibly even all your assets (both marital and non-marital), will pass onto your surviving spouse.  Additionally, your surviving spouse will be entitled to be the Administrator of your estate.  If you are in the middle of a divorce or even contemplating a divorce, this will likely be the last thing you would want. So if you do not want the person you are divorcing to receive all your assets, creating a new Will gives you a much better control over where your assets should go. It also allows you to pick your own Executor.

But note that even with a new Will, you usually cannot completely cut out your spouse mid divorce.  Also, depending upon how far along you are in the process of your divorce, New Jersey’s Elective Share Statute may still allow your surviving spouse to claim up to 1/3 of your estate.  Because even though you may be divorcing, as long as you are still married at a time of your death, your spouse is still entitled to some share of your assets.  Even if your surviving spouse is unable to collect his or her elective share, the Court may then intervene if it thinks it would be inequitable to completely cut out your surviving spouse.  A new Will then, does not serve as a tool to completely cut off your spouse, but rather it can limit and specify as to what share and which of your assets your spouse can claim. New will still gives you more control over your own affairs, as opposed to relying on your old Will or the Probate.

In addition to writing a new Will, to further protect yourself you should consider adding certain provisions in your separation agreement whereby you and your spouse waive your right to claim the elective share.  You can also add provisions for any life insurance, retirement plans and educational savings accounts owned by either you or your spouse.

When drafting a new Will, keep in mind that your choice of trustee or guardian for your children might also be affected by your divorce.  For example, if you name a relative of your former spouse as a trustee, he or she may be ineligible to serve as a trustee of any trusts for your children unless clear instructions are provided.  You may also wish to revisit your guardianship designations to make sure that they are still appropriate given your current and changing circumstances.

Finally, do not forget to speak with your parents and siblings about their own estate planning documents.  If they have money passing to your spouse under the terms of their own Wills, or if you or your spouse are named as guardians, your family may wish to update their Wills as well to reflect their present wishes.

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Prenuptial Agreements v. Postnuptial Agreements

Most people have likely heard of prenuptial agreements, frequently referred to as “prenups.” These agreements are created and entered into with an aim to reduce conflict and ensure that issues such as property division and debt allocation are handled smoothly and efficiently in the event of a divorce. Prenuptial agreements are particularly useful for people who have assets and/or children from previous relationships.

But couples are not disqualified from creating such a protective agreement once they are married. Couples already married can still avail themselves of the same benefits that the prenuptial agreement can provide by executing a postnuptial agreement.

Simply put, in a premarital agreement, the parties are not yet married, but plan to be. In a property settlement agreement (marital settlement agreement), the parties are already married, but plan to be divorced. By contrast, a postnuptial agreement is typically intended to cover those situations where the parties did not enter into a premarital agreement before getting married, want to remain married and have no imminent intention of getting divorced, but are still concerned about the possibility of divorce and the effect a divorce could have on their finances. 


Entering into a prenuptial or postnuptial agreement does not mean that one’s marriage is troubled or that the parties are skeptical about their marriage’s long-term viability. It is more like having disability insurance. While having such insurance does not mean that the person will ever need it, it merely provides a much-needed safety in the event that something does happen and the person becomes disabled and unable to work.

Some couples do, however, enter into postnuptial agreements, contemplating divorce yet willing to entertain an idea of reconciliation. Agreements created for such couples must especially be entered into with full disclosure by both parties. An independent representation by separate counsel for each party is also highly recommended. Moreover, an absence of coercion or duress, and terms that are fair and equitable are required. Unlike premarital agreements, it is no longer enough that a postnuptial agreement was fair when negotiated and executed. It must also be fair when it is sought to be enforced.


As with a prenuptial agreement, it is important that the two spouses give their mutual consent and that, when drawing up the contract, they hide no assets or liabilities from each other. At a minimum, both parties’ tax returns, and their respective statements of net worth (reflecting assets and liabilities, with stated values) should be exchanged. Less than complete disclosure could be grounds for invalidation of the agreement in the event of a divorce.

To summarize, in a prenuptial agreement, while pressure exists on both parties due to an impending marriage, in theory each party remains free to make their own decisions and look out for what is best for them. They are also free to walk away from a marriage that has not yet occurred, with little or no financial penalty. When the parties are already married, they are still free to make their own decisions based on what is in their best interest but it is much harder to walk away from an established relationship and financial ties. In a mid-marriage agreement, also the potential for abuse and the leveraging of power by one individual over another is much higher, and so courts are much more skeptical towards postnuptial agreements.

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Custody War

woman in depression

Here at Teper Law Firm, we get quite a few requests for assistance with custody cases. Frequently, it turns out that the problem is not a true custody dispute where both parents are seeking to be the parent of primary residence or sole custody of the children; rather, it turns out that most of the custody cases we help resolve actually involve some kind of parenting time dispute. Most common custody cases deal with how much parenting time the other parent should get, or some disagreement about how that parenting time is spent, with whom and where.

A true “custody battle” is not that common and that is a good thing, as custody battles are often time nasty, lengthy and expensive.  But whether it is a true custody dispute or a parenting time dispute, cases involving any aspect of custody are never easy. They are fact-sensitive and very emotionally charged. Both parents clearly have a deep interest in the outcome of the case. But the person with the greatest vested interest in the case is the person in the middle of it all: the child.

Parents forget that children should not be involved in their disputes, regardless of the nature of those disputes. Unfortunately, it is not uncommon for the children to become all too painfully aware that their parents do not get along. Children are very observant and intuitive. Whether or not parents fight in front of their children, or complain to them directly about the other parent, often children just sense that something is wrong and they realize that they are caught in the middle of it all with no safe place to go.

Custody cases are determined based upon the best interests of the child. However, it is not in any child’s best interests to be caught in a tug of war between their parents. All too frequently the parents become so embroiled in the fight that they forget why they started fighting in the first place. There are also those custody cases where the fight has nothing to do with the children, yet the children are caught in the middle.

It is very important to realize that custody cases are not an opportunity to extract revenge on the other parent, or an opportunity to use the child as leverage over that other parent. They certainly should not be initiated if the sole goal is to get more money out of the other parent. They are intended to protect the best interests of the child, and determine how to best meet the child’s needs.

When considering whether to file a custody case, it is extremely important to consider how the case will affect the child. This includes recognizing that the children in the middle might feel tremendous discomfort and feel as though they are being disloyal to love both parents equally and want to have a relationship with both. So always remember – children are not possessions. They are not a toy that the parents should be fighting over. Keep this in mind if you or someone you know is dealing with a custody case. Keep the goal—the child’s best interests—in focus and do not use the child just to serve your own needs.


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DUI as Immigration Enforcement Priority


There are many reasons not to drink and drive, and now there is one more. Not only drinking and driving can put you in jail, but now those who are not U.S. citizens can end up getting deported for it as well.

As part of President Obama’s executive action on immigration reform, the Department of Homeland Security (DHS) has a new set of civil immigration enforcement priorities. The new priorities are divided into tiers, tier 1, tier 2, and tier 3 priorities from highest to lowest. Tier 1 includes suspected terrorists, gang members, aggravated felons, and other “undesirable immigrants” viewed as top priorities for removal. Tier 2 includes individuals convicted of three or more misdemeanors, excluding minor traffic-related crimes, as well as individuals convicted of any one “significant misdemeanor.” Under the new memo, “driving under the influence” is now considered a “significant misdemeanor.” Thus, a single DUI conviction could potentially make you a Tier 2 priority for removal enforcement purposes. Tier 3 encompasses individuals who have been ordered removed since January 1, 2014.

The prioritization of immigration enforcement against individuals with DUI convictions is important because the immigration law alone does not explicitly make a DUI conviction a deportable offense. Thus, under the current immigration law, an individual is not supposed to be placed into removal proceedings as a result of a DUI conviction alone, unless the conviction also constitutes a “crime involving moral turpitude” or an aggravated felony, which is rare. While the memo does not change the law, it does mean that Immigration & Customs Enforcement (“ICE”) will be significantly less likely to exercise prosecutorial discretion. In other words, if you are undocumented or removable for any other reasons and you have a DUI conviction, ICE is likely going to push for your removal.

Additionally, another memo discussing the hotly contested deferred actions for parents of U.S. citizen and lawful permanent resident children (“DAPA”), also indicates that individuals with a conviction for a DUI or any other significant misdemeanor may not qualify for this new benefit. (Not yet available anyway).

If you already have a DUI conviction, don’t despair quite yet. The new removal priorities do not mean that you will be automatically deported. You should still have the opportunity to seek relief from deportation. If you are placed into removal proceedings, you should always discuss the specific facts of your case and your relief options with an experienced immigration attorney.

Here in New Jersey, we are already seeing the results of this new policy. Recently, there has been an alarming increase of cases where an individual is arrested by ICE because that person happens to have a DUI conviction (within the last 5 years). It appears, and has been confirmed by an ICE Officer in New Jersey, that DUI is now not just a Tier 2 priority but is quickly becoming one of the top enforcement priorities.

Those who get arrested, often time sit in jail for a considerable amount of time before an immigration judge sets a bond amount. Bond hearings are no joke either, and it should be noted that the DHS is not likely to go below $8,500 for bond in Elizabeth if an individual has a DUI conviction.

If this happens to you or anyone you know, the most important thing is not to panic. Accepting an order of removal is not the way to make the problem go away. If anything, signing such a document means that you agree to be removed (deported) instead of fighting for your freedom.

So, if you do make a mistake of drinking and driving and you are not a U.S. citizen, should you then fight the DUI charge to avoid potential immigration problems? As with many things, the answer is “it depends.”

In other words, if you are guilty “as hell,” and you choose to go to trial over your DUI charge, you may very well end up guilty and now you will have additionally created a record for ICE attorneys to obtain (the trial transcript), in which a police officer testifies under oath as to all of your wrongdoings (degree of intoxication, your bad behavior, the dangers you created, etc.). Plus, if you happen to be undocumented, you will also likely be found guilty of most, if not all other charges, such as unlicensed operation of a motor vehicle and miscellaneous other moving violations.

In summation, just don’t drink and drive. Spare yourself the trouble.

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Social Security Benefits and Divorce

Divorces are never easy but can be even harder financially on elder persons, particularly when one spouse worked but the other one stayed home, worked part time, or just earned significantly less than the “bread-winner” spouse. Luckily, the spouse who stayed home or who earned significantly less may be entitled to some of the benefits earned by the other spouse.

If you were married for ten years or more, your divorce does not terminate your entitlement to your ex-spouse’s Social Security Benefits. That means that if you are divorced, but your marriage lasted 10 years or longer, you can receive benefits based on your ex-spouse’s record (even if he or she has remarried) if:

  • You are unmarried;
  • You are age 62 or older;
  • Your ex-spouse is entitled to Social Security retirement or disability benefits and
  • The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work.

If you remarried then that new marriage would then terminate your entitlement to any benefits based on your former spouse’s record, but it would attach to your new spouse. If your new marriage ends in divorce, annulment or death, the first entitlement might then re-attach. Your spouse’s remarriage does not affect your ability to collect part of his or her benefits.

In order to collect Social Security, you need to be at least 62 years old and your own Social Security Benefit must be less than what you would receive through your ex-spouse’s work record. If you meet these basic qualifications, you would receive up to one-half of your ex-spouse’s benefits. Your ex-spouse does not need to agree to this, he or she will not even receive any notice of this. You can also choose to delay collecting. The longer you wait, the higher the annual amount you can receive. After you reach the age of 70, there is no longer a rate increase for delaying benefits though. You should consider these factors in determining when to choose to start collecting Social Security Benefit through your former spouse. Do not forget, though, that the earlier you collect, the less you will receive and that there are limitations on earned income while receiving Social Security Benefits.

If your ex-spouse has not applied for retirement benefits, but can qualify for them, you can receive benefits based on his or her record if you have been divorced for at least two years.

At the time of your divorce, there are no special orders or papers required for you to later receive your share of your ex-spouse’s Social Security Benefits.

Your collecting your portion of your ex-spouse’s Social Security Benefits has no impact on the amount your ex-spouse will receive when he or she applies. In fact, it does not even have an impact on your ex-spouse’s new spouse collecting or your ex-spouse’s children receiving benefits should they be under 16 when your ex-spouse passes.

If your ex-spouse is deceased, as long as your marriage lasted ten years, you may receive Social Security Benefits based on your ex-spouse’s record. You should be able to receive his full benefits and may collect them when you are 60, or even 50 if you are disabled.

Even if your marriage did not last ten years, you may still be entitled to benefits if:

  • You still care for your ex-spouse’s child or children
  • The child or children have not reached the age of 16 years, or said child or children are disabled
  • The child or children are receiving benefits on the work record of your ex-spouse
  • Your benefit is a type of payment for caring for the child or children
  • Your benefits will terminate when the youngest child reach the age of 16

You have to apply for these benefits though as Social Security Benefits will not be awarded to you automatically. When you contact the Social Security Administration for any of these benefits, they calculate the benefits for which you are eligible, providing you with the highest amount possible. The choices of your benefits would be your own benefits as a worker, your benefits as a spouse, ex-spouse, widow or ex-widow. You will always receive the amount of the highest benefit for which you qualify— but not the benefits added together.

You can apply for benefits on-line by going to You can apply on the phone by calling 800-772-1213 or you can find your local office by going to and making an appointment. To apply for benefits on your ex-husband’s work record, you will need to know his Social Security number. If you don’t’ know it, you can provide his date and place of birth and his parents’ names.

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3 Legal Documents Every Graduating HS Senior Should Have


It’s graduation time, which means your “baby” is finishing High School and preparing to head out into the real world. If you are a parent of such a graduating senior, did you know that your child is “legally” an adult once he or she turns 18? Did you also know that you can no longer make important medical or financial decisions for your adult child without his or her permission?

But your job of being a parent doesn’t automatically stop when your child turns 18.  If there’s a medical emergency or your child asks for financial help, you probably want to be able to help out. So before your son or daughter packs up for summer vacation or even their first semester of college, think about the “unthinkable” – is your child protected should anything happened to him or her while away from home?

If your child is over 18 and injured or otherwise unable to speak on his or her behalf, without necessary legal documents, you will not be able to act on his or her behalf, because while your 18 year old may still be a baby to you, in the eyes of the law he or she is now an adult. That means that you’ll now need written permission to make important medical or financial decisions on his or her behalf.

For example, if your daughter is having a problem registering for fall classes because she’s missing medical records, you can no longer just ask her doctor to release the records without your daughter’s explicit permission. Even worse, if your son gets injured while working during summer or becomes sick hundreds of miles away from home while traveling, who will make necessary medical decisions for him?

If you didn’t have specific legal documentation in place that gave you permission to make important medical and life-saving decisions for your child, the hospital or doctors could easily bar you from being involved in your child’s care.

Most parents just assume they can make medical decisions on their child’s behalf until they are legally married, but that is just not the case.  Doctors and financial institutions must follow privacy laws. They will not bend the rules for an upset parent or anyone else.

As a result, you need several key legal documents if you want to make important decisions for your child. Many parents have found themselves in the nightmare scenario where their child needs medical attention and they are hundreds of miles away from home, but the hospital refuses to provide a simple status update, all because the right documents are not in place.

So to avoid all this, parents of graduating seniors should take some time this summer and create 3 simple documents with their “adult” son or daughter, which will give them permission to intervene medically and make life-saving decisions on their child’s behalf, if needed.

They consist of the following:

  1. Advance Health Care Directive – This document allows a young adult to appoint someone they trust (usually the parent) to be their health care agent should they end up in a coma or become otherwise incapacitated in a serious accident. It also specifies the type of long-term care or life support the child would want should they become incapacitated or left in a permanent vegetative state.
  2. Financial Power of Attorney (POA) – Having a financial power of attorney is necessary to give someone (preferably the parent) permission to access any bank accounts and act financially on the adult child’s behalf if an emergency occurs. Such activities covered under the power of attorney include paying bills, buying or selling assets, applying for social security or other government benefits and the opening and closing of accounts.
  3. Signed HIPAA Form – Parents should have their adult child pre-sign a HIPAA form to ensure they can immediately communicate with the child’s physicians and access important medical records.

Finally, for added protection, we also recommend creating an ICE Card (In Case Of Emergency Card) to be kept in the child’s wallet listing the names of all approved emergency contacts, health insurance information and all known allergies.

Create these 3 legal documents before summer officially begins. It’s the peace of mind you and your child deserve if the unthinkable happens. Now is the perfect time to ensure your child has the basic legal protections they need as a newly minted adult.

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Expanded DACA & DAPA – Fifth Circuit Denies Emergency Stay as Underlying Case on Immigration Action Proceeds Further

Yesterday (5/26/2015), a federal appeals court decided that President Obama’s most recent executive action on immigration (expanded DACA & DAPA) is to remain on hold during a further legal fight over presidential decision to provide as many as 4 to 5 million immigrants with a temporary relief from deportation. That means that the court rejected the administration’s request to lift an order blocking Obama from expanding his program for illegal immigrants who entered the country as children (DACA) and creating a new program for illegal immigrant parents of U.S. citizens (DAPA).

The 5th Circuit Court of Appeals voted 2-1 to deny an emergency stay of an injunction U.S. District Court Judge Andrew Hanen imposed on Obama’s plan back in February at the request of Texas and 25 other states challenging the president’s executive action. Hanen declared that Obama’s actions violated federal law because they were not properly announced and opened for public comment before being put into effect. Judge Hanen, however, did not rule explicitly on whether the president even has the legal authority to carry out such actions.

Writing for the majority, Judge Jerry Smith said the Justice Department had not met the legal standards required to block the lower court ruling. She was joined by Judge Jennifer Elrod, in stating that the federal government had failed to show that Hanen erred when he concluded that the new program amounted to a formal rule that should have been put through formal notice-and-comment procedures. The Obama administration claims that the policy involves the exercise of case-by-case discretion, but the appeals court found the evidence on that point to be conflicting and said Hanen’s conclusion wasn’t “clearly erroneous.”

The Obama administration can now turn to the U.S. Supreme Court, or Justice Department officials can wait until the 5th Circuit rules on the actual merits of Hanen’s legal rationale for the injunction he entered in February. A different panel of the appeals court is expected to hear arguments on those issues in early July.

Judge Stephen Higginson, the sole Democratic appointee on the 5th Circuit panel, dissented from Tuesday’s ruling. He portrayed Obama’s actions not as favors for certain groups of illegal immigrants, but a logical effort to prioritize deportation efforts. Higginson said he believes the lawsuit brought by the states is “non-justiciable,” meaning it is in a category of disputes the courts refrain from ruling on because doing so would impinge on the executive branch’s traditional authority.

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